20080868 Ver 2_Minute from 20th Meeting of PCS Permit App Review Team_20070207

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INCORPOR ATED
ENVIRONMENTAL CONSULTANTS
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4709 COLLEGE ACRES DRIVE
SUITE 2
WILMINGTON, NORTH CAROLINA 28403-1725
TEL [phone]
FAX [phone]
LETTER OF TRANSMITTAL [e-mail]
TO: Ms. Mary Alsentzer (PTRF)
Ells. Becky Fox (USEPA)
Mr. Jeffrey C. Furness (PCS)
Mr. James M. Hudgens (CZR)
Mr. Scott Jones (USACE)
Mr. Tom Walker (USACE)
Mr. Sean McKenna (NCDMF)
Ms. Maria Tripp (NCWRC)
Mr. Terry Moore (NCDCM)
Mr. George House (PCS-Brooks Firm)
Mr. Kyle Barnes (NCDWQ)
FROM: Sam Cooper/Julia Kirkland Berger
DATE: 5 February 2007
SUBJECT: See Below
WE ARE SENDING YOU:
Mr. David Moye (NCDCM)
Mr. Jimmie Overton (NCDWQ)
Mr. Richard Peed (NCDLR)
Mr. William A. Schimming (Potash)
Mr. Ron Sechler (NMFS)
Mr. Ross Smith (PCS)
Mr. David M. Lekson (USACE)
Mr. Jerry Waters (PCS)
Mr. Mike Wicker (USFWS)
Dr. David McNaught (ED)
Mr. Ted Tyndall (NCDCM)
® Attached via FedEx, 2nd day service
Number I Material I Date I Description
1 I 11/2/2007 I DRAFT summary minutes-20"' meeting (1 September 2006) of
PCS Phosphate mine continuation review team
THESE jARE TRANSMITTED: ? For review ® For your information
REMARKS:
1?n 10~V1 eoll?' 0 &110'a of
*vex ? Signed:
-.Julia Kirklan
File: 1745.62.09!
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WA(\O-&f
2151 Alternate Al A South • SUITE 2000 • JUPITER, FLORIDA 33477-3902
TEL [phone] • FAX [phone] • [e-mail] • www.CZRINC.com
I
DRAFT
MEMORANDUM
TO: See Distribution
FROM: Samuel Cooper, Julia Berger
DATE: 2 February 2007
RE: Summary Minutes of the 20th meeting for the PCS Phosphate Mine Continuation
Permit Application Review Team (1 September 2006).
1 The 20th meeting for the review of PCS Phosphate's Mine Continuation permit application
2 was held at the NCEEP office in Raleigh, NC. The following people attended:
3
23
24 2 October 2006 (first choice) and 29 September 2006 (second choice)-venue to be
25 determined, but may be held in Raleigh since it is a mid-point between Asheville and
26 Washington. This meeting will likely be agency-only in the afternoon. Corps will send
27 out email.
13 Becky Fox - EPA
14 John Dorney - NCDWQ
15 Mike Wicker - USFWS
16 Terry Moore - NCDCM
17 Dave McNaught - Env.Defense
18 Samuel Cooper - CZR
19 Julia Berger - CZR
20 Jim Hudgens - CZR
22 PLACEHOLDER DATES FOR NEXT REVIEW TEAM MEETING:
4 Tom Walker - USACE
5 Ken Jolly - USACE
6 Heather Jacobs - PTRF
7 Ross Smith - PCS Phosphate
8 Jeff Furness - PCS Phosphate
9 Jerry Waters - PCS Phosphate
10 Richard Atwood - PCS Phosphate
11 Curtis Brown - PCS Phosphate
12 Geoff Gisler - SELC
21
1

28
29 ITEMS DISCUSSED OR DECIDED BY GROUP:
30 • Corps wanted to follow the agenda emailed to group (Attachment 1). No formal
31 comment sought at this time, but Corps asked for general input on any glaring omissions
32 in document. Corps also wanted to talk about the components to be included in the
33 conceptual mitigation plan that accompanies the DEIS and the FEIS.
34 • Corps recognized that another meeting may be necessary due to those who were
35 unable to attend from Washington.
36 • Although the group had decided at the 14th meeting that prior notification was
37 necessary if an attorney would be attending any subsequent meeting, the SELC was
38 represented by Geoff Gisler at the 20th meeting, without any such notice. PTRF
39 apologized. Mr. Walker stated he would not ask Mr. Gisler to leave since these were not
40 closed or private meetings however, he did acknowledge that Mr. Gisler's presence was
41 contrary to the teams agreement which was instituted when PTRF and SELC objected to
42 the applicants attorney being present at the 14th meeting. PCS officially protested the
43 presence of an attorney without notification. Environmental Defense indicated that the
44 SELC attorney would not engage in any discussion and was being educated to the
45 process.
46 • USFWS officially protested the timing and schedule of the meeting and indicated that
47 important team members such as NMFS, DMF and NCWRC were unable to attend.
48 DCM said that the Corps was disregarding the Governor's request for state employees
49 and the public to stay off the roads until noon on Friday due to tropical storm Ernesto.
50 Corps was not aware, nor was it made aware by any state employee, of the Governor's
51 request. Corps- reminded group of the historic difficulty of group calendar coordination,
52 that no meeting had 100% attendance, that a month's notice had been given for this
53 meeting, and that the Corps desired to keep the process moving forward. Corps also
54 informed group that this meeting was scheduled for a Friday because a number of the
55 regulatory agency Team members were already in Raleigh for another meeting on
56 Thursday.
57 Corps stated that all Team members were recently provided a copy of DEIS text,
58 tables, figures, and the Conceptual Mitigation Plan. The economic analysis (Section 2.7
59 of DEIS) was not included but is nearly complete and members should have a copy of
60 this text shortly, within a week or so. Corps is working closely with applicant and the
61 USGS on the economic information.
2 2/2/2007
62 • The DEIS will include information that the Corps will be using to make any
63 practicability decision. Corps may or may not make practicability decision on some
64 alternatives in the DEIS.
65 • Depending on whether Team notices any glaring omissions, the DEIS is likely to be
66 ready for publication in a couple of weeks. The best case scenario would be publication
67 in mid-September, followed by a public hearing 60 days from publication (mid-to-late
68 November), and an additional 30 day comment period. The 90-day total comment
69 period would then be over in mid-to-late December. In light of the November and
70 December holidays, a longer comment period or an extension of 90-day comment period
71 may be considered since the public will be seeing the document for the first time. Corps
72 reminded group that agency meetings have been occurring since 2001 regarding the
73 information in the DEIS and alternative development.
74 • Corps had most concern over economic analysis, mitigation, and
75 cumulative/secondary/indirect impacts and asked for additional input from Team. Corps
76 recognized that most cumulative and secondary impacts of projects are development
77 driven and stem from increased population and infrastructure and services expansion
78 that result from a project. In the case of PCS, none of these typical future impacts are
79 likely to occur. When it comes to cumulative impacts to wetlands and waters, the Corps
80 is compiling a list of permits from their database of permits in the area, but this list will
81 pale in comparison to the direct impacts of PCS's operations over time. PCS has
82 already quantified their past impacts and the Corps information will also be added.
83 However, quantification of indirect impacts is more complicated.
84 . DWQ stated that the 401 rules do not allow the AP alternative to be permitted and
85 that a letter would be provided by DWQ stating that phosphate mining is not a water
86 dependent activity and therefore impacts to salt marsh are not allowed. PCS could
87 apply to EMC for a variance from this restriction, but DWQ thinks PCS should apply for
88 an alternative that is permittable. For different reasons, USFWS indicated they would
89 also recommend that AP not be permitted.
90 • Corps perspective is that the DEIS is a "public notice" of sorts and is not necessarily
91 an indication that the Corps is in favor of any alternative. NEPA does not require the
92 agency preferred alternative be identified in the DEIS. The Corps cannot require an
93 applicant to change the applicant preferred alternative. PCS reminded group that there
94 is a full range of alternatives in DEIS to be evaluated.
95 • DCM expressed concern similar to DWQ and stated that the document had no
96 proposals to mitigate for impacts to Public Trust, although DCM acknowledged they may
3 2/2/2007
97 have overlooked it. DCM also noted that the coastal shoreline AEC is not quantified in
98 document. DCM requested that language be changed in the DEIS regarding the
99 determination of the upstream limits of their jurisdiction.
100 • USFWS expressed dismay with what is considered an incomplete document.
101 USFWS noted the age of RCW and bald eagle surveys and indicated that new surveys
102 for federal species will need to be conducted. USFWS expressed concern that the
103 process is going too fast and that the permit review team process had been largely
104 ignored. USFWS stated that alternative analysis should not be used as a tool of
105 negotiation.
106 • Environmental Defense was troubled by fact that PCS is not able to meet the Tar-
107 Pamlico buffer mitigation requirement. PCS explained that their variance request to
108 WQC of EMC was not to evade or be exempt from the buffer requirements but only to
109 request approval of various flexible methodologies that would achieve the goals of the
110 buffer rules regarding nutrient removal and reduction in conjunction with other stream
111 and wetland mitigation (DWQ agreed with this explanation). Environmental Defense
112 questioned why the preferred alternative couldn't be redesigned to use the S33 Tract as
113 mitigation. PCS reminded group that the S33 Tract is within the 30 ratio and while it is
114 not practicable to mine at this time, PCS would not want to remove the area from
115 potential future mining.
116 • EPA had not yet read everything provided, but doubted that indirect impacts have
117 been completely addressed. EPA inquired whether indirect impacts and water
118 drawdown were treated for each alternative. PCS asked whether all drainage basin
119 reduction information should be presented like the cadmium issue and compiled in one
120 section. PCS also noted the new aquatic technical report which summarizes existing
121 studies (Appendix F-not distributed to Team yet).
122 • Corps mentioned that PCS had recently shared their reclamation plan for NCPC
123 which includes recontouring the blend areas to minimize elevated areas near the South
124 Creek tributaries. PCS plans to create valleys and reclaim streams similar to what was
125 done at Whitehurst Creek which will require some previously mined and backfilled areas
126 to be raised to accommodate the extra materials that would have gone on top of historic
127 stream locations.
128 • EPA asked how it would be handled if they felt like there should be another
129 alternative. PCS asked if the Corps had received any comments on the 10 alternatives
130 distributed to the interagency review team in the 9 March 2006 book. Corps indicated
131 that no agency had suggested any additional alternatives and depending on how
4 2/2/2007
132 realistic a new alternative is if one is suggested, it may be evaluated in a supplemental
133 document. Corps invited any new alternative from group as long as it was technically
134 feasible and significantly different in impact from those already developed. EPA
135 requested another agency-only meeting soon to discuss possible additional
136 alternative(s).
137 • Corps summarized the economic and practicability issues. There are two national
138 sources of the cost of phosphate (USGS and The Fertilizer Institute-TFI. Difficulty
139 comes from the fact that no one is selling the product domestically, everyone consumes
140 it internally. Steve Jasinski with the USGS has estimated the "average price" based on
141 the "costs of mining" instead of a sales price. PCS, USGS, and The Fertilizer Institute
142 have provided information which shows:
143 a) average costs of mining (not developed by applicant, done independently)
144 b) cyclicity and volatile nature of DAP market controlled by demand not supply.
145 These costs are included in the cost of mining and cannot be passed along to
146 consumer
147 c) PCS net margin (operating income) data from 2000 forward (confidential).
148 • Environmental Defense inquired if the probabilities of volatility had been incorporated
149 in the economic analysis. PCS replied that market intelligence now is that it may not
150 peak again because China and India are now building their own facilities with the goal of
151 eliminating fertilizer imports. Corps shared the fact that PCS plans to increase non-
152 fertilizer capability to offset market volatility and that this type of information would be in
153 Section 2.7. Corps does have concerns about making projections too far into the future
154 due to the loss of predictability and accuracy. Corps again invited others to share the
155 economic information with experts when they receive it and to contact USGS or Corps
156 with questions.
157
158 Break 12:25-1:50 pm
159
160 PCS presented a Powerpoint presentation on mitigation site search efforts thus far
161 and some draft information on three sites that PCS currently has landowner
162 commitments and will likely be the first mitigation sites in the ground (Attachment 2).
163 Background points accompanying the slides are summarized below:
164 a) Site search parameters included 250-acre and 1,000-foot minimums for wetland
165 and stream sites, mucky soils preferred initially for wetland sites but hydric
166 mineral sites have also been included, ecological corridors, 303d streams,
5
2/2/2007
167 watershed approach, requests from agencies about specific parcels of interest,
168 and adjacency to existing natural heritage sites among others.
169 b) First slide on aerial photo base shows -- 170 sites, but now there are -250 sites
170 identified by CZR or EBX including -71K acres of potential wetland restoration
171 and -137 miles of potential stream restoration. Sites were prioritized on
172 characteristics including large watersheds, wetland and stream complexes,
173 limited number of owners, and headwater location.
174 c) South Creek Corridor Complex would be largely preservation but PCS is
175 exploring the potential of reconnecting South Creek to the floodplain on some
176 parcels by berm or dike modification and/or equalization pipes.
177 d) Remaining slides are self-explanatory for the most part and depict the Bay City
178 Farm south of Aurora and the Hell Swamp and Scott Creek headwaters sites
179 west of Belhaven on the appropriate USGS, soils maps, aerial photos, and lidar
180 bases. For the Scott Creek site, draft stream restoration and stream valley
181 restoration were included to show locations of these mitigation activities.
182
183 USFWS indicated that what PCS showed is not on the scale of what is proposed for
184 impact and obviously would result in significant degradation to the NCPC creeks which
185 would be impossible to mitigate. USFWS stated that agency ability to comment is
186 diminished because there are no specifics on mitigation. USFWS wants to see water,
187 proximity to impacts, soils characteristics of impact area compared to mitigation areas,
188 reasonable aspects to offset functional impacts, and functional equivalents included as
189 specifics in the plan. The plan should be convincing enough to show that what is difficult
190 is actually possible but that there was no way to mitigate for declines in estuarine
191 productivity. USFWS indicated that resource agencies likely have absolute consensus
192 on significant degradation.
193 • Corps stated that significant degradation is a permit decision. Corps indicated that
194 the level of detail provided in the current mitigation plan is likely adequate for this stage
195 of the review process however, a much more detailed mitigation plan would need to be
196 provided before the final EIS. PCS is going ahead with some mitigation now, regardless
197 of what is permitted and like the last permit, it is their prerogative to do so. Corps
198 reminded group that there will be more discussion on mitigation before the final permit
199 decision. The Corps stated that the final plan would need to address PCS's level of
200 control of proposed mitigation properties as well as timing of project development. Any
201 permit will likely include milestones for compensatory mitigation. It is reasonable to
6 2/2/2007
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consider that some mitigation will be done concurrent with impacts, at least initially, but
that the applicant could, at some point, provide mitigation in advance of impacts.
• PCS remarked that the years of NCPC creek monitoring indicate that the South
Creek estuarine tributary systems are driven by Pamlico River and South Creek and that
estuarine productivity is not driven by headwaters. USFWS indicated that the DMF and
NCWRC experts were not present to agree or disagree with that statement. DWQ
reminded group that NCPC creeks monitoring required in the 1997 permit will identify
any problems and if reduction of watershed has an effect, PCS will have to correct it.
• DWQ summarized mitigation topics and concerns as follows:
a) Restoration or creation at 1:1
b) Old guidance had only two wetland categories riparian and non-riparian.
c) NCWAM identifies one more additional type-estuarine. NCWAM may add more
in future. Not exactly clear how to implement NCWAM into PCS mitigation.
Functional replacement issues and how to incorporate are under discussion now
and may be in place by the time of the permit.
d) Buffer-WQC/EMC accepted the flexible methodology approach to buffer
mitigation and invited PCS to reapply for variance after it is clear what alternative
may be permitted.
e) PCS already incorporating coastal stream valley guidance.
f) South Creek Corridor Complex is positive especially if gaps are filled in. DWQ
would look favorably upon reducing preservation ratios if PCS fills in gaps.
g) DWQ will suggest some wetland parcels in some tracts that if avoided will also
receive more favorable preservation ratios.
h) DWQ's historic stream origin approximates and drainage basin data will be
available very soon (Periann Russell's data and project).
Meeting adjourned at 2:55 pm.
230 Action Items (Corps):
231 . Instigate next Team meeting
232 • Complete Section 2.7 and distribute to Team members
233 • Quantify 404 permits in project area from Corps database
234 Action Items (PCS):
235 • Verify indirect impacts have been adequately addressed and determine whether or
236 not to compile in one section
7 2/2/2007
237 Action Items (CZR):
238 • Edit word choice regarding determination of Public Trust
239 • Quantify coastal shoreline AEC in tables and text of DEIS
240 • Verify indirect impacts have been adequately addressed and determine whether or
241 not to compile in one section
ATTACHMENT 1- draft agenda
ATTACHMENT 2-PCS mitigation Powerpoint
8 2/2/2007
DISTRIBUTION:
Ms. Mary Alsentzer
Pamlico Tar River Foundation
Post Office Box 1854
Washington, North Carolina 27889
Mr. Kyle Barnes
North Carolina Division of Water Quality
943 Washington Square Mall
Washington, NC 27889
Mr. John Dorney
Division of Water Quality
North Carolina Department of Environment
and Natural Resources
Wetlands/401 Wetlands Unit
1650 Mail Service Center
Raleigh, NC 27699-1650
Ms. Becky Fox
Environmental Protection Agency
1349 Firefly Road
Whittier, NC 28789
Mr. Jeffrey C. Furness
PCS Phosphate Company, Inc.
Post Office Box 48
Aurora, North Carolina 27806
Mr. George House
Brooks, Pierce, McLendon, Humphrey &
Leonard
P.O. Box 26000
Greensboro, NC 27420
Mr. James M. Hudgens
CZR Incorporated
2151 Alternate A1A, Suite100
Jupiter, Florida 33477-3902
Mr. Scott Jones
U.S. Army Corps of Engineers
Washington Regulatory Field Office
Post Office Box 1000
Washington, North Carolina 27889
Ms. Cyndi Karoly
Division of Water Quality
North Carolina Department of Environment
and Natural Resources
1650 Mail Service Center
Raleigh, North Carolina 27699-1650
Mr. David M. Lekson
U.S. Army Corps of Engineers
Washington Regulatory Field Office
Post Office Box 1000
Washington, North Carolina 27889
Mr. Sean McKenna
Division of Marine Fisheries
North Carolina Department of Environment
and Natural Resources
943 Washington Square Mall
Washington, North Carolina 27889
Dr. David McNaught
Environmental Defense
2500 Blue Ridge Road, Suite 330
Raleigh, North Carolina 27607
Mr. Terry Moore
Division of Coastal Management
North Carolina Department of Environment
and Natural Resources
943 Washington Square Mall
Washington, North Carolina 27889
Mr. David Moye
Division of Coastal Management
North Carolina Department of Environment
And Natural Resources
943 Washington Square Mall
Washington, North Carolina 27889
Mr. Jimmie Overton
.Mr.
Division of Water Quality
Environmental Sciences Section
4401 Reedy Creek Road
Raleigh, North Carolina 27607
Mr. Richard Peed
Division of Land Resources
North Carolina Department of Environment
and Natural Resources
943 Washington Square Mall
Washington, North Carolina 27889
9 2/2/2007
Mr. William A. Schimming
Potash Corp.
Post Office Box 3320
Northbrook, Illinois 60062
Mr. Ron Sechler
National Marine Fisheries Service
101 Pivers Island Road
Beaufort, North Carolina 28516
Mr. Ross Smith
PCS Phosphate Company, Inc.
Post Office Box 48
Aurora, North Carolina 27806
Ms. Maria Tripp
North Carolina Wildlife Resources
Commission
Habitat Conservation Section
943 Washington Square Mall
Washington, North Carolina 27889
Mr. Ted Tyndall
North Carolina Division of Coastal Mgmt
Morehead City District Office
151-B Hwy.24 Hestron Plaza II
Morehead City, NC 28557
Mr. Tom Walker
U.S. Army Corps of Engineers
Regulatory Division
151 Patton Avenue, Room 208
Asheville, North Carolina 28801-5006
Mr. Jerry Waters
PCS Phosphate Company, Inc.
Post Office Box 48
Aurora, North Carolina 27806
Mr. Mike Wicker
U.S. Fish and Wildlife Service
Post Office Box 33726
Raleigh, North Carolina 27636-3726 .
Page 1 of 1
julia kirkland berger
From: 'Walker, William T SAW" <[e-mail]>
To: <[e-mail]>
Sent: Monday, August 28, 2006 2:43 PM
Subject: September 1 Agenda
All,
Below is the tentative agenda for our September 1, 2006 meeting. We will follow this order but time
frames may need to be adjusted as we go. We will be meeting in the training room next to EEP offices located in
the Parker Lincoln Building (2728 Capital Blvd.). The following link provides directions:
http://www.nceep.net/abouteep/Map and_Directions.htm.
0930: Status update (Corps)
- What's done, what's left to do `
1000: General discussion, comments & questions on the draft document
- Are there any glaring omissions
- Does info. seem generally sufficient and accurate
1100: Update on economic analysis and practicability (Corps)
- May not have finished text but will be able to explain and discuss what is being proposed
1130: Presentation on current mitigation prospects (PCS/CZR)
- Site specific information and plans
1200: Lunch
1300: mitigation discussions
- Want to get a sense of what everyone would expect in a mitigation plan for the final EIS; ratios,
implementation, timing, etc.
2/2/2007
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