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<br />'IRONMENT OF THE WEST
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<br />Colo. Pollution Rise
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<br />-The Air Pollution Control Division
<br />(APeD) of the Colorado Department of
<br />Health is undermanned and underfinanced
<br />and, therefore. cannot adequately repre-
<br />sent the public interest.
<br />-The Air Pollution Variance Board
<br />(APVBl is unimaginative. intimidated by
<br />economic and political interests, and is
<br />"...n administrative waystalion" where
<br />polluters are "able to hide from
<br />the. . . enforcement of air pollution regu-
<br />lations."
<br />
<br />Progrom Folte"
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<br />Furthermor'-'. the study says. l~ prf)-
<br />gram and its agencies are faltering
<br />because "state legislators did not want a
<br />very strong air pollution control law ."
<br />Chief target of the 4DO-page study,
<br />which took more than a year to prepare,
<br />is the Variance Board because it seeming-
<br />ly contradicts the position of the APeD in
<br />the slate's air-pollution-control efforts.
<br />Under proviSions of the Air Pollution
<br />Control Act of 19/0, the APeD investigates
<br />alleged polluters and th('n issues a "cease
<br />and desist"' order if justified,
<br />The polluter can either comply-by slop-
<br />ping operallons or making corrections-or
<br />r{>(j\Jest a varian~,
<br />Consistently, the study says. polluk'rs
<br />seek a variance because mere Ilpplication
<br />for a varia:1te allows the polluter to cir.
<br />cumvent the entire Air Pollution ConU'ol
<br />Act for a long period of time.
<br />
<br />Lengthy Process
<br />
<br />Administrative and ~aring procedures,
<br />the snKly points out, take from three to
<br />five years. And, because application for a
<br />variance automatically stays execution of
<br />the original "cease and desist" order, the
<br />polluter can continue business as usual
<br />during that time,
<br />Once a variance Is granted-and accord-
<br />ing to the report they usually are-the
<br />polluter is free to operate undE'r thE' rules,
<br />
<br />standards and conditions contained In the
<br />\'ariancE', most of which have no connec-
<br />tion with those found in lhe act, and
<br />which are invariably more lenient.
<br />In theory, the study 6'ays, the \'ariance
<br />idt'a is valid, It acts as a "safety \'al\'e"
<br />for polluters who "for \'1'1)' good econom-
<br />ic, technological, sociological, and even
<br />political reasons" find it impossible to
<br />"immediately stop their polluting,"
<br />However, the study continues, a
<br />variance should be "nothing more than a
<br />grant of a very limitE'd period of grace
<br />wilhin which the polluter must control or
<br />eliminate its air pollution violation."
<br />Further, the study sa:,"!, the polluter
<br />should be rontained by "toURh ongoing
<br />regulation" during tbe period of grace.
<br />Acting in this manner, the study con-
<br />tinues, the Variance Board could be a
<br />"powerful tool for air pollution aba-
<br />tement" and the "key to ultimate elimina-
<br />tion of Colorado's air pollution."
<br />Unfortunately, the study concludes, the
<br />Variance Board does not conduct its af-
<br />fairs this way.
<br />Yields to Pressure
<br />In fact, the study charges, the board
<br />"runs scared" and 100 often succwnbs to
<br />"pressures by polluters,"
<br />Aftf'r meticulously examining somE' 3(l
<br />cases ,",'hich ha\'e come before the board
<br />o\'er the past se..eral years, Lailos
<br />concluded that the board has bE'en "intim.
<br />idated by specious legal arguments and
<br />swayed by unchecked assertions" which
<br />often turned out to be "little more than
<br />lies,"
<br />The study continues: "It (the board)
<br />has been badgered and bullied into grant-
<br />ing \'ariances by its fear of the courts and
<br />a 10$6: of jurisdiction", the result has
<br />been a mass at variances and a continu-
<br />anC'(! of air pollution in Colorado,"
<br />The study suggests that the board has
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<br />become an "irrelevant force which could I
<br />be abolished or replaced."
<br />At least some of tbe blame lor the
<br />board's alleged weakness is attributed to
<br />the legislature, whicb, the study says,
<br />created the board initially witb ill-defined
<br />authority, duties and powel'6, I
<br />Little Choice I
<br />The study suggests that the enabling
<br />legislation's requirements for variance I
<br />grants are "so purposefully worded" th3t
<br />the board has little choice but to grant I
<br />variances to every polluter that comes
<br />before it, regardlE'ss of circumstances.
<br />Furthermore, the study sa~'s, the
<br />I{'gilllature has consistently and "summa.
<br />rily" rejeetE'd ne.1rly every subsequent
<br />board-strengthening recommendation
<br />placed before it. Among the proposals
<br />were:
<br />-Me!.bods 10 speed up hearing and in-
<br />vestigativepr~ures.
<br />-Requests that pollution under the act
<br />be defined as a public nuisance and that
<br />tax relief be given to those who construct
<br />or install air pollution ('(lntrol dc\'ices.
<br />-ProcedurE's to avoid overlapping au-
<br />thority between state and local go\'ern-
<br />ment.
<br />-Plans to restructure board memo
<br />bel'fihip to provide beller balance and
<br />technical eXpl"rtise.
<br />-A change in wording that .....ould make
<br />it mandatory for the board to consider
<br />closely "public health and safety" prior to
<br />granting a variance,
<br />-A proviSion requiring polluters to sub-
<br />mit a plan for control as a condition of
<br />receiving a \'ariance,
<br />-A bill that would would have
<br />disallowed the granting of a variance
<br />merely on the grounds that it would be an
<br />"unreasonable economic burden" for the
<br />polluter to bring himself into compliance
<br />Continued on poge 62,
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