Could a Federal Lawsuit Close the Suncor Refinery?

Jeremy Nichols didn’t hear about the alert until after it happened. The Lakewood environmentalist was sleeping soundly in his bed on the morning of November 19, while residents in north Denver and Adams County were startled awake by incessant public safety alerts on their phones beginning at 4:31 a.m. Typically these types of government broadcasts are sent out when there’s an impending flash flood or tornado. But this one was different. “Suncor refinery will have excessive flaring visible, there is no emergency,” it read.

The first thing that Nichols did was check to see whether Suncor had posted a matching announcement on its website, which the refinery operator typically does when there are issues at the facility. He saw nothing online—which was odd. But Nichols knew from experience that he could also search for clues in the online public records portal of the Colorado Department of Public Health and Environment (CDPHE), which regulates the environmental compliance of the three plants at the Commerce City refinery.

As it turned out, there was a problem at the refinery—one significant enough Suncor had to notify CDPHE about it. According to Suncor’s report, filed with the state on the morning of November 20, an “upset” had occurred in its west plant around 4 a.m. on November 19 that caused the refinery to exceed its state-set pollution limits. By the company’s own estimates, the facility emitted four times its limit of carbon monoxide over the span of 14 hours. It also exceeded its hydrogen sulfide limit by about 25 percent for 12 hours. Both compounds are toxic air pollutants that can cause difficulty breathing, among other detrimental health effects, when inhaled. Suncor noted in its report that “the event is currently under investigation.”

The report seemed to contradict statements that the energy company had told 9News shortly after the alert. “The flaring referenced in the alert was not an emergency, and was resolved that night,” a representative told the news outlet. “Suncor will be working with the alerting authorities to ensure that such alerts are not issued for non-emergencies in the future.”

For Nichols and the national environmental nonprofit he’s a senior advocate for, the Center for Biological Diversity, Suncor was just parroting its usual line: Nothing to see here. “This just encapsulates everything that’s wrong with the refinery and state oversight,” Nichols says about the November 19 incident. (Suncor did not respond to multiple requests from 5280 for comment.)

Just two days prior to Suncor’s emissions violation, on November 17, his organization had filed a federal lawsuit in the 10th Circuit Court of Appeals urging the Environmental Protection Agency (EPA) to reconsider its approval of Suncor’s operating permit.

“The state, for too long, has just been giving this company a free pass to pollute,” Nichols says. “Suncor is basically the poster child for environmental injustice in Colorado.”

The case, which will likely have its first hearing in 2024, could implicate more than just the Commerce City refinery, which has a total of three plants that produce asphalt, gasoline, and diesel. It could also force the EPA and the state of Colorado to apply stricter compliance rules whenever they consider permits for refineries and other polluters. But Nichols is quick to point out that his nonprofit’s legal action is hardly an isolated act. The suit is based on years of advocacy by community members and local organizations that live around the refinery.

A History of Public Health Concerns

Olga González began hearing pleas to do something about the Suncor refinery from those who live around it since she took over as executive director of Cultivando—a nonprofit that supports the health and well-being of the Adams County Latino population—in 2019.

“We heard from a lot of mothers about kids with nosebleeds and headaches and difficulty breathing,” González says, “and [the mothers] were saying it was really odd, because whenever they go away for the summer, the symptoms are gone. Then as soon as they return, the symptoms are back.” Other families told González about household members falling ill with cancer or asthma—despite those ailments not running in the family.

According to the federal government, refineries are known to emit chemical and air pollutants such as benzine, nitrogen oxide, carbon monoxide, and sulfur dioxide. Exposure to those pollutants can cause short-term health problems like difficulty breathing and headaches, as well as long-term effects that may include cancer. In the decades after the Commerce City refinery was established in 1931, some researchers have noted that residents in neighborhoods around it have displayed higher rates of cancer, on average, than elsewhere in the state. Of course, Commerce City has played host to numerous polluters and heavy industry operators since the 1940s—not just Suncor. But the refinery, which Suncor took full ownership of in 2005, is among the area’s oldest operators. It has a nearly century-long history of leaks, toxic chemical emissions, safety violations, and combustible danger.

In October 1978, an explosion at one of the refinery’s plants (then operated by Conoco) killed three people and wounded 11. González says older community members who lived nearby still remember the blast shattering their windows and launching a giant fireball into the air. But for her, it was a more recent incident on December 11, 2019, when a mechanical malfunction at one of the plants spewed yellow ash all over Commerce City, that prompted her organization to be more aggressive about investigating threats from the oil and gas facility. Cultivando would do its own air monitoring of Suncor’s pollution.

An opportunity arose in 2020 after Suncor agreed to a $9 million settlement with CDPHE over numerous pollution violations at the refinery dating back to 2017. The state set aside $2.6 million of the settlement for community organizations, and Cultivando secured a portion to fund its efforts. “We were the first nonprofit in our state’s history to head an air-monitoring program,” González says. Traditionally, Suncor reported its own data to the state. “And I don’t understand why their word has been honored,” González says. “If you allow a polluter to self-monitor, they’re going to tell you everything’s great.” (Since 2021, Suncor has operated its own publicly accessible air-monitoring program, too, and the state also published air-pollution data.)

The results of Cultivando’s effort, publicly announced in March this year, showed unusually elevated levels of airborne toxins, including benzene, near the facility. Scientists Cultivando hired with Boulder AIR also reported spikes in airborne toxins whenever wind shifted from the refinery toward the direction of its air-monitoring equipment.

González says the data is a tangible demonstration of what residents who live around the refinery have been saying for decades. “It’s not an invisible, helpless bunch of people,” she says. “It’s a very empowered and frustrated and unheard bunch of people that want to see change happen.”

Historically, the community members’ complaints about pollution and anecdotes about medical ailments failed to produce a robust government response, González says. But would independent air-monitoring data make a difference?

As luck would have it, Cultivando’s efforts took place as one of Suncor’s operating permits came up for renewal. The refinery must apply for new “Title V” operating permits, which ensure that it is in line with the Clean Air Act, every five years; one permit applies to the refinery’s west side and another covers the east side. To secure permit renewals, the refinery needs regulatory sign-off from both the state of Colorado and the EPA, which can each consider historic pollution and public input when evaluating requests.

In Suncor’s case, its latest Title V permit renewal request for its east side had already gone through several regulatory hoops as Cultivando began collecting data. The state of Colorado, which issues the operating permit, was poised to approve the request in September 2022—until numerous environmental organizations, including Cultivando, joined forces to oppose it. The grassroots push involved an in-person hearing where dozens of community members spoke out against Suncor. But the real Hail Mary was a 106-page petition that the environmental legal group Earthjustice sent to the EPA on October 11, 2022, on behalf of Cultivando, the Elyria-Swansea Neighborhood Coalition, the Colorado Latino Forum, GreenLatinos, the Sierra Club, and the Center for Biological Diversity.

Using a combination of anecdotes, legal reasoning, and newly collected data—including from Cultivando—the petition urged the EPA to use its federal authority to reject the renewal of Suncor’s five-year operating permit. González remembers feeling hopeful the petition would result in a permanent closure of Suncor’s east plant.

“I now feel very naive,” she says.

The New Lawsuit

After 10 months of silence from the EPA, Earthjustice learned its petition was not wholly unsuccessful. On August 1, 2023, the EPA announced it found merit with many of the petition’s arguments and was thus requiring the state of Colorado to revise its proposed permit for Suncor to include stronger protections. In effect, the EPA agreed with environmental groups that Suncor had a history of pollution violations and that the CDPHE was not doing enough to ensure the refinery was in line with the Clean Air Act. The EPA, however, did not shut down any parts of the refinery, and noted in its order that it would continue allowing Suncor to operate while Colorado revises its proposed permit to the EPA’s liking.

The order was a partial victory for environmental watchdogs. But for one of the groups that had signed onto the petition—the Center for Biological Diversity—the EPA’s decision was far from a slam dunk. “They didn’t address all the issues that we felt they should be,” says Nichols, the organization’s senior advocate. “And so even though the EPA objected, they still fell short of addressing all the problems with this permit, which is why we’re now in court.”

The Center for Biological Diversity’s lawsuit, filed November 17 in the United States Court of Appeals for the 10th Circuit, argues that the EPA was too lax in allowing Colorado a pathway to grant Suncor a new Title V permit. Ryan Maher, the nonprofit’s lawyer who drafted the appeal, hopes that the court will overturn parts of the EPA’s decision, thereby forcing the federal agency to reevaluate the refinery’s compliance with the Clean Air Act. In theory, Maher says, that could not only lead the EPA to an outright rejection of Suncor’s permit renewal, but cause the state of Colorado to reevaluate its Title V permitting process.

“What we’re challenging are flaws that are especially egregious in the context of Suncor but appear elsewhere in Colorado’s permitting program and that surface all the time,” he says. “So we’re going after some of the basic methods the state has been allowed to use for far too long to effectively rubber stamp permits. A victory here would have huge benefits for public health, air quality, and the environment.”

Nichols says that while Colorado’s state government has taken enforcement actions against Suncor almost every year since 2011, Suncor treats those enforcements as a “pay to pollute scheme,” rather than an incentive to permanently change its practices. The Center for Biological Diversity’s lawsuit uses those same enforcement actions as historical proof of why Suncor shouldn’t be trusted to clean up its air or its act.

“Fines have been paid. Settlements have been reached. And nothing has changed,” Nichols says. “If this was a habitual drunk driver, they would have had their license taken away by now.”

Could the Suncor Refinery Close?

Federal court cases move slowly; Maher says he doesn’t expect a hearing in the case until perhaps late 2024. In the meantime, a spokesperson for the EPA told 5280 that the federal agency “does not comment on pending legal matters.” But the EPA’s regional administrator, KC Becker, did provide a written statement in which she said that the agency was devoting “maximum attention” toward the refinery to make sure it stays within regulatory compliance and is reducing its emissions.

A spokeswoman for CDPHE said the state is evaluating the lawsuit.

But could the federal appeal actually result in the closure of Suncor—or at least parts of it? That idea is something that Ean Thomas Tafoya, the state director for GreenLatinos—one of the Earthjustice petitioners—thinks Colorado officials have been too timid to seriously consider.

Tafoya, who ran for Denver mayor in 2023, says nonprofit GreenLatinos has been locked in numerous conflicts with Suncor over alleged water pollution and whether or not Suncor should install more air monitors along its borders. Every time, Tafoya says the state doesn’t step up like it should. “We think CDPHE doesn’t use all the authority it has,” he says. “They are apprehensive. And they’re apprehensive because every time that the industry doesn’t get what they want, they sue [CDPHE]. And so as a result, the state government is more conservative.”

Tafoya also believes the state has been forgiving to Suncor’s violations because of the economic pressures. He looks at Denver International Airport (DIA) expansion plans as a major reason behind political inaction because Suncor provides jet fuel to DIA. “We know that this is feeding the airport, so when we talk to leaders, they don’t say it on the record, but it’s always the elephant in the room,” Tafoya says. “They don’t want to deny the permits because they feel like the growth of Denver is upon its back.”

Often, Tafoya hears state politicians cite how the refinery produces about 35 to 40 percent of the gasoline and diesel consumed statewide, and that its operation keeps gas prices low in Colorado, but the gas price argument hasn’t been proven. Earlier this year, when the refinery’s plants shut down for just over three months due to equipment failures and a Christmas Eve fire that burned two workers, gas prices in Colorado did rise—but they only slightly outpaced the national average.

Disillusionment with politicians isn’t stopping González, Tafoya, or their communities from advocating for residents who live around the refinery in what are among the poorest zip codes in the Denver metro area. While locals await the federal appeal, Cultivando is continuing to team up with researchers and academics to conduct health studies around the refinery and is training young community members in activism. Tafoya continues to find ways to hold Suncor accountable through political action, including an environmental bill he plans to advocate for that, if passed, could give Commerce City some local control over Suncor’s emissions. “I feel like I’m fighting for self-defense with my friends and family on a regular basis,” he says.

As long as Suncor continues emitting pollutants, including through “upsets” like the one on November 19, the community advocates say they’ll keep up the fight. “With or without government support, we’re going to continue to do the work,” González says.