20080868 Ver 2_Approval Letter_20081205

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Michael F. Easley, Governor
William G. Ross Jr., Secretary
North Carolina Department of Environment and Natural Resources
Coleen H. Sullins, Director
Division of Water Quality
December 5, 2008
Mr. Ross M. Smith, Manager
Environmental Affairs
PCS Phosphate Company, Inc.
P.O. Box 48
Aurora, NC 27808
Re: PCS Phosphate Mine Expansion, Beaufort County
DWQ #2008-0868, version 2.0; USACE Action ID. No. 200110096
APPROVAL of 401 Water Quality Certification with Additional Conditions
Dear Mr. Smith:
Attached hereto is a copy of Certification No. 3771 issued to PCS Phosphate Company, Inc. of
Aurora, NC, dated December 5, 2008. In addition, you must get any other federal, state or local
permits before you proceed with your project including (but not limited to) Solid Waste,
Sediment and Erosion Control, Stormwater, Dam Safety, Mining, Non-discharge and Water
Supply Watershed regulations.
If we can be of further assistance, do not hesitate to contact us.
CHS/jrd
Attachments: Certificate of Completion
Sincerely,
Coleen H. Sulli s
cc: Mr. Tom Walker, U.S. Army Corps of Engineers, Asheville Regulatory Field Office
Dave Lekson, US Army Corps of Engineers, Washington Regulatory Field Office
Scott McLendon, Wilmington District, USACOE
Kyle Barnes, DWQ, Washington Regional Office
Al Hodge, DWQ, Washington Regional Office
DLR Washington Regional Office
File Copy
Matt Matthews, DWQ Wetlands and Stormwater Branch
Cyndi Karoly, DWQ
John Payne, NC Attorney General's Office, Environmental Division
Mike Schafele, NC Natural Heritage Program
Linda Pearsall, NC Natural Heritage Program
401 Oversight/Express Review Permitting Unit
1650 Mail Service Center, Raleigh, North Carolina 27699-1650
2321 Crabtree Boulevard, Suite 250, Raleigh, North Carolina 27604
Phone: [phone] / FAX [phone] / Internet: httn://h2o.enr.state.nc.us/ncwetlands
NorthCarolina
Nawnally
An Equal Opportunity/Affirmative Action Employer - 50% Recycled/10% Post Consumer Paper
PCS Phosphate Company, Inc.
Page 2 of 7
December 5, 2008
Jimmie Overton, DWQ
Jeff Furness, PCS Phosphate
Stephen Rynas, NC Division of Coastal Management
Shannon Deaton, NC Wildlife Resources Commission
Derb Carter, Southern Environmental Law Center
Geoffrey Gisler, Southern Environmental Law Center
Heather Jacobs, Pamlico Tar River Foundation
Sean McKenna, NC Division of Marine Fisheries
Eric Kulz, DWQ
Tammy Hill, DWQ
Becky Fox, US Environmental Protection Agency
Tom Welborn, US Environmental Protection Agency - Region 4 Atlanta
Melba McGee, DENR
Bill Ross, DENR
Coleen Sullins, DWQ
Chuck Wakild, DWQ
Paul Rawls, DWQ
Ted Strong, Washington Daily News
Susan Massengale, DWQ
Julia Berger, CZR
George House, Brooks, Pierce, McLendon, Humphrey and Leonard, LLP
Jim Stanfill, EEP
Mary Penny Thompson, DENR
Susan Massengale, DWQ
Ann Deaton, NC Division of Marine Fisheries
John Hennessy, DWQ
Filename: 20080868v2PCSPhosphate(Beaufort) 401
PCS Phosphate Company, Inc.
Page 3 of 7
December 5, 2008
NORTH CAROLINA 401 WATER QUALITY CERTIFICATION
THIS CERTIFICATION is issued in conformity with the requirements of Section 401 Public Laws
92-500 and 95-217 of the United States and subject to the North Carolina Division of Water
Quality (DWQ) Regulations in 15 NCAC 21-1, Section .0500 to PCS Phosphate Company, Inc. of
Aurora, NC based on an application to fill 4,124 acres of jurisdictional wetlands, 29,288 linear feet
of streams and 55.14 acres of stream buffers in the Pamlico River Basin, associated with the
expansion of PCS Phosphate's mining operation in Beaufort County, North Carolina, pursuant to
an application filed on the 22nd day of May of 2008 through the published Public Notice by the US
Army Corps of Engineers, and in additional correspondence received September 5, 2008 (dated
September 4, 2008) and November 3, 2008 (received November 5, 2008).
The application and supporting documentation provide adequate assurance that the proposed
work will not result in a violation of applicable Water Quality Standards and discharge
guidelines. Therefore, the State of North Carolina certifies that this activity will not violate the
applicable portions of Sections 301, 302, 303, 306, 307 of PL 92-500 and PL 95-217 if
conducted in accordance with the application, the supporting documentation, the additional
correspondence noted above and conditions hereinafter set forth.
This approval is only valid for the purpose and design submitted in the application materials,
additional correspondence and as described in the Public Notice. If the property is sold after the
Certification is granted, the new owner must be given a copy of the Certification and approval
letter and is thereby responsible for complying with all conditions of this Certification. Any new
owner must notify the Division and request the Certification be issued in their name. Should
wetland, buffer or stream fill be requested in the future, additional compensatory mitigation may
be required as described in 15A NCAC 2H .0506 (h) (6) and (7). If any plan revisions from the
approved site plan result in a change in stream, buffer or wetland impact or an increase in
impervious surfaces, the DWQ shall be notified in writing and a new application for 401
Certification may be required and a modified 401 Certification may be required. For this
approval to be valid, compliance with all the conditions listed below is required.
Conditions of Certification:
1. Impacts Approved
The following impacts are hereby approved as long as all of the other specific and
general conditions of this Certification are met. No other impacts are approved including
incidental impacts other than listed in this table. Also, please note that these impacts
are those approved by DWQ and are only a portion of the impacts that were originally
applied for and listed in the Public Notice.
Amount Approved Plan Location or Reference
(Units)
Streams 18,621 feet Final EIS, page a and June
6, 2008 submittal to DWQ
404/CAMA Wetlands 3,789 acres Final EIS, page a and June
6, 2008 submittal to DWQ
Waters 19 acres Final EIS, page a and June
6, 2008 submittal to DWQ
Buffers 28.14 acres Final EIS, page a and June
6, 2008 submittal to DWQ
PCS Phosphate Company, Inc.
Page 4 of 7
December 5, 2008
Sediment and Erosion Control:
2. Erosion and sediment control practices must be in full compliance with all specifications
governing the proper design, installation and operation and maintenance of such Best
Management Practices in order to protect surface waters standards:
a. The erosion and sediment control measures for the project must be designed,
installed, operated, and maintained in accordance with the most recent version of the
North Carolina Sediment and Erosion Control Planning and Design Manual.
b. The design, installation, operation, and maintenance of the sediment and erosion
control measures must be such that they equal, or exceed, the requirements
specified in the most recent version of the North Carolina Sediment and Erosion
Control Manual. The devices shall be maintained on all construction sites, borrow
sites, and waste pile (spoil) projects, including contractor-owned or leased borrow
pits associated with the project.
c. For borrow pit sites, the erosion and sediment control measures must be designed,
installed, operated, and maintained in accordance with the most recent version of the
North Carolina Surface Mining Manual.
d. The reclamation measures and implementation must comply with the reclamation in
accordance with the requirements of the Sedimentation Pollution Control Act or
Mining Act of 1971 (as amended).
3. No waste, spoil, solids, or fill of any kind shall occur in wetlands, waters, or riparian areas
beyond the footprint of the impacts depicted in the 404/401 Permit Application. All
construction activities, including the design, installation, operation, and maintenance of
sediment and erosion control Best Management Practices, shall be performed so that no
violations of state water quality standards, statutes, or rules occur.
4. Sediment and erosion control measures shall not be placed in wetlands or waters without
prior approval by the Division. If placement of sediment and erosion control devices in
wetlands and waters is unavoidable, design and placement of temporary erosion control
measures shall not be conducted in a manner that may result in disequilibrium of wetlands
or stream beds or banks, adjacent to or upstream and down stream of the above
structures. All sediment and erosion control devices shall be removed and the natural
grade restored within two (2) months of the date that the Division of Land Resources or
locally delegated program has released the project.
Continuing Compliance:
5. PCS Phosphate Company, Inc. shall conduct construction activities in a manner
consistent with State water quality standards (including any requirements resulting from
compliance with section 303(d) of the Clean Water Act), the 401 Water Quality
Certification rules (15A NCAC 2H .0500) and any other appropriate requirements of
State law and federal law. If the Division determines that such standards or laws are not
being met (including the failure to sustain a designated or achieved use) or that State or
federal law is being violated, or that further conditions are necessary to assure
compliance, the Division may reevaluate and modify this Certification to include
conditions appropriate to assure compliance with such standards and requirements in
accordance with 15A NCAC 2H .0507(d). Before modifying the Certification, the Division
shall notify PCS Phosphate Company, Inc. and the US Army Corps of Engineers,
PCS Phosphate Company, Inc.
Page 5 of 7
December 5, 2008
provide public notice in accordance with 15A NCAC 2H.0503 and provide opportunity for
public hearing in accordance with 15A NCAC 2H.0504. Any new or revised conditions
shall be provided to PCS Phosphate Company, Inc. in writing, shall be provided to the
United States Army Corps of Engineers for reference in any Permit issued pursuant to
Section 404 of the Clean Water Act, and shall also become conditions of the 404 Permit
for the project. This condition is intended to conform with the provisions of 15A NCAC
2H .0507 (d).
Mitigation:
6. Wetland and stream mitigation shall be done as follows and in accordance with mitigation as
approved by the US Army Corps of Engineers. DWQ shall be copied on all draft mitigation
plans and copied on all annual reporting on mitigation success. In addition, buffer mitigation
shall be done in accordance with condition 7 below. In addition, DWQ shall be copied on a
final accounting of the amount and type of proposed wetland, stream and buffer mitigation
within 60 days of the issuance of the 404 Permit from the US Army Corps of Engineers. Any
mitigation done outside the 8-digit HUC where PCS is located should follow the guidance for
out of HUC mitigation as described in "Guidance on the Use of Compensatory Mitigation in
Adjacent Cataloging Units" dated May 20, 2005 or its update by DWQ. Conservation
easements or similar mechanisms to protect these mitigation sites shall be recorded on all
mitigation sites to the written satisfaction of the US Army Corps of Engineers.
7. Buffer mitigation shall be conducted by PCS Phosphate at those mitigation sites with
riparian buffer credit which total about 23.2 acres of buffer credit. If the Environmental
Management Commission approves a flexible buffer mitigation program, then PCS
Phosphate may submit a list and description of those sites to DWQ for written approval. If
no additional riparian buffer mitigation sites and no flexible buffer mitigation sites are
approved by DWQ, then disturbance of buffers in the NCPC, Bonnerton or South of 33
tracts shall not be done beyond the limits of the 2014 mining tract shown on PCS' Project
Impact Schedule Year 2008-2016 (generally south of Drinkwater Creek) (see Attachment
One). DWQ shall be copied on all buffer mitigation site plans and written approval from
DWQ is required for these plans before planting or land grading occurs.
8. Porter Creek enhancement - Additional written approval is required from DWQ for a wetland
enhancement and stream restoration plan as well as a monitoring plan for the stream,
headwater forest and hardwood flat at the upper end of Porter Creek. This plan shall
include plugging or filling the existing ditch in order to reestablish surface flow into the
wetland and stream channel. DWQ acknowledges wetland functional uplift for the 3.4 acre
hardwood flat that is located between the stream and existing ditch and will count 1.7 acres
of functional uplift of these non-riparian wetlands in order to account for DWQ's mitigation
requirement in 15A NCAC 2H .0506 (h)(6). Stream mitigation credits are also available for
the restoration of flow into the existing channel with appropriate monitoring.
Additional Minimization of impact:
9. Hardwood Flat Avoidance - Impact to the 135 acre ("135 A" on Attachment Two) portion,
the 58 acre (" 58 A" on Attachment Two) portion and the 20 acre secondary connection
between these two locations ("20 acre connect" on Attachment Two) of the Bonnerton Road
Non-Riverine Wet Hardwood Forest as depicted on Exhibit A of the letter dated October 20,
2008 from George House of Brooks, Pierce, McLendon, Humphrey and Leonard, LLP to
Paul Rawls of the NC Division of Water Quality shall be avoided and the area not mined or
PCS Phosphate Company, Inc.
Page 6 of 7
December 5, 2008
cleared since this wetland is a "wetland of exceptional state or national ecological
significance" in accordance with 15A NCAC 2H .0506(e). In order to protect the uses of this
wetland, a conservation easement shall be placed on the wetland to preclude impacts
including mining, logging and any other disturbance of the vegetation or soils that would
result in its delisting as a state or nationally significant wetland area. This conservation
easement shall be sent to DWQ within 60 days of the issuance of the 404 Permit and the
Division must review and approve this easement before it is recorded. The only exception
to this avoidance is that a dragline walkpath with a width of no more than 250 feet shall be
allowed in order to allow equipment to travel from the northern part of the Bonnerton tract to
the southern part of the Bonnerton tract. The exact location of this walkpath shall be
submitted to DWQ for written approval. In addition, a revegetation plan for the walkpath
shall be submitted to DWQ for written approval and revegetation shall be done with native
tree species once the walkpath has been accessed and is no longer needed for equipment
access.
10. Additional minimization of appx. 3 acres of wetland impact shall be provided for the NCPC
tract as depicted on the letter from PCS Phosphate dated November 3, 2008 to John
Dorney of the NC Division of Water Quality.
11. South of 33 tract - The boundaries for the SCR alternative shall be followed for the South of
33 tract.
Monitorinq
12. Groundwater monitoring - Additional written approval is required from DWQ for a final
groundwater monitoring plan that supplements and compliments the existing groundwater
monitoring that is being conducted by PCS for various state and federal agencies. In
addition to other parameters, cadmium and fluoride shall be monitored in the final
groundwater monitoring plan. , This plan shall include groundwater monitoring of the
protected portion of the Bonnerton Road Non-Riverine Wet Hardwood Forest in order to
ensure that the existing hydrology of this site is maintained.
13. Stream and watershed monitoring - The existing water management and stream monitoring
plan for water quality, water quantity and biology (macrobenthos and fish) shall be continued
for the life of the Permit by the applicant. This plan shall be designed to assure the
protection of downstream water quality standards including Primary and Secondary Nursery
Area functions in all tributaries to South Creek, Porter Creek, Durham Creek and the
Pamlico River adjacent to the mine site. Additional monitoring shall be proposed by the
applicant and approved by DWQ for tributaries in the Bonnerton and South of 33 tracts
before land clearing or impacts occur to those locations.
The plan shall identify any deleterious effects to riparian wetland functions including by not
limited to water storage, pollutant removal, streambank stabilization, as well as resident
wetland-dependent aquatic life and resident wetland-dependent wildlife and aquatic life in
streams tributary to the Pamlico River in the NCPC, Bonnerton and South of 33 tracts. If
necessary, management activities to protect or restore these uses will be required for all the
tributaries of these three tracts.
PCS shall notify DWQ in writing at least one month in advance of any biological sampling so
DWQ biologists can accompany PCS biologists as needed. Also a certified lab is required
for the identification of freshwater biological samples. For estuarine samples, a
PCS Phosphate Company, Inc.
Page 7 of 7
December 5, 2008
knowledgeable lab shall be used until such time as DWQ certifies laboratories for estuarine
analysis and after that time, only suitably certified labs shall be used. Finally a fish
monitoring plan shall be included in the final monitoring plan submitted to DWQ for written
approval.
This stream and watershed monitoring plan shall be submitted to DWQ for written approval
within six months of the issuance of the 404 Permit. Seven copies (two hard copies and five
CD's) of the draft plan and annual reports shall be submitted to DWQ for circulation and
review by the public and other federal and state agencies.
Expiration of Certification - This approval to proceed with your proposed impacts or to conduct
impacts to waters as depicted in your application shall expire upon expiration of the 404 Permit
with the proviso that changes to this Certification may be made in accordance with condition 5
(Continuing Compliance) above.
If this Certification is unacceptable to you, you have the right to an adjudicatory hearing upon
written request within sixty (60) days following receipt of this Certification. This request must be
in the form of a written petition conforming to Chapter 1506 of the North Carolina General
Statutes and filed with the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh,
N.C. 27699-6714. If modifications are made to an original Certification, you have the right to an
adjudicatory hearing on the modifications upon written request within sixty (60) days following
receipt of the Certification. Unless such demands are made, this Certification shall be final and
binding.
This the 5th day of December 2008
DIVISION OF WATER QUALITY
Coleen H. Sulli
CHS/jrd
Attachment One
Riparian Buffer Mitigation
PCS Phosphate, Inc. 401 Certification
December 5, 2008
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SCALE IN FEEY
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PROJECTED IMPACT SCHEDULE YEAR 2008 - 2016
PCS PHOSPHATE
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SCALE: AS SHOWN JAPPROVED BY: I DRAWN BY:
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Attachment Two
Hardwood Flat Avoidance
PCS Phosphate, Inc. 401 Certification
December 5, 2008
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