State Office of Administrative Hearings recommends controversial Eagle Pass Coal Mine Water Discharge Permit be renewed and expanded, TCEQ Hearing scheduled July 6th
By: Jose G. Landa, Eagle Pass Business Journal, Inc., Copyright 2016
Despite the overwhelming opposition of the citizens and local governmental entities of Eagle Pass and Maverick County, Texas, the State Office of Administrative Hearings issued a draft of its proposal (recommendation) to approve the controversial TPDES Water Discharge Permit of Dos Republicas Coal Partnership to discharge coal mining waste water, storm waters, and other waste into Elm Creek, Hediondo Creek, and the Rio Grande River on April 5, 2016.
On April 5, 2015, Texas Chief Administrative Law Judge Cathleen Parsley for the State Office of Administrative Hearings published a Proposal for Decisions on SOAH Docket No. 582-15-2214; TCEQ Docket No. 2015-0068-IWD; In Re: Application by Dos Republicas Coal Partnership for Amendment and Renewal of TPDES Permit N0. WQ0003511000.
Dos Republicas Coal Partnership (“DRCP” or “Applicant”) has applied to the Texas
Commission on Enviromnental Quality (“TCEQ” or “Commission”) for amendment, renewal, and expansion of Texas Pollution Discharge Elimination System (TPDES) Permit No. WQ00035l 1000.
Dos Republicas seeks the amended permit to discharge coal mining pit water, storm waters, and other wastewaters associated with its Eagle Pass Mine (Mine) in Eagle Pass, Maverick County, Texas, on the United States-Mexico border.
Dos Republicas is also asking to add wastewater discharge outfalls. The coal mining waste waters would be discharged into Elm Creek and Hediondo Creek, which eventually flow into the Rio Grande River below Amistad Reservoir in Maverick County, Texas. The controversial Eagle Pass Coal Mine waste waters discharge into the Rio Grande about one mile upstream from both the cities of Eagle Pass, Texas and Piedras Negras, Coahuila, Mexico municipal potable water plants. Both Eagle Pass and Piedras Negras, Coahuila’s sole source of potable water to their combined over 300,000 residents is the Rio Grande. In addition, Texas-Mexico border communities downstream of Eagle Pass-Piedras Negras, Coahuila will also receive the contaminated Eagle Pass Mine waste waters via the Rio Grande, affecting over three million or greater people living on both sides of the Rio Grande.
The potential public health impact to all Texas-Mexico border residents from Eagle Pass-Piedras Negras to Brownsville, Texas-Matamoros, Tamaulipas, Mexico from the Eagle Pass Mine coal mining waste waters discharged into the Rio Grande is significant and a serious threat to present and future generations of humans, livestock, wildlife animals, and agriculture.
The draft proposal states that the Executive Director (ED) recommends granting Dos Republicas application to amend, renew, and expand their TPDES Water Discharge Permit as later supplemented and amended, and issuing the Draft Permits that they prepared.
The Environmental Defense Fund and parties aligned with it (collectively, “EDF Group”), Maverick County, and the Office of Public Interest Counsel (OPIC) recommend denial. The City of Eagle Pass, County of Maverick, Environmental Defense Fund, Maverick County Environmental and Public Health Association, Luis Martinez, Mike Hernandez, Ernesto Ibarra, and many other local farmers and ranchers along Elm Creek oppose the renewal of the Dos Republicas TPDES Water Discharge Permit. In addition, the Eagle Pass Independent School District, Eagle Pass Water Works and Sewer System, and Maverick County Hospital District Board of Directors have approved resolutions in opposition in the past. The Paquache Clan of the Texas Coahuiltecan Tribe have repeatedly requested party status to the contested hearings, but have been denied, said Maria Torres, Tribal Chairwoman, of San Antonio, Texas.
On October 8-9, 2015, a heavy thunderstorm dumped over 12 inches of rain over the Dos Republicas’ Eagle Pass Mine area and Elm Creek, causing the water of the Eagle Pass Mine’s detention ponds to overflow and discharge into Elm Creek and the Rio Grande. Several farmers and ranchers whose properties are on the banks of Elm Creek reported black-colored water flowing and killing over 150 fish in their stock ponds.
TCEQ and EPA came down to investigate whether the fish kill was related to the Dos Republicas’ Eagle Pass Mine waste water. TCEQ found that the fish had died from lack of oxygen and the EPA has not completed their investigation. Although there had been two or more floods prior due to severe thunderstorms before the Eagle Pass Mine commenced operations, the October 8-9, 2015 incident was the first flooding which tested the Eagle Pass Mine detention ponds after mining operations commenced. This large fish kill raised serious concerns of citizens from both Eagle Pass and Piedras Negras, Coahuila as to their Rio Grande potable water source being contaminated and polluted.
The draft Proposal for Decision and Order is addressed to Tucker Royall, General Counsel Texas Commission on Environmental Quality and states that The Administrative Law Judges (ALJ s) recommend granting the application and the Draft Permit, with a few changes, namely, the addition of a boron limit and a requirement that aluminum be monitored, and a revision to Other Requirement No. l0.
A review was conducted of the 68 page Proposal for Decision and Order documents, specifically issues highlighted in the AJL’s recommendation, including the addition of a boron limit and a requirement that aluminum be monitored, and a revision to Other Requirement No. l0.
One of the most concerning issues is in regards to Effluent Limits as under the Water Quality Based Limits the EDF group, Maverick County and OPIC raised issues and concerns about the possibility of high levels of aluminum and boron in the discharge.
This concerns are being raised largely because of high levels of both Boron and aluminum in some of the groundwater samples from the mine site.
High Boron and Aluminum levels in the water are dangerous to humans and their public health because they are known to cause cancer or are carcinogenic. In addition, to Boron and Aluminum having to be regulated, there are many other carcinogenic chemicals which will be released from the Dos Republicas Eagle Pass Mine waste water discharges including selenium, silica, manganese, arsenic, beryllium, cadmium, chromium, lead, cyanide, chloride, sulfate, oil and grease, chromium, fecal colicform, Mercury, nickel, zinc, ammonia nitrogen, phosphorus, fluoride, and many more.
There was also high levels of total aluminum detected in one of the recent discharge samples from, one of the sedimentation ponds, SP-2 from the DRCP mine.
“The Draft Permit contains no limit for aluminum or for boron, although when writing of the Draft Permit, boron was added to the list of parameters that must be tested at the initial discharge from each outfall under Other Requirement No. 10 of the Draft Permit.” states the SOAH proposal for Decision order.
EDF Group’s expert witness Lial Tischler, Ph.D., testified about his concern with the levels of aluminum present in the groundwater at the Mine site, analyzing groundwater sampling results, dating back to 2000, and continuing through the second quarter of 2015.
Tischler concluded that the aluminum in the discharges from 7 outfalls , would not comply with the acute aquatic life protection and water quality standard.
Tischler primarily used the data from one of the monitoring wells, DRRC 4R, in making these calculations an issue that DRCP takes offense to as the median concentration of aluminum in this well is 14 mg/L, which is significantly higher than the acute criterion in the surface water quality standards of 0.991 mg/L180.
DRCP argues and disagrees, calling the findings irrelevant for purposes of its permit application because groundwater is not representative of the water that will be discharged and the confusion between total aluminum and not dissolved aluminum.
Tischler testified that the maximum aluminum concentration from this well is 95.4 mg/L181.
DRCP further argues pointing to inaccurate figures in the study on the amount of groundwater likely to be in the wastewater.
DRCP’s permit application led to some confusion about the percentage of groundwater versus storm water in the retention ponds.
Both parties argued over the amounts of such water, making its way into the ponds and the actual impact and effect that it would have on the water quality in the sedimentation ponds and if suspended solids would be able to settle.
The EDF Group argues over the actual amounts of pollutants and if, they were high enough, that a small amount would entail have a significant effect including extremely high levels of Aluminum.
The ALJ ‘s also note that Ms. Denney(TCEQ) testified that although DRCP was not required to provide information on groundwater, it would have been helpful for it to have done so.
The ALJ’s conclude that it was appropriate to use groundwater in analyzing the proposed discharge, while noting that the record is clear that DRCP does not anticipate discharging only groundwater, and that groundwater will be a relatively small percentage of the total discharge.
DRCP argues that the use of a certain monitoring well (DRCC 4R) which is alleged to have some of the worst quality ground water at the mine site in the analysis for aluminum was inappropriate.
Tischler testified that he selected DRRC 4R because of its high boron levels, which was a parameter of concern.
“The ALJs have kept this in mind when considering Tisch1er’s testimony, but also think it would be unrepresentative to use, say, the best quality water. The use of DRCC 4R is not fatal to Tischler’s analysis.”
DRCP also raised issues over the difference between dissolved aluminum and total aluminum and that the sampling reviewed by Tischler provided results for total aluminum, but the Water Quality Based Effluent Limits (WQBEL) address dissolved aluminum.
The Draft Permit at issue here does not include any WQBELs states the report.
An expert DRCP presented as part of its rebuttal case, Peggy Glass, Ph.D., testified that aluminum is not a problem when in solid such as when in a dissolved matter.
DRCP argues that the groundwater samples were all tested for total aluminum, not dissolved aluminum, which will be a significantly smaller number.
The parties agree that the amount of total aluminum in a sample will be greater than the amount of dissolved aluminum. The question is by how much.
Tischler testified that under state policy, 30 samples must be taken to determine the ratio of dissolved aluminum to total aluminum.
“He also testified that TCEQ assumes that 100% of the total aluminum in a sample is dissolved, unless shown otherwise.”
DRCP argues that the amount of dissolved aluminum in the wastewater will be an extremely small percentage of the total aluminum in its wastewater by pointing to four samples taken of the groundwater at Elm Creek and Hediondo Creek.
“These few samples do not establish what percentage of the total aluminum is dissolved throughout all the discharge.”
“DRCP had the capability to test for dissolved aluminum, but did not.” states the report
The ALJ s find Tischler’s concern about aluminum levels to be credible.
“Although the evidence does not support the imposition of an aluminum limit, it does indicate that a monitoring requirement would be appropriate because some of the levels of aluminum are very high. If the Commissioners decide not to adopt a monitoring requirement, the ALJ s still recommend a revision to Other Requirement No. 10.” states the report.
Both parties agree that boron naturally occurs at the site, sometimes at high levels.
DRCP disclosed potentially high levels of boron in its application by noting that it was seeking to add Outfall 102, which would discharge “excess mine pit water, mine pit water high in boron and stormwater runoff.”
The parties also agree that boron can create problems for agriculture. And again, neither acute nor chronic criteria for boron are included in the water quality standards.
DRCP’s RCT Permit for operating the Mine only authorizes it to discharge wastewater that has boron concentrations of 2.0 mg/L or l0W6I‘.
“DRCP plans that wastewater with elevated boron concentrations will be routed to retention pond RP-3.”
Mr. Pete Nielsen of Camino Real Fuels testified that discharge from RP-3 is only permitted under the RCT Permit when an extremely large rain event, a 120-year event, causes an overflow.
“He testified that DRCP does not anticipate actually discharging from RP-3.”
“Nevertheless, DRCP applied to the TCEQ for a permit to discharge, via Outfall O22, from RP-3.”
“And although the parties disputed why the Railroad Commission of Texas (RCT) imposed such a requirement, it is undisputed that this requirement exists.”
The EPA recommends that boron levels in water used for irrigation not exceed 2.0 mg/L for short term. EDF Group, Prosser Martin Wall, testified that he uses Elm Creek for irrigation.
It can be deduced from the RCT Permit and from the plans to construct RP-3, that DRCP anticipates at least some of the wastewater some of the time will have levels that exceed 2.0 mg/L. Several of the monitoring Wells have consistently had boron concentrations over 2.0 mg/L.
“Given all this, it seems protective to require, at the bare minimum, monitoring for boron for any discharges with any mine water.”
What is more, it also seems protective, and consistent with the RCT Permit, to impose the same boron limit as the RCT Permit contains. It is inconsistent for the requirements of the RCT Permit not to align with those in the TPDES permit, when both address discharge of wastewater that contains boron and when there is evidence of a legitimate concern about boron.
Therefore, the ALJs recommend adding a boron limit of 2.0 mg/L, the same limit in the RCT Permit, for all outfalls that receive mine pit water.
The EDF Group argues that Other Requirement No. l0 is not sufficient to protect Water quality—both because it operates after-the-fact and because it only requires a single test per outfall, particularly given the variability in the discharge.
Ms. Denney testified that normally four tests within a certain period of time after the initial discharge are required, but that given the intermittent nature of the discharge, she did not want to be “setting them up for failure” if there were not four discharges within the sampling period.
“DRCP and the ED both argue that this single collection is standard procedure. And perhaps it is.Yet Ms. Denney was unable to point to specific guidance for it.”
The report states that Denney later changed her tune by stating that there is no specific rule or guidance document. “It’s just our general policy that when it comes to intermittent discharges we can—if they request for it, we can allow for them to have one sampling event.”
She also testified that it would be possible to change the sampling period, to require submission of the first four samples, but that “[y]ou’d have to vet it through management before you did that.
The ED’s briefing similarly focuses on the time period when explaining the smaller number of samples than would normally be required.
The reason the ED has only required one sampling event for each outfall in Other Requirement No. l0 is because of the sixty-day sampling deadline for a facility like Eagle Pass Mine with intermittent discharges, if it were required to submit more samples, it may not be able to meet the requirement because it may not have multiple discharges within the sixty-day period.
Apparently, neither DRCP nor the ED considered changing the sampling period or requiring DRCP to provide samples for the first four discharges if they happen to occur within the first 60-day period. The ALJ s certainly have no interest in setting DRCP up for failure, but requiring fewer samples where the discharges may have highly variable levels of pollutant seems insufficient to protect water quality.”
The ALJ’s do not find persuasive the fact that DRCP could voluntarily choose to provide additional samples. It seems clear that it would be in DRCP’s interest to provide additional samples only if those samples had lower concentrations of the parameters and not to submit any that might have higher readings. In fact, the ALJs see no incentive for DRCP to continue sampling past the initial sample unless it is worried about its initial results. In short, as it stands now, Other Provision No. 10 does not appear to ensure protection of water quality.
The ALJ’s accordingly recommend that Other Requirement No. l0 be amended to require DRCP to sample the first four discharges from each outfall, regardless of when they complete the test of each sample within 60 days of each discharge, and to report each result within 90 days of each discharge.
The ALJ’s also touched basis on the need for Chronic Effluent and Toxicity testing at the Eagle Pass Mine and its discharges bringing up the the amount of lead and selenium when measured against chronic 1imits as defined The Texas Surface Water Quality Standards which includes both acute and chronic criteria.
The EDF Group, Maverick County, and OPIC contend that the Draft Permit should include chronic limits for certain parameters.
At hearing, the ED justified the lack of chronic limits by pointing to its Standard Operating Procedures Manual.
“The ALJ s accept the position and believes there is no reason to deviate from the Ed’s standard practice in this case.”
The Draft Permit’s imposition of only acute limits, except for Outfall 021, appears appropriate under the circumstances.
The Texas Surface Water Quality Standards include both acute and chronic criteria. The chronic criteria are based on a seven-day exposure period. The Draft Permit does not include any limits based on chronic criteria, except for Outfall 021.
The ALJ’s also noted that concerns on the antidegradation review of water bodies and the procedures from ED were sufficient with possibilities of revaluation in the future once flow data from the discharges are provided.
Maverick County argues over the way that the study and determination was handled and therefore not accurate. DRCP also contends that Maverick County’s determination and samples on the issue were not accurate as well.
“In summary, the ALJ s conclude that because the antidegradation review is subject to reevaluation,
the ED’s review was sufficient. The ALJ s also find that the ED appropriately assessed the aquatic life use of the unnamed tributaries of Hediondo Creek and Elm Creek.”
The EDF Group also argue the compliance history or lack thereof the DRCP operator Camino Resl Fuels. The ALJ’s conclude that CRF’s compliance history is not relevant.
The AJL’s proposal for decision also covers arguments that are being disputed by both parties pertaining to the permit including questions of an alleged incomplete application by DRCP, by approving the Draft Permit,the TCEQ would be approving an “illegal” discharge route for Outfall 019, CRF non inclusion in the permit application as operator.
DRCP argues the contrary on this issues.
In this arguments the AJL’s cited on the side of DRCP and the ED.
All exceptions, briefs and replies along with certification of service to the above parties shall be filed with the Chief Clerk of the TCEQ electronically at http://wwwl0.tceq.state.tx.us/epic/efilingg or by filing an original and seven copies with the Chief Clerk of the TCEQ. Failure to provide copies may be grounds for withholding consideration of the pleadings.
Dos Republicas’ Application to Amend, Renew, and Expand its Water Discharge Permit will be considered by the Texas Commission on Environmental Quality (TCEQ) on July 6, 2016 at 9 AM to be determined by the Chief Clerk’s Office in Room 20lS of Building E, 12118 N. Interstate 35, Austin, Texas. The TCEQ hearing is open to the public.
