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10th Circuit urged to reject Colorado air plan with ozone loopholes for oil and gas

For more than a decade, Colorado has consistently failed to meet federal standards for ground-level ozone across the Front Range where 3.3 million people live.

DENVER (CN) — An environmental group on Wednesday urged the 10th Circuit to reject the federal government's approval of Colorado's plan for reducing ground level ozone because it overlooks pollution produced by oil and gas development.

Since 2008, Colorado has failed to meet federal standards for ground level ozone across the Denver Metro Nonattainment Area, which spans eight counties and is home to 3.3 million people.

“The reality is Colorado has never determined any source in the nonattainment area as a major stationary source and that’s a big reason why we’ve had these failures,” argued Robert Ukeiley, an attorney for the Center for Biological Diversity. “It’s death by a thousand cuts.”

This past November, the Center for Biological Diversity challenged the U.S. Environmental Protection Agency’s approval of Colorado’s state implementation plan to reduce harmful ground-level ozone, as measured by the National Ambient Air Quality Standards, or NAAQS, because it wouldn't adequately regulate oil and gas activity.

The current plan only considers emissions produced during the operation of wells, leaving out the VOCs, or volatile organic compounds, emitted during drilling and fracking activities. Only tracking some emissions from oil and gas producers means operators will not be subjected to regulation as a major source of air pollution.

Ground-level ozone forms when sunlight reacts to nitrogen oxides and VOCs, produced by cars, power plants and industrial facilities. The resulting pollution can cause heart and lung disease as well as premature deaths and birth risks.

U.S. Circuit Judge Timothy Tymkovich, appointed by George W. Bush, asked why the court shouldn’t defer to the EPA as having satisfactorily interpreted the law.

“The program for permitting in this nonattainment area includes an exemption for temporary emissions," Ukeiley said. "Nowhere in EPA regulations is there a temporary exemption for emissions for temporary activity.”

Ukeiley said the EPA has discretion to interpret ambiguity, but not use new terms.

“There’s no ambiguity that the term ‘temporary emissions’ doesn’t exist," Ukeiley argued.

U.S. Attorney Alan Greenberg countered that the state has used the term for two decades.

"Why didn’t you and Colorado get together and just import the federal regulations into the state implementation plan?" Tymkovich asked.

Greenberg said the Clean Air Act was designed to let states take the lead.

"The Clean Air Act sets up a system where the state is in the lead of developing its implementation plan and the EPA is in the roll of reviewing whether it follows federal regulations," Greenberg said. "Although Colorado did not copy and paste from the federal requirements, it did follow the requirements and the court should rely on EPA’s determination."

The Center for Biological Diversity asked the court to send Colorado's plan back to the EPA for a meaningful public comment period after the agency failed to provide easy links to the proposed regulations being reviewed.

While Greenberg said the EPA had met the standards and interested people could Google the regulations in question, Tymkovich urged the government to do better.

"Surely this can’t be optimal notice, it's like a scavenger hunt to find the documents to review," Tymkovich said. "Not to beat a dead horse but the agency could do us all a favor by being more sensitive to identify the documents that are needed."

Barack Obama-appointed U.S Circuit Judge Nancy Moritz, and Joe Biden-appointed U.S. Circuit Judge Veronica Rossman rounded out the panel. The court did not indicate when or how it would decide the case.

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