20120900 Ver 2_COS_response_to_Cube_1-20-2021_20210121

Cityof S
North Carolina
January 20, 2021
Via email to: [e-mail]
Jody J. Smet, AICP
Vice President Regulatory Affairs
Eagle Creek Renewable Energy (for Cube Yadkin LLC)
Subject: Cube's Proposals Violate FERC License and
Violate North Carolina Water Quality Certification# 4035
Dear Ms. Smet,
This letter follows up the videoconference of January 12, 2021. Salisbury will
provide additional responses and comments by February 7, 2021, as requested by
Eagle Creek Renewable Energy personnel for Cube Yadkin Generation LLC
("Cube").
Background
Cube is subject to a FERC license and North Carolina Water Quality
Certification 4# 4035 that require Cube to provide safe road access using the Federal
Energy Management Agency (FEMA) Base Flood Elevation as the design standard,
as unanimously explained and specified by the FERC Commissioners in their order
of September 17, 2021. 172 FERC 61,254 ("Commissioners' Order"). No party
appealed these requirements. They are final. Compliance by Cube is required.
By email to Salisbury and the North Carolina Department of Environmental
Quality ("DEQ") at close of business on Friday, January 8, 2021, Cube presented
three concepts as complying with the Commissioners' Order: provide an airboat;
install a golf cart sized bridge 8 feet below the Base Flood Elevation; and raise the
access road, but only to an elevation that is 8 feet below the Base Flood Elevation.
All three of Cube's concepts violate FERC and DEQ mandates.
Salisbury immediately alerted Cube that all three Cube concepts violate the
FERC license, the North Carolina certification, and the Commissioners order and
are therefore unacceptable to Salisbury by delivering to Cube a preliminary written
response the next business day, Monday, January 11, 2021. The preliminary
response indicated Salisbury would be available for a videoconference as early as
132 N.Main Street P.O.Box 479 Salisbury,N.C. 28145 Phone: [phone] Fax:[phone]

the following day, January 12, 2021. Cube set a videoconference for January 12 at 9
a.m.
At the videoconference, despite Salisbury's prior warning that the concepts
violate the Commissioners' Order, the license, and the certification, Cube argued
that Salisbury and DEQ should accept Cube's concepts.
The Mandate from the FERC Commissioners
The Commissioners' Order at paragraph 26 says:
[W]e find that the language of Condition 9 supports requiring a plan
providing improved access to the pump station via the road
during a 100-year flood.
[bold font emphasis added]
A golf cart sized bridge is not a road. The existing road is a North Carolina
Department of Transportation maintained road. And, a "100-year flood" is the
FENIA Base Flood Elevation. "[I]mproved access to the pump station via the road
during a 100-year flood." There is nothing unclear about this. There is no access
(improved or otherwise) via the road during a 100-year flood if the road is
under water during a 100-year flood.
At paragraph 36, the Commissioners said:
[W]e conclude that the Plan should be revised to better address safe
road access to the pump station. Cube Yadkin is required to revise its
Plan in accordance with the discussion above and file a revised
Sedimentation and Flood Plan, for Commission approval, within 90 -
days of issuance of this order.
[bold font emphasis added]
None of the Cube proposals provides "improved access to the pump station via the
road during a 100-year flood."
Cube's Mistaken Arguments in Support of its Proposed Violations
During the videoconference (9:00 a.m. January 12, 2021) Cube argued that
three alternative Cube concepts should be acceptable to Salisbury and DEQ. Cube
representatives seemed to discard the airboat concept early on in the discussion and
focused instead on arguments to ignore the FEMA Base Flood Elevation design
standard and the safe road access requirement.
Salisbury representatives explained that the safe road access requirement is
appropriate and that the FEMA Base Flood Elevation is the appropriate flood
132 N.Main Street P.O.Box 479 Salisbury,N.C. 28145 Phone: [phone] Fax:[phone]

hazard mitigation standard for safe road access. Neither should be disregarded by
Cube at this point in the process. Both are required by the license, the certification,
and the Commissioners' Order.
Cube also argued that if Cube provides safe road access based on the FEMA
Base Flood Elevation, Cube will cause unacceptable wetland impacts. Cube
representatives argued that Salisbury must make a choice and must state its
preference — environment vs. safe road access. These arguments are not true and
there is no such choice to be made.
As Salisbury's environmental counsel explained during the videoconference,
when Cube constructs safe road access as required by the license and certification,
Cube will also have to obtain and comply with a Clean Water Act Section 404
permit from the U.S. Army Corps of Engineers and a Clean Water Act Section 401
water quality certification from the State of North Carolina.
One of the Clean Water Act requirements will be to avoid and minimize
wetland (and stream) impacts to the maximum extent practicable. Practicable
means available and capable of being done after taking into consideration cost,
existing technology, and logistics in light of overall project purposes. 40 CFR §
230.10(a)(2). We understood Cube to argue that it could only build a road that has
certain side slopes, which will require four acres of fill in wetlands. In fact, Cube
might be required to use fill with steeper side slopes that reduce the footprint or use
concrete bridge pilings (similar to Cube's golf cart proposal) that eliminate the need
for fill.
Section 404 permits and 401 certifications are routinely issued to authorize
road projects that cause impacts to wetlands and streams and that are designed to
comply with environmental protection requirements. Such determinations are made
by the U.S. Army Corps of Engineers and the Environmental Protection Agency
pursuant to the federal Clean Water Act Section 404 and the North Carolina
Department of Environmental Quality pursuant to the federal Clean Water Act
Section 401; they are not made by the City of Salisbury. Salisbury expects Cube to
comply with all lawful requirements.
Corrections for Cube's "Notes from Consultation Call — January 121, 2021"
Thank you for circulating on January 15, 2021 your "Notes from Consultation
Call — January 12, 2021" for everyone's review. We request the following corrections
be made (or request that these corrections be attached to Cube's "Notes from
Consultation Call— January 12, 2021)":
• The summary of Ms. McDaniel's closing statements on page 6 omit her
recommendation that there is a need to go back and read the FERC order in
order to develop a plan that complies with the order. This omission should be corrected.
132 N.Main Street P.O.Box 479 Salisbury,N.C. 28145 Phone: [phone] Fax:[phone]

• On page 2, Mr. Tinsley's question about why Cube is treating FERC's order as
mere guidance is shown as the first reference to the FERC order being treated as
mere guidance. Mr. Zayas, in his immediately preceding comments, specifically
used the term "guidance" to describe the requirements set forth in the FERC
rehearing order. The omission of Mr. Zayas' reference to the FERC order as
"guidance" and the misplacement of his comments should be corrected.
• Contrary to the summary at the bottom of page 2, Mr. Tinsley indicated that Mr.
Zayas' calculations of percentages of access are based on errors that include an
incorrect assumption that BFE protection provides 100% access; not that Cube
said it would provide 100% access. The summary should be corrected
accordingly. NOTE: a road surface at BFE plus required freeboard can be
overtopped by a flood that has a return frequency greater than 100 years.
• The summary misplaces (at the bottom of page 2) the statement by Mr. Tinsley
that the flood of record was in 1915 or 1916. [The correct year is 1915] The
statement followed and corrected Mr. Behmer's statement (shown on page 3)
regarding a more recent date for the highest water level at the City's river pump
station facility. The meeting summary also omits Mr. Behmer's indication that
he agreed with Mr. Tinsley's correction. The summary should be corrected
accordingly.
• The summary at the bottom of page 5 should be corrected to indicate that Mr.
Tinsley referred to Cube proposals needing to satisfy DOT road standards and
FERC requirements (the Cube document mistakenly omits FERC and says
"satisfied DOT and Salisbury").
Cube Misused the Time Provided by FERC to Develop a Plan for Safe Road
Access
FERC's orders have provided Cube five months (from September 17, 2020
until February 15, 2021) to develop and propose a "plan providing improved access
to the pump station via the road during a 100-year flood."
Cube was originally required to submit its plan to FERC on November 16,
2020, but Cube asked FERC for an extension of time and told FERC the following:
Cube Yadkin respectfully requests a 120-clay extension of
time, until April 15, 2021, to file the revised Plan. There are a
number of engineering challenges associated with addressing safe road
access to the City's pump station, which is outside of the Project
boundary.
FERC Accession No. 20201116-5222.
FERC granted an extension until February 15, 2021, but at this point we see
no evidence that Cube has used the 5-month period to address "engineering
132 N.Main Street P.O.Box 479 Salisbury,N.C. 28145 Phone: [phone] Fax:[phone]

challenges associated with addressing safe road access to the City's pump station."
Instead, Cube has waited until the end of the 5-month period to present
noncompliant concepts and present arguments that Salisbury and DEQ accept
Cube's proposed violations.
Cube's belated presentation of non-compliant concepts wastes Cube's,
Salisbury's, FERC's, and DEQ's time and resources and delays implementation of a
compliant plan. Salisbury requests that Cube immediately redirect its efforts to
developing a compliant plan. With that goal in mind:
1. Salisbury has provided Cube with full access to City property and facilities
and will continue to do so;
2. Salisbury has provided and will continue to provide expert engineering
reviews and input to assist in the development and implementation of a
compliant pump station protection plan; and
3. Salisbury will continue to prioritize making quick responses to Cube in order
to facilitate Cube redirecting its activities toward achieving prompt
compliance with the license, certification, and the Commissioners' Order.
Sincerely,
W. Lane Bailey James D. Behmer
City Manager Utilities Director
cc:
Via USPS and e-filing at the Federal Energy Regulatory Commission:
Chairman James Danly
Commissioner Neil Chatterj ee
Commissioner Richard Glick
Commissioner Allison Clements
Commissioner Mark Christie
Secretary Kimberly D. Bose
Via email:
Sheila Holman, Assistant Secretary for Environment, NCDEQ
Bill Lane, General Counsel, NCDEQ
Chonticha McDaniel, NCDEQ
Clinton Cook, NCDEQ
Mark Hahn, NCDEQ
Fred Tarver, NCDEQ
Aaron Church, County Manager, Rowan County
132 N.Main Street P.O.Box 479 Salisbury,N.C. 28145 Phone: [phone] Fax:[phone]