Border Residents Appeal Texas Railroad Commission Permit of Controversial Coal Mine

By: Jose G. Landa, Copyright 2014, Eagle Pass Business Journal, Inc.

On January 29, 2013, the Railroad Commission of Texas granted Dos Republicas Coal Partnership a permit (Permit 42-B) by a controversial split 2-1 vote to construct and operate an open surface coal mine only three miles (as the crow flies) north of the City of Eagle Pass, Texas, located on the United States-Mexico border, on the banks of Elm Creek, a direct water tributary of the Rio Grande River, in a densely populated area near FM 1588 (Thompson Road) in Maverick County, just a few miles upstream from both the City of Eagle Pass’ Roberto Gonzalez Municipal Water Treatment Plant and the City of Piedras Negras, Coahuila, Mexico Municipal Water Treatment Plant on the Rio Grande River.

The City of Eagle Pass, County of Maverick, Maverick County Hospital District, Maverick County Environmental and Public Health Association, and George Baxter appealed the controversial Texas Railroad Commission permit to Dos Republicas Coal Partnership, a Texas partnership comprised of two Texas corporations which are owned by a subsidiary of Mexico’s steel and coal company, Grupo Acerero del Norte, S.A. de C. V. (Grupo GAN), to the 126th Judicial District Court in Austin, Travis County, Texas.

On Tuesday, February 25, 2014, the hearing on the merits of the appeal of Maverick County, City of Eagle Pass, Maverick County Environmental and Public Health Association, and George Baxter against the Railroad Commission of Texas and Intervenor Dos Republicas Coal Partnership was held before the Honorable Darlene Byrne, Presiding Judge of the 126th Judicial District Court of Travis County in Austin, Texas, before a packed courtroom of Maverick County citizens in opposition to the controversial open pit coal mine, which will discharge its coal mining waste water and storm waters into Elm Creek and the Rio Grande River.

After the eleven boxes and two supplements containing the administrative record were admitted into evidence, the attorneys for the respective parties presented their arguments to Judge Byrne, who listened intently to every word and exhibit presented to her.  The attorneys for the Maverick County Environmental and Public Health Association and George Baxter were the first to present argument. They were represented by Tom Weber, Paul Tough, and Javier Riojas.

Tom Weber began by showing a time line demonstrating the 20 year history of the Eagle Pass Mine. He then proceeded to argue Point of Error One demonstrating how Dos Republicas Coal Partnership circumvented the permit termination provision in 2005 for failure to initiate coal mining operations and by beginning construction of a water sedimentation pond that was never used on the day before the permit was set to expire. Weber also explained how building the sedimentation pond did not constitute “surface coal mining operations” as defined by the controlling statute. He then explained how the continuation of the permit that expired as a matter of law was unlawfully used to shift the burden of proof to the protesting parties.

Paul Tough argued Points of Error Six, Seven, and Two. He argued that the application submitted by Dos Republicas Coal Partnership was incomplete and denied the Maverick County Environmental and Public Health Association and George Baxter due process of law rights because the application contained only a hypothetical cross section, without any specific information, for four of the sedimentation ponds and not even a typical cross section for any of the retention ponds. He also argued that the Texas Railroad Commission erred when it approved the Air Pollution Control Plan submitted by Dos Republicas Coal Partnership as it was intentionally vague and failed to monitor for particulate matter less than 2.5 microns in diameter as required by National Ambient Air Quality Standards. Dos Republicas Coal Partnership relied on an outdated and inapplicable surrogacy policy where monitoring of particulate matter of less than 10 microns in diameter was used as a surrogate for particulate matter of less than 2.5 microns. He also argued that the Railroad Commission erred when it denied the parties a hearing under Section 12.222 of Chapter 16 of the Texas Administrative Procedure Code.  In doing so, the Texas Railroad Commission failed to follow the clear, unambiguous language of its own Rule.

Javier Riojas argued Points of Error Nine and Ten for the Maverick County Environmental and Public Health Association. He argued that the Texas Railroad Commission final order and permit were void as a matter of law because the Railroad Commission failed to comply with the notification and consultation requirements of the National Historic Preservation Act. Riojas argued that this came about because the Railroad Commission had a public and private procedure for complying that denied the parties due process of law. The Texas Railroad Commission Regulations, like the Federal Regulations, required that numerous interested parties be given notice and the opportunity to participate in the consultation process. However, the Texas Railroad Commission used a Memorandum of Understanding entered into with the Texas Historical Commission in 1991 which was never published and on its face terminated two years after its issuance. The Memorandum of Understanding limited participation in the consultation process with the Texas Railroad Commission, the Texas Historical Commission, and the Applicant, Dos Republicas Coal Partnership.  Riojas argued that no other interested parties were notified as required by law. There are still 11 archeological sites in the Eagle Pass Mine permit area that may be eligible for listing in the National Register of Historic Places. He further argued that the Texas Administrative Procedure Act required all formal and informal procedures used by a State Agency be published, and that the order and permit were void because Section 2001.005(a) of the APA provided that “a state agency rule , order, or decision made on or after January 1, 1976, is not valid or effective against a person or party, and may not be invoked by an agency, until the agency has indexed the rule, order or decision and made it available for public inspection.”

Riojas also argued that the Texas Railroad Commission erred as a matter of law because the Wildlife Protection and Enhancement Plan submitted by Dos Republicas Coal Partnership failed to use the best technology currently available to minimize disturbance and adverse impact upon wildlife and to enhance those resources where practicable, and to comply with the Endangered Species Act. He argued that the testimony of Maverick County Environmental and Public Health Association members and landowners , Mike Hernandez, Ventura De La Cerda, Ernesto Ibarra, and Rosa O’Donnell, documented recent sightings of endangered ocelots and jaguarundi. Of four sightings by Hernandez,  one included a pair of mature ocelots, this was significant because the endangered cats lead solitary lives and come together briefly only to mate. Ibarra testified of a sighting of a momma ocelot with two kittens. Wildlife Biologist Jerry Turrentine found this to be significant because momma ocelots with kittens don’t travel very far, making the coal mine permit area the wildcats home territory. Riojas argued all these showed the federally protected endangered cats live and travel in the coal mine permit area.

Riojas then illustrated how the best technology currently available was not being used explaining that the endangered wildcats preferred the dense vegetation in the low lying riparian areas in the tributaries of Elm Creek, but yet when recreating the disturbed tributaries the plan called for the use of 150 woody stems per acre both in the low lying riparian areas and elsewhere in the permit area, when the established practice in recreating ocelot and jaguarundi habitats in the Rio Grande Valley was 600 to 800 stems per acre. Wildlife Biologist Turrentine had explained how this higher stem count better accounted for natural mortality and rodent and deer that like to eat stems. Riojas also explained how the plan did not require the use of earthen berms to protect the endangered wildcats from noise. This shortcoming would result in violation of Section 9 of the Endangered Species Act which prohibits the taking of an endangered species without special exemption. He argued all three biologists who testified agreed that noise and light on night time coal mining would adversely affect the feeding, breeding, and sheltering behavior of the endangered wildcats who are primarily nocturnal. Riojas explained how a take can occur by harassment or harm which the regulations define as significantly impairing or disturbing essential behavioral patterns including breeding, feeding, or sheltering.

Stephen Ahl and Heriberto Morales argued, on behalf of the City of Eagle Pass, how the Texas Railroad Commission erred in approving the open surface coal mining permit when Dos Republicas Coal Partnership lacked adequate insurance and an adequate supply of replacement water.

David Frederick argued, on behalf of Maverick County, that the parties were denied due process when the Texas Railroad Commission failed to require the applicant, Dos Republicas Coal Partnership, to file a consolidated application, failed to comply with discovery rules regarding disclosure of expert information, failed to enforce the “Rule” when invoked by Maverick County Environmental and Public Health Association counsel which required the exclusion of expert witnesses from the proceedings when not testifying, and failed to grant the hearing under Section 12.222. Frederick also argued that the Texas Railroad Commission erred when it found no alluvial valley floor in the permit area.

Cynthia Woelk with the Office of the Texas Attorney General represented the Texas Railroad Commission and split her time with Bill Cobb who represented Dos Republicas Coal Partnerhip.  Woelk argued in response to the issues involving the consolidated application, 12.222 hearing, alluvial valley floor, sedimentation ponds, and cultural resources. Cobb responded to the permit expiration/burden of proof, air monitoring/dust control, wildlife, due process/discovery, the “Rule”, insurance, and alternate water supply arguments.

At the conclusion of the hearing on the merits, Judge Byrne, took the matter under advisement, and announced to the parties her intent to issue a ruling by March 23, 2014.

Opponents to the open pit coal mine contend the discharge of coal mining waste water and storm waters into Elm Creek and the Rio Grande River will pollute the Rio Grande River, their sole source of drinking and potable water, pollute the air, cause cardio pulmonary diseases, destroy the habitats of the endangered ocelot and jaguarundi wildcats, destroy archaelogical sites, mine blasting will cause damage to their property and disturb their peace, daily 150 railroad cars transporting the Texas coal into Mexico through town will expose residents to coal dust and silica, and others.

Dos Republicas Coal Partnership denies these allegations and promises to abide by all local, state, and federal coal mining regulations.