20080868 Ver 2_Public Comments_20080930

SOUTHERN
ENVIRONMENTAL
200 WEST FRANKLIN STREET, SUITE. 330
CHAPEL HILL, NC 27516-2559
Telephone [phone]
Facsimile 919-929-9421
[e-mail]
September 24, 2008
Coleen Sullins
Director
Division of Water Quality
1617 Mail Service Center
Raleigh, NC 27699-1617
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Re: PCS Phosphate's "flexible haif 'r >nitigaiian" proposal and N.C. Gen. Stat. §1 �
214.20. 16MC ,. :Hj
Dear Ms. Sullins,
DENR IVA � R QUALM
We write this letter to follow up on our conversation of September 10, 2008 WE7LANDS AND TDR W TEr Bkm
regarding PCS Phosphate's ("PCS") proposal to avoid restoration or enhancement of
riparian buffers to mitigate for riparian buffer removal related to its proposed mine
expansion as required by the Tar -Pamlico Buffer Rules. As we stated during that
meeting, N.C. Gen. Stat. § 143-214.20 does not grant authority to the Division of Water
Quality ("D,X1Q") or the Environmental Management Commission ("EMC") to evaluate
individual mitigation proposals such as PCS's proposed mitigation plan. Therefore,
DWQ cannot evaluate or approve PCS's proposed mitigation plan. Instead, DWQ should
encourage the EMC to initiate rulemaking.
As administrative agencies, DWQ and the EMC are limited in their power to the
authority granted to them by statute or regulation. The authority granted to the EMC by
N.C. Gen. Stat. § 143-214.20 is clear in that it does not provide for the approval of
individual mitigation plans by either the EMC or DWQ. Rather, that statute requires the
EMC to create a program that provides standards by which mitigation plans can be
evaluated. DWQ's stated intent to evaluate PCS's proposal independently and only then
encourage the EMC to create the program to evaluate similar proposals reverses the Legal
process and exceeds DWQ's authority. There is only one course of action DWQ may
legally take here, encouraging the creation of the program mandated by N.C. Gen. Stat. §
143-214.20, and then evaluating PCS's proposed mitigation plan under that program.
DWQ's acknowledgement that rulemaking should be initiated further
demonstrates the proper interpretation of N.C. Gen. Stat. § 143-214.20. The purpose of
that rulemaking should not be overlooked, rules provide clear standards and criteria that
would assist DWQ in the evaluation of mitigation plans and increase the likelihood that
mitigation successfully replaces riparian buffer functions. Because of the importance of
these rules and limitations on the authority of administrative agencies, DWQ may not
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Re: PCS Phosphate's "flexible haif 'r >nitigaiian" proposal and N.C. Gen. Stat. §1 �
214.20. 16MC ,. :Hj
Dear Ms. Sullins,
DENR IVA � R QUALM
We write this letter to follow up on our conversation of September 10, 2008 WE7LANDS AND TDR W TEr Bkm
regarding PCS Phosphate's ("PCS") proposal to avoid restoration or enhancement of
riparian buffers to mitigate for riparian buffer removal related to its proposed mine
expansion as required by the Tar -Pamlico Buffer Rules. As we stated during that
meeting, N.C. Gen. Stat. § 143-214.20 does not grant authority to the Division of Water
Quality ("D,X1Q") or the Environmental Management Commission ("EMC") to evaluate
individual mitigation proposals such as PCS's proposed mitigation plan. Therefore,
DWQ cannot evaluate or approve PCS's proposed mitigation plan. Instead, DWQ should
encourage the EMC to initiate rulemaking.
As administrative agencies, DWQ and the EMC are limited in their power to the
authority granted to them by statute or regulation. The authority granted to the EMC by
N.C. Gen. Stat. § 143-214.20 is clear in that it does not provide for the approval of
individual mitigation plans by either the EMC or DWQ. Rather, that statute requires the
EMC to create a program that provides standards by which mitigation plans can be
evaluated. DWQ's stated intent to evaluate PCS's proposal independently and only then
encourage the EMC to create the program to evaluate similar proposals reverses the Legal
process and exceeds DWQ's authority. There is only one course of action DWQ may
legally take here, encouraging the creation of the program mandated by N.C. Gen. Stat. §
143-214.20, and then evaluating PCS's proposed mitigation plan under that program.
DWQ's acknowledgement that rulemaking should be initiated further
demonstrates the proper interpretation of N.C. Gen. Stat. § 143-214.20. The purpose of
that rulemaking should not be overlooked, rules provide clear standards and criteria that
would assist DWQ in the evaluation of mitigation plans and increase the likelihood that
mitigation successfully replaces riparian buffer functions. Because of the importance of
these rules and limitations on the authority of administrative agencies, DWQ may not
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take any action on PCB's proposal for "alternative" mitigation until final rules are put in
place to guide that analysis. PCS may, however, seek approval for that part of its
proposed mining advance that it can mitigate through restoration of buffers consistent
with existing rules, so long as it restricts its buffer impacts to those it can mitigate within
the bounds of the Buffer Rules.
We are available to discuss these issues further with DWQ as rulemaking
proceeds. Please contact us if you have any questions regarding this letter.
cc:
Dr. David Moreau
Dr. Pete Peterson
Donnie Brewer
John Curry
Tom Ellis
E. I,eo Green, Jr.
Freddie Harrill
Kevin Martin
Dickson Phillips III
Stephen Smith
Kenny Waldroup
Forest R. Westall, Sr.
2
Sincerely,
Derb S. Carter, Jr.
Geoffrey R. Gisler