Five environmental groups filed a federal lawsuit Wednesday against the state’s air pollution control agencies, claiming the West Elk coal mine near Paonia has been operating without proper state and federal emissions permits since September 2021.

The complaint alleges the agencies have failed to grant or deny required permits within the statutory requirements.

Wildearth Guardians, Center for Biological Diversity, Sierra Club, High Country Conservation Advocates, and Wilderness Workshop joined in the lawsuit, asking the court to issue an order that the state act within 90 days to issue or deny a permit.

The complaint says that the West Elk Mine, the largest underground coal mine in Colorado, which is owned and operated by a subsidiary of Arch Coal, emits volatile organic compounds and hazardous air pollutants to the degree that it qualifies as a “major source” of air pollutants.

This requires the mine to obtain a federal Clean Air Act Title V permit from the state, the suit adds. Title V delegates federal Clean Air Act permitting to the states for major air pollution sources. A delay in issuing a permit of more than 18 months constitutes a “final action” by the state that allow lawsuits to be filed.

“This permit has languished for too long, so I’m hoping this lawsuit will push the agency to do its job to protect people and wildlife the way our clean-air laws intend,” said Allison Melton, an attorney with the Center for Biological Diversity. “State and federal pollution laws only work if agencies follow them.”

Permits are required when a major source emits more than 100 tons per year (TPY) of air pollutants, including Carbon Monoxide (CO), Volatile Organic Compounds (VOCs), and Oxides of Nitrogen (NOx) or 10 tons per year of any classified hazardous air pollutant.

The West Elk Coal Mine estimates that its actual emissions of VOCs is at least 274 TPY, and its actual emissions of n-hexane, another hazardous air pollutant, is at least 13.6 TPY, according to the lawsuit. 

“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, public lands director with Gunnison County-based High Country Conservation Advocates. “It’s time for action, not more foot-dragging.”

While maintaining the state cannot comment on litigation, Leah Schleifer, communications and outreach specialist for the Colorado Air Pollution Control Division, said in a statement to The Denver Gazette that the division is “working diligently to process Arch Coal’s West Elk Mine Title V permit application.”

“The West Elk Mine is currently operating under the terms and conditions of their construction permit,” Schleifer continued.

Courts have ruled in favor of similar environmental suits against the Polis administration, including one over the state’s delay in issuing permits for the Suncor oil refinery in Commerce City.

A request for comment to Arch Coal was not returned by press time.