20080868 Ver 2_Memo to File discussing compliance issues with 401 and BA_20090114

TO: File
FROM: John Dome
RE: PCS Phosphate Mine Expansion 2008 - Compliance with 401 Certification (15A
NCAC 2H .0500) and Tar-Pamlico Riparian Buffer (15A NCAC 2B .0259 and
.0260) rules
DATE: January 14, 2009
1. Determination of impacted acreage
The final boundary of the allowable impact is depicted on maps provided by PCS
dated January 6, 2009. DWQ staff have carefully reviewed those maps and
consulted with staff of the US Army Corps of Engineers to confirm that the maps
accurately depict the limits of the allowable impact to wetlands, streams, waters
(mainly ponds) and riparian buffers.
2. Compliance with 401 Certification rules - 15A NCAC 2H.0500 -and Tar-
Pamlico riparian buffer rules - 15A NCAC 21B.0259 and .0260.
The 401 Certification rules for wetland and stream impact coincide with the
findings that must be shown before a 401 Certification can be issued. In the
case of PCS Phosphate, Inc. these findings are well supported by the contents of
the 401 file as outlined below.
a. No practical alternative (15A NCAC 2H .0506 (b)(1) and (c)(1))
PCS Phosphate and the regulatory agencies (including DWQ, Corps and
EPA) have been involved in a multi-year effort to thoroughly examine
alternatives to mining the NCPC, Bonnerton and South of 33 tracts in and
near Aurora, NC. This work is thoroughly reported and analyzed in the Final
Environmental Impact Statement (EIS) (dated May 2008) prepared for the US
Army Corps of Engineers and includes an economic model of these
alternatives. This analysis clearly shows that some of the proposed
alternatives (for instance the one-drag line width alternative) are not practical
for economic reasons while other alternatives are practical. The Division
participated actively in these discussions, used the results of the EIS as well
as additional information submitted by PCS Phosphate, Inc. in order to
determine that the permitted impact was practical and that less impact would
result in a project which would not meet the basic project purpose.
b. Minimization of adverse impacts (15A NCAC 2H .0506 (b)(2) and (c)(2))
Division of Water Quality staff worked with PCS Phosphate staff, Corps of
Engineers staff, Environmental Protection staff, NC Natural Heritage Program
staff and the Pamlico-Tar River Foundation to determine if there were
1
additional miminization of impacts that were possible which would still result
in a practical project. This process involved additional field work, discussions
of slight changes to mining alignments and minimization of impact to
wetlands of exceptional state or national ecological significance (see item "g"
below). This analysis resulted in the reductions in wetland, stream and buffer
impacts outlined in the tables in Condition 1 of the Certification. This is about
a 6% reduction in wetland impact, about a 13% reduction in stream impact
and about a 13% reduction in impact to riparian buffers from the application.
c. Does not result in the degradation of groundwaters or surface waters 05A
NCAC 2H .0506 (b)(3) and rJ(3))
Condition number 12 (Groundwater monitoring) and Condition number 5
(Continuing Compliance) are designed to address this requirement and
assure that the PCS mining operation does not result in degradation of
groundwaters. Condition number 12 is designed to ensure that sufficient
data are collected to ensure that no degradation occurs and condition number
5 is available to ensure that DWQ can take any required measures to modify
or reopen the Certification as needed to protect groundwaters.
Condition number 13 (Stream and Watershed Monitoring) and Condition
number 5 (Continuing Compliance) are designed to ensure that surface
waters will not be degraded by the PCS mining operation. Condition number
13 is designed to ensure that sufficient data are collected to ensure that no
degradation occurs and condition number 5 is available to ensure that DWQ
can take any required measures to modify or reopen the Certification as
needed to protect downstream waters.
d. Does not result in cumulative impacts on downstream water quality (15A
NCAC 2H .0506 (b)(4) and (c)(4))
Condition number 13 (Stream and Watershed Monitoring) and Condition
number 5 (Continuing Compliance) are designed to ensure that surface
waters will not be degraded by the PCS mining operation. Condition number
13 is designed to ensure that sufficient data are collected to ensure that no
degradation occurs and condition number 5 is available to ensure that DWQ
can take any required measures to modify or reopen the Certification as
needed to protect downstream waters.
In addition, Conditions 2, 3 and 4 are designed to ensure that PCS
Phosphate protects downstream waters (including wetlands) through
adequate, on-site sedimentation and erosion control measures.
e. Provides for protection of downstream water quality through on-site
stormwater control measures (15A NCAC 2H.0506 (b)(5) and (c)(5)) -
Stormwater from the mine site is controlled by an NPDES stormwater permit
issued by the Division of Water Quality and designed to protect downstream
water quality standards. In addition, the stream and watershed monitoring
outlined in condition 13 as well as the continuing compliance provision in
condition 5 will ensure that any downstream impacts are reported and
2
addressed (as needed) via the continuing compliance condition of the
Certification.
f. Replacement of existing uses through mitigation 05A NCAC 2H 0506 (b)(6)
and (c)(6)) and 15A NCAC 2B.0259 and .0260
Conditions number 6, 7 and 8 are designed to ensure that mitigation will
replace existing uses of the wetland. PCS Phosphate has proposed
mitigation that exceeds DWQ's 1:1 restoration or creation criterion (15A
NCAC 2H .0506 (6)). DWQ staff have conducted site visits to each of PCS's
proposed wetland mitigation sites in coordination with the US Army Corps of
Engineers and have verified that they are suitable mitigation sites. In
addition, DWQ staff have closely coordinated mitigation requirements with the
US Army Corps of Engineers as required by the 401 rules (15A NCAC 2H
.0506 (1)) and will be copied on all future mitigation plans and annual
monitoring reports in order to ensure that existing uses of wetlands and
streams will be replaced through mitigation.
With respect to buffer mitigation, Condition 7 acknowledges the buffer
mitigation that has been located by PCS (at sites agreed upon by DWQ). In
addition, the condition notes that the EMC may be approving a flexible buffer
mitigation program through new rules that could be utilized by PCS to
partially meet buffer mitigation requirements. However the condition clearly
states that if the EMC does not approve that mitigation and PCS does not find
additional buffer mitigation sites, then no disturbance to buffers beyond those
for which sufficient mitigation has been found will be allowed.
In addition, groundwater monitoring is required for the Bonnerton Wet
Hardwood Forest area to ensure that its uses are protected during adjacent
mining. PCS Phosphate conducted an earlier study (Evaluation of the Effects
from Dewatering of the Shallow-Aquifer System on the Water Table Aquifer
and Implications for Impacts on Wetlands - January 1990 prepared by
Leggette, Brashers and Graham) which addresses the general effect of
groundwater lowering on wetland extent. This report provides assurance that
most wetlands on the PCS tracts are supported by shallow aquifers which are
not drained by deeper groundwater removal.
g. Wetlands of exceptional state or national ecological significance 05A NCAC
2H .0506 (e)).
The Bonnerton Non-Riverine Wet Hardwood Forest has been designated by
the NC Natural Heritage Program as a wetland of national significance.
Therefore this site is subject to the 401 Certification rules in 15A NCAC 2H
.0506 (e). However the uppermost portion of the site (extending north from
the main body of the site) is separated from the main body of the Wet
Hardwood Forest by a strip of pine plantation and is spilt by a narrow road
that accesses a large agricultural field immediately to the east of the northern
finger of the Hardwood Forest. In addition if this finger of Hardwood Forest is
disturbed, the remaining Wet Hardwood Forest will still comply with 15A
3
NCAC 2H .0506 (e) in that it would still be a wetland of state or national
significance. Therefore, the 401 Certification allows clearing and mining of
this narrow finger of Wet Hardwood Forest. In addition, the revised 401
allows a narrow mining corridor through the narrowest part of the Hardwood
Flat with protection of the rest of the Hardwood Forest using a conservation
easement. Staff from the Natural Heritage Program have been consulted
about this additional impact and have confirmed that the remaining Hardwood
Forest will still be a nationally or state listed wetland. Therefore this
additional minor impact on the Hardwood Flat is in compliance with this rule
since this wetland will still be a wetland of "exceptional state or national
ecological significance". In addition, about 90% of the Hardwood Flat will be
protected by the 401 Certification.
A detailed clause has been added to the revised Certification which will
require an intensive stratiographic study of the Hardwood Flat area in order to
characterize the underlying confining clay layers which make the Hardwood
Flat wet. PCS will be required to reclaim this mined Hardwood Flat area on
an accelerated schedule in order to reattach the disturbed area to the two
remaining portions of the adjacent, protected Hardwood Flat. Groundwater
monitoring will be required before, during and after mining to ensure that the
hydrology of the Hardwood Flat is maintained.
h. Tar-Pamlico Buffer rules- 15A NCAC 2B.0259 (6) and .0260.
Mining is a listed as an allowable or allowable with mitigation use in the Tar-
Pamlico Buffer rules. In the case of PCS Phosphate, they are unable to
relocate stream channels so their mine expansion would be categorized as
allowable with mitigation.
Buffer mitigation is required for the unavoidable impacts to stream buffers. A
total of 47.87 acres of buffer mitigation is required in order to meet the criteria
set forth in 15A NCAC 2B .0260. DWQ staff have visited numerous proposed
buffer mitigation sites with PCS staff and staff of the US Army Corps of
Engineers and other agencies over the past several years. As a result of this
review, DWQ has approved buffer mitigation sites for a total of 24.4 acres of
buffer credit. Condition 7 of the Certification explicitly states that if PCS
Phosphate does not find additional buffer mitigation (which may include
flexible buffer mitigation if the Environmental Management Commission
approves rules to allow that mitigation), then no additional buffer impact may
occur beyond the 2014 impact area (generally south of Drinkwater Creek).
Therefore buffer mitigation is available for some of the proposed impacts but
if additional buffer mitigation is not found, then PCS Phosphate may not
impact additional buffers.
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With respect to the location of buffer mitigation (15A NCAC 2H .0260(4)), the
rule states "The mitigation effort shall be located the same distance from the
Pamlico River estuary as the proposed impact, or closer to the estuary than
the impact, and as close to the location of the impact as feasible." On
December 4, 2008, the Division provided a policy as Working Draft which
stated that the Division's interpretation of this rule is that use of the 8-digit
Hydrologic Unit (HUC) can generally be considered to be compliant with this
rule especially considering that the 8-digit HUC is the general standard
service area used by the federal wetland permitting agencies. Therefore use
of the 8-digit HUC meets this feasibility criterion. The buffer mitigation areas
that PCS Phosphate has found are all within the 8-digit HUC and therefore
these sites conform with 15A NCAC 2H.0260 (4).
Chances from December 6 2008 Certification to the January 14 2009
Certification: Please note that the following conditions were not modified from
the version of the Certification issued on December 6, 2008. Therefore the 60
day appeal clock for these conditions started upon receipt of the December 6,
2008 Certification.
1. Condition Number 2
2. Condition Number 3
3. Condition Number 4
4. Condition Number 5
5. Condition Number 6
6. Condition Number 10
Please note that the following conditions were modified and fully replace
these conditions from the version of the Certification issued on December 6,
2008. Therefore the 60 day appeal clock for these conditions starts upon
receipt of this Certification.
1. Condition Number 1
2. Condition Number 7
3. Condition Number 8
4. Condition Number 9
5. Condition Number 11
6. Condition Number 12
7. Condition Number 13
5
PAMUCO RIVER
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NC 306
RELOCATION
SANDY LANDING ROAD
NORTHERN ROUTE

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LEGEND ACRES
' NCPC BASE PROJECT AREA 3,608
el MODIFIED ALT L - NCPC PROPOSED IMPACT 2,157
BOUNDARY 12/31/08
MODIFIED ALT L - NCPC PROPOSED IMPACT 1,331
I IMPACT BOUNDARY 12/31/08 - EXCAVATION LIMITS
RECOVERED CONCENTRATE = 36,712,000 TONS*
CREEKS OPEN WATER
,e 1
e q , 1!. PUBLIC TRUST AREAS O LF 0
• • i
o - , ' ••- ,e 1 B PERENNIAL STREAM 0 LF 0
,edR ^
e ------- INTERMITTENT STREAM 6.093 LF <1
s 2 WETLAND BRACKISH MARSH COMPLEX 0
"
PA 3 WETLAND BOTTOMLAND HARDWOOD FOREST 15
,., ;e o q WETLAND HERBACEOUS ASSEMBLAGE 276
DRNK-,
," caEEK 5 WETLAND SHRUB - SCRUB ASSEMBLAGE 136
6 WETLAND PINE PLANTATION 307
7 WETLAND HARDWOOD FOREST 422

1 B WETLAND MIXED PINE - HARDWOOD FOREST 353
9 WETLAND PINE FOREST 96
10 WETLAND POCOSIN - BAY FOREST O
11 WETLAND SAND RIDGE FOREST 0
12 POND 11
13 WETLAND MAINTAINED AREA C
• 14 UPLAND HERBACEOUS ASSEMBLAGE 160
R GE sOP 15 UPLAND SHRUB - SCRUB ASSEMBLAGE 143
15 UPLAND PINE PLANTATION 25
17 UPLAND HARDWOOD FOREST 77
/ 18 UPLAND MIXED PINE - HARDWOOD FOREST 76
19 UPLAND PINE FOREST 15
20 UPLAND SAND RIDGE FOREST 0
21 UPLAND AGRICULTURAL LAND 94
22 UPLAND NON - VEGETATED/MAINTAINED AREA 67
_ e •°
Q ' i WETLAND AREAS 1,559
,>
° slap EREEK UPLAND AREAS 598
47% WETLAND AREAS 32

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/ (UPLAND/WETLAND ACREAGES WITHIN THIS
IH'
/ cis CREEK AREA HAVE BEEN ACCOUNTED FOR WITHIN
COMMUNITIES ACREAGES LISTED ABOVE.)
ROAD RELOCATION IMPACTS AREAS
* PROVIDED BY PCS PHOSPHATE 12/31/08
/ PROPOSED BRIDGE P
TRUST AREAS
a. 0.02
wRC 2 WETLAND BRACKISH MARSH COMPLEX 017
W I-A
6 WETLAND PINE PLANTATION 0.01
B WETLAND MIXED PINE - HARDWOOD FOREST 0.01
0,21 ACRES
N P A RNA IVF L- N HI •HWAY '106 1,800 0 1,800 Feat
4 WETLAND HERBACEOUS ASSEMBLAGE 0.03
6 WETLAND PINE PLANTATION 1.47
e WETLAND MIXED PINE - HARDWOOD FOREST
t5 UPLAND SHRUB - SHRUB ASSEMBLAGE 2.80
0.01 500 0 500 Meters
18 UPLAND MIXED PINE - HARDWOOD FOREST 0.04
21 UPLAND AGRICULTURAL LAND 3.31
22 UPLAND NON - VEGEATED/MAINTAINED AREA 0.13
7.79 ACRES Modified Alt L - NCPC Proposed Impact Boundary 12/31/08
Biotic Commun i}i Impacts and
ncac ALrFRNAnvE L sArvor urvo NC RoAO Sand Landin Road NC 306 Relocation Im a
cts

6 WETLAND PINE PLANTATION
6 ETLAND MIXED PINE TI HARDWOOD FOREST
0.45
0.02 ON

PCS PHOSPHATE MINE CONTINUATI
16 UPLAND PINE PLANTATION I OB
22 UPLAND NON - VEGETATED/MAINTNNED AREA 0.04 Scale: AS shown Drawn b : BFG TLJ
,.60 ACRES 1 /06/09 File" 34/
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LEGEND ACRES
BONNERTON BASE PROJECT AREA 2,806
- -- MODIFIED ALT L - BONNERTON PROPOSED IMPACT 2,559
BOUNDARY 12/31/08
MODIFIED ALT L - BONNERTON PROPOSED IMPACT 1,727
IMPACT BOUNDARY 12/31/08 - EXCAVATION LIMITS
RECOVERABLE CONCENTRATE = 34,050,000 TONS-
1 CREEKS/OPEN WATER
= PUBLIC TRUST AREAS 0 LF 0
B PERENNIAL STREAM 3,050 LF 0
------- INTERMITTENT STREAM 5,449 LF 4
WET
LAND BRACKISH MARSH COMPLEX 0
3 WETLAND 801TOMLAND HARDWOOD FOREST 54
4 WETLAND HERBACEOUS ASSEMBLAGE 45
5 WETLAND SHRUB - SCRUB ASSEMBLAGE 274
6 WETLAND PINE PLANTATION 206
7 WETLAND HARDWOOD FOREST 378
8 WETLAND MIXED PINE - HARDWOOD FOREST 466
9 WETLAND PINE FOREST 209
10 WETLAND POCOSIN - BAY FOREST 264
11 WETLAND SAND RIDGE FOREST 22
12 POND 0
13 WETLAND MAINTAINED AREA 0
14 UPLAND HERBACEOUS ASSEMBLAGE 5
15 UPLAND SHRUB - SCRUB ASSEMBLAGE 68
16 UPLAND PINE PLANTATION 61
17 UPLAND HARDWOOD FOREST 40
18 UPLAND MIXED PINE - HARDWOOD FOREST 117
5 19 UPLAND PINE FOREST 14
20 UPLAND SAND RIDGE FOREST 42
21 UPLAND AGRICULTURAL LAND 245
'_22 22 UPLAND NON - VEGETATED/MAINTAINED AREA 45
WETLAND AREAS 1,922
UPLAND AREAS 637
-PROVIDED BY PCS PHOSPHATE 12/31/08
NOTE: BOUNDARY AS SHOWN INCLUDES DCM/CAMA AVOIDANCE
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1,500 0 1,500 Feet
500 0 500 Mata rs
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ACRE
SOUTH OF 33 BASE PROJECT AREA 81686
?R MODIFIED ALT L - SOUTH OF 33 PROPOSED 6,738
IMPACT BOUNDARY 12/31/08
MODIFIED ALT L - SOUTH OF 33 PROPOSED 5.177
IMPACT BOUNDARY 12/31/08 - EXCAVATION LI MITS -
RECOVERABLE CONCENTRATE = 104,887,000 TONS-
I CREEKS/OPEN WATER
PUBLIC TRUST AREAS 0 LF 0
1B PERENNIAL STREAM 7,799 LF 1
INTERMITTENT STREAM 3,336 LF 0
2 WETLAND BRACKISH MARSH COMPLEX 0
3 WETLAND 80 OMI-AND HARDWOOD FOREST <1
4 WETLAND HERBACEOUS ASSEMBLAGE 71
5 WETLAND SHRUB - SCRUB ASSEMBLAGE 31
6 WETLAND PINE PLANTATION 1
7 FOREST
WETLAND LAROW 16
66
e WETLAND MIXED PINE -HARDWOOD FOREST
PINE 64
9 WETLAND PINE FOREST 46
10 WETLAND FOCOSIN -BAY FOREST 0
11 WETLAND SAND SAND RI DOE FOREST 0
12 POND 0
13 WETLAND MAINTAINED AREA 0
74 UPLAND HERBACEOUS ASSEMBLAGE 224
15 UPLAND SHRUB -SCRUB ASSEMBLAGE 62
16 UPLAND PINE PLANTATION 569
17 UPLAND HARDWOOD FOREST 177
18 UPLAND MINED PINE -HARDWOOD FOREST 359
19 UPLAND PINE FOREST 73
20 UPLAND SAND RIDGE FOREST 4
4
21 UPLAND AGRICULTURAL LAND 4,535
22 UPLAND NON - VEGETATED/MAINTAINED AREA 184
= WETLAND AREAS 491
= UPLAND AREAS 6,247
-PROVIDED BY PCS PHOSPHATE 12/31/08
NOTE: BOUNDARY AS SHOWN INCLUDES DCM/CAMA AVOIDANCE
2,200 0 2,200 Feat
500 0 500 Meters