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Sulfur-dioxide emissions from Drake plant violated federal standards, attorney says

November 21, 2016 Updated: November 22, 2016 at 7:32 am
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A loader moves coal outside Colorado Springs Utilities' Drake Power Plant in Colorado Springs Thursday, Sept. 11, 2008, toward the hopper that will transport the fuel into the power plant. Photo by CHRISTIAN MURDOCK/The Gazette file

An accidentally disclosed report shows that sulfur-dioxide emissions from the coal-fired Martin Drake Power Plant violated federal standards contrary to filings by Colorado Springs Utilities, says Monument attorney Leslie Weise.

Weise was making her third court attempt to get that data when the key report suddenly materialized in her computer last week. The Colorado Court of Appeals inadvertently sent her the air-quality report that Utilities and a 4th District Court judge refused to release.

The report shows that the Drake plant consistently exceeded federal limits on SO2 emissions, said Weise, a clean air advocate, who was obligated to return the report to the court but was not barred from discussing what she read.

Now Weise is asking the Court of Appeals to call an emergency hearing to release Exhibit D of the report by AECOM Technical Services Inc., hired by Utilities in December 2013 to help with air-quality assessments and modeling and meteorological monitoring, according to its contract.

Utilities on Monday denied that the AECOM report contained emissions data.

"The information developed by AECOM is not data on actual emissions from the plant," spokeswoman Amy Trinidad said by email. "Actual emissions data has been and continues to be made publicly available."

Weise replied, "None of the information provided demonstrates compliance with the EPA standard for safe levels of sulfur dioxide. In fact, the only formal studies Utilities (and multiple other professionals who have also studied the air quality in the area) have conducted show just the opposite - consistent violations of the health-based standard."

Her motion to the Appeals Court says, "Exhibit D holds nothing other than air quality related technical information ... "

She said the report echoes the findings of two modeled analyses by professional firms that found violations of SO2 standards. One was obtained by the Sierra Club; the other performed by engineer Maureen Barrett, principal at Air Expertise Colorado LLC.

The Appeals Court's inadvertent sharing of the AECOM report shows several things, Weise said in the motion she submitted Monday:

◘ Records affecting public health and safety "have been improperly withheld" though people near Drake might be exposed to dangerous levels of SO2. Weise's 10-year-old son attends a Colorado Springs charter school in the Drake emissions plume.

◘ Utilities "has consistently declared to the public and regulatory authorities that it is in compliance with those (SO2) regulations and standards" though it had a duty to report its findings of violations to the U.S. Environmental Protection Agency.

◘ Withholding the report by citing attorney-client privilege was "an egregious abuse of the CORA (Colorado Open Records Act) laws."

CSU spokeswoman Trinidad wrote, however, that AECOM was hired in anticipation of lawsuits by the Sierra Club and others "to develop information to assist the City Attorney's Office in providing legal services related to the Air Quality Control Commission and Environmental Protection Agency (EPA) proceedings concerning whether levels of sulfur dioxide in Colorado Springs meet air quality standards."

If erroneous data were provided, the Colorado Department of Public Health and Environment "would investigate each or any set of circumstances individually and make the appropriate determination of what our actions would be," said communications director Mark Salley.

The Sierra Club and Natural Resources Defense Council filed a complaint in U.S. District Court in August 2013, saying the EPA failed to create SO2 designations for all areas of the country within the time frame provided under the Clean Air Act.

A federal consent decree issued in March 2015 included an order for Colorado to review SO2 levels in the Pikes Peak Region.

That August, the Colorado Air Quality Control Commission voted unanimously to label Drake "unclassifiable" because data were insufficient, giving the plant an extra three years to meet the standard.

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 that hearing. "Modeling shows non-attainment, but historic monitoring shows attainment. They're showing two different things, so we need to classify it as non-classifiable."

Weise went to Denver District Court in pursuit of 11 emails on those SO2 levels exchanged by CDPHE staff.

Denver District Judge Shelley J. Gilman rejected her request in December 2015, saying the emails must be confidential to protect the government's deliberative process privilege.

Weise's Colorado Open Records Act request to Utilities for the AECOM report was rejected, too. Rick Griffith, of the City Attorney's Office, cited attorney-client privilege, saying AECOM had been hired to provide legal advice to Utilities.

So she took her case to court in El Paso County, where 4th District Judge Edward S. Colt upheld Utilities' denial last May.

Trinidad noted in her email, " ... the AECOM records are protected by the attorney-client privilege and the attorney work product doctrine."

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