EPA has announced that it will exercise its veto authority under section 404(c) of the Clean Water Act (CWA) to block disposal of mine waste in headwater streams at the Spruce No. 1 mountaintop coal mine in West Virginia. The veto decision, announced January 13, 2011, came after a CWA dredge-and-fill permit had already been issued by the U.S. Army Corps of Engineers (Corps).

According to EPA, the veto was necessary because the agency anticipated “unacceptable adverse effects on wildlife” near the mine site and unacceptable impacts downstream. Arch Coal, which began mining at the site in 2007 under a Corps permit, sued EPA in April 2010 after the agency proposed the veto. Plaintiff alleged in the complaint that EPA’s power to limit mining disposal sites must be exercised before a permit is issued. EPA filed a motion to dismiss arguing that the complaint was premature. Mingo Logan Coal Co. v. EPA, No. 10-541 (D.D.C. filed 6/7/10.)

According to news reports, Arch Coal and several industry groups are expected to challenge EPA’s veto authority and its specific exercise of that authority in this case. See Law 360, January 13, 2011; BNA Daily Environment Report, January 14, 2011.