The Western Sugar Cooperative sugar beet processing plant in Fort Morgan was ordered to pay a $2 million fine to Colorado’s Department of Public Health and Environment in May 2018 for egregious water and air quality violations.
Like most penalties collected from CDPHE, the money was funneled primarily into the state’s general fund, which pays for core programs such as education, health care and human services.
A new bill at Colorado’s Capitol aims to nearly triple to quadruple penalties for air and water quality violations and to send the collected fines directly to the communities that are impacted by the environmental violations.
House Bill 1143 — which will be discussed in the House Finance Committee on Feb. 27 – would create a seven-member environmental justice advisory board to identify mitigation projects in affected areas. The bill also aims to add a new position in CDPHE focused on environmental justice to lead the advisory board.
“A lot of these communities have never experienced justice,” said Rep. Dominique Jackson, an Aurora Democrat who is helping push the bill. “The health implications are substantial when it comes to air and water quality violations. These communities know what they need better than any person in the legislature.”
The current maximum fine for air quality violations is $15,000 per day, per violation; for water quality violations, it’s $10,000. The bill would increase both fines to $42,357, which is in line with the federal maximum.
Current law allocates all water quality fines to the Water Quality Improvement Fund. The new bill would authorize the use of money in that fund to pay for projects addressing impacts to environmental justice communities. Currently, all air quality fines go into the general fund. The bill would create the community impact cash fund to go toward environmental mitigation projects.
“I worked really hard, with a coalition of community members, to come up with the definition of an environmental justice community,” Jackson said. “… I just really wanted to make sure that people who didn’t feel as though they have had a voice in the conversation, who’ve been experiencing impacts in their community, generally speaking for quite some time, were able to come to the table.”
The bill defines an environmental justice community as one where residents “are predominantly minorities or have low incomes; have been excluded from environmental policy-setting or decision-making processes; are subject to a disproportionate impact from one or more environmental hazards; or experience disparate implementation of environmental regulations, requirements, practices and activities.”
“Fines are powerful enforcement tools, but they aren’t the only options available to us,” said Jessica Bralish, a state health department spokeswoman.
“Our priority is to bring facilities into compliance, resolve violations and take steps to ensure long-term compliance,” she said. “We assess the maximum daily fine in response to particularly egregious, dangerous or repeated violations. Our goal is always to enforce state laws in pursuit of our broader mandate — protecting and preserving the public health and environment in Colorado.”
One hurdle for the bill: the Taxpayer’s Bill of Rights, which limits the amount of revenue the state can collect and spend. The bill sponsors are exploring if it’s possible to classify the fines as “damages” so that the funds won’t fall under TABOR. Other prime sponsors of the bill include Rep. Serena Gonzales-Gutierrez, a Denver Democrat, and Sen. Faith Winter, a Westminster Democrat.
John Putnam, the director of environmental programs at CDPHE, said the increase in fines will bring Colorado up to federal standards.
“The fines haven’t been updated for 25 years, which means the effective value of those has gone down over time,” said Putnam, who oversees the air, water, waste and environmental health and sustainability divisions of the health department.
He said updating the financial penalties can help deter companies from breaking environmental laws.
“And it can also help provide a level playing field for the businesses that are in compliance with the law and are not at a competitive disadvantage because another entity has decided to violate the law,” said Putnam, who testified on the bill on Feb. 10 in the House Committee on Energy and Environment.
Putnam said the environmental justice committee could help CDPHE better engage with impacted communities and utilize funds effectively with the community’s leadership.
Some examples of mitigation projects could be focused on improving drinking water sources, adding filtration systems, or cleaning up a pond or stream that was contaminated, Putnam said.
“It could be a whole range of things. It could be ecological restoration, or it could be more focused on human health,” he said. “I think there’s a range of potential.”
Putnam said currently, CDPHE can engage the community after a violation has occurred through supplemental environmental projects. But SEP’s are voluntary environmentally beneficial projects, and are done by violators in exchange for a partial settlement.
The bill’s fiscal note calls for an appropriation of $1,757,334 to the Department of Public Health and Environment and would divert $1,556,700 from the General Fund beginning in 2020-21 for the Community Impact Fund.
Erika Cervantes, a climate justice community organizer for the nonprofit Colorado’s People Alliance, said there are clear disparities between communities that are the most impacted by water and air quality violations, even within the same county.
An example of this, she says, is the Elyria-Swansea neighborhood in Denver, which is located in one of the nation’s most polluted urban ZIP codes. The neighborhood is bounded by the Interstate 70 expansion project and a heavily industrialized area that spans the Adams County line.
Cervantes said other communities that could benefit from the bill include Commerce City, the City of Fountain and Weld County. She said in many of these places, long-term contamination have not been tackled aggressively enough.
“This [bill] is really the first step for Colorado to continue to lead in the climate justice movement by ensuring that we are implementing good policy that is taking into account community values and bringing a variety of different voices into the conversation to help mitigate the effects that communities are feeling because of environmental contamination.”
Rep. Jonathan Singer, a Longmont Democrat who is also sponsoring the bill, said the bill is especially relevant for his community on the Front Range.
“The conversation is a big deal for my community, where we’ve seen ground-level ozone levels as high as Los Angeles,” he said.
Singer said lawmakers tackled many environmental issues last year. This session, the focus on environmental issues feels different.
“I think we did tackle a lot of big conceptual bills last year, like Senate Bill 181, which looked at oil and gas regulations. Which was huge. But this session, it’s more about getting the details right,” Singer said.
“The most exciting part in that is we are finally talking about the environmental justice piece, which we haven’t really done before in the Capitol. But if the environmental movement is going to work, we need more than the affluent white individuals, we need everyone at the table.”
Senate Bill 8, another bill moving through the Capitol, takes enforcement for water quality violators one step further by increasing criminal penalties for the pollution of state waters and gives jurisdiction to district attorneys and the Attorney General to prosecute cases.
If a company or individual is convicted of criminal negligence or recklessness, the violator can be fined a maximum of $25,000 for each day the violation occurs, and could go to prison for up to one year. Currently, the daily maximum fine is $12,500.
And if a violation occurs “knowingly or intentionally,” the bill says, the violator can be found guilty of a Class 5 felony punishable by a maximum fine of $50,000 for each day the violation occurs, and up to three years in prison. Now, the daily maximum is $25,000.