City of Eagle Pass and Maverick County Party Status Challenged by Dos Republicas Coal Partnership
By: Jose G. Landa, Copyright 2015, Eagle Pass Business Journal, Inc.
The Texas Commission on Environmental Quality (TCEQ) together with the State Office of Administrative Hearings (SOAH) held Dos Republicas Coal Partnership’s (DRCP) Eagle Pass Mine Texas Pollutant Discharge Elimination System (TPDES) Permit No. WQ 0003511000 to discharge open pit coal mining waste and stormwaters into Elm Creek and the Rio Grande River contested case hearing on Monday, March 30, 2015 at the Maverick County Courthouse in Eagle Pass, Texas. Dos Republicas challenged both the City of Eagle Pass and Maverick County’s request for party status to the contested case hearing, as well as other parties.
The purpose of the March 30th hearing was to hear persons and entities requesting to be named parties to contest the controversial Dos Republicas Water Discharge Permit allowing it to discharge its coal mining waste water and stormwaters into Elm Creek and the Rio Grande River only two miles upstream from both the City of Eagle Pass Regional Water Treatment Plant and the City of Piedras Negras, Coahuila, Mexico Municipal Water Treatment Plant.
The hearing was conducted by Administrative Judge Rebecca Smith of the State Office of Administrative Hearings (SOAH) at the request of Dos Republicas. The preliminary hearing allowed persons and entities interested in challenging the controversial water discharge permit to present evidence such as documents to establish their party status, jurisdiction, and established a contested case hearing schedule. “The hearing on the merits will be several months down the line and when the parties can agree to. Today is about who wants to be a party and if they are affected by the permit application,” said Judge Smith.
Judge Smith then opened the hearing to allow legal counsel and the parties present their jurisdictional documents.
Dos Republicas was represented by Leonard Dougal of Jackson Walker of Austin, Texas, Maverick County was represented by David Frederick of Austin, Texas, and the City of Eagle Pass, Maverick County Environmental and Public Health Association, George Baxter, and other private ranchers, farmers, and landowners were represented by Adam Friedman of Austin, Texas. Other parties did not have legal counsel at the hearing including the Paquache Coahuiltecan Native American Indian Tribe of Texas, whom was represented by Tribal Chairperson Maria Torres.
Dos Republicas’ legal counsel Dougal presented Exhibits A through J to establish the water discharge permit application’s jurisdiction before the TCEQ. There were no objections raised by any of the contesting parties or their legal counsel. Judge Smith admitted them into evidence.
Judge Smith proceeded to hear the parties seeking party status. Dos Republicas’ attorney Dougal advised Judge Smith that they had agreed not to contest six parties by agreement, including the Maverick County Environmental and Public Health Association, Mike Hernandez, Walter Herring, Ernesto Ibarra, Ryan Howard, Gabriel De La Cerda, and Dulce and Juan Esqueda. Judge Smith granted them party status pursuant to the agreement.
Then fireworks erupted as Dos Republicas’ legal counsel Dougal announced that they were challenging the City of Eagle Pass and the County of Mavericks’s request for party status. Dougal and Maverick County legal counsel Frederick exhanged arguments before Judge Smith. Then Judge Smith asked if there were any other persons who were not represented by legal counsel but wanted to seek party status. Several persons in the audience answered Judge Smith that they wanted to request party status. “To be a party you have to show that you are an affected person,” said Judge Smith.
Eagle Passan Francisco Garcia was the first individual sworn in to give his testimony and be cross-examined to determine if he was eligible for party status in the case.
Garcia stated that he was a landowner on Elm Creek and the creek directly ran through the back of his property. “I use the water there for irrigation and also graze cattle. I will be affected by the water discharge into Elm Creek,” said Garcia. Dos Republicas’ lawyer Dougal questioned Garcia’s request for party status. “Mr. Garcia can you tell me how you believe your property will be injure?,” asked Dougal. “I run the water from Elm Creek to a pond and then to my house. And I will be affected by the quality of the water from the contamination by the discharge of the water from the mine,” said Garcia. DRCP legal counsel Dougal then proceeded to ask Garcia if his concerns were as a result of flooding issues. Garcia answered, “As a result of the mine.” Dougal challenged Garcia’s request for party status. Maverick County legal counsel Frederick asked Garcia how close was his property to the Dos Republicas Open Surface Coal Mine, and Garcia answered “one and a half miles.”
Garcia stated that due to his battle with Cancer and his travels to San Antonio for treatments, this was the first occasion he has had to participate in the issue with the Dos Republicas open pit coal mine. “I’m very concerned because I do use the water from Elm Creek and I believe that the water quality is going to change drastically to worse because of the mining, said Garcia.
Judge Smith ruled that she had determined that Francisco Garcia would be allowed party status.
Eagle Passan Jerry Brower, a resident of Siesta Acres Subdivision, asked for party status too. ” I’m very concerned. I have a disabled wife and we are concerned over the dust that is going to go into the air and the contamination of the drinking water,” said Brower. “I just don’t believe that anyone can, impact surveys to me are like predicting the future, like using witch doctors or fortune tellers. We can’t do that. I’m concerned of living where we are. I’m concerned about living in the area, now period. Considering that we are going to be exposed to the water. There is already a coal mine across [in Piedras Negras]. Now we got two coal mines that are going to be allowed to dump off into the [Rio Grande] River,” added Brower.
Brower was questioned by DRCP legal counsel Dougal over the distance of his home from the coal mine permit boundary and if he had any property in contact with the discharge route.
DRCP attorney Dougal asked Brower if he was concerned about dust and the drinking water.“Absolutely, everyone here is going to be exposed to the same drinking water. Everyone here should be allowed to be a party. Because they are all going to be exposed to the same things that we are,” said Brower.
“Is it your understanding that the city is not capable of treating the water to drinking water standards if there is a discharge from this mine? “ asked DRCP counsel Dougal.
Brower stated that he believes that at present time the city has the effective measures for such thing but that things could go wrong, overwhelming those measures and putting everyone in danger due to harmful discharges. “There’s so many ways that this things can go wrong.” “I challenge your impact study based on the failure of so many impact studies in the past,’ added Brower.
DRCP attorney Dougal questioned Brower on his understanding of the City water treatment process and the quality of the effluent to be discharged from the mine. “No I don’t and I don’t think you do either,” added Brower.
Judge Smith denied Brower party status.
Maverick Countian Roberto Salinas also asked for party status as he is a property owner in close proximity to the controversial open surface coal mine permit boundary.
Salinas stated he uses the Elm Creek water for certain daily needs and also his family uses it for recreational activities and that the discharge of coal mining waste effluent would greatly harm his family and himself.
DRCP attorney Dougal questioned Salinas on certain issues including the proximity of his property to the Dos Republicas coal mine and the outfalls from the discharge and opposed his request for party status.
Maverick County attorney Frederick questioned Salinas and proved that Salinas’s property was closer to the coal mine permit boundary than Garcia’s property.
Judge Smith granted Roberto Salinas’ party status.
Maverick County rancher and federal employee Ricardo Ruiz, who lives less than a quarter mile from the coal mine permit boundary also requested party status.
Ruiz stated he and his family will be affected due to the potential dangers that they will be exposed due to the discharge of the coal mining waste and effluent water that was going to be discharged into creeks and Elm Creek on his ranch.
Ruiz stated he has livestock, cattle and horses and at one time even had ostriches, at his ranch and these animals would also be affected by the coal mine waste discharges into the creeks and Elm Creek.
After being questioned by both attorneys, Judge Smith ruled that Ricardo Ruiz was granted party status.
Retired Eagle Pass insurance agent Luis Martinez, who owns property in the Elm Creek area, also requested party status. “I fish there, I go there for recreational purposes and that is why I purchased the property,” said Martinez. Martinez stated that the coal mine wastewaster discharges would affect the area and its wildlife and the ecological system that is there on Elm Creek and his property.
DRCP attorney Dougal questioned and challenged Martinez on his party status request. However, Judge Smith granted Luis Martinez’s request for party status.
Judge Smith then proceeded to hear the two hotly disputed requests for party status from the the City of Eagle Pass and Maverick County. Dos Republicas vehemently challenged the City of Eagle Pass and Maverick County from being granted party status.
Maverick County legal counsel Frederick admitted into the record as exhibits including the deed to Elm Creek Park, a resolution of the Maverick County Commissioners Court approving its participation in the proceedings, cumulative hydrologic impact assessments that were performed by the Rail Road Commission of Texas on the coal mine.
DRCP attorney Dougal opposed the admittance of the hydrologic impact assessment study performed by the Texas Rail Road Commission as evidence in the case due to questions of the authenticity of the document.
Frederick disputed Dougal’s argument and counter-argued on the relevancy of the documents on the issue being addressed through this hearing and stated that he would go on the stand and testify himself on the authenticity of the document.
Judge Smith allowed Frederick to go on the witness stand and testify under oath.
DRCP questioned Frederick on the document. Judge Smith allowed the document to be introduced.
Maverick County Parks and Recreation Director Issac Ruiz testified that he was responsible for the up-keep and maintenance of Elm Creek Park.
Frederick questioned Ruiz on the uses of the Elm Creek Park area.
Ruiz stated he sees a lot of people use the park area for several uses, including fishing, camping, swimming, and other recreational purposes. Ruiz added Maverick County is making improvements to the park’s picnic tables, barbeque pits, and playground area.
DRCP attorney Dougal cross-examined Ruiz on how was it that he believed that the county would be an affected party.
Ruiz resplied that “The discharge of the water, sir I believe that it’s going to keep people away.”
Dougal then asked Ruiz how they have assessed that people will be deterred from visiting the park. ”What have you done to come up with that conclusion?”
“What I have heard from the people that frequent the creek. When I talk to them and interact with the community. That’s their main concern,” said Ruiz.
Frederick went into detail on the importance of the cumulative hydrologic assessment and how it is used to determine the County’s right to party status due to proof in that study of their ties to the proceedings and the county’s interest and if a permit was to be granted to be made clear and subject to enforcement.
“Because when the county goes to exercise its duties, privileges, and rights, it wants not to be burdened by inequity in the course of doing that. If they were to find something fishy and alarming to justify civil enforcement action then again it be very important that the language by which DRCP is held is clear and not opened to any honest good faith argument that it means something besides what the county thinks it means,” added. Frederick
Frederick stated that there are actual criminal enforcement provisions in the water code as well and if something was to happen then the county has the power to precede those routes if it was determined that there were some type of permit violation.
Frederick also strengthened his argument stating that the county is a landowner (Elm Creek Park) and that they are also in the process of maintaining the park and bring it back to what it was for their residents.
Frederick also stated that the county’s role under the doctrine parens patriae should be considered and have them granted party status.
Despite DRCP’s attorney Dougal arguments, Judge Smith admitted Maverick County as a party because of its ownership and maintenance of Elm Creek Park for local residents.
Next came the City of Eagle Pass’ request for party status, which was vigorously opposed by DRCP and its attorneys. Eagle Pass City Mayor Ramsey English Cantu proceeded to take the witness stand and defend their request for party status.
Mayor Cantu testified that the city was right in the middle of the issue because of the potential environmental issues that the whole community could be dealing with due to the opening of an open pit coal mine and any actions stemming from that mine, including water issues.
Mayor Cantu stated that the city is seeking party status due to the possible harm from the industrial waste water discharge from the coal mine.
Adam Friedman, legal counsel for the City of Eagle Pass, highlighted the role of the Eagle Pass Water Works System in providing the community with its potable water.
“Is it your understanding that the city has some legal power or authority over the water quality in its area?”, asked Friedman, “Yes sir, I do,” said Mayor Cantu.
“As a member of the city council and the board of directors for the Water Works, there is a concern for, one, the structure of the intake system and should there be additional pollutants or concerns that are going to acquire chemicals for treatment of water and that is a very heavy cost or burden taken by the system and the municipality as a whole. There would be concerns of economics there, not to mention the overall well-being and health should there be any contamination of the water that would be an overall issue that would be addressed by servicing all of the citizens that our system services,” said Mayor Cantu.
Mayor Cantu stated that the Water Works System services over 17,000 water meters adding up to almost 55,000 persons in the community.
Cantu and Friedman then discussed issues such as an increase of water service usage rates to absorb the potential cost from increased water treatment due to the effluent discharge and potential increases of hazards from such practice.
DRCP legal counsel then cross examined Cantu over the city’s concerns and how it was established that they were to be affected by the discharge actions from the coal mine.
After considering Mayor’s Cantu’s testimony and analyzing all the information, Judge Smith admitted the City of Eagle Pass as party to the TCEQ proceedings under conditional terms.
Maria Torres, Tribal Chairperson of the Pacuache Clan of Coahuiltecan Tribe of Texas was also present seeking party status due to the destruction of over 100 religious, sacred, and burial Native American archaeological sites within the open pit coal mine boundary line. “It will destroy the sites and our religious practices and activities will be lost forever,” said Torres.
Dougal questioned Torres over the lack of property owned by the tribe in Maverick County and the lack of official recognition by the Federal Government of the clan as a tribe. Tribal Chairperson Torres replied that she and her clan are lineal descendants of the Mission Coahuiltecan Tribe which inhabited this area since the beginning of mankind and her ancestral sacred and religious grounds are along Elm Creek within the coal mine boundary lines. Torres stated that Dos Republicas and TCEQ had failed to consult with her tribe and other Native American tribes regarding the impact of the mine on Native American archaeological sites as required by federal laws.
Judge Smith stated that she needed to research several issues to be able to determine a decision on Torres’s party status request and would take it into consideration.
Judge Smith and the parties agreed on a scheduling order and the hearing on the merits will be heard the week of November 16-20, 2015 in Austin, Texas at the State Office of Administrative Hearings, 300 W 15th Street, in Austin, Texas 78701, (512) 475-4993.
