Community and environmental groups in the area around the Suncor Energy refinery in Commerce City filed a motion to intervene in a lawsuit brought by Suncor against the Colorado Department of Public Health and Environment’s Air Pollution Control Division.

GreenLatinos, the Elyria-Swansea Neighborhood Association, Healthy Air and Water Colorado, Womxn from the Mountain, Conservation Colorado and Sierra Club are taking action to defend the division’s fenceline monitoring order and will be represented by Earthjustice.

Suncor’s lawsuit asks a judge to overturn the division’s Aug. 12 rejection of the company’s fenceline air pollution monitoring proposal for its refinery.

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The petition to intervene seeks to protect both the division’s enhanced monitoring plan it ordered Suncor to implement -after rejecting its originally-submitted one – and the Fenceline Monitoring Law itself. The petition alleges Suncor’s lawsuit is trying to “substantially narrow APCD’s authority under the Fenceline Monitoring Law.”

“It is unthinkable that Suncor is attempting to prevent increased monitoring of the pollution that has devastated our neighborhood for generations,” said Drew Dutcher, president of the Elyria-Swansea Neighborhood Association.

“Suncor has been allowed to regulate and monitor themselves for so long that they do not think health and safety protections for disproportionately impacted communities and the environment apply to them, to the massive public endangerment of the generations suffering from particulate pollution,” said Renée M Chacon, executive director and cofounder of Womxn from the Mountain.

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Suncor officials said the company “strongly supports air monitoring,” and that the monitoring plan it submitted under the Colorado Air Act, HB21-1189, meets the requirements set by the statute. They said that the division exceeded its legal authority by, among other things, adding “a laundry list of compounds that are not even hazardous air pollutants.”

The fenceline monitoring law requires oil and gas production facilities to implement systems that continuously monitor for “covered air toxins,” which include hydrogen cyanide, hydrogen sulfide and benzene, and provide information on releases to the Federal Emergency Management Agency that will trigger local alert systems.

Suncor says the division has been changing the requirements for the system unlawfully.

“The Division improperly disapproved and made significant modifications to Suncor’s fenceline monitoring plan that not only exceeded the Division’s legal authority, but that also prevented Suncor from being able to comply with the Fenceline Monitoring Law,” according to the lawsuit, filed in Adams County District Court. “Among its many unlawful modifications, the Division is requiring Suncor to construct the fenceline monitoring system Suncor originally proposed – which the Division told Suncor it would not approve in May – by January 1, 2023, only to require Suncor to tear it down and re-design, re-order, and re-build a completely new system six months later.”

Suncor says the state “did not even attempt” to show that the quantities of some of the pollutants it is demanding Suncor monitor “pose a risk to public health,” which, the lawsuit says, is a statutory requirement.

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“The Air Pollution Control Division required changes to Suncor’s fenceline monitoring plan to ensure it meets all legislative requirements and to be as protective as possible for the North Denver and Commerce City communities,” said division spokeswoman Kate Mallory via email. “The division is committed to holding Suncor accountable and will continue doing everything in its power to protect public and environmental health.”

Suncor says it wants the court to judge whether its original monitoring plan complies with the law.

Located in an industrial area on Brighton Boulevard north of downtown Denver, the plant is a major provider of gasoline, diesel fuel and asphalt.