20080868 Ver 2_SELC (Public Comments)_20090107

SOUTHERN ENVIRONMENTAL LAW CENTER
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CHAPEL HILL, NC 27516-2559
Charlottesville, VA
Chapel Hill, NC
Atlanta, GA
Asheville, NC
Sewanee,TN
January 6, 2009
Via Electronic Mail and U.S. Mail
Mr. John Dorney
N.C. Division of Water Quality
1650 Mail Service Center
Raleigh, N.C. 27699-1650
Re: PCS Phosphate Mine Expansion, Beaufort County
DWQ 42008-0868, version 2.0; USACE Action ID No. 200110096
Dear Mr. Dorney:
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JAN 7 2009
DENR - WATER QUALITY
WETLANDS AND STORMWATER BRANCH
Please accept these comments on the 401 Certification, No. 3771, issued to PCS
Phosphate on December 5, 2008 and the company's subsequent request that the 401 be
rescinded and modified. We submit these comments on behalf of the Pamlico-Tar River
Foundation ("PTRF").1 We appreciate the opportunity to provide input during the 401
process.
Condition 7: Buffer Mitigation
PCS has been unable to demonstrate that it can adequately compensate for
substantial buffer impacts under its proposed mining alternative. The company projects
that it will fall more than 100 acres short of the buffer mitigation required under the
rules.3 Thus, any buffer mitigation proposal by the company should be carefully
reviewed for compliance with the rules and future mitigation proposals should initiate an
opportunity for public review.
The Tar-Pamlico Buffer Rules require that buffer mitigation take place "closer to
the estuary than the impact" for which the mitigation is required.4 PCS has not
1 We do not, by submitting these comments, concede any of the issues raised in our original comments on
PCS's 401 Certification application that we submitted on July 7, 2008. PCS's proposed project will
significantly degrade the aquatic environment and cannot be adequately mitigated, as evidenced by the
company's inability to find sufficient buffer mitigation and subsequent reliance on future regulatory
changes.
2 See Environmental Management Commission - Water Quality Committee: PCS Phosphate Company,
Inc. request for Major Variance from the Tar-Pam Buffer Rules (Sept. 10, 2008).
3 Id.
4 15A NCAC 02B .0260(6). The rules also require that the mitigation be as close to the location of the
impact as feasible. Id. These dual requirements are joined with an "and," indicating separate purposes.
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demonstrated that its mitigation meets that requirement. Nor could it, since the majority
of buffer impacts are located adjacent to the estuary in the NCPC and Bonnerton tracts
and the majority of its proposed 23.2 acres of buffer mitigation are farther from the
Pamlico River than those tracts.5 In the 401, DWQ accepted this acreage of mitigation
without condition, apparently in reliance on a draft policy statement released for public
comment on December 4, 2008.6 That draft policy states that any mitigation site within
the same eight digit hydrologic unit as the proposed impact satisfies the rule's
requirement that buffer mitigation be located closer to the estuary than the impact site.
DWQ is accepting comments on that policy until January 23, 2009. Should that policy
be modified in response to comments, be found unlawful as rulemaking, or otherwise
altered, PCS Phosphate's proposed mitigation would be unlawful and the company's
mining impacts would have to be restricted to comply with state law. The 401 should
reflect the uncertainty surrounding the portion of accepted buffer mitigation that relies on
this draft policy and must condition the 401 on avoidance of buffer impacts dependent on
that policy interpretation until it is finalized. Further, to ensure clarity, DWQ should
refrain from reissuing the 401 until comments on the draft policy are received and
reviewed and the policy is finalized or rescinded.
The 401 Certification's buffer mitigation requirements should be further revised
to provide for public review and comment of PCS's anticipated proposals for flexible
buffer mitigation if such a program is approved and implemented. As the 401 is currently
written, no public notice would be given of PCS's submission, or DWQ's approval, of
flexible buffer mitigation measures. Any proposed mitigation, by flexible buffer
mitigation or other means, which was not included in PCS's application for this 401 must
trigger public notice and include an opportunity for public comment.
PCS's Proposed Modifications
The remainder of these comments will focus on the modifications proposed by
PCS on December 19, 2008. These proposed modifications would not only increase the
impacts to the nationally significant natural heritage areas on the Bonnerton tract, they
would reduce monitoring for deleterious effects of mining. As such, DWQ should not
accept PCS's proposed modifications.
PCSfailed to adequately describe a Bonnerton corridor that does not include mining ore.
In Condition 9 of the 401, DWQ required PCS to transport equipment from the
northern end of the Bonnerton tract to the southern end of the Bonnerton tract through a
surface corridor not to exceed 250 feet in width. PCS objected to that condition, claiming
that it would cost approximately $6 million to extract mining equipment from the mine
bench, walk the equipment through the surface corridor, and then open the southern mine
pit. In an effort to account for those costs, yet hasten reclamation of the corridor so as to
5 FEIS, Appendix I at 7.
6 The "Working Draft" memorandum describing this interpretation and call for comments was included in
DWQ's December 4, 2008 public notice announcement sent to the 401 Water Quality Certification Mailing
List.
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not degrade the significant natural heritage area, PTRF recommended that PCS evaluate
the practicability of extending the mine bench, but not mining, through the corridor.
DWQ requested that PCS include a discussion of that recommendation in its response to
the 401 on December 16, 2008. PCS's flippant dismissal of the recommendation does
not provide adequate information for DWQ to modify and reissue the 401 Certification.
PCS's response to the requested corridor fails to provide any useful information.
PCS notes that (1) utility corridors will still be required and that (2) excavation width will
be more than 250 feet across.7 Based on those statements, the company concludes that
"there is minimal difference between [its preferred mining corridors] and the PTRF
concept."s But that conclusion is insufficient without factual support. The company
failed to specify the width of a pit required to relocate equipment, a fact it provided for its
preferred mining corridor routes.9 That width is almost certain to be substantially
narrower than the pit necessary to allow mining, 10 since the draglines used to mine ore
are less than 70 feet widen but require a mine bench nearly 600 feet wide to operate. 12
As noted in the FEIS, the bucket wheel excavators are used to reach the mine bench. 13
Therefore, the operational requirements of the draglines are irrelevant for calculating the
width of a corridor intended for equipment relocation rather than ore extraction. PCS's
refusal to calculate the width of the corridor, and the corresponding acreage of SNHA
avoided, must be explored and the 401 must not issue until the company provides a
reasonable description of this corridor.
PCS must monitor impacts to all tributaries impacted by the mining process.
DWQ should reject PCS's suggested modification limiting monitoring to a
"representative number of streams." This vague phrase fails to account for the scale of
the proposed impact. The mine expansion that would be approved by this 401 has caused
substantial concern among state and federal resource agencies because of the anticipated
impacts to water quality and aquatic communities. Short of avoiding the impacts, the
only safeguard against this degradation is to monitor the impacted tributaries so that any
deleterious effects will be detected and appropriate action can be taken. This monitoring
of all impacted streams is essential; Condition 13 should not be modified to reduce
monitoring requirements.
Letter from Ross Smith, PCS, to Colleen Sullins, DWQ, of December 19, 2008 at 8.
a Id.
9 It should be noted that the "minimum safety width" that PCS cites in its response
10 See DEIS Appendix B at 16 (showing general U shape of pit indicating the wide surface opening
necessary for a deep mining pit).
" FEIS at 5-9.
12 DEIS Appendix B, pp. 6.
13 FEIS at 2-2.
Please do not hesitate to contact me at [phone] if I can provide any
additional information related to these comments.
Sincerely,
L4 (2 Z),'-
Geoffrey R. Gisler
Staff Attorney
cc:
Robin Smith, DWQ
Colleen Sullins, DWQ
Paul Rawls, DWQ
Cyndi Karoly, DWQ
Matt Matthews, DWQ
Kyle Barnes, DWQ
Heather Jacobs Deck, Pamlico-Tar River Foundation
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