Brief Summary of Dos Republicas Coal Partnership Water Discharge Permit Contested Case Hearing

By: George Baxter

During November 16-19, 2015, the State Office of Administrative Hearings (SOAH) conducted a contested case hearing on the application made by Dos Republicas Coal Partnership (DRCP) to the Texas Commission on Environmental Quality (TCEQ) for a permit to discharge wastewater and storm waters from their Eagle Pass Mine into Elm and Hediondo Creeks and the Rio Grande, upriver of the City of Eagle Pass water intake at the Bill Clements State Office in Austin, Texas. This permit is known as the Texas Pollution Discharge Elimination System (TPDES) Permit no. WQ0003511000.

The case was heard by SOAH Administrative Law Judges Bill Newchurch and Rebecca Smith. All direct testimony had been pre-filed in written form, so the only verbal testimony heard in the hearing was cross-examination.

DRCP called eight (8) witnesses including Lisa Murphy, the consultant who wrote the application, Andres Gonzalez-Saravia Coss, the president of the two companies which make up DRCP, Peter Nielsen, the president of Camino Real Fuels/North American Coal which operates the mine and two of his employees as well as three (3) additional consultants.

Three TCEQ staff employees who processed and approved the draft DRCP permit also testified.

Opposing the permit was the Environmental Defense Fund (EDF) group composed of the City of Eagle Pass, represented by Mayor Ramsey English Cantu, the Maverick County Environmental and Public Health Association, seven (7) Maverick County landowners who have property adjacent to Elm or Hediondo Creeks along with Dr. Lial Tischler and Bruce Wiland, hydrology consultants. The EDF Group was represented by attorneys Adam Friedman and Paul Tough from the firm of McElroy and Sullivan in Austin, Texas.

Also opposing the permit was Maverick County, represented by Austin attorney David Frederick, who called aquatic biologist David Flores as a witness.

Although not participating as a party to the contested hearing, the Maverick County Hospital District provided financial support to fund one of the EDF Group’s technical consultants.

Most of the testimony was highly technical and centered around how often the mine’s sedimentation ponds would be discharging into Elm Creek, the contributions of groundwater at the mine, which is high in concentrations of boron and dissolved aluminum, to contaminants in the discharge and whether the TCEQ staff analysis of the DRCP application was sufficiently thorough, especially in view of the lack of data on effluent quality supplied by DRCP.

The judges set the following schedule for post-hearing activities in this case:

1. Initial briefs due January 15, 2016;
2. Reply briefs due February 5, 2016;

3. Judges’ recommendations (Proposal for Decision or PFD) on or about April 5, 2016;
4. 20 additional days to write exceptions to the Judges’ Proposal for Decision;
5. 10 more days to responds to opposing party’s exceptions to the Judges’ Proposal Decision;
6. Final Decision on permit to be made by the 3 TCEQ Commissioners in May or June, 2016 during regularly scheduled public meeting in Austin, Texas.

The EDF Group’s position is that this TPDES permit should be denied to Dos Republicas because, among other concerns, insufficient data was supplied in the application, there is more aquatic life in the receiving streams than originally thought and monitoring requirements for discharged contaminants are insufficient.