Published: August 22, 2025 |

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A state appeals court panel has agreed with the North Fork Valley’s West Elk Coal Mine that it is exempt from some stormwater discharge permitting requirements that have been imposed by the state.

The three-judge Colorado Court of Appeals panel overturned a district-court ruling affirming an administrative judge’s finding that the Mountain Coal Co., a subsidiary of Core Natural Resources, was subject to the requirements.

The ruling, written by appeals court Judge Jerry Jones with judges Eric Kuhn and Pax Moultrie concurring, is a published opinion, meaning it’s considered precedent-setting.

It means the mine no longer will be subject to permitting requirements at seven discharge locations, referred to in the case as outfalls. The appeals court ruled against the mine in its challenge of permitting requirements at an eighth site.

The seven outfalls where the appeals court ruled in the mine’s favor are in Sylvester Gulch, where in the 1990s the underground mine built ventilation and access facilities and electrical and other infrastructure to accommodate the mine’s expansion.

The gulch that receives runoff from the seven outfalls is a tributary to the North Fork of the Gunnison River. The eighth outfall in the case is a train loading area outfall that feeds directly into that river.

The state Water Quality Control Division first included the eight discharge points in its stormwater permit for the mine in 2019. It imposed effluent limitations on those locations.

The mine then challenged the revised permit requirements, which it says require employees to do costly sampling at each outfall.

While the mine challenged the requirements for a number of reasons in the case of the Sylvester Gulch outfalls, the appeals court focused on one of them, ruling in the mine’s favor on it and not taking up the other arguments. It agreed with the mine that the outfalls are exempt from the permitting requirement under state regulations.

The federal Clean Water Act established the National Pollutant Discharge Elimination System permitting program to regulate water pollution emanating from a “point source.” The EPA authorized the Colorado Department of Public Health and Environment to administer that program in the state, which the department does through the Water Quality Control Division and Water Quality Control Commission.

According to the appeals court ruling, among other exemptions to the requirement, state regulations say a permit isn’t required for “stormwater runoff from mining operations” that is “composed entirely of flows … which are not contaminated by contact with[,] or that have not come into contact with, any overburden” at the mining site.

The regulations define overburden as “any material of any nature, consolidated or unconsolidated, that overlies a mineral deposit, excluding topsoil or similar naturally-occurring surface materials that are not disturbed by mining operations.”

According to the ruling, the administrative law judge, Gunnison County District Court Judge Steven Patrick and the state “interpreted the exemption provision as requiring a permit under one of two circumstances: (1) when stormwater flows come into contact with overburden or (2) when stormwater flows are contaminated by contact with overburden. They upheld the Division’s decision to require a permit for the Sylvester Gulch outfalls under the first circumstance, reasoning that because the outfalls discharge stormwater that contacts overburden, they aren’t exempt from the permit requirement.”

But, dissecting the grammar of the state regulation, the appeals court reasoned that “the exemption provision clearly says that a permit is not required in either of two circumstances: (1) when stormwater flows have not contacted overburden or (2) when stormwater flows are not contaminated by contact with overburden. The use of the disjunctive ‘or’ means that either circumstance independently warrants an exemption from the permit requirement. … To put a bit of a finer point on it, if stormwater discharge doesn’t contact overburden, a permit isn’t required, but even if it does contact overburden, a permit isn’t required if such contact doesn’t contaminate the stormwater.”

The appeals court added later, “If mere contact with overburden were enough to require a permit, it would be pointless to identify lack of contamination by contact as a separate circumstance under which the Division may not require one.”

It said that the statutory and legislative history of the federal stormwater discharge permitting program also points to a clear intent within Congress and the EPA to exempt uncontaminated runoff from the permit requirement. This history includes language from a congressional conference report related to amendments to the Clean Water Act and in the EPA’s preamble to subsequent regulations, the appeals court said. At least one federal court also interpreted uncontaminated stormwater as being exempt from the permitting requirement, the appeals court said.

It ruled that uncontested evidence in the record for the West Elk mine case shows that stormwater from the outfalls in the gulch isn’t contaminated by contact with overburden, so the mine is exempt from the permitting requirement for the outfalls.

Separately, the appeals court ruled that the administrative law judge properly found that the burden of proof fell on the mine in challenging the permit’s inclusion of the train loading area outfall, and because the mine didn’t challenge its inclusion on other grounds, that requirement stands.

Several conservation groups had joined the state in seeking to defend the state’s inclusion of the eight outfalls in the permit.

The West Elk Mine is the most productive coal mine in Colorado. According to the state Division of Reclamation, Mining and Safety, it produced 3.7 million tons of coal last year and employed 274 miners as of the end of the year.

Source: The Daily Sentinel

Core Natural Resources is a world-class producer and exporter of high-quality, low-cost coals, including metallurgical and high calorific value thermal coals. The company operates a best-in-sector portfolio, including the Pennsylvania Mining Complex, Leer, Leer South, and West Elk mines. With a focus on seaborne markets, Core plays an essential role in meeting the world’s growing need for steel, infrastructure, and energy, and has ownership interests in two marine export terminals. The company was created in January 2025 via the merger of long-time industry leaders CONSOL Energy and Arch Resources and is based in Canonsburg, Pennsylvania.

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