Colorado Air Pollution Division investigated for allegedly asking employees to falsify data

DENVER, Colo. (KRDO) —  Colorado Attorney General Phil Weiser has appointed outside attorneys to lead an investigation into accusations certain Air Pollution Control Division staff at the Colorado Department of Public Health and Environment knowingly disregarded air quality enforcement standards and asked subordinates to do the same.

“Through a competitive process, the Attorney General’s Office appointed attorneys at Troutman Pepper Hamilton Sanders LLP as special assistant attorneys general to conduct this investigation,” said Attorney General Weiser. 

In the event the CDPHE Air Division violated state or federal law, the Colorado Attorney General’s office would be called on to defend the department. Hence, the need for an assistant attorneys general to be appointed to the investigation.

Documents obtained by 13 Investigates indicate allegations from three current employee whistleblowers accuse Air Division management of doing just that: breaking state and federal law by asking employees to violate the Clean Air Act and the Colorado Air Pollution Prevention and Control Act and approve air permits without a critical review of compliance with National Ambient Air Quality Standards.

In fact, the U.S. Environmental Protection Agency is conducting a separate, but similar, investigation into practices within CDPHE’s Air Division. Public Employees for Environmental Responsibility, or PEER, is a legal group representing employees with environmental concerns who come forward as whistleblowers. PEER’s Denver field office is serving as legal counsel for this trio of whistleblowers.

“Seeing all three of them come out at once was a very strong and unusual thing for us to see,” said Kevin Bell, staff counsel at PEER.

In a complaint PEER filed to the Office of Inspector General for the EPA, 11 specific permit violations are outlined. One, in particular, alleges CDPHE staff issued a permit to  Cripple Creek & Victor Gold Mine even though National Ambient Air Quality Standards violations were suspected.

“The agency had actual knowledge at the time the permit was issued that the permit they were issuing would lead to a worsening or a violation of the National Ambient Air Quality Standards,” said Bell. 

According to the complaint, one of the whistleblowers put that concern into writing to a supervisor, alleging that they were told to falsify data in a report regarding the Cripple Creek & Victor Gold Mine to not document the violation. The whistleblower says the order to falsify records came from their superior, Gordon Pierce.

Several other allegations are directed at Air Pollution Control Division Director Garry Kaufman, including a conflict of interest between Kaufman and the Cripple Creek & Victor Gold Mine is suspected. Kaufman’s LinkedIn shows that he was an environmental attorney for Holland and Hart LLP between 2014 and 2017. During that time as an attorney, PEER says the Cripple Creek & Victor Gold Mine was one of Kaufman's clients.

The complaint also shows that shortly after the whistleblowers came forward with allegations against the state agency, Kaufman requested that a document on Modeling Guidelines be removed from the CDPHE website, pending review. Modeling refers to the process of reviewing pollutants and emissions to determine if a permit can be issued. The whistleblowers work as 'modelers' in the Air Pollution Control Division.

A spokesperson for the state Tuesday confirmed Kaufman remains employed as the Director of the Air Pollution Control Division at the Colorado Department of Public Health and Environment.

The state health department commented on the state-led investigation:

“CDPHE is deeply committed to reducing air pollution throughout Colorado, and the administration is deeply committed to clean air, as demonstrated by the fact that one of the administration's first actions was to voluntarily move into serious nonattainment status for ozone and to withdraw the previous administration’s request for a waiver. 

CDPHE asked for the investigation and asked for it to be as inclusive as necessary. The investigators will have everything they need to conduct a full inquiry.”

Colorado Department of Public Health & Environment

As referenced, Colorado is not meeting the EPA’s lowering standards for ozone. Although according to the state’s website, air quality in Colorado is getting better.

An update on the EPA’s investigation into whistleblower allegations is expected in August. Meanwhile, developments to the state-led independent investigation utilizing outside counsel could come in October.