Dos Republicas Coal Partnership Loses Appeal of TPDES Water Discharge Permit
By: Miguel Munoz, Eagle Pass Business Journal, Inc., Copyright 2019
The Texas Court of Appeals, Third District, in Austin, Texas affirmed on November 15, 2019 the 250th Travis County District Court’s decision by Judge Tim Sulak to reverse the Texas Commission on Environmental Quality (TCEQ) order granting Dos Republicas Coal Partnership (DRCP) a TPDES Water Discharge Permit of coal mining waste into the Elm Creek and the Rio Grande River for its Eagle Pass Mine, an open surface coal mine, in Eagle Pass, Texas on the basis that the coal mine operator, Camino Real Fuels, LLC, should have applied for the TPDES Water Discharge Permit instead of Dos Republicas Coal Partnership, granting an important legal victory for the City of Eagle Pass, Maverick County, Maverick County Environmental and Public Health Association, and local farmers and ranchers Walter Herring, the late Ernesto Ibarra, Gabriel De La Cerda, Mike Hernandez, Boulware and Anson Family, Ltd., and the Environmental Defense Fund.
As the Texas Court of Appeals eloquently stated “….without a TPDES Permit, Dos Republicas Coal Partnership would not be able to operate the [Eagle Pass] Mine as it is currently designed.”
The Texas Third Court of Appeals ruled that it was affirming 250th Judicial District Judge Tim Sulak’s earlier decision to reverse TCEQ’s final order granting Dos Republicas Coal Partnership the TPDES Water Discharge Permit and “remanding for further proceedings and vacate the district court’s judgment affirming the other issues raised on appeal.”
According to the Memorandum Opinion issued by the Texas Third Court of Appeals, “DRCP’s predecessor in interest acquired a wastewater Discharge permit for the [Eagle Pass] Mine in 1994, which was renewed in 2001, 2006, and on November 7, 2011, which was set to expire on September 1, 2015. On September 5, 2013, DRCP applied to TCEQ to amend and renew the Current TPDES Permit….The Current TPDES Permit authorized discharges of stormwater and mine seepage water from active mining areas through certain outfalls, imposed effluent limitations, required flow to be monitored and reported and included additional reporting, notice, monitoring, testing, and record-keeping requirements. In its application, DRCP sought to add certain mining areas and make a boundary change; remove some outfalls; maintain certain current outfalls and add new outfalls for discharging stormwater, wastewater, and mine seepage; and allow water in ponds to be used for dust suppression.”
After a four day contested case hearing in November 2015 in which five issues were discussed, including (1) whether DRCP’s contractor Camino Real Fuels, LLC should have applied as the permit operator, (2) whether TCEQ properly conducted its anti degradation review, (3) whether water quality based effluent limits for aluminum and boron should be imposed on the permit, (4) whether chronic effluent limits are needed at certain outfalls, and (5) whether TCEQ, by approving the draft permit, was thereby approving an illegal discharge route on private property not owned or controlled by DRCP, the TCEQ issued a July 2016 final order granting DRCP’s TPDES Water Discharge Permit.
In its final July 2016 Final Order, “TCEQ deleted the Administrative Law Judge’s recommended findings on the boron limit and aluminum monitoring requirement and instead added what it called Other Requirement No. 10 that imposed “a robust and meaningful sampling regime” that “would occur periodically over the life of the permit to ensure that the effluent limits and monitoring requirements in the permit reflect the continuing water quality at the [mine] site.”
“The Permit Contestants appealed the issues described above to the 250th Travis County Judicial District Court, adding as an issue that TCEQ improperly modified the [Proposed Final Decision] by deleting the boron limit and aluminum monitoring requirement.” Travis County 250th Judicial District Judge Tim Sulak reversed TCEQ’s final order and remanded “because the agency’s determination regarding the proper entity to be identified as the operator of the [Eagle Pass] Mine was made in violation of the statutory and regulatory provisions, was not reasonably supported by substantial evidence considering the reliable and probation evidence in the record as a whole, and was arbitrary and capricious,” but affirmed TCEQ’s Order “with respect to the other issues on appeal.” DRCP appealed to the Texas Third Court of Appeals the 250th Travis County Judge Tim Sulak’s decision, while the City of Eagle Pass and all the other Permit Contestants appealed too.
As a result of the Texas Third Court of Appeals decision on November 15, 2019, DRCP does not have a TPDES Water Discharge Permit to discharge its stormwater, mine waste, and mine water seepage into Elm Creek, the Rio Grande River, and other creeks within Maverick County. This is important because as the Court of Appeals noted that “without a TPDES permit, DRCP would not be able to operate the [Eagle Pass] Mine as it is currently designed.” DRCP has the legal right to appeal the Texas Third Court of Appeals decision of November 15, 2019 to the Texas Supreme Court as well as go back to TCEQ and have its mine operator Camino Real Fuels, LLC apply for the TPDES Water Discharge Permit anew and start a new administrative permit procedure with notice to all interested parties to comment and object on a new application.
The City of Eagle Pass and all the other Permit Contestants have opposed the TPDES Water Discharge Permit to DRCP’s Eagle Pass Mine because the discharge of coal mine water, stormwater, and mine water seepage into Elm Creek, Rio Grande River, and other creeks within Maverick County will contaminate and pollute the Rio Grande River at approximately one to two miles upstream from where the City of Eagle Pass Regional Municipal Water Plant water intake pump is located and ninety-five (95%) percent of Maverick Countians rely on for their potable water supply.
The Texas Third Court of Appeals decision is a major legal victory for the City of Eagle Pass and all other Permit Contestants who have been opposing the DRCP’s Eagle Pass Mine for over 28 years. However, this key legal victory is not final and their battle continues against DRCP’s Eagle Pass Mine as there are other permits currently being challenged or to be challenged.
Another permit currently being challenged by the City of Eagle Pass and the Permit Contestants is the renewal of DRCP’s Permit to operate an open surface coal mine from the Railroad Commission of Texas that is in the administrative hearing stages and recently the Railroad Commission has approved, setting the stage for further legal challenges in the 250th Travis County Judicial District Court in Austin, Texas.
