20080868 Ver 2_Request to Mod 401_20081222

PCS
Phosphate VAURORA
PCS PHOSPHATE COMPANY, INC.
P.O. BOX 48, AURORA, NC U.S.A. 27806
Federal Express
December 19, 2008
Coleen H. Sullins, Director
NCDENR - Division of Water Quality
512 North Salisbury Street
Room 942
Raleigh, NC 27604
pE CE 0 V E
DEC 2 2 ?D08
DIVISION OF WATER QUALITY
M REC14R'S OFFICE
Re: PCS Phosphate Mine Continuation, Beaufort County
DWQ No. 2008-0868, version 2.0; USACE Action I.D. No. 200110096
401 Water Quality Certification Dated December S, 2008
Dear Ms. Sullins:
We appreciate the opportunity to have met with you and other DENR staff members on
Friday, December 12, 2008 to discuss the Section 401 Water Quality Certification (#2008-0868)
issued by your office on December 5, 2008. As we stated in that meeting, PCS Phosphate
Company, Inc. ("PCS") requests that the Certification be withdrawn, modified, and re-issued, for
the reasons stated below. We also take this opportunity to address issues referenced in our
follow-up phone conversation with Mr. Dorney on December 15, 2008.
I. Condition No. 9: Bonnerton
As currently stated, Condition 9 requires that 213 acres' of the Bonnerton Wet Hardwood
Forest ("WHF") areas "shall be avoided and the area not mined or cleared" and that such
areas be subjected to Permanent Conservation Easements. Complete avoidance of impact
to these three areas (referred to collectively here as "213-acre PCE") separates the
Bonnerton tract into two distinctly separate mining areas - northern and southern. As a
result, PCS would have to discontinue the mining pit north of the 213-acre PCE, transport
its machinery over a narrow walkway across the 213-acre PCE, and then re-open the
mining pit south of this area. We believe that there is no statutory or regulatory basis for
mandating complete avoidance of this 213-acre PCE and that proper application of the
I Referred to in the attachment to the Certification as "135A," "58A," and "20 acre connect."
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Colleen H. Sullins, Director
December 15, 2008
Page 2
Section 401 rules call for a balancing analysis, taking into account the practicability of
the proposed conditions.
A. Improper Reliance on 15A NCAC 211.0506(e)
While the 213-acre PCE wetlands are an appropriate subject to be addressed in
the Section 401 Certification process, we do not believe this tract merits special
status under 15A NCAC 2H. 0506(e) for the reasons stated in the earlier letters
submitted by George House on our behalf on October 20, 2008, October 27, 2008,
and November 13, 2008 ("Bonnerton Letters"): the 213-acre PCE is not a
"natural area" within the meaning of the Nature Preserves Act, N.C. Gen. Stat. §
113A-164.3(3); it cannot be and should not be classified as a "high quality
nonriverine wet hardwood forest" pursuant to Corps' or State of North Carolina
guidance; listing as a Significant Natural Heritage Area does not carry any
regulatory significance, according to DENR's own publications; and the listing is
based on factors that are not related to the narrow water quality considerations
which are properly the scope of the State's Section 401 Certification review, as
pointed out in the Record of Proceedings (December 1995) concerning adoption
of part .0500 of 15A NCAC 2H, including the Advisory Opinion of the Attorney
General dated March 21, 1995 (attached as Exhibit 1 ).
Moreover, there has been no demonstration that this 213-acre PCE provides
significant existing uses as a wetland that will be removed or degraded by this
project. This 213-acre PCE is no different from the adjoining wetland acreage
with respect to water quality standards, and should be considered as any other
wetland with respect to the limited water quality considerations appropriate to
Section 401 Certification. The Division may exercise its general discretion in
considering the 401 application and crafting the Section 401 conditions; this
discretion is not limited by the provisions of § 0506(e) under the circumstances.
B. Impracticability of Proposed Condition No. 9
1. Cost impact of avoidance
a. Equipment relocation and additional pit opening
As a result of this conditioned avoidance, relocation of mining equipment
and related facilities will be required without provision of any mining
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Colleen H. Sullins, Director
December 15, 2008
Page 3
continuity between the two mining areas. Actions and projects required
for mining operation relocation, including preparation of the equipment
walkway, physical relocation of equipment, new pit opening preparations,
and re-handling of additional overburden materials, will result in
significant cost impacts to PCS. The SCR boundary, evaluated in the
FEIS, required a similar equipment relocation in the Bonnerton area.
Marston & Marston Inc. developed cost models for each of the FEIS
evaluated alternatives. The FEIS cost model for the SCR alternative
(FEIS Appendix D) included approximately $6 million for SCR
Bonnerton relocation costs from the north to south mining areas. Marston
has provided a summary of these relocation costs (attached as Exhibit 2).
Costs for equipment relocation and the additional pit opening required by
Condition 9 are expected to be similar to the SCR cost impacts. Note: The
Corps has detennined that the SCR alternatives (SCRA and SORB) are not
practicable (FEIS Sections 2.7.5 and 2.7.6).
b. Loss of bypassed reserves with required conservation easement
PCS acquired the property and mineral rights in the Bonnerton area in
order to recover the underlying phosphate reserve. Bypassing any portion
of this reserve represents a potential loss of assets to PCS. Condition 9 of
the 401 states "a conservation easement shall be placed on the wetland to
preclude impacts including mining". Therefore, PCS will experience a
loss of phosphate reserves (3.1 million tons of recoverable phosphate
concentrate) and loss of the respective income value of these reserves.
Due to the cyclical nature of the phosphate product commodity market, the
potential income value of a phosphate resource can vary significantly over
time. A range of potential income values could be considered, all of
which would result in a significant financial impact caused by the
phosphate reserve loss dictated in Condition 9. Under any reasonable
assumptions about future operating expenses and revenues, the cost impact
of avoiding reserves beneath the 213-acre PCE as described in Condition 9
will result in a significant and unacceptable cost impact to PCS. In
addition, bypassing these reserves will reduce the period of mining north
of Highway 33 by approximately 7 months.
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Colleen H. Sullins, Director
December 15, 2008
Page 4
2. Surface walkway requirement for relocation of mining equipment
Condition 9 states "that a dragline walkway path 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." In
reference to the 10/16/08 e-mail from PCS to DWQ (John Dorney and Kyle
Barnes), it is noted that the actual width required must be evaluated on a case-by-
case basis. Evaluation criteria that could require variations in the width include
turns or curvature in the walkway path, geotechnical considerations of the
underlying soils and proximity to excavations, drainage considerations, and
relocation of utilities. Based on a specific site evaluation, the actual walkway
width could increase and the 250 feet reference should indicate a minimum width.
Note: In order to avoid impact to Porter Creek in the northern Bonnerton area, the
mining equipment will be relocated from NCPC to Bonnerton through the
southern Bonnerton area. Therefore, an equipment walkway from the southern
part of the Bonnerton tract to the northern part of the Bonnerton tract will be
required for the initial pit opening and for the duration of mining and reclamation
activities.
3. Mining corridor between north and south Bonnerton areas
In order to reduce the cost impacts associated with the two distinctly separate
mining areas in Bonnerton that would result from Condition 9, PCS provided (at
the 12/12/08 meeting) two mining excavation corridor alternatives for
consideration. A mining excavation corridor will essentially eliminate the direct
costs (approximately $6 million) associated with the equipment relocation and the
additional pit opening as described above. The excavation corridor will also
provide PCS with an opportunity to recover a portion of the phosphate reserve
and reduce the financial impact caused by the phosphate reserve loss dictated in
Condition 9. The width of both mining excavation corridors (west and east)
presented at the 12/12/08 meeting used the "minimum operational width" (permit
width = 1,498 feet) as defined by Marston & Marston Inc. in their "Minimum
Permit Width Analysis for Mining Alternatives" report presented to the EIS
review team on August 26, 2003 and as presented in Appendix B of the DEIS.
Based on the Marston presentation to the EIS review team, the minimum
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Colleen H. Sullins, Director
December 15, 2008
Page 5
operational width is "the minimum pit width that would account for anticipated
fluctuations in dragline productivity and availability, provides enough room for
machine fluctuations, but no discretionary flexibility." Marston also provided
information about a "minimum safety dictated width" (permit width = 1,145 feet),
which is the "absolute minimum width which would allow the dragline to be
physically located in the pit" with "no operational considerations." In describing
the difference between the minimum operational width and the minimum safety
dictated width, Marston states, "For a single dragline operation, additional
working space (beyond the minimum safety dictated width) is also required in
order to maintain ongoing pit development such as road construction, power,
drainage, ore lines and pit car relocations while the dragline continues to operate
and swing. Failure to provide the additional working space would require the
dragline to shut down while pit development is underway and while men and
equipment are working within the swing circle of the dragline." Based on this
information and over forty years of operational experience at PCS-Aurora, PCS
maintains that the minimum operational width is appropriate for a mining
excavation corridor between the two areas in Bonnerton.
a. West mining corridor
The western mining corridor provides the preferred corridor alignment
based on mining conditions. Alignment of conveyors and other utilities on
the western permit boundary provide some degree of logical sequencing
for movement of the mining operation. The western corridor also provides
the potential to recover 1.7 million tons of the 3.1 million tons of
phosphate concentrate lost as dictated by Condition 9. The western
corridor impacts about 99 acres of section "135A" wet hardwood forest
("WHF") and avoids impact to about 35 acres of that WHF section. A
graphic illustrating the western corridor alignment, impacts to the WHF
areas, and the impact to phosphate recovery was provided in the 12/12/08
meeting and is attached as Exhibit 3. In addition, the WHF areas avoided
by the western corridor option are highlighted on the infrared graphic also
distributed at the 12/12/08 meeting and attached as Exhibit 4.
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Colleen H. Sullins, Director
December 15, 2008
Page 6
b. East mining corridor
The eastern mining corridor provides additional impact avoidance of the
"135A" WHF as compared to the western mining excavation corridor.
The eastern corridor impacts about 32 acres of the "135A" section WHF,
avoiding impacts to over 101 acres of that section. Overall, impacts to
about 80% of the WHF in the 213-acre PCE are avoided with the eastern
corridor. The eastern corridor provides the potential to recover about one
million tons of the 3.1 million tons of phosphate concentrate lost as
dictated by Condition 9. A graphic illustrating the eastern corridor
alignment, impacts to the WHF areas, and the impact to phosphate
recovery was provided in the 12/12/08 meeting and is attached as Exhibit
5. In addition, the WHF areas avoided by the eastern corridor option are
highlighted on the infrared graphic also distributed at the 12/12/08
meeting and attached as Exhibit 6.
c. Revised eastern mining corridor
The width of the two mining corridors (west and east) presented at the
12/12/08 meeting were based on the minimum operational permit width of
1,498 feet as defined by Marston & Marston Inc. in their "Minimum
Permit Width Analysis for Mining Alternatives."
Utility corridors must be maintained on both sides of the pit to provide
access for roads, depressurization well canals, power lines, prestrip
conveyor equipment and surface drainage ditches. The utilities in these
corridors, which are detailed on the attached Bonnerton SNHA Utility
Corridors Cross Section (Exhibit 7), have been minimized to a width of
264 feet to reduce impacts within the Bonnerton WHF Areas. The
resulting minimum operational dragline pit width, excluding the utility
corridors and excavation slopes, is 937 feet. This pit width provides two
dragline cuts (or pit car setups). Two pit car setups allow the dragline to
continue mining while the ore pumps and pipelines are relocated to a new
position. The 937 feet dragline bench width provides for continuous
operation but does not provide for any flexibility should overburden
problems be encountered.
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Colleen H. Sullins, Director
December 15, 2008
Page 7
In response to requests made at the 12/12/08 meeting to narrow the
corridor further, PCS re-visited the pit width analysis, considering the
relatively short distance involved in the proposed eastern mining corridor.
The minimum safety width of 1,145 feet is also defined in the Marston &
Marston analysis, and PCS cannot justify reducing that parameter further.
The resulting dragline pit width, excluding the utility corridors and
excavation slopes, is 584 feet as shown in Exhibit 8. This is the absolute
minimum width that allows for the dragline to operate in the pit and
provides no operational considerations or flexibility. This pit width
provides for only one pit car setup and will force the dragline to shut down
while the ore pump and pipelines are relocated to a new position.
Utilizing the minimum safety width across the proposed eastern corridor
impacts about 17 acres of the "135A" section WHF, avoiding impacts to
over 116 acres of that section. Overall, impacts to about 90% of the 213-
acre PCE are avoided with this corridor, and those areas impacted are
among the lowest quality in the Bonnerton tract as shown in Exhibit 9.
The minimum safety width of 1,145 feet in the revised eastern corridor
provides the potential to recover about 0.7 million tons of the 3.1 million
tons of phosphate concentrate lost under current Condition 9. A graphic
illustrating the revised eastern corridor alignment, impacts to the WHF
areas, and the impact to phosphate recovery is attached as Exhibit 10.
PCS believes this alternative minimizes impacts to the maximum extent
practicable. PCS also believes it is not practicable to force the Company
to absorb the significant incremental operational costs and reserve losses
described above solely to avoid impacting these 17 acres.
While PCS does not believe complete avoidance of the remainder of the
213-acre PCE is justified under the rules or practicable, due to the
exigencies of the present circumstances (without a pennit, prestrip mining
operations will stop within 6 months) PCS is prepared to accept the above-
described mining corridor alignment and width and avoid the remainder of
the 213-acre PCE.
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Colleen H. Sullins, Director
December 15, 2008
Page 8
d. Response to PTRF recommended corridor (12/16/08)
On 12/16/08, you provided PCS with an e-mail from the Pamlico-Tar
River Foundation (PTRF) suggesting an alternative corridor concept for
consideration. DWQ instructed PCS to review and respond to the concept.
PTRF states, "perhaps the company can use the Bucket Wheel excavator
to continue with the bench and allow the equipment to move through that
way. We're obviously not mining experts, but we believe it is possible to
limit the spatial impact (the BWE wouldn't cause as much lateral damage
as mining along with utility corridors would) and you would also be able
to move the topsoil from the mining edge to behind the equipment which
would result in much faster reclamation."
PTRF's suggestion fails to recognize that the utilities on each side of the
excavation will still be required even if dragline excavation and recovery
of the phosphate reserve is prohibited. Roads, powerlines, drainage
ditches, conveyors, etc. will still be required. As discussed in section
I(B)(2) of this document, the minimum width for surface relocation of the
mining equipment is 250 feet. The actual excavation width in the PTRF
concept must be wider than 250 feet to allow for safe sloping of the
highwall from the bench grade to the surface. In addition, the PTRF
concept provides no recovery of any of the 3.1 million tons of phosphate
concentrate lost as dictated by Condition 9. There is minimal difference
between the corridor width as proposed in I(B)(3)(c) of this document and
the PTRF concept, and therefore, there is minimal difference in the impact
to WHF areas. To request PCS sacrifice 0.7 million tons of recoverable
phosphate concentrate for this minimal change is clearly not practicable.
e. Reclamation of mining corridor
i. Timing
The reclamation of the mined excavation corridor will be
accomplished by backfilling the entire area with dragline
overburden and capping with prestrip section overburden. There
will be no gypsum/clay blend used in the reclamation of this
corridor area. The overburden materials mined ahead of the
draglines are removed by bucket wheel excavators and conveyed
behind the mine operations into the previously mined out pit via
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Colleen H. Sullins, Director
December 15, 2008
Page 9
the Spreader (see attached mine cross section diagram, Exhibit 11).
The prestrip overburden is placed above the overburden excavated
and cast by the draglines. Backfilling of the prestrip overburden
will be established to original grade for the mined excavation
corridor. Final grading, seeding and reforestation of the area will
be accomplished in a similar manner to the area previously mined
at the headwaters of Whitehurst Creek. The Whitehurst Creek area
was mined in 1994 and released from Mine Permit 7-1 in 2005.
The reclamation process of the Bonnerton mining corridor will
occur over a period of approximately ten years from the time of
initial dragline excavation to the completion of final reclamation
activities.
ii. Wetland hydrology - aquitard
The geologic section of the prestrip overburden contains two
impervious clay units, Farmers Clay (FC) and Gumbo Clay (GC),
which serve to maintain a perched water table near the surface
supporting the wetlands (see attached geologic cross section D-D'
- Exhibit 12 and boring #12-03 drilled on the Gray Road - Exhibit
13). The placement of a layer(s) of these clay materials over the
upper portion of the reclaimed mine corridor will effectively
restore an aquitard, thereby maintaining a perched water table near
the surface. This will enable the extent of the backfilied mined
excavation corridor to effectively function as a barrier to rapid
downward migration of rainfall and runoff into the unconfined
surficial water table aquifer. These clay units in the prestrip
overburden section have previously been evaluated and are
sufficiently impervious to be utilized as clay liners for gypsum
stacks and in the construction of slurry walls, and therefore, these
clays will be appropriate for development of an aquitard.
L Maintenance of hardwood hydrology
The maintenance of the hydrologic conditions in the mined excavation
corridor can be accommodated by creating conditions in the near surface
that preclude the rapid downward migration of rainfall and runoff by
backfilling the area to grade and adding a clay layer(s) from the prestrip
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Colleen H. Sullins, Director
December 15, 2008
Page 10
overburden. When final reclamation is complete, the corridor will be
reconnected to the undisturbed areas to the west (Sand Ridge) and east
(Porter Creek drainage). It is not anticipated that supplemental water from
a well(s) would be required to maintain the hydrology once the area is
reclaimed. If supplemental water is required to maintain hydrologic
conditions in the interim, it could be accomplished with mine
depressurization water, bypassing a portion of the fresh water to a spillway
and water course structure located along the perimeter of the mined
excavation corridor.
4. Northeast triangle of "58A" WHF area
As stated in a 12/09/08 e-mail to Mr. Dorney, Condition 9 of the 12/05/08 401 Water
Quality Certification states that impact to SNHA "58A" is to be avoided. The Alt L
boundary avoids the majority of this area. The northeast "triangle" of "58A" remains
within the Alt L boundary as depicted in blue on Exhibit 14. PCS has evaluated the
401 conditions assuming that impact to this "triangle" is allowable with mitigation.
In the 12/12/08 meeting, Mr. Dorney confirmed that this assumption was correct.
5. Advantages to Mining Corridor Alternative
Any of the mining corridor alternatives discussed above would allow PCS to:
maintain a continuous mine pit; avoid the $6 million estimated cost of discontinuing
the pit to the north and restarting the pit to the south of the 213-acre PCE; recover
some of the 3.1 million tons of reserves that will otherwise be lost; and add months of
mining north of Highway 33.
Resolution of this issue will also result in permanent conservation easement
protection for the remainder of the 213-acre PCE (approximately 169 acres of WHF,
or about 90%, under the revised eastern corridor) - a result that is not otherwise
obtainable, as there is no authority for the Division to require such an easement
without just compensation to PCS.
If mining this area is impracticable, the silvicultural rules under Section 404 would
allow PCS to clear cut this area - indeed managing the tract for harvestable timber
would be the only remaining economical use. See attachments to Bonnerton Letters
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Colleen H. Sullins, Director
December 15, 2008
Page 11
regarding the U.S. Anny Corps Silvicultural Rules regarding nonriverene wet
hardwood forests.
II. Condition No. 11: South of 33 Tract
Condition 11 states, "The boundaries for the SCR alternative shall be followed for the
South of 33 tract." PCS requests that DWQ confer with the Corps of Engineers regarding
the permit boundary in the S33 area. In a 08/19/08 e-mail from Tom Walker, the Corps
provided a proposed boundary in the S33 area for consideration. This correspondence
was forwarded to Mr. Domey on 12/13/08.
III. Condition No.12: Groundwater Monitoring
PCS requests that DWQ confer with the Corps of Engineers regarding the adequacy of
this condition to address groundwater comments on the DEIS and FEIS.
IV. Condition 1: Impacts Approved
Condition I provides a table that quantifies impacts (streams, wetlands, waters, and
buffers) approved by the certification. In order to duplicate and verify these quantities,
PCS requests a description of the methodology used to calculate the quantities. Please
include any reference resources used in the calculation.
Upon request from DWQ, PCS will provide quantification of impacts for a boundary as
identified in this certification or future related certifications. DWQ will need to provide a
description of the boundary with sufficient detail so that PCS can provide accurate impact
quantities.
V. Condition 7: Buffer Mitigation
Condition 7 identifies 23.2 acres of riparian buffer credit in PCS mitigation sites. The
current estimate of Tar-Pam riparian buffer credit from the PCS mitigation sites totals
about 24.4 acres.
11
Colleen H. Sullins, Director
December 15, 2008
Page 12
Condition 7 references "the 2014 mining tract." The reference to the 2014 mining tract
should be the 2014 impact area. The title of the reference included in the certification is
"Projected Impact Schedule Year 2008 - 2016."
VI. Condition 10: Additional Minimization of approximately 3 acres
Condition 10 identifies additional minimization of approximately 3 acres and references
the letter from PCS to Mr. Dorney on 11/03/08. Section "5.C." of that letter provides
proposed impact minimization of the 5"' exclusion area (eastern most) in the "cat ears" at
the north end of the current permit boundary in the NCPC tract. During the phone
conversation with Mr. Dorney on 12/15/08, he confirmed that Condition 10 references
and accepts the impact minimization boundary as described in the 11/03/08 letter.
VII. Condition 13: Stream and Watershed Monitoring
A. Continue existing monitoring and develop new plan?
We believe it would be best to reword the first paragraph of this condition to
make it more clear. A suggested rewrite is as follows: 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 Pen-nit by
the applicant. 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 impacts occur to those locations. This additional monitoring plan
shall collect data from a representative number of streams in each tract, and be
designed to assure the protection of downstream water quality standards,
including Primary and Secondary Nursery Area functions in tributaries to South
Creek, Porter Creek, Durham Creek and the Pamlico River adjacent to the mine
site.
B. Monitoring of all tributaries
As seen in the re-write of the paragraph above, we propose to have the word "all"
dropped from the Condition.
C. Identification of deleterious effects
It is our understanding that identifying deleterious effects to the listed wetland
functions will be more qualitative rather than quantitative in nature. The word
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Colleen H. Sullins, Director
December 15, 2008
Page 13
"qualitatively" could be inserted into the first sentence between the words "shall"
and "identify".
D. Certified lab requirements for freshwater species
Please clarify that a certified lab is required for identification of freshwater
benthic invertebrates, not freshwater biological samples.
VIII. Procedure For Goinp- Forward
As discussed in this document, PCS believes the most orderly procedure for going
forward is to withdraw the Section 401 Certification as issued on December 5, 2008,
modify it and reissue it, thus restarting the 60 day appeal period. If the adjustments set
forth above are incorporated into the re-issued Certification, PCS intends to accept it and
forgo its right to an adjudicatory hearing challenging these conditions. PCS believes
there is ample justification for DWQ to reconsider the evaluation contained in its original
§ 401 Certification, as detailed above.
If there is any other information we can provide to you for your consideration, please
contact us and we will respond as rapidly as possible. As we explained, we are
approaching the point at which delays in pennitting will result in unavoidable
interruption in mining operations and severe economic impacts. It is our hope that we
can work expeditiously and cooperatively with your department to timely resolve the
remaining issues.
Please contact me or Jeff Furness (252-322-8249) if you have any questions or require
additional information.
Sincer urs,
Ross M. Smith
Manager, Environmental Affairs
PCS Phosphate Company, Inc.
252-322-8270
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Colleen H. Sullins, Director
December 15, 2008
Page 14
cc:
Robin Smith, DWQ
Paul Rawls, DWQ
John Dorney, DWQ
Cyndi Karoly, DWQ
Matt Matthews, DWQ
Kyle Barnes, DWQ
Ken Jolly, USACE
Brooke Lamson, USACE
Tom Walker, USACE
David Lekson, USACE
14
i jG?' Zl7 ?!
State of North Carolina
?11CHAEL F. EASLEY Depart11ieni 01 JUSUCe
ATTORNEY GENERAL P. (). 6OX C-)
RAI-EiGH
2 i 002-0629
REPLY TO: Daniel C. Oakley
Environmental Division
[phone]
[phone]: FAX
March 21, 1995
7
Mr. Richard B. Whisnant, General Counsel
North Carolina Department of Environment,
Health and Natural Resources
Post Office Box 27687
Raleigh, North Carolina 27611-7687
RE: Advisory Opinion: EMC "Wetlands" Rulemaking Authority;
N.C.G.S. 143-214.1 and 143-2153(c)
Dear Mr. Whisnart:
You have asked for advice on whether the Environmental Management Commission
("EMC") has authority to promulgate proposed rules related to the classification of wetlands and to
state water quality certifications in federal permitting actions under Section 401 of-the Clean Water
Act. While we researched your inquiry, Senator Beverly Perdue sought an opinion on closely related
issues, the EMC has gone to public notice with the rules packet, and Secretary Howes has
established a separate Wetlands Task Force to advise him in this area. During discussions in the
public comment period for the rules and in the Task Force, additional questions of statutory authority
have also been raised. We felt it prudent to listen to those concerns and to address as many of the
statutory authority questions as possible in this Advisory Opinion. Thus, it may be more
comprehensive than you had anticipated.
The Div: ,;on of Environmental Management ("DEM") of the Department of Environment,
Health and Natural Resources ("DEHNR") has published an "Information Package! Wetland Rules
Hearings" that describes in detail the proposed rules and their intended purpose. Thus, a lengthy
recitation of the rules is unnecessary. However, for purposes of our response, we have summarized
the proposed rules and the DEM's stated rationale in requesting their adoption.
An Equal Oppornuniiy v AffirmaiiVe ACdon Emplover Exhibit 1
1-1
March 21, 1995
Page 2
The Environmental Management Commission ("EMC") has proposed amendments to its
water quality protection rules, at 15A NCAC 2B .0100, 2B .0200 and 2H .0500. The stated intent of
the rules proposal is twofold: (1) to establish classifications and water quality standards for wetlands
as waters of the State; and (2) to establish separately a review process of the DEM in considering
requested water quality certifications under Section 401 of the federal Clean Water Act. Section 401
of the federal Clean Water Act requires the State to certify that any federally permitted activity that
impacts North Carolina waters, including wetlands, will not result in a violation of state water
quality standards. See 33 U.S.C. § 1341(a)(]).
The proposed North Carolina water quality standards for wetlands are set out in rule 15A
NCAC 2B .0220. These proposed standards "are designed to protect, preserve, restore and enhance
the quality and use of wetlands and other waters of the state influenced by wetlands." (emphasis
supplied); 15A NCAC 2B .0220(a).
The proposed Section 401 review process, separately set out in rule 15A NCAC 2H .0506,
applies not only to wetlands, but to all North Carolina surface waters. We understand that these
review procedures are not intended to be additional water quality standards applicable to certain
classes of state waters. Rather, they describe how the DEM will apply the state's water quality
standards, including the proposed standards for wetlands, in making required Section 401
certification decisions. Most of the questions concerning rulemaking authority focus on the
proposed procedure for verifying water quality standards in Section 401 certifications. '
X. Does the Environmental Management Commission have the requisite statutory
authority to adopt the wetland standards proposed in 15A NCAC 2B .0220, and
the Section 401 Certification review procedures proposed in 15A NCAC 2H
.0506?
We believe some of these questions on rulemaking authority result from -a misunderstanding
about the scope of the proposed rules. Specifically, some citizens seem to b? under the impression
that the proposed 401 certification procedures set forth in 15A NCAC 2H .0506 also include
proposed water quality standards or additional criteria. To avoid further confusion, the EMC can
clarify that rule 2H .0506 contains only procedures for 401 certifications. We will submit to the
EMC suggested changes to the text of the proposed rule to accomplish this.
1-2
Mr. Richard. B . Whisnant, General Cotuisel
March 21, 1995
Page 3
II. Do the proposed rules conflict with federal law by operating to place non-water
quality related restrictions on projects that require a Section 401 Certification
from the State?
III. Do the proposed rules establish a separate, duplicative permitting program
without the requisite statutory authority?
IV. Will the proposed rules operate to halt any elimination of wetlands areas, in
light of the antidegradation policy of the Environmental Management
Commission?
For the reasons which follow, we conclude that (1) the EMC possesses adequate statutory
authority for the proposed rules in Chapter 143, Articles 21 and 21A of the General Statutes; (2) the
EMC is not attempting to place non-water quality restrictions on activities needing federal permits
within the State; (3) the proposed rules do not establish a separate, duplicative, wetlands permitting
program; and (4) wetlands use protection under the State's antidegradation policy does not preclude
reasonable quantities of fill in wetlands nor insignificant wetlands degradation.
1. Does the Environmental Management Commission Have the Requisite
Statutory Authority to Adopt the Wetland Standards Proposed in 15A
NCAC 2B .0220, and the Section 401 Certification Review Procedures
Proposed in 15A NCAC 2H.0506?
As noted, the proposed wetlands rules fall into two general categories. The first sets out
proposed wetlands classifications and the standards applicable to each class of wetlands. The second
contains permit review procedures intended to ensure, through the Section 401 water quality
certification process, that state surface water quality standards are adequately considered and
enforced when federal permitting actions occur.
A. The Federal Clean Water Act Imposes the Responsibility for
Developing Water Quality Standards on the States, Subject to
Approva: by the Environmental Protection Agency.
The federal Clean Water Act, 33 USC §§ 1251 et seq., establishes a.water quality program
under which both federal and state governments have responsibilities. Section 303 delegates to the
states the initial obligation to establish the water quality standards which will be applicable to waters
within the state, subject to federal approval: "[a state] water quality standard shall consist of the
designated uses of the navigable waters involved and the water quality criteria for such waters based
upon such uses." 33 USC § 1313(c)(2)(A). "States establish standards under Section 303 by first
1-3
March )1, 1995
Page 4
designating the uses of the waters they wish to assure; they then adopt water quality standards which
will allow the designated uses to be actual uses." Arnold Irrigation District v. DEQ, 717 P. 2d 1274,
1277 (Or. App. 1986). z The United States Supreme Court has recently spoken to the meaning
of Section 303 in the context of state water quality certifications under Section 401 of the Clean
Water Act. The Court stated:
The text [of Section 303(c)(2)(A)] makes it plain that water quality standards contain
two components. We think the language of § 303 is most naturally read to require that
a project be consistent with both components, namely the designated use and the water
quality criteria. Accordingly, under the literal terms of the statute, a project that does
not comply with a designated use of the waters does not comply with the applicable
water quality standards. (emphasis supplied)
FUD No. 1 at 1910. In explaining its rationale, the Court continued:
Water quality standards, however, apply to an entire class of water, a class which
contains numerous individual water bodies..... While enforcement of criteria will in
general protect the uses of those diverse waters, a complementary requirement that
activities als6 comport with designated uses enables the States to ensure that each
activity--even if not foreseen by the criteria--will be consistent with the specific uses
and attributes of a particular body of water.... [C]riteria cannot reasonably be
expected to anticipate all the water quality issues arising from every activity which
can affect the State's hundreds of individual water bodies.
Id. at 1911. Under FUD No. 1, then, it is clear that in performing its water quality classification
functions, a state must establish both designated uses of its waters and water quality criteria
pertaining to those uses, and ensure that both are adequately protected. Under Section 303, these
uses and criteria will be submitted to EPA and, upon approval, will become enforceable under
federal law. See, 33 U.S.C. § 1313(c).
In order to achieve the goals of the Clean Water Act to protect and restore the quality of the
.nation's waters, Section 303 also imposes an antidegradation requirement upon states; i.e., 'it requires
that a state's water quality standards be sufficiently strong to protect existing uses of ids waters and to
prevent their further degradation. See, 33 U.S.C. § 1313(d)(4)(B); see also PUD No. 1 of Jefferson
Co. v. Washington Dept. of Ecology, 114 S.Ct. 1900, 1911 (1994). As a result, the regulations of the
U.S. Environmental Protection Agency ("EPA") implementing the Clean Water Act require that the
water quality standards of each state include an "antidegradation policy" to achieve the mandate of
Section 303. See, 40 CFR § 131.12 (1992).
1--4
M-r. Richard B. °+Vhisnant, General Counsel
March. 21, 1995
Page 5
B. The Proposed Rules Are Being Promulgated Pursuant to State Law.
The state statutes respecting water quality protection are found in Chapter 143, Articles 21
and 21A of the General Statutes, at N.C.G.S. §§ 143-211 et seq. Under Chapter 143 of the N.C.
General Statutes, the EMC has the clear duty to protect state waters, and broad rulemaking authority
to achieve that goal. See, N:C.G.S. §§ 143-211; 143-214.1; 143-215.3(a)(1); see also, Art. )GV,
Sec. 5, N.C. Constitution. Pursuant to \T.C.G.S. § 143-214.1, the EMC has specific statutory
authority to develop and adopt classifications of the waters of the State, as well as the statutory
authority to develop and adopt water quality standards applicable to each such classification.
N.C.G.S. § 143-214.1(a)(1). Moreover, the EMC has the statutory authority to classify all waters of
the State pursuant to N.C.G.S. § 143-214.1(a)(2), and under that provision, the EMC has discretion
to determine which state waters it deems sufficiently important to classify and regulate.
Previously, the Environmental Division of the Attorney General's Office has advised the
DEM that the definition of "waters" of the State, found in N.C.G.S. § 143-212(6), reasonably
includes wetlands. Moreover, freshwater wetlands have expressly been treated as waters of the State
by the EMC since at least October 1, 1989, when.EMC rule 15A NCAC 2B .0109 was adopted.
That rule states that in determining whether projects that affect state freshwater wetlands
impermissibly degrade the wetlands by removing existing uses, the DEM "will be .guided by 40 CFR
Part 230, Subparts A through F" (more commonly known as the "Section 404(b)(1) Guidelines").
15A NCAC 2B .0109. Since wetlands are waters of the State, and since the EMC has the statutory
authority to adopt classifications and standards applicable to North Carolina waters, the EMC has the
statutory authority to adopt the classifications and standards for wetlands.
The EMC has previously adopted water quality standards for all North Carolina surface
waters in 15A NCAC 2B .0200, and in this rulemaking proposes additional standards, specifically
pertaining to wetlands, under that section. The wetland standards proposed in rule 15A NCAC 2B
.0220 will become part of the water quality standards of the State upon adoption, and will then be
submitted to the EPA for approval as required under Section 303 of the federal Clean Water Act.
The water quality standards--uses and criteria--contained in those rules are exactly the type of
standards required by Section 303(c)(2)(A) of the Clean Water 'Act, and thus are expressly
referenced as appropriate certification denial criteria in Section 401(x) of the Act. As such, we
believe there is no valid legal basis for challenging the EMC's authority to adopt the proposed rule or
to challenge the use of the standards contained in the proposed rule in making state Section 401
water quality certifications.
Proposed rule 15A NCAC 2H .0506 sets out the procedures.that the DEM will employ in
reviewing federally permitted projects affecting state surface waters under Section 401 to ensure that
the activities would not violate state water quality standards. North Carolina law authorizes the
EMC to specify requirements and procedures for the Section 401 certification process. N.C.G.S. §
1-5
Mr. Richard B. Vdhisnant, General Counsel
March 21, 1995
Page 6
143-2153(a) gives the EMC the statutory authority to adopt rules implementing the Water and Air
Act, and N.C.G.S. § 143-215.3(c) provides the statutory authority for the EMC to administer any
federal-related matter in water and air quality. Thus, the EMC has the statutory authority to adopt
procedural rules for Section 401 water quality certifications since: (1) the State is required to make
Section 401 water quality certifications, (2) the EMC has specific rule making authority in"water
quality matters, and (3) the EMC is specifically authorized to act as the entity to carry out federal
directives under the Clean Water Act. Thus, just as the authority to adopt a wetlands classification
and applicable water quality standards is found in state law, the authority to promulgate the rules
implementing Section 401 water quality certification review procedures comes from state, rather
than federal, law.
II. Do the Proposed Rules Conflict With Federal Law by Placing Non-Water
Quality Related Restrictions on Projects That Require a Section 401
Certification From the State?
Under Section 401(a)(1), a state reviewing a proposed, federally permitted project that may
result in a discharge into state waters for compliance with its water quality standards must certify
"that any such discharge will comply with the applicable provisions of Sections 301, 302, 303, 306,
and' 307 of [the Clean Water Act]." 33 U.S.C. § 1341(a)(1). If the EMC rules are adopted as
proposed, the substantive criteria upon which future Section 401 water quality certification decisions
would be made by the Director of the DEM are: (1) in the case of wetlands, those set out in
proposed rule 15A NCAC 2B .0220, and existing EMC rule '15A NCAC 2B .0201; and (2) in the
case of other classes of state surface waters, those standards found in rules 15A NCAC 213 .0201, 2B
.0208, 2B .0211, 213 .0214 and 2B .0216.
A. Appropriate Distinction is Made Within the Proposed Rules Between
the Substantive Water Quality Standards to be Applied, and the
Review Procedures Used, in Making Section 401 Determinations.
A question has been raised whether the EMC, through rule 15A NCAC 2H .0506, is
attempting to apply non-water quality related restrictions to projects during the DEM Section 401
certification review. We agree that state Section 401 certification procedures may be concerned only
with water quality considerations.
Those cases which have interpreted the scope and breadth of ... authority that was
divested to the states by Section 401 ... have construed the divestiture narrowly and
have consistently held that a .[state's] authority extends only to consideration of the
proposed project's impact on the applicable water quality standards implemented by
the State, in conformity with the Act.
1-6
Mr. Richard B. WbIsna_n , General Counsel
March 21, 199:
Page 7
Fourth Branch Ass'n. v. New York Dept. of Envtl. Conservation, 550 N.Y.. S. 2d 769, 773 (N.Y.
Sup. Ct. 1989). We do not find that the procedural rules proposed at 15 NCAC 2H .0506 violate this
principle.
Consistent with Fourth Branch, the EMC proposes to authorize the DEM'to determine a
project's impact on the applicable state surface water quality standards through the use of the review
procedures found at 15A NCAC 2H .0506. As discussed previously, state surface water quality
standards are found in rules 15A 2B .0201, 2B .0208, 2B .0211, 2B .0214, 2B. 0216; and proposed
rule 15A NCAC 2B .0220. These standards are the substantive criteria for Section 401 certifications.
The water quality certification review procedures set out in proposed rule 15A NCAC 2H .0506 are
C rtification review procedures. They are not substantive Section 401 decision-making 'criteria. 3
Specifically, proposed rule 15A NCAC 2H .0506 describes a sequencing process by which
an applicant whose project would not normally be allowed under applicable state water quality
standards may obtain state certification by demonstrating that the project: (1) has no practical siting
alternative; (2) will minimize adverse project environmental impacts that may result in water quality
degradation, so that the activity will not result in unacceptable degradation of state waters either
considered alone or in conjunction with other activities affecting the water body under consideration;
and (3) provides for ieplacement of lost or degraded uses of state waters through mitigation. The
EMC proposes, through this evaluative process, to balance these three demonstrations against
wetlands elimination to achieve an overall water quality goal, wldle allowing reasonable
development affecting state waters. To achieve this goal, the EMC must be guided by water quality
considerations. However, it is the EMC's responsibility to determine the manner and method by
which the State performs this balancing function.
Further, proposed rule 15A NCAC 2H .0506 permits a proposed project that is determined
not to violate any applicable state water quality standard either because (1) the activity is covered by
a general certification under 15A NCAC 2H .0501(c)(2), or (2) the Director's initial review of the
project indicates that it "would not remove or degrade existing uses," to go forward without meeting
the full sequencing requirements set out in the rule. See, 15A NCAC 2H .0506(a). Other Projects
Some rule commenters argue that the rule 2H .0506 review procedures are unlawful because
they consider the water quality impacts of a proposed project as a whole, and that under Section 401
state water quality certification may only be denied if the discharge from ale project would violate a
state water quality standard. Assuming, arguendo, that to be a correct statement of the federal law,
we reiterate that rule 2H .0506 contains no substantive criteria for certification denial, but only
defines the process the DEM will use to determine whether the discharge would violate the
substantive criteria that are applicable to the affected waters. Consequently, under the proposed
rules; regardless of the type of project proposed, the State would deny a Section 401 water quality
certification only where the discharge associated with the proposed activity was found to violate
North Carolina's water quality standards, including removal of a significant use of state waters.
1-7
_ _. _?___?. .?,.?. .. .u...a..a ll, V.rll.+?ul ?.v lLL1JC1
March 21, 1995
Page 8
would undergo a full analysis according to rule review procedures. In essence, as discussed further
in Section IV., by enacting the rule 15A NCAC 2H .0506 review process, the EMC is proposing to
establish as state policy that projects that can make the showings required by the applicable Section
401 water quality certification review procedures will be deemed to comport with state water quality
standards, including state antidegradation requirements.
B. North Carolina Wetlands are Waters Within the Meaning of the Clean
Water Act, and are Thus Appropriately Considered for Section 401
Water Quality Certifications.
Some rule commenters have sought to distinguish between wetlands and other state surface
waters in terms of the ability of North Carolina to make a Section 401 water quality certification
determination for projects that would affect wetlands. The question is whether, under federal law,
the Section 401 certification process may only be used to protect existing water quality in streams or
other flowing state waters. Those taking this view rely on the language of the EPA regulation
codified at 40 CFR. § 131.12 (1982) as a portion of that agency's antidegradation policy
implementing regulations, which states, -in pertinent part: "[e]xisting instream water uses and the
level of water quality necessary to protect the existing uses shall be maintained and protected"
(emphasis supplied): We believe a state's 401 certification responsibilities are not limited to
protecting instream water uses for two reasons.
First, in interpreting its own rules, EPA treats wetlands and other United States waters
synonymously, expressly stating that the federal antidegradation policy applies to wetlands, just as it
does to the other waters of the nation:
...EPA interprets § 131.12(a)(1) of the antidegradation policy to be satisfied with
regard to fills in wetlands if the discharge did not result in "significant degradation"
to the aquatic ecosystem as defined under ... the Section 404(b)(1) guidelines. If any
wetlands were found to have better water quality than 'fishable/ swimmable'; the
State would be allowed to lower water quality to the no significant degradation level
as long as the requirements of Section 131.12(a)(2) were followed. As for the
ONRW provision of antidegradation ...., there is no difference in the way it applies
to wetlands and other water, bodies (emphasis supplied).
EPA Questions & Answers on: Antidegradation 5 (1983). This interpretation 6f regulations must
be accorded deference by a reviewing court. See, e.g., PUD No. I, supra, 114,'S.Ct. at 1909.
Secondly, the United States Supreme Court has previously field that wetlands, even if flooded
by groundwater and not by adjacent flowing waters, are navigable waters within the regulatory
purview of Section 404 of the Clean Water Act. U.S. v. Riverside Bayview Homes, 474 U.S. 121
(1985). Consequently, since (1) wetlands are navigable waters under Section 404 jurisdiction, (2)
1-=8
loll. x?_x vlxGLL l.11.J. rr 111Jx1GU.11, \lw.J.Vw 6! VVL1l1.J?..1
March 21, 1995
Page 9
the EMC's proposed wetlands water quality standards are expressly applicable to these Section 404
jurisdictional wetlands, and (3) Section 401 requires that a state certify that any project requiring a
Section 404 permit meets the state's water quality standards, -it is clear that the Section 401
certification process anticipates that federally permitted activities occurring in wetlands must
undergo the Section 401 certification process. Consequently, we believe that there can be no serious
question that the Section 401 certification process would lawfully include the wetland water quality
standards and uses established under the proposed EMC rules.
III. Do the Proposed Rules Establish a Separate, Duplicative Permitting Program
Without the Requisite Statutory Authority?
I
The EMC has, at least since the 1989 adoption of rule 15A NCAC 2B .0109, used the federal
Section 404(b)(1) Guidelines to determine whether a federally permitted activity in wetlands will
result in a violation of state water quality standards. During the public hearing process, the issue has
been raised whether the use of the Guidelines in making water quality certification decisions for
projects that affect wetlands would operate to establish an unauthorized "Section 404 permitting
program" for the State. As discussed below, adoption of the proposed rules would not necessarily
result in a duplication of the Corps' Section 404 review process, and would not constitute de facto
assumption of the federal Section 404 dredge-and-fill permitting process by the DEM. As the
Environmental Division has previously advised the DEIR, there would need to be additional
statutory authority from the General Assembly for assumption of the Section 404 permitting
program.
The Section 404(b)(1) Guidelines have been used by the U.S. Army Corps of Engineers
("Corps") and the EPA for more than a decade in reviewing the impact of proposed activities on
wetlands. The Section 401 review procedures proposed to be adopted by the EMC. in rule 15A
NCAC 2H .0506 are very similar to the federal Guidelines. Despite that similarity, our analysis of
the rule leads to the conclusion that they will.not necessarily be duplicative of federal review,
Further, we know of no provision in state or federal law that automatically precludes the potential
application of similar review procedures by state and federal permitting agencies contemplating the
same project.
Where the purposes of the state and federal agencies in applying similar procedures differ
substantially, as the DEM has indicated is the case here, the review process is likely to also differ
significantly. The Corps' use of the Section 404(b)(1) Guidelines is aimed at preventing net loss of
the nation's wetlands under federal policy directives. However, Corps' regulations provide that in the
case of proposed projects that will affect isolated and headwater wetlands,'the Section 404(b)(1)
Guidelines will not be applied across the board in project evaluation, but will be applied, if at all,
only on a case-by-case basis. DEM has stated its primary goal'in applying proposed rule 15A NCAC
.0506 is to ensure that all projects affecting state wetlands, especially those such as isolated and
headwater wetlands, which are not evaluated by the Corps under the federal Guidelines, are
1-9
March 21, 1995
Page 10
thoroughly examined for their effects on state water quality. Consequently, it is unlikely that any
actual duplication in permit analysis will result. In addition, the State and the Corps could, through a
State Programmatic General Permit, provide for analysis of federally permitted projects in such a
way as to preclude even any potential duplication of process.
Similarly, some comments on the proposed rules have suggested that consideration of matters
reflected in the Section. 404(b)(1) Guidelines are exclusively within the purview of the Corps and the
EPA in making decisions related to Section 404 of the Clean Water Act, because the Guidelines are
aimed at protecting against wetlands loss, and have little to do with protecting water quality per se.
It should be noted, perhaps, that one purpose of the Section 404(b)(1) guidelines is to "maintain the,
chemical, physical, and biological integrity of waters of the United States...." 40 CFR § 230.1(a).
Proposed rule 15A 2B.0506 articulates a policy of (1) avoidance of impacts to state waters, (2)
minimization of impacts that do occur, and (3) requiring mitigation for degradation of state waters,
and the EMC has determined that policy is related to a goal of protecting state water quality.
Moreover, in the case of projects proposed for Indian tribal lands, the EPA itself uses the Section
404(b)(1) Guidelines to make the required Section 401 water quality certification compliance
determination in lieu of a state water quality certification. See, 20 January 1995 memorandum from
Thomas C. Welborn, Chief, Wetlands Protection Section, EPA, Region N, entitled "401 Application
to EPA for Section 404 Tribal Projects". For those reasons, we believe that the proposed use of
Section 401 water quality certification review procedures similar to the federal Section 4041
Guidelines is entirely lawful. (b)( )
IV. Will the Proposed Rules Operate to Halt any Elimination of Wetlands Areas,
in Light of the Antidegradation Policy of the Environmental Management
Commission?
An additional concern has been expressed that in light of the EMC's antidegradation policy,
found in 15A NCAC 2B .0201, proposed rule 15A NCAC 2B .0220 would prohibit any development
of wetlands. The concern is whether any wetland fill project would be permitted since the wetland
area itself would be eliminated and the wetland use could no longer exist.
This issue also arises under the language of the Clean Water Act, and has been resolved
nationally by the EPA's reading Sections 303, 402 and 404 of the Act together, recognizing that
permitting fill under the federal. regulations promulgated pursuant to Section 404 is the statutorily
authorized method for determining that significant uses of wetlands are not impaired. See, EPA
Questions & 4nswers on: Antidegradation 5 (1983). North Carolina takes a-similar approach in the
current EMC water quality classification rules at 15A NCAC 2B.0109: +
Projects that alter the reach and extent of a freshwater wetland will not be considered
as removing existing uses of the wetland in violation of the Antidegradation Policy
[pursuant to 15A NCAC 2B .0201(b)] if the alteration protects all existing and
1-10
Mir. Richard B. NV-hisnant, General Counsel
March 21, 199:5
Page 11
designated uses of all waters of the State. In making this determination, the Director
will be guided by 40 CFR Part 230, Subparts A through F.
We believe this is a lawful regulatory construction of the classification and use protection
requirements in North Carolina. The interpretation is specifically supported by several provisions of
the North Carolina statutes found in N.C.G.S. § 143-214.1. The context of those provisions relating
to classification, uses of waters and assignments is that a variety of factors must be considered by the
EMC to implement the policy and purposes of Chapter 143, Article 21.
The proposed rules are consistent with the existing EMC policy of reasonable
.accommodation of projects affecting wetlands while protecting overall state water quality.
Specifically, application of proposed rule 15A NCAC 2H .0506 under the existing policy of
reasonable accommodation means that projects that make the required showings under the
certification review procedures are deemed to comport with state water quality standards, including
state antidegradation requirements. We believe this approach is a lawful application of EMC rules.
To make clear its intent to continue to apply a policy of reasonable accommodation, we recommend
that the EMC retain the relevant provision of 15A NCAC 2B .0109, or one equally explicit, in the
new rules.
CONCLUSION
For the above reasons, it is our opinion that the wetland standards and the Section 401 water
quality certification review procedures proposed for rule adoption by the EMC are adequately
authorized by the North Carolina General Statutes and consistent with federal law. We will be
happy to continue to assist you, the EMC, the regulated community and interested -commentators to
assure that any proposed rules relating to state water quality are authorized by state law, and clearly
understood.

1-11
March 21, 1995
Page 12

JAM/DCO/KJC/TDN/dw
cc: , Senator Beverly Perdue
Secretary Jonathan Howes
David Moreau
Preston Howard
Norm Christensen
Sincerely,
\?tt? tl
?,14-
. ! /c ?Q ,-'
J%%%ohn R. McArthur
Chief Counsel
Darnel C. Oakley
Senior Deputy Attorney General
a n Jone Cooper C&-u?
rys
Special Deputy Attorney General
G'
Timothy D. Nifong
Assistant Attorney General

1-12
SCR Bonnerton Cost Model
Relocation Costs from North to South
Year Expensed
$X000 to Project
Prepare Equipment Walkway 1,620 Year 11
Based on 5559 feet length walkway from north pit to south pit
Standard Dregline walkway construction width and material thickness
Average 28,400 feet from plant (sand/coarse rejects delivery)
Includes pair of exittentrance ramps for draglines
Includes engineering, construction and project mgt costs
Based on PCs historical costs for dragline walkway construction
Pit Opening South Side 229 Year 10
Bucketwheel Starter ramp
Relocate Prestrip Equipment 820 Year 10
Major relocation of BWE systems, MTC, conveyor belts, spreader
Required power distribution relocation
Rehandle DL Box Cut Material 2,296 Year 11
2.052 million bcy rehandle
Average Prestrip cost of $1.119/bcy
Prestrip Area Not Mined - North Side 774 Year 11
9.27 acres @ $83,500/acre
Total Costs in 2005 Dollars 5,739
Escalation (2005 - 2008 c@ 3% per annum 510
Total Costs in 2008 Dollars 6,249
Exhibit 2
'C
1.69 AC
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6.32 AG Permit Area Removed for DWO Minimiz ation C
Excavated Area Removed for DWO Minimization C
LEGEND ACRES

-?? BONNERTON BASE PROJECT AREA
BONNERTON ALTERNATIVE L DWO MINIMIZATION C
BONNERTON L ALTERNATIVE - EXCAVATION LIMITS 2,806
2,642
1,992
RECOVERABLE CONCENTRATE = 35,590,000 TONS
7 ?
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West Mining Corridor

Exhibit 3

® Alt. L Additional Minimization Proposal
Bonnerton-For Discussion Only
1.500 0 1,500 F-1 PCs PHOSPHATE MINE CONTINUATION
SOURCE: NC OENR, WVON Or PARNS AND
RECREATION, NATURAL NERNAGE PROGRAM, Scale: A5 shown Drawn b BFG
_.-
500 0 500 Mehra SIGNIrICWT NATURAL NERRAGE AREA ISNNA) Date: 12/5/08 File: +?• •/Alnoua?s+Ny
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STUN ZIP, JUNE 06, 2006, NC STARPLANE,
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5;7 -.?: ?r LESzEB? ACRES
.S1F' I BONNERTON BASE PROJECT AREA 2,806
BONNERTON ALTERNATIVE L DWO MINIMIZATION C 2,576
BONNERTON L ALTERNATIVE - EXCAVATION LIMITS 1,954
' .?-- RECOVERABLE CONCENTRATE 34,897,000 TONS
a ?.
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21
P = East Mining Corridor
Exhibit 5
Alt. L Additional Minimization Proposal
Bonnerton-For Discussion Only
1,500 0 1,500 F..f PCS PHOSPHATE MINE CONTINUATION
SOURCE HC DENR, DWION OF PARKS MO Scale: As shown Drawn b : BFG
RECREAT". NATURAL HERRACE PROGRAM,
500 0 500 M.f.- SIGHT eMn NATURAL HERITAGE A (SHNA) Date: 2/5/08 File: ,T.xa?/HRava1ww"
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Exhibit 6
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Exhibit 7
By: J.P, Schmid Title: Bonnerton SNHA Utility Corridors
Date: 12-15-08 Cross Section showing Eastern AURORA DIVISION
Scale: NTS and Western Corridors Location:
Rev.: Dwg. No. 2

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By: J,P, Schmid Title: Bonnerton SNHA Cross Section
Date: 12-15-08 Looking North Vlll?AURORA DIVISION
Scale: NTS Location:
Rev.: Dwg. No. 1
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Exhibit 9
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Permit Area Removed far DWO Min mtration 8
Excavated Area Removed for DWO M'nmi2ation B
1EGEClQ ACRES
BONNERTON BASE PROJECT AREA 2,806
- BONNERTON ALTERNATIVE L DWO MINIMIZATION B 2,560
---- BONNERTON L ALTERNATIVE - EXCAVATION LIMITS 1,936
RECOVERABLE CONCENTRATE = 34,575,000 TONS
Revised Eastern
Mining Corridor
m Exhibit 10
`w J Alt. L Additional Minimization Proposal
??c yY Bonnerton-For Discussion Only
1,500 D 1,500 Feat PCS PHOSPHATE MINE CONTINUATION
SOURCE. NC DEMR. DM90N OF PARKS AND Scale: As shown Drawn b BFG
RECREATION, NATURAL NERRAGE PROGRAM,
Soo 0 500 Metsrs SIGNIFICANT NATURAL HERITAGE AAEA (S RU) Date: 12/15/08 File: ,)?nywm dory Ny
SHN421P, JUNE 06, 2006, NC SiATERANE, -Ki- BIa11C y
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Scale: As Shown
Rev.:
Title: Geologic Cross Sections
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Exhibit 12
AURORA DIVISION
Location: Bonnerton Tract
Dwg. No. Bon-XS-4-6
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20- 12-03
-? . Farmers May
101 ._ Depth-to-Bottom:6.0 Thickness! 6.0
Post-Croatan_ Sand _
- - - Depth-to-Bottom:16.0 Thickness: 10.0
0' - -
------------
------------
------------
------------
------------
------------
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_ == =- Gumbo Clay
Depth- to-Bottom:28.5 Thickness: 12.5
-10
------------
== _ ----
-20 Sugar Sand
Depth-to-Bottom:41,0 Thickness: 12.5
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Shell Bed
0 Depth-to-Bottom 46.0 Thickness; 5.0
-401
- - - _-._Upper Yorktown _
= Depth-to-Bottom 78,0 Thickness: 32.0
-50' -
-60 ..- , -
q-, ?-K-F -I-"- Lower Yorktown
-Bottom:0-.5 -5
Depth-to Thickness: 9.
-70.
Coquina Limestone
0 Depth-to-Bottom:88.8 Thickness: 1.3
-80
Phosphatic Ore
-90 Depth- to- Bot tom:l 19.0 Thickness; 36.2
-100
Exhibit 13
Y J.P. Schmid Title: Geologic Column
Date: 4-22-04 Drill Hole 12-03 PboviNewl-URORA DIVISION PCs
Scale: As Shown Location: Bonnerton Tract
Rev.: Dwg.NO.Bon- DN_03/12-03
4 *-
Exhibit 14