A state agency has informed the West Elk Mine in the North Fork Valley that it may have violated the law by failing to get a stormwater permit when it built a road and well pads in a national forest roadless area this year.
The action by the state Water Quality Control Division comes as the underground coal mine remains under a cessation order by the state Division of Reclamation, Mining and Safety prohibiting further surface-disturbing activities in the roadless area. That agency says the mine has failed to maintain a legal right to enter the roadless area.
The mine has been seeking to expand its operations beneath about 1,700 acres in the Sunset Roadless Area of the Gunnison National Forest. To do so it needs to build roads and drill wells to vent methane produced during mining.
A Colorado-specific Forest Service roadless rule includes an exemption allowing for the possibility of building temporary roads by coal mines on some 20,000 acres in the North Fork Valley.
In March, the 10th Circuit Court of Appeals ruled that the Forest Service improperly failed to consider keeping another roadless area out of the exception area, and ordered a district court to vacate the entire exception area.
But before a district court judge did that in June, the mine’s owner, Arch Resources, built about a mile of road in the Sunset Roadless Area.
Even with the district judge’s action, the company is continuing to argue to the state and in court that the appeals court upheld its coal lease rights beneath the roadless area and it can keep building roads and pads there.
It has warned of a temporary mining shutdown and layoffs if it can’t proceed with that work this year. As of April the mine employed 320 people, according to state records.
This month, an official with the Water Quality Control Division wrote to the mine in a compliance advisory letter that an inspection showed about 3,960 feet of road and two methane vent borehole pads in the roadless area.
According to the letter, a stormwater discharge permit is required for those surface disturbances. It said the state had no record of a discharge permit being applied for or obtained, and an existing permit held by the mine doesn’t authorize discharges at those locations. The letter says it “provides notification of potential violations of the Colorado Water Quality Control Act.”
The letter gave the mine until Aug. 20 to apply for a permit or permit modification.
Allison Melton, a staff attorney with the Center for Biological Diversity conservation group, said she spoke to the Water Quality Control Division this week and was told the mine submitted that paperwork after receiving the letter.
She said she understands the discharge application will be subject to a 30-day public comment period.
She said the mine already has such a permit and knows how to go through the permitting process, “but for some reason there was no effort to comply with these environmental protections” in the case of the roadless area until the mine received the letter from the state.
She said she wouldn’t be surprised if people reached the conclusion that “perhaps the reason the company didn’t seek these permits was because they were trying to stay under the radar as they went out there and bulldozed,” or failed to comply due to the haste to do that work.
An Arch Resources official didn’t immediately respond Thursday to a request for comment. The Water Quality Control Division wasn’t able to provide immediate comment.
The advisory letter the mine received said the letter isn’t a notice of violation, and the Water Quality Control Division will determine if formal enforcement action is deemed necessary.