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Environmental coalition sues Colorado over late air pollution permit for West Elk Mine

The same group has forced faster action by state and EPA officials on delayed permits for Suncor Energy in Denver.

The West Elk Mine east of Somerset, on CO 133 Dec. 15, 2020. (William Woody, Special to The Colorado Sun)
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Colorado has missed by almost a year an air pollution permit deadline for the West Elk Mine near Paonia, a major Western Slope source of volatile organic compounds, n-hexane, methane and other pollutants, according to a lawsuit filed by a coalition of environmental groups. 

Arch Coal-owned West Elk applied for an air pollution permit in 2020, and the review deadline under the federal Clean Air Act was September 2021, but the state has still not acted on the permit, the lawsuit said. The coalition is asking the court to force state regulators to make a quicker decision on the coal mine’s permit. A coalition with many of the same members successfully argued for quicker state action in lawsuits over a long-delayed permit for Suncor Energy on the Front Range. 

“It’s time to put an end to Arch Coal’s free pass to pollute,” said Jeremy Nichols, climate and energy program director for WildEarth Guardians, in a statement accompanying a lawsuit filed Tuesday in Gunnison County District Court. “The Polis administration must follow through and ensure the West Elk mine operates in compliance with air quality laws and protects clean air and people.”

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West Elk holds a state air pollution construction permit for some aspects of its work, but the state directed the mine to apply for the more comprehensive and stringent operating permit in 2020 because of the levels of VOCs being emitted at the mine, environmental groups say. 

WildEarth Guardians has said West Elk should shut down entirely, but in the meantime wants the mine owners to meet air pollution restrictions. Environmental groups and state agencies have also fought with West Elk over the company building expansion roads in roadless areas. West Elk had said it needed the roads and the expansion to drill holes to vent methane produced by new mine shafts; opponents said they had started the roads illegally. 

The coalition includes local partners, such as Gunnison-based High Country Conservation Advocates. “This failure to comply with air quality laws is unacceptable to Gunnison County residents and visitors who value clean air, climate change action, and healthy public lands,” said Matt Reed, the group’s public lands director. “It’s time for action, not more foot-dragging.”

West Elk is the largest coal producer in Colorado, the lawsuit says, and digs 4.67 million tons of coal a year from its base in Somerset. The lawsuit says the mine sought a permit from the state health department’s Air Pollution Control Division because it emits 274 tons of VOCs a year, well over the 100 ton threshold for permitting, and 13.6 tons of n-hexane. N-nexane is in the hazardous air pollutant category, and releases over 10 tons trigger a permit. 

Environmental advocates want West Elk to go through the permitting process because they say it includes “emission limitations and standards, monitoring, and reporting to ensure a source of pollution operates in compliance” with the Clean Air Act. 

State officials said they do not comment on litigation, however they explained that “the West Elk Mine is currently operating under the terms and conditions of their construction permit. At the same time, the division has been working diligently to process Arch Coal’s West Elk Mine Title V permit application” for an operating permit, division spokeswoman Leah Schleifer said. 

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“The Air Pollution Control Division is committed to processing all Title V permits as expeditiously as possible, and the division will leverage the additional resources that the state legislature provided last session to enhance our permitting process,” she said. The 2022 legislature passed the Polis Administration’s request for a large increase in division funding, to in part hire dozens more permitting staff and clear out a big backlog of permits.

Arch Coal’s media center did not respond to requests for comment on the lawsuit.

A state District Court judge in January ruled in a similar lawsuit that the division had to decide on long-stalled emissions permit renewals for the Suncor Refinery in Commerce City “without delay.” One of Suncor’s two key permits was supposed to be renewed by the state Department of Public Health and Environment after expiring in 2012, the other in 2018

A 17th Judicial District judge agreed with WildEarth Guardians, which brought the lawsuit, that Colorado law requires the state to act on permits within 18 months of receiving renewal applications from companies like Suncor. 

Members of the coalition have been trying to force West Elk to operate under Clean Air Act permits for some time. They have filed multiple actions with state and federal officials, and also say the current construction permit cited by the state isn’t accounting for all the pollution at West Elk. 

In a related ruling in January, a federal judge signed a consent decree requiring West Elk to continue using flaring equipment at the mine to burn escaping methane, until the state operating permit is issued. Environmental groups prefer the CO2 from burning gas to releasing raw methane, which creates greenhouse gases at dozens of times the rate of carbon dioxide. 

That consent decree requires West Elk to continue flaring for at least two years while it seeks final air pollution permits for all its activities. 


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