Suncor Energy Inc. has filed a lawsuit against the Colorado Department of Public Health and Environment’s Air Pollution Control Division asking a judge to overturn the division’s Aug. 12 rejection of the company’s fenceline air pollution monitoring proposal for its Commerce City refinery.

The company argues the monitoring plan it submitted meets the requirements set by the state’s Fenceline Monitoring Law.

“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.”

The Colorado Air Act, HB 21-1189, was signed into law in June of 2021. Its Fenceline Monitoring Law requires oil and gas production facilities to implement systems that continuously monitor for “covered air toxins,” hydrogen cyanide, hydrogen sulfide and benzene. It also requires companies to provide that information to the Federal Emergency Management Agency’s (FEMA) Integrated Public Alert & Warning System (IPAWS) to “notify the relevant community if emergency notification thresholds are exceeded.”

Suncor originally submitted the fenceline monitoring plan, which it had six months to develop after the law went into effect, in late December. It hired consultant Spectrum Environmental Solutions to develop the plan, according to the lawsuit.

A department official said she couldn’t comment on the lawsuit specifically.

“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 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 officials said the company also “strongly supports air monitoring.”

“Suncor, however, requires certainty from this Court regarding its fenceline monitoring plan’s compliance with the Fenceline Monitoring 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.

The lawsuit also alleges the division improperly required Suncor to monitor for “several additional compounds beyond the three ‘covered air toxics.’”

“Division must meet a statutory standard to determine the ‘quantities’ of those hazardous air pollutants emitted by the facility pose a risk to public health,” according to the lawsuit. “The Division did not even attempt to meet this statutory standard, and it included a laundry list of compounds that are not even hazardous air pollutants.”

The Division had not filed a response as of Thursday, and no court dates had been scheduled.