20140356 Ver 1_SELC Comments_20140909

SOUrHERN ENVIRONME -1-Ai- LAW CENTER
Telephone [phone]
22 SOUTH PACK SQUARE: SUITE 700
ASHEVILLE, NC 28801-3494
September 5, 2014
Via First Class Mail and E -mail
Tasha Alexander
Asheville Regulatory Field
Army Corps of Engineers
151 Patton Avenue Room 208
Asheville, NC 28801 -5006
Tasha .L.Alexander(a >usace.anny.mil
Karen Higgins
401 and Buffer Permitting Unit
North Carolina Department of Environment and Natural Resources
1650 Mail Service Center
Raleigh, NC 27699 -1650
karen.hig ins(cyncdenr.�,ov
Re: The Quartz Corp, USA — SAW- 2013 - 01376
Dear Ms. Alexander:
Facsirnile 828 - 258-2024
Please accept the following comments, on behalf of the Western North Carolina Alliance
(WNCA), in response to the application by The Quartz Corps, USA (TQC), for fill impacts
associated with mining activities in the North Toe River watershed. This letter supplements
comments we previously submitted on May 21, 2014, on the original 404 permit application, and
comments submitted on July 16, 2014, identifying additional deficiencies in the application and
mitigation plan. We have since reviewed additional factual information supplied by the TQC in
response to the Corps' information requests. For the reasons explained below, TQC's response .
has not adequately addressed the issues raised in our prior comments.
We also understand that after supplementing its application, TQC determined in
consultation with the Corps to withdraw its mitigation proposal for the Beaver Creek watershed
and modify its application to include other mitigation. We therefore take this opportunity to
explain our view on the extent of necessary mitigation going forward, so that the Corps can
better assist the applicant in this process. This letter is not intended to raise new issues, but
rather to clarify legal requirements to the facts presented in the application and related
documents submitted by TQC.
Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham • Charleston • Nashville • Richmond • Washington, DC
10096 recycled paper

L Project Background
7OC opccuicm uquudz rniuiuO nocrodon (the "Pine Mountain Minu") near Spruce pins,
NC. This mine has historically impacted, and continues io impact streams, including Little Bear
Creek and Bear Creek. 7()C discharges contaminated stonn`potoz under aNpDES permit, and
its normal operations contribute tosedimentation through u variety of mechanisms, including
oonpoiuinuoof[ deposition ofuirborucdust, and occasional l}MP failures. As explained in more
detail below, TQC has also caused serious long-term stream impacts by burying two tributaries
to Little Bear Creek under an unlawful waste fill. /laa result of all these discharges, the stream
eogmeoia downstream from mining activities at the site are generally of poor quality, and they
send sediment inputs downstream 10 the North Toe River.
The North Toe itself is impaired and 30(d)listed due to sedimentation, though it
pn`vkico critical habitat for the endangered Anno1uobioo elk1oc zuuaacl and also contains other
sediment- sensitive species. Because sediment is the primary threat to water quality, the focus of
the river's recovery plan is to reduce turbidity.
The impairment of the North Toe is a direct, cumulative result of caused by
mining operations which have not been adequately offset b«mitigation. The river' orecovery
p!uo 1uya the blame for the iog7oioopot on aedbonut from mining operations. The sub bumbu has
the lowest population density iu the broader French Broad watershed, the least agricultural use,
and the most forest cover. The chief source ofsediment, instead, is from mining operations. In
addition, the lacgomtNPDE8 pconittsea in the sub-basin are mining operations (including TOC`a)
and their associated processing facilities. Mining operations have caused the river's degradation
over time despite the presence of high quality, relatively undisturbed streams originating on both
public and private lands in the watershed.
u. T()C`e64O4 permit
The Pine Mb/oo1uin Mine iu permitted bv the state Division n[ Land Resources (DTR).
Under the relevant version o[the waste was required to be disposed on high
ground. In addition, expansion ot waste disposal areas was prohibited without prior
Dumping of waste generated off-site was also prohibited without prior approval. In2OO8,I}LR
inspected the Pine Mountain Mine and observed a waste dump that violated several permit
conditions: it was not included in the mine's permitted operating plan, and it was composed of
waste that was generated off-site. T0C acknowledges that it gave "an adjacent mining
company" permission to dump nt the site. There were uo measures below the illegal dump (o
prevent erosion or modiomsn1ndoo, and sediment has consequently washed into Little Bear Creek.
The dump also buried two tributary streams—an unpermitted "fill" in violation of sections 301
and 404of the Clean Water Act.
Three weeks after the illegal dump was discovered, DL8 issued a notice of violation (the
^`2008N()V") requiring on application for permit modification along with o plan to stabilize the
dump and control sediment. Nearly five years later, hn May 20l3`7()Creceived approval in
modified pcmdfrom0LR. Although DLR then approved the waste dump under state
sedimentation laws, TQC did not apply for a federal "fill" perrnit under CWA section 404 until
2

another year had passed, in April 2Ol4 when T0C needed Corps approval for additional fill
activities d proposed m1 its site. So, for six years, these serious fiUimpacts have been
T()C now seeks belated approval for the fill impacts caused hy the illegal vvumte dnnn`
dueL[ two and the retaining walls necessary tn stabilize the mdo. In addition,
T[%C seeks n404 permit to facilitate of its i stream
crossings necessary to uocoou bidz ground for other waste dumps. Finally, T{)C proposes to
^^rc|uca1e"ustream, apparently to change the drainage pattern in the area and to further ensure
the stability of the illegal waste dump.
b . 7~C`ovitbdzuwn mitigation pu/poso]
We understand that the original mitigation plan discussed below has been withdrawn, and
wo are not aware of any formal alternative proposal. Should this mo similar mitigation planho
yzeanotod in the future, we offer the following additional oouznscota on the impropriety nfT()C`m
proposal. To mitigate the impacts discussed above, TQC proposed an "all -preservation"
approach—specifically, donating a conservation easement on a 300-foot riparian buffer along
Beaver Creek and its biho1ndom, within the Spruce Pine WS-1 municipal p/otcrnbnd, which is
adjacent to the Little Bear Creek watershed. TQC explains, and we agree, that the Beaver Creek
watershed is ecologically significant as ubigb-quaUty cold water trout stream with important
wetland and seep habitats. bia also socially significant nyuoouoicipolw/uteryupply. The
proposed conservation easement, however, did not provide protection 1oozremove o significant
tbrco1 from the 300-foot riparian buffer, as vvo previously commented.
The grantee o[the proposed easement would have been the Town n[ Spruce Pine, which
previously owned the Beaver Creek watershed ;u fee simple. lo November 2Ol2, the Town
Council of Spruce Pine voted to sell the watershed to Rocky River Hydro, LLC. The deal was
negotiated by Jim Fisher, representing Ouiguc Places, l.l.C. Jim Fisher is a onouagcr for both
Unique Places and Rocky River Hydro. Under the deal, the town agreed 0m sell the watershed
subject to a "conservation caxcnocnt" on u 300-[bn1 riparian buffer and with on agreement that
the Beaver Creek watershed would remain under the protective WS-1 designation.
& suitable holder for the conservation easement was not identified, and the deal was
subsequently modified to include several restrictive covenants enforceable by the town. Under
the terms of the deed, the Town retained the following interest in the property:
There shall bano land disturbance or cutting »/ trees orother vegetation within
those areas that are 300feetftom the watercourses and water bodies on the
'nrcpur/K... except that the land, trees, and vegetation within the aforementioned
3O0-K`o( buffer can be managed, pursuant to good forestry practices, 6yGrantee,
its successors and assigns, to enhance plant and animal biodiversity, to secure
vvcduod and otrcmn mitigation credits, and to czeu10 oz bank carbon auqutulzotiou
credits, so long as such management activities have no negative impact on the
water quality n/ the entire Property.

added). The restrictive covenants also required that the entire property (not merely
the riparian zone) remain subject Lo the WS-I designation and specified that that the Grantee (and
future "shall not use the property for any purpose which iy prohibited by or in violation
of water supply watershed rules and regulations ... applicable to" this WS-lwatershed.
Therefore, under the applicable regulations, vvbdsb were incorporated into the deed, this covenant
prohibits any use of the property that would require upoiot source discharge or "adverse[]
izopoct[m]^` from oonpoirtpollution. 8cc 15A N.[A.C. 02f\ .0212. Logging im also prohibited
unless DENR determines in advance that the water will be protected. 15A N.C.A.C. 18C .1105.
The town's restrictive covenants are non-possessory interests bo real property. The
town's ownership of these property bmtszce1a is reflected in the price negotiated for sale of the
watershed. The negotiations recorded in the Tnvvo Council's meeting minutes show that the
town was offered $7,742,300 for the land without the WS-1 designation and $4"422`l5O with the
WS-1 designation. lo other words, the town accepted o purchase price ofapproximately $3.3
cuUUoo 1000 in order to retain its ownership oIao interest requiring dhut the watershed remain in
WS-1 designation and that the property not be used in any way inconsistent with the rules
applicable to that designation. Similarly, the 3OO-fho1 buffer restriction was valued at $650 per
acre. For the 378 nccco subject to this particular covenant, the town accepted a purchase price o[
$245'700 ltpo than it would have received had it not kept its ownership interest in the protected
riparian buffer. As urrsuh, Rocky River Hydro did not purchase and does not own the right to
log the riparian huDer1brtbcpnndoctioon[bigbvnluctioibcrocioumcmnyo{1bevva1ermbtdino
way that could adversely affect water quality.
Rocky River Hydro retained the ability io market the property for ' credits"
and did mo through Unique which found u willing buyer iuT(}C. Under the scheme
proposed by Unique P|oceo,T0C proposed to satisfy its mitigation duties hv donating u
conservation easement on a 300-foot riparian buffer on the streams in the Beaver Creek
watershed. The proposed conservation easement would have prohibited logging, construction,
and impoundments, among other things. Again, that easement would have been donated tothe
Town o[ Spruce Pine, which already owns the restrictive covenant nou virtually identical buffer.
We argued that this mitigation proposal was inadequate other things, it
did not remove a significant tbrcotfr000tbcBeavcrCcockvvotcrubod. Wr have since learned the
mitigation proposal ioon longer under consideration, andwoauppodthat. We are concerned,
however, that EEP credits may be the second choice and that TQC has sought acceptance into
the EEPprogram. Letter from J. Stanfill, II]59, to T. Mioklcbnrougb, IWC (Aug. lg, 2014).
This mitigation, iuo` very likely will bc inadequate under the circumstances; at u bare minimum,
it is clear TQC has not sought a sufficient number of stream credits from EEP. (See our prior
comments discussing under-calculation of stream icuyactu.). More importantly, I()C has not
adequately mitigated oumito impacts. In no o(foof to reduce the potential for additional
diuug7eoo\cmt going forward ou this project, we explain below the inadequacy of the previous
mitigation proposal and, importantly, what type of mitigation should instead be required. We
also remind the Corps of the other issues we raised in our prior comments that cannot be
resolved merely by modifying the mitigation proposal on the back end, and which TQC did not
adequately address iu its supplemental submissions.
9

2. Impacts that must be considered by the Colps
lu its July 28 response to the Corps, IQC acknowledges it has "sediment laden streams"
on site, but claims that the degradation resulted from "pre Clean Water Act activities" for which
it bears no fault. TQC Response at 4. The CWA however, was enacted in 1972. TQCiothe
successor iu interest to uo expanding mining operation vvbiobbas, during the ensuing 42 ymuoy,
continued topollute, dcgrado, and uzuzUdlato streams ar the Pine Mountain Mine. Now, T()C
proposes to further expand the mine with activities requiring additional oquodu impacts. T()C
downplays the direct and cumulative impact of those ocbvi1ieo, noting that "sediment and erosion
control devices" are "required by the Mining /\cL" Ii BMPy already required under other laws,
however, do not eliminate impacts, nor do they vitiate mitigation obligations; they are merely
commonsense methods for minimizing impacts. (This fact cannot bc lost onTOC,vvbicbargues
in its supplement that torcubyB��ye n/ouldbe inadequate to prevent sediment impacts from
possible logging along Beaver Czedc.>
More importantly, 7()Cia absolutely and unequivocally liable for the illegal dump onits
property, which has buried two streams and is contributing sediment to Little Bear Creek.
Although 7(lC shirks responsibility for the illegal dump, suggesting that the "violation [vvam]
incurred by an adjacent mining compmny," TQC admits b gave permission for dumping by the
other company. T()C Response Its soousentiotbc 9/ueLuvk�nt�mo[ut least three
separate provisions iu h mining
a etato poco\d and, of course, section 301 of the CWA. Although
the application does not disclose the tact, T()C was ulcuoo/ certainly compensated for uoccpdug
this illegal dump. Even ifT0Chad not given permission or received remuneration, moreover,
landowner liability under the CWA is strict. OVEC v. Hernshaw Partners, LLC, 984 F. Supy. 2d
589`600(S.IJ.W.\/u. 2013)(�� WV Highiands Conservancy v. Huffman, b25 F.3d 159` 167-
68 (4t' Ciz2Ol[)). 8dD {�
`T�`xknov/|edgcundconzyenua1ionoccrc|cvout0ndheucvodtyo[
potential criminal and civil penalties. Wo again underscore the seriousness of this violation: the
Clean Water Act, in addition to criminal penalties, would authorize civil penalties of up to about
$82 million for this Jonnp� 8�s33l).S.(�.8 }3l9(d) (per tieuzcivil penalty for 0-yeurpe�od);
40 C.F.R. 8 19.4 (adjusting per them for inflation), Rather than shrugging off fault, 7()C should
acknowledge the gravity of its violation. See 40[P.R.62]0.\(d) (emphasizing the "mcvczc`
impact of filling .
In addition, T0C is responsible for mitigating the impacts related tnthe proposed stream
relocation, According 1o7()C` the Corps elected not to require mitigation for the relocation.
The Corps, however, lacked that discretion. The placement mf material that will divert the stream
from its existing course is a discharge of "fill" material, and the lost stream resources must be
mitigated for each linear foot of the otnnom that was displaced. See 33 C.F.R. 8 323.2; 40 C.F.R.
§2302]. Relocation ("establishment" of a new channel for the stream) may be an appropriate
form of mitigation (assuming, for example, the stream quality of the new channel satisfies
uoduro| stream channel design criteria under stream mitigation guidelines), but itiy incorrect 10
say that oo mitigation iorequired, The lost stream reaches must br included iu calculations for
required mitigation credit, and the suitability of relocation as mitigation must be analyzed under
the applicable guidelines. The Corps must assess the nbrcuoz values being lost and determine
whether those losses will bc offset by the relocation. And, unn/c pointed out io our prior letter, o
drainage ditch beside a haul road is not adequate anyway to replace stream functions. To the

extent that the existing stream isnfpoor quality due to previous impacts, aoT0C suggosts,T0C
must explain when those impacts occurred and whether they were permitted. Previous
eomittcd degradation cannot serve noa baseline for mitigation requirements.
3. The extent of necessary mitigation and remediation
As noted above, ne understand TOChas withdrawn its proposal N attempt b` mitigate
fill impacts by^prememing` riparian buffers along Beaver Creek, based on feedback from the
Corps. Wc believe that withdrawing this proposal was the correct decision because it did not
offer any new meaningful protections for the Beaver Creek watershed, which is not under
demonstrable threat ofdevelopment.
To understand why TQC`m preservation proposal was inadequate and tn understand what
types of mitigation mbook1 instead bcrequired, dim instructive k` remember the limited role for
mitigation inCVV/\permitting. The law requires avoidance and minimization on a first priority
because mitigation is not guaranteed to achieve the goal of "no net loss" of aquatic resources.
See Dahl, T.E., "Status and trends of wetlands in the coterminous United States 2004 to 2009"
(2011) at 90 (noting that mitigation has not kept pace with wetland losses of acreage or
diversity). Compensatory mitigation is o last resort, appropriate only when there is no
practicable alternative that can reasonably accomplish the applicant's purpose with fewer aquatic
immpucts--i.c, when the impacts are truly unavoidable.
For these unavoidable impacts, the '.hunducocutul objective" ofmitigation is to "offset"
the harm. 40 [F.Bi. 8 230.93(o). Preservation, however, "does not result in gain of aquatic
resource area or{bnudonm." bi8230.92{d��nid000f`�n�mcrvahou``}. Promocvodnuimalso
--` ` "preservation").
disfavored because it can potentially be abused as a cheap, paper exercise, unlike the requirement
to replace lost aquatic resources, which is n more difficult task and therefore provides o greater
incentive to avoid and zoiodruizo impacts. As orcmuU. there is o strong preference for other types
of mitigation (especially restoration), and an even stronger preference against using preservation
/
u The Beaver Creek preservation proposal
According orIOC,Beaver Creek watershed hypothetically could bo logged, mined,
or otherwise exploited, adversely impacting its water quality. Each of these supposed
bovvevcr, is already prohibited b« the restrictive covenants held 6v the town. The 300-
foot buffer covenant prohibits logging uc land disturbance that could impact vva1cr � It
also forbids |o i for the purpose ofborvc i high value timber (as opposed k`lo ' for
habitat needs). The other restrictive covenants held hy the town are even more protective: uo
' Preservation ia allowed only m the extent b will permanently protect significant aquatic resources from the threat
of destruction or adverse omdifivatioo. Id. W2X9380. A less severe threat (in terms uf its likelihood and extent)
will therefore require preservation oou larger scale. See id. 0230.93(0 (requiring the Corps toweigh the
importance and likelihood of expected gains against the losses caused by the project). ln other words, where the
"threat" is already reduced by other means, "preservation" will require a higher compensation ratio. Interagency
Review Team Mitigation Guidance (2012) (discussing preservation ratios for resources already protected by state
law buffers).
101

current or future owner may use tiny portion of the property for logging that would be
inconsistent with the WS-lclauaiGom1i>o. which prohibits new point sources uudooupoiot
sources that would adversely affect water quality. Diohard to imagine any tbrcn1cued land uasa
permitted by the restrictive covenants that would bo prevented by the conservation easement.
Even if there were some theoretical threat, its scope would be so limited that it could not serve as
the foundation for a proposal to mitigate the vely serious impacts of the Pine Mountain Mine.
TQC also suggests that Spruce Pine may decline to enforce its restrictive covenant or renegotiate
it to allow logging, but even the town in its supplemental one-page letter alluded to only vague
hypothetical harms ("if use of the Beaver Creek reservoir were ever discontinued ,).2
Here, the protections purportedly created hvthe riparian conservation easement were
already negotiated for and secured by the town when the property was sold. Axa result, l`OC`m
proposal offered nothing to`^offset`the harms caused by its mining activities. Rocky River ,
Hydro does not own the right to use the property iuumanner that could degrade water quality.
Because i1 does not own that right, it cannot '^meO" it to T(lC mo that T(>C can donate it back io
the town.
h. Necessary types and amounts of mitigation oudremodbation
Given the seriousness of the impacts for which T[}Cia responsible, the proposed
mitigation was wholly inadequate. Although preservation u[ high-quality streams may
serve ua legitimate mitigation in appropriate oircumotulcso, given the low threat <o Beaver Creek
and extent of impacts on-site at the mine uitc ozucbo�oreim needed here, T()(�o�ua be required,
�t,m���o�d������' actoofthrUlegalwaste dump and, second, to
mitigate the additional impacts associated with the mine's oxpoomioo. Crucially, T(>C should be
required to include on-site restoration o[the affected stream reaches and buffers in its noidgudou
plans. To minimize impacts from and ooupcuao1c for the illegal dump alone, lFOC should be
required to remove the U]cgul tl[L restore the muenoon it has buried, and 000q»|o1c other mitigation
necessary to 000zponen10 for temporal and continued impacts. Only ifthose impacts can be
effectively mitigated ou site should 7[OC bc permitted to expand its operations. To compensate
for the impacts associated with expansion, worthy offsite mitigation projectS3 (including
restoration, enhancement, and preservation) may be part ofthe solution, but these alone will not
suffice. It simply is not acceptable for TQC to write off its unlawful degradation of Little Bear
Creek.
/. Mitigation must replace /ox/ aquatic.fiviction and remedy v/o/u/iovm^f'xnAer
quality standards
2 In any event, dis unclear that the town could afford to pursue removing the W8-1 designation and continue using
the water supply, even ifb were minclined. To avoid expensive filtration, the town iv required 1nmaintain
ownership *r control of the watershed sufficient m protect water quality, 15&N.C.&C. 18CD20l(o), and any
proposed logging anywhere in the watershed must be determined by DENR to be sufficiently protective of water
quality. 15&N[&.C. 18C .1105. 1tis not, uoT0Cclaims, n "reasonable possibility" that the town would trade
short-term timbering for the long-term expense of filtration equipment "to generate economic revenue."
/We understand, for example, there are several stakeholder groups collaboratively pursuing projects specifically
designed to restore water quality in the North Toe River area.
7

The amount of mitigation must be "sufficient to replace lost aquatic resource functions."
40 C.F.R. § 230.93(f) (emphasis added). Here, the streams' lost functions must be measured not
only by linear distance, but also in terms of the time since the violation occurred. TQC is not
applying, as in the ordinary case, for a permit to cover harms that will occur in the future. It is
instead applying for a pen-nit to absolve it of liability for waste that was dumped six years ago,
obliterating two streams and impacting water quality ever since. In the language of the
regulations, these are "temporal" impacts requiring additional mitigation. 40 C.F.R. §
230.93(f)(2), (in).
Furthermore, in addition to the streams physically obliterated by the illegal dump, these
"lost aquatic resource functions" also include downstream impacts. Downstream impacts may
include both sedimentation, id. § 230.45(b), and chemical contamination leaching from the fill,
i& § 230.60(b). TQC's application addresses neither type of impact. Furthermore, because TQC
allowed this fill without prior approval, it likely lacks the baseline data to show the precise extent
of degradation caused by sediment or other contaminants. As a result, unless TQC proves
otherwise, the Corps must assume that "worst case" degradation did in fact occur: that the
buried streams were in the best possible condition, that the sediment impacts downstream were
as extensive as could possibly be expected, and that any harmful mineral deposits or
contaminants in the fill did in fact leach into the stream. See 33 C.F.R. § 325.1 and 40 C.F.R. §
230.12(a)(3)(iv) (placing the burden on the applicant to provide such data).
Mitigation must also remedy any violation of a water quality standard or adverse
modification of critical habitat caused by the illegal fill. 40 C.F.R. § 230.10(b). The 404(b)(1)
guidelines are clear that no pennit can be issued, either before or after the fact, for a discharge
which causes or contributes to such a violation of law. Id. Though the extent of TQC's
contribution is unclear (because TQC has not provided the data necessary to evaluate it), it is
certain that TQC's discharge contributed to the impairment of the North Toe River and to the
degradation of Appalachian elktoe critical habitat.
As explained above, this watershed is impacted by mining operations to the near
exclusion of other activities. The mere existence of other high quality streams in the North Toe
watershed, like Beaver Creek, has not been sufficient to offset the impact of mining activities
and would not be in the future with expanded mining. Thus, in order to replace the lost resource
functions and to remedy these violations of law, TQC's mitigation plan must address the impacts
from its mining operations. It may be possible to restore streams on site where mining
operations have ceased. If not, however, TQC cannot be permitted to expand its operations
while the effects of its prior unauthorized activities still linger downstream.
2. Mitigation should deter dischargers from unlawful discharges, and especially
those with avoidable impacts.
The mitigation required here should require TQC to fully compensate for the
unauthorized harm done by its illegal dump, which was entirely avoidable. The Corps cannot
issue a permit for an avoidable impact. 40 C.F.R. § 230.91(c)(2). An impact is avoidable if
there exists a practicable alternative "which would have less adverse impact." Id. § 230.10(a).
0

TQC's illegal dump could have been avoided bv dumping onhigher ground, rather than filling
yhsunz. Accordingly, T(}C could never have received u permit for the waste dump. Instead of
seeking u permit d could never have obtained, ?0C unlawfully and knowing4y allowed the dump
at this site, burying two streams.
Because there was u practicable alternative, the Corps cannot issue upermit that o|lonva
the 6onnp to remain in place. 33 C.F.R. 326.3bo(2). If removal of the waste is technically
teuyO7lu, T[C should hc required to restore the streams to their previous channels and, insofar as
possible, 10 their previous condition, ux well ao restore the buffers. lf the streams cannot hefully
restored to their prior condition, T(l[ should bcrequired to onibgn10 that lost function with other
on-site restoration. Again, in this uou|yeim TAC must provide the data to show the mbcums`
previous (prior to Jnmn) quality. If such data im not available, the Corps must assume that the
stream was in the best possible condition.
Removal o[ the waste and restoration of the streams (and their functions) and buffers ia
necessary in order to deter similar future violations. Not only is this required by the (U
guidelines; itiyalso necessary in the public interest. U would he contrary to the public interest to
allow 7C)C to continue with its business as usual, evading responsibility for the unlawful
discharge and its severe impacts. See 33 C.F.R. G8 3204; 326.3(c)(2).
If removal of the waste ixnot tnobmic»Dv feasible, the Corps still cannot perrnit the waste.
dump for the reasons explained above. The Corps can, however, (and pursue appropriate
cdnuiool and civil penalties to dctszT()C and other mine operators from flagrantly DUbug atrcunzs
with their mining wastes. See 33 C.F.R. §8 3202 (policy to discourage unauthorized activities);
326.3(c)(I). We encourage the Corps 0n coordinate with EPA iodetermining an appropriate
penalty ifTAC ia unable or unwilling tn undo the boo-nof this flagrant violation.
4. NEPA issues
[f all our comments, our criticism o[TO[mproposed mitigation plan seemed 1odraw
the most attention. We raised several other issues, however, which are equally important under
the Corps` regulations.
As we explained before, T()C`u project pugpome was stated too narrowly to satisfy the
Corps' NEp}\ regulations. 8cc 33 C.F.R. P1. 325, Ann`x B 8 9(b)(4). The Corps cannot accept
uu applicant's purpose and need which iaxo narrow that only a single alternative could satisfy it.
Save Our Cumberland Mountains v. ,453F.9d334,345-46(6"Ciz.20Oh). But
TQC's stated purpose ("to continue the development and operation ... at the mine site") was
identical to its project description ("the continued development of existing and newly proposed
facilities within T()C`aPMMpropcdy").
We pointed out that the stated project purpose imio appropriate because "continued
of the Pine Mountain Mine should be prohibited unless and until TQC remedies
its CWA violation. 33 C.F.DL.8 326.36lUl Instead, ua directed by the applicable regulations,
this project's purpose must be, first, to remedy the CWA violation and, only after that obligation
is met, to meet public demand for high quality quartz. See 33[E� Pt. 325,App`xD87(k)(3).
9

In its supplemental submission, TOC proposes a new articulation for its purpose and
need: "to sVndnoc mining the applicant's quartz, ooiuu and feldspar orocrvco." 7WC Response
n12. This purpose immo broader than the last; d still could be met with only u single alternative
(namo|y, the applicant's proposed alternative to continue developing of the ooine). Again, the
j�`m�c���(��.��C�mmu�o�d,iuh�of���'xi is to
meet the global demand for high quality quartz. See 33C.F.B. Pt. 325,Am`xB §9(b)(4). The
scope of analysis for alternatives and their impacts mua btuu broad omT()C`m stated benefit of
the project. Ii 8 7(b)(3). Accordingly, the Corps must consider any alternatives that could meet
demand for high quality quartz while avoiding impacts to resources within federal jurisdiction,
including the streams on site and the downstream federally protected habitat. It ia not enough, as
T0C suggests, to consider only ^^on-oi1c" alternatives. Indeed, T0C has considered only osingle
on-site alternative. The modifications to the project deocdbedbyT()C are not alternative
projects; they are required minimization techniques for this single alternative.
We also continue to believe that TQChas neglected the indirect and cumulative impacts
of its activities. TQC asserts h will continue to develop thiamine and other properties asbis
able, and d surely has undertaken some evaluation ofthe potential for future development, but it
fails to disclose that information. The Pine Mountain Mine has already profoundly impacted
Little Bear Creek and contributed to the impairment of the North Toe River; continued suyuuaioo
will continue the trend. It is not eonomh to rely oo required BMPw and other legal requirements
to downplay the significance of these impacts. Even if these legal requirements were adequately
protective, T(>C has not abided by them io the past. The company's file shows numerous
notations of failed or inadequate BMPo. And, of course, T0C`o willingness to allow unillegal
dump does not inspire great 000fidcoosin its commitment tu meet legal requirements inthe
future.
5. TQCs other responses
we are surprised 6vTOC`m dismissal of Glenda }{oUiOc|d`mcomments
because her property io not ^dk)vvoutreum"ofthe Pine Mountain Mine. 7()C Response a12. Mm.
Hollifield is also a member of WNCA (on whose behalf SELC is acting), and we are confident
she (individually) and WNCA (organizationally) have standing to object to deficiencies in
T0C`aperu/b application. T()Cio seeking n permit to facilitate expansion o[its operations, uod
its effects are not limited k` aquatic /\m noted above, T(lC`m application does not
adequately address these other indirect and cunududvc impacts. For example, continued
development and operation of the Pine Mountain Mine would affect the amount of blasting and
bLopnff from tailings piles, which clearly affect Ms. 8oUiOeld. The requirement that T0C
obtain permits for these other types of impacts is irrelevant; the effects are real even if they are
legal. Moreover, T(>C has exceeded its permit conditions ona number o[occasions.
In addition, while EPA may not have commented un this permit application, wo think dbs
unlikely that EPA was aware ofT()C`m illegal waste dump io violation of the CW/\. EPA has
independent enforcement authority under the CWA, even for "^fil|" impacts that would ordinarily
hc under the Corps' jurisdiction. We encourage the Corps 1u coordinate with EPA io
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determining how best k`assist T8C in fulfilling its obligation iorernedioteand mitigate mduvbd
6. Conclusion
Thank you for your continued attention to our concerns. We view the impacts here as
aodous. We assume that TQC's modified application (with new mitigation proposal) will be
available for public comment, and p/o look forward to that opportunity. Please keep um apprised
of any correspondence relevant to these matters, and do not hesitate to contact uaiFwc can offer
any additional explanation orinformation.
Sincerely,
Sam Evans
Staff Attorney
�
Amelia y.8nmctte
Senior Attorney
Austin DlGerken
Senior Attorney
Southern Environmental Law Center
%2 South Pack Square, Suite 700
Asheville, NC 28801
[phone]
mcvnom(&oulouc.org
ahumek���yelcuo.org
J6gezkco6�ye|unc.nrD

Counselfor
Hartwell Carson
French Broad Riverkeeper
Western North Carolina Alliance
29 North Market Street
Asheville, NC 28801
828- 258 -8737
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