For people living and working near the Magellan-Dupont gasoline storage facility in Commerce City, the company’s decision earlier this month to cancel its proposed expansion across the street from an elementary school was an environmental victory.
Yet the situation left people feeling disappointed when it comes to Colorado’s new Environmental Justice Act and whether or not the state’s air pollution regulators followed it in the first real test of how the new law would work.
The Dupont neighborhood where the storage tanks sit is classified under the act as a disproportionately impacted community because the people who live there are mostly Latino and earn less money than the rest of Colorado. They suffer higher rates of asthma and other health problems. And they are surrounded by industrial polluters such as the Suncor Energy oil refinery.
The Environmental Justice Act was intended to protect neighborhoods like Dupont from more pollution.
“The intent of the Environmental Justice Act is clear, but maybe not as clear as the division’s outright failure to conduct any significant and meaningful outreach to our community,” said Laura Martinez, manager of environmental justice programs at Cultivando, a nonprofit that advocates for the environment and improved public health in Commerce City and north Denver. “The community experienced discrimination in this permitting process.”
Martinez and others who fought the proposed expansion said they feel a key mandate in the Environmental Justice Act was missing: communication.
They learned about the Magellan Pipeline Company’s planned expansion in late July when contacted by a reporter from The Denver Post rather than state officials or the company itself. Those who would have been impacted the most by the increased toxic air emissions from additional gasoline storage, including faculty and parents of students at Dupont Elementary School, said the company’s plan to post a notice on its front gate — which was preliminarily approved by the state — was not enough.
They also criticized the Colorado Department of Public Health and Environment’s Air Pollution Control Division for giving preliminary approval to the project even though the company’s plan to build five additional gasoline storage tanks would release more volatile organic compounds, which contribute to the state’s already severe ozone pollution, as well as more benzene, toluene and other toxins into the neighborhood.
While Magellan’s parent company, ONEOK, ultimately withdrew its application, citing it as a business decision, the case was the first — and very high profile — test of how the state health department applies Colorado’s 2021 Environmental Justice Act when reviewing a permit to pollute.
The department’s critics believe more accountability is needed.
“Colorado has a lot of work still to do to ensure that communities have their health and the health of their environment prioritized,” Andrew Klooster, Colorado field advocate with the environmental group Earthworks, said at a neighborhood rally after the permit was withdrawn. “And that work needs to start in communities like this one, communities that are already disproportionately impacted, that for generations have been bearing the undue and disproportionate burden of having to live next to polluting facilities. And so we need to hold them accountable until they fully commit to this work. We need to ensure that they hear community voices.”
The Magellan Pipeline Company’s gasoline storage facility sits across the street from Dupont Elementary School and in the middle of a neighborhood in Commerce City, Colorado, on Friday, June 21, 2024. (Photo by Hyoung Chang/The Denver Post)
Bearing a higher burden
The Colorado General Assembly passed the Environmental Justice Act in 2021 and Gov. Jared Polis signed it into law that year. The Colorado Air Quality Control Commission, which sets the state’s air pollution rules, approved new regulations for disproportionately impacted communities in 2023.
The intent was to acknowledge through state law that everyone in Colorado has benefitted from oil and gas production and other industries, but not everyone has paid equally for it, said state Rep. Mike Weissman, D-Aurora, and co-sponsor of the bill.
“Commerce City bears a higher burden,” Weissman said. “We’re not paying a pro rata share of the pollution burden.”
Legislators’ intent, he said, was that when certain communities show they have higher asthma rates and other health problems, “the least we can do is to stop adding to the burden. That’s part of what the EJ act was saying in how permitting should go.”
In Commerce City, children have a 22% higher admission rate to emergency departments for asthma attacks than the rest of Adams County, according to Adams County Health Department data.
However, environmentalists and community activists have been disappointed in how Colorado has implemented the law.
Last year, GreenLatinos, 350 Colorado and Earthworks argued in a lawsuit filed in Denver District Court that environmental justice rules written by the Air Quality Control Commission failed to follow the law by creating too many loopholes for polluters. They want a judge to tell the commission to try again.
Michael Ogletree, the Air Pollution Control Division’s director, insists his agency cares about environmental justice, but that he and other regulators are limited by state and federal laws in what they can demand of companies submitting applications for permits that allow them to pollute.
Ogletree met Tuesday night with about 30 people at a Commerce City recreation center to talk about permitting and how the department makes its decisions. But fed-up residents refused to hear his presentation and demanded that he listen to their concerns. They spent more than two hours expressing anger over their polluted community, various health problems they believe are caused by chemicals in the air, and how they feel ignored by the state.
Karla Loria, superintendent of Adams County School District 14, said she was angry that she learned about the Dupont expansion from the media rather than state officials. At one point, she scribbled her phone number on a piece of paper and thrust it toward Ogletree, saying she expected a call from him next time.
Loria said the exposure to air pollution impairs students’ learning and development and Magellan’s application clearly identified the neighborhood around Dupont Elementary as a disproportionally impacted community.
“Your department has a statutory obligation to consider the community,” she said.
The department receives hundreds of permit applications a year from all sorts of companies that send toxic emissions into the sky. Those companies include oil and gas drillers, paint-makers, food factories, cement producers and other industrial facilities. The rules governing how the state reviews permit applications and makes decisions about them are highly technical and very specific.
It’s almost impossible for regulators to deny a permit, Ogletree said, because his staff must follow federal and state laws that determine how much and where a company is allowed to pollute.
Dupont Elementary School in Commerce City, Colorado, on Friday, June 21, 2024. (Photo by Hyoung Chang/The Denver Post)
Determining a disproportionately impacted community
After the Environmental Justice Act was passed, all companies must include an environmental justice summary in their permit applications. The state health department created a tool called EnviroScreen that companies use to determine whether or not their projects will be in a disproportionally impacted community.
But that determination does not mean the Air Pollution Control Division can deny a permit. Instead, it means regulators who review permit applications can order companies to add more equipment or technology to reduce harmful air emissions.
In the community where the Magellan storage terminal is located, nearly 45% of residents qualify as low income, 79% are people of color, 31% are burdened by the cost of housing and 12% speak limited English, according to the environmental justice summary submitted with the company’s permit application. The residents there also have higher rates of hospitalizations because of asthma than in other zip codes in Adams County.
That meant Magellan wanted to expand its facility in a disproportionately impacted community. So regulators ordered the company to add internal floating roofs onto the five additional tanks being proposed to better control the volatile organic compounds, benzene, toluene and other pollutants that escape the tanks. Those roofs can move up and down, depending on the level of gasoline in the tank, so there is less space for fumes to escape into the air.
The division also told Magellan to install technology to better seal the seams where the roof meets the tank to further decrease vapor leaks.
Magellan’s permit application marked the first time the state required a company to implement additional technology since the environmental justice rules were written in 2023.
Since January, the Air Pollution Control Division has received more than 30 permit applications that could also meet the threshold for additional pollution-reduction requirements, said division spokeswoman Leah Schleifer. So far, though, no permits have been issued under the new rules for facilities in disproportionately impacted communities
The air pollution division can only deny a permit if there is a technical flaw in the application, Ogletree said. Denying a permit because a proposed project would be in a disproportionately impacted community would lead to lawsuits, which would tie up limited resources, he said.
“And we’d still end up issuing the permit,” Ogletree said.
The Magellan-Dupont oil gas storage facility, top, is located across the street from Dupont Elementary School, bottom, and in the middle of a neighborhood in Commerce City, Colorado, as seen on Friday, June 21, 2024. (Photo by Hyoung Chang/The Denver Post)
Lack of communication with public
But the thing that most angered the Adams 14 school board, the Adams County Commission, Commerce City’s City Council, the Adams County Health Department and Cultivando was the lack of communication about the planned expansion.
In its application, Magellan said it planned to provide copies written in English and Spanish, and its community outreach would be performed via a notice posted at the site’s entrance gates on Krameria Street. The company eventually tacked its notice to a fence on East 80th Avenue, a busy thoroughfare that separates its property from the school.
People in the community said they never found a Spanish version online, and a poster on a fence was not a satisfactory way to communicate plans, especially since some people did not know where the front gate was and the storage facility is off of a busy road with semitrailers constantly passing by.
The Adams County Health Department wrote an opposition to the Magellan project and cited the Environmental Justice Act’s mandate that communities affected by air pollution permits receive equitable and accessible engagement. A poster on a fence failed to do that, the county health department’s opposition letter stated.
“This flies in the face of the intent of the act, is a wholly insufficient form of public outreach, and severely downplays the history of environmental injustice and harm faced by this community and similar communities across Colorado. Again, we believe this sets an unnerving precedent that is detrimental to public health and meaningful community engagement,” the document stated.
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On Tuesday night, Ogletree pledged to do better and to meet more frequently with people who live in Adams County.
Joe Salazar, a lawyer who represents Adams 14 and a former member of the Colorado House of Representatives, said the community would have to stay vigilant so other harmful projects are not approved without proper public notice. He also said the community would need to hold politicians accountable so the state’s Environmental Justice Act realizes its full potential.
One recommendation Salazar made at a recent rally was to have state employees file a permit application’s environmental justice report rather than allowing the companies to fill them out for their own projects.
“We have to ensure that it’s the agencies that file those environmental justice reports,” Salazar said. “That way we can hold them accountable because we’re not board members of Magellan. We’re not board members of the other oil and gas industry businesses. We can hold elected officials accountable, and that’s what we need to do. We can hold appointed officials accountable because they ultimately work for us.”
Michael D’Agostino, a state health department spokesman, said the staff reviews all environmental justice summaries and even reruns the data to make sure the companies are correct in their assessments. The state wants the companies to write the reports so they are aware from the outset what the implications are.
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