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Monument attorney facing jail in Drake emissions dispute to learn fate next month

January 6, 2017 Updated: January 7, 2017 at 7:11 am
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The stacks of the Martin Drake Plant emit steam, but stand in stark contrast to the majestic mountains that are the backdrop for Colorado Springs. Wednesday, April 16, 2014. (The Gazette/Jerilee Bennett)

DENVER - Monument attorney Leslie Weise likely will learn Feb. 13 whether she will be sanctioned, fined or even jailed for six months under a contempt citation sought by Colorado Springs Utilities and the city, Colorado Chief Appeals Judge Alan M. Loeb indicated at a Friday hearing.

The city and Utilities pressed for the citation after the state Court of Appeals inadvertently sent Weise the very Utilities document she had been fighting for in court.

Weise said she returned the document on sulfur dioxide emissions without keeping a copy, as ordered by the court Nov. 16. But she also told The Gazette that one section of the document produced by AECOM Technical Services showed that sulfur dioxide emissions from the coal-fired Martin Drake Power Plant had violated federal standards.

Utilities officials have disputed that claim.

Senior Judge Jose D.L. Marquez, who retired from the Appeals Court, will conduct the evidentiary hearing next month, said Loeb.

The case is "not a criminal matter, but it is a serious matter," the chief judge said.

The contempt case is separate from Weise's continued push for the court to order release of at least Exhibit D of the AECOM report. The city-owned Utilities hired the firm in December 2013 to help with air-quality assessments and modeling and with meteorological monitoring, the firm's contract shows.

Utilities has refused to release the document, citing attorney-client privilege.

Its request for proposals before hiring AECOM did not call for the work to include legal advice.

Weise said the reference to attorney-client privilege is "an egregious abuse" of the Colorado Open Records Act (CORA).

But Utilities was anticipating lawsuits, spokeswoman Amy Trinidad said, so it hired AECOM to help with legal services as the state Air Quality Control Commission and U.S. Environmental Protection Agency sought to determine whether the city's sulfur dioxide levels meet air quality standards.

The state's Air Pollution Division "does not entirely dispute that there may be violations of the maximum (standard)," staff engineer Lisa Devore said at the state air quality commission's hearing last year. "Modeling shows non-attainment, but historic monitoring shows attainment. They're showing two different things, so we need to classify it as non-classifiable."

That categorization bought Utilities extra time to prove that it has met sulfur dioxide emissions standards for three consecutive years.

Weise first went to Denver District Court to get 11 emails exchanged by state Health Department staff regarding those levels. Denver District Judge Shelley J. Gilman rejected her request in December 2015.

After Utilities turned down her CORA request for the AECOM report, she went to El Paso County District Court, where Judge Edward S. Colt upheld Utilities' denial. That's when Weise decided to try again in the state Appeals Court.

The prospect of possible sanctions against her prompted more than 1,400 Coloradans to sign a petition on change.org, urging Utilities to drop that action and release the report.

The Manitou Springs City Council and Mayor Nicole Nicoletta also expressed concerns about air quality in their community, which sits in the Drake emissions pathway.

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