20080868 Ver 2_Approval Letter_20090115

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Beverly Eaves Perdue, Governor
Dee Freeman, Secretary
North Carolina Department of Environment and Natural Resources
Coleen H. Sullins, Director
Division of Water Quality
January 15, 2009
Mr. Ross M. Smith, Manager
Environmental Affairs
PCS Phosphate Company, Inc.
P.O. Box 48
Aurora, NC 27808
Re: PCS Phosphate Mine Expansion, Beaufort County
DWQ #2008-0868, version 2.0; USACE Action ID. No. 200110096
MODIFIED APPROVAL of 401 Water Quality Certification with Additional Conditions
Dear Mr. Smith:
Attached hereto is a copy of Certification No. 3771 issued to PCS Phosphate Company, Inc. of
Aurora, NC, dated January 15, 2009. In addition, you must get any other federal, state or local
permits before you proceed with your project including (but not limited to) Solid Waste,
Sediment and Erosion Control, Stormwater, Dam Safety, Mining, Non-discharge and Water
Supply Watershed regulations. This Certification completely replaces one issued to you on
December 6, 2008.
If we can be of further assistance, do not hesitate to contact us.
CHS/jrd
Attachments: Certificate of Completion
S, ly,
oleen H. ullins
cc: Mr. Tom Walker, U.S. Army Corps of Engineers, Asheville Regulatory Field Office
Dave Lekson, US Army Corps of Engineers, Washington Regulatory Field Office
Scott McLendon, Wilmington District, USACOE
Kyle Barnes, DWQ, Washington Regional. Office
Al Hodge, DWQ, Washington Regional Office
DLR Washington Regional Office
File Copy
Matt Matthews, DWQ Wetlands and Stormwater Branch
Cyndi Karoly, DWQ
John Payne, NC Attorney General's Office, Environmental Division
Mike Schafele, NC Natural Heritage Program
401 Oversight/Express Review Permitting Unit NorthCarolina
JVQtural?y
1650 Mail Service Center, Raleigh. North Carolina 27699-1650
2321 Crabtree Boulevard, Suite 250, Raleigh, North Carolina 27604
Phone: [phone] / FAX [phone] i Internet: httn :% h2 o.enr.state. ne.uG newetlands
PCS Phosphate Company, Inc.
Page 2 of 8
January 15, 2009
Linda Pearsall, NC Natural Heritage Program
Jimmie Overton, DWQ
Jeff Furness, PCS Phosphate
Stephen Rynas, NC Division of Coastal Management
Shannon Deaton, NC Wildlife Resources Commission
Derb Carter, Southern Environmental Law Center
Geoffrey Gisler, Southern Environmental Law Center
Heather Jacobs, Pamlico Tar River Foundation
Sean McKenna, NC Division of Marine Fisheries
Eric Kulz, DWQ
Tammy Hill, DWQ
Becky Fox, US Environmental Protection Agency
Tom Welborn, US Environmental Protection Agency - Region 4 Atlanta
Melba McGee, DENR
Dee Freeman, DENR
Coleen Sullins, DWQ
Chuck Wakild, DWQ
Paul Rawls, DWQ
Ted Strong, Washington Daily News
Susan Massengale, DWQ
Julia Berger, CZR
George House, Brooks, Pierce, McLendon, Humphrey and Leonard, LLP
Jim Stanfill, EEP
Mary Penny Thompson, DENR
Susan Massengale, DWQ
Ann Deaton, NC Division of Marine Fisheries
John Hennessy, DWQ
Ted Strong, Washington Daily News
Wade Rawlins, News and Observer
Filename: 20080868v2PCSPhosphate(Beaufort) 401 modified
PCS Phosphate Company, Inc.
Page 3 of 8
January 15, 2009
NORTH CAROLINA 401 WATER QUALITY CERTIFICATION
THIS CERTIFICATION is issued in conformity with the requirements of Section 401 Public Laws
92-500 and 95-217 of the United States and subject to the North Carolina Division of Water
Quality (DWQ) Regulations in 15 NCAC 2H, Section .0500 to PCS Phosphate Company, Inc. of
Aurora, NC based on an application to fill 4,124 acres of jurisdictional wetlands, 29,288 linear feet
of streams, 19 acres of ponds and 55.14 acres of stream buffers in the Pamlico River Basin,
associated with the expansion of PCS Phosphate's mining operation including the relocation of
Highway 306 and Sandy Landing Road in Beaufort County, North Carolina, pursuant to an
application filed on the 22nd day of May of 2008 through the published Public Notice by the US
Army Corps of Engineers, and in additional correspondence received September 5, 2008 (dated
September 4, 2008), November 3, 2008 (received November 5, 2008), December 19, 2008
(received December 22, 2008) and proposed impact maps dated January 6, 2009.
The application and supporting documentation provide adequate assurance that the proposed
work will not result in a violation of applicable Water Quality Standards and discharge
guidelines. Therefore, the State of North Carolina certifies that this activity will not violate the
applicable portions of Sections 301, 302, 303, 306, 307 of PL 92-500 and PL 95-217 if
conducted in accordance with the application, the supporting documentation, the additional
correspondence noted above and conditions hereinafter set forth.
This approval is only valid for the purpose and design submitted in the application materials,
additional correspondence and as described in the Public Notice. If the property is sold after the
Certification is granted, the new owner must be given a copy of the Certification and approval
letter and is thereby responsible for complying with all conditions of this Certification. Any new
owner must notify the Division and request the Certification be issued in their name. Should
wetland, buffer or stream fill be requested in the future, additional compensatory mitigation may
be required as described in 15A NCAC 2H .0506 (h) (6) and (7). If any plan revisions from the
approved site plan result in a change in stream, buffer or wetland impact or an increase in
impervious surfaces, the DWQ shall be notified in writing and a new application for 401
Certification may be required and a modified 401 Certification may be required. For this
approval to be valid, compliance with all the conditions listed below is required.
Conditions of Certification:
1. Impacts Approved
The following impacts are hereby approved as long as all of the other specific and
general conditions of this Certification are met. No other impacts are approved including
incidental impacts other than listed in this table. Also, please note that these impacts
are those approved by DWQ and are only a portion of the impacts that were originally
applied for and listed in the Public Notice. These impacts are depicted on maps entitled
"PCS Phosphate Mine Continuation - Modified Alt. L - NPCS, Bonnerton and South of
33 Proposed Impact" dated January 6, 2009.
PCS Phosphate Company, Inc.
Page 4 of 8
January 15, 2009
Amount Approved Plan Location or Reference
(Units)
Streams 25,727 feet Final EIS, page a as well as
June 6, 2008 and December
19, 2008 submittals to DWQ
404/CAMA Wetlands 3,953 acres Final EIS, page a as well as
June 6, 2008 and December
19, 2008 submittals to DWQ
Waters 19 acres Final EIS, page a as well as
June 6, 2008 and December
19, 2008 submittals to DWQ
Buffers 47.87 acres Final EIS, page a as well as
June 6, 2008 and December
19, 2008 submittals to DWQ
Sediment and Erosion Control:
2. Erosion and sediment control practices must be in full compliance with all specifications
governing the proper design, installation and operation and maintenance of such Best
Management Practices in order to protect surface waters standards:
a. The erosion and sediment control measures for the project must be designed,
installed, operated, and maintained in accordance with the most recent version of the
North Carolina Sediment and Erosion Control Planning and Design Manual.
b. The design, installation, operation, and maintenance of the sediment and erosion
control measures must be such that they equal, or exceed, the requirements
specified in the most recent version of the North Carolina Sediment and Erosion
Control Manual. The devices shall be maintained on all construction sites, borrow
sites, and waste pile (spoil) projects, including contractor-owned or leased borrow
pits associated with the project.
c. For borrow pit sites, the erosion and sediment control measures must be designed,
installed, operated, and maintained in accordance with the most recent version of the
North Carolina Surface Mining Manual.
d. The reclamation measures and implementation must comply with the reclamation in
accordance with the requirements of the Sedimentation Pollution Control Act or
Mining Act of 1971 (as amended).
3. No waste, spoil, solids, or fill of any kind shall occur in wetlands, waters, or riparian areas
beyond the footprint of the impacts depicted in the 404/401 Permit Application. All
construction activities, including the design, installation, operation, and maintenance of
sediment and erosion control Best Management Practices, shall be performed so that no
violations of state water quality standards, statutes, or rules occur.
4. Sediment and erosion control measures shall not be placed in wetlands or waters without
prior approval by the Division. If placement of sediment and erosion control devices in
wetlands and waters is unavoidable, design and placement of temporary erosion control
measures shall not be conducted in a manner that may result in disequilibrium of wetlands
or stream beds or banks, adjacent to or upstream and down stream of the above
structures- All sediment and erosion control devices shall be removed and the natural
PCS Phosphate Company, Inc.
Page 5of8
January 15, 2009
grade restored within two (2) months of the date that the Division of Land Resources or
locally delegated program has released the project.
Continuing Compliance:
5. PCS Phosphate Company, Inc. shall conduct construction activities in a manner
consistent with State water quality standards (including any requirements resulting from
compliance with section 303(d) of the Clean Water Act), the 401 Water Quality
Certification rules (15A NCAC 2H .0500) and any other appropriate requirements of
State law and federal law. If the Division determines that such standards or laws are not
being met (including the failure to sustain a designated or achieved use) or that State or
federal law is being violated, or that further conditions are necessary to assure
compliance, the Division may reevaluate and modify this Certification to include
conditions appropriate to assure compliance with such standards and requirements in
accordance with 15A NCAC 2H .0507(d). Before modifying the Certification, the Division
shall notify PCS Phosphate Company, Inc. and the US Army Corps of Engineers,
provide public notice in accordance with 15A NCAC 2H.0503 and provide opportunity for
public hearing in accordance with 15A NCAC 2H.0504. Any new or revised conditions
shall be provided to PCS Phosphate Company, Inc. in writing, shall be provided to the
United States Army Corps of Engineers for reference in any Permit issued pursuant to
Section 404 of the Clean Water Act, and shall also become conditions of the 404 Permit
for the project. This condition is intended to conform with the provisions of 15A NCAC
2H .0507 (d).
Miti ation:
6. Wetland and stream mitigation shall be done as follows and in accordance with mitigation as
approved by the US Army Corps of Engineers. DWQ shall be copied on all draft mitigation
plans and copied on all annual reporting on mitigation success. In addition, buffer mitigation
shall be done in accordance with condition 7 below. In addition, DWQ shall be copied on a
final accounting of the amount and type of proposed wetland, stream and buffer mitigation
within 60 days of the issuance of the 404 Permit from the US Army Corps of Engineers. Any
mitigation done outside the 8-digit HUC where PCS is located should follow the guidance for
out of HUC mitigation as described in "Guidance on the Use of Compensatory Mitigation in
Adjacent Cataloging Units" dated May 20, 2005 or its update by DWQ. Conservation
easements or similar mechanisms to protect these mitigation sites shall be recorded on all
mitigation sites to the written satisfaction of the US Army Corps of Engineers.
7. Buffer mitigation shall be conducted by PCS Phosphate at those mitigation sites with
riparian buffer credit which total about 24.4 acres of buffer credit. If the Environmental
Management Commission approves a flexible buffer mitigation program, then PCS
Phosphate may submit a list and description of those sites to DWQ for written approval. If
no additional riparian buffer mitigation sites and no flexible buffer mitigation sites are
approved by DWQ and/or the NC Environmental Management Commission, then
disturbance of buffers in the NCPC, Bonnerton or South of 33 tracts shall not be done
beyond the limits of the 2014 impact area shown on PCS' Project Impact Schedule Year
2008-2016 (generally south of Drinkwater Creek) (see Attachment One). DWQ shall be
copied on all buffer mitigation site plans and written approval from DWQ is required for these
plans before planting or land grading occurs.
PCS Phosphate Company, Inc.
Page 6of8
January 15, 2009
8. Porter Creek enhancement - Additional written approval is required from DWQ for a wetland
enhancement and stream restoration plan as well as a monitoring plan for the stream,
headwater forest and hardwood flat at the upper end of Porter Creek. This plan shall
include plugging or filling the existing ditch in order to reestablish surface flow into the
wetland and stream channel. DWQ acknowledges wetland functional uplift for the 3.4 acre
hardwood flat that is located between the stream and existing ditch and will count 1.7 acres
of functional uplift of these non-riparian wetlands in order to account for DWQ's mitigation
requirement in 15A NCAC 2H .0506 (h)(6). Stream mitigation credits are also available for
the restoration of flow into the existing channel with appropriate monitoring and wetland
mitigation for the functional uplift of the headwater forest if additional analysis documents
that uplift.
Additional Minimization of impact:
9. Hardwood Flat Avoidance and Minimization - Impact to the 135 acre ("135 A" on
Attachment Two) portion, the 58 acre (" 58 A" on Attachment Two) portion and the 20 acre
secondary connection between these two locations ("20 acre connect" on Attachment Two)
of the Bonnerton Road Non-Riverine Wet Hardwood Forest as depicted on Exhibit A of the
letter dated October 20, 2008 from George House of Brooks, Pierce, McLendon, Humphrey
and Leonard, LLP to Paul Rawls of the NC Division of Water Quality shall be avoided and
the area not mined or cleared since this wetland is a "wetland of exceptional state or
national ecological significance" in accordance with 15A NCAC 2H .0506(e) except that a
1,145 foot wide mining and utility corridor is allowed in the narrowest part of the Bonnerton
Road Non-Riverine Wet Hardwood Forest. Mining is also allowed in the northeast triangle of
"58A" WHR area as outlined in exhibit 14 of PCS's December 19, 2008 letter. In order to
protect the uses of this Non-Riverine Wet Hardwood Forest wetland that will not be mined, a
conservation easement shall be placed on the wetland and restored mining and utility
corridor to preclude impacts including mining, logging and any other disturbance of the
vegetation or soils that would result in its delisting as a state or nationally significant wetland
area. This conservation easement shall be sent to DWQ within 60 days of the issuance of
the 404 Permit and the Division must review and approve this easement before it is
recorded. Eventual donation to a local land trust or similar organization is acceptable to
DWQ with DWQ's written approval.
The exact location of this 1,145 foot wide mining corridor shall be submitted to DWQ and the
Corps of Engineers for written approval. A detailed stratigraphy study shall be done on both
sides and throughout the area to be mined in order to determine the presence, extent and
permability of any aquitards and aquicludes (mainly clay-based) within the mining corridor.
A plan for restoration of each of these aquitards and aquicludes shall be included with the
revegetation plan in order to ensure that pre-mining hydrology is reestablished in the mining
corridor. Additional written approval is needed from DWQ before this stratigraphic study is
done or restoration is initiated. Groundwater monitoring shall be done before, during and
after mining and restoration for at least 10 years post-mining in order to ensure that
restoration has established reference hydrology for this site. In addition, a reclamation and
revegetation plan for the mining corridor shall be submitted to DWQ for written approval.
The reclamation plan for the mining corridor shall include the installation of appropriate
topsoil on the site within the rooting zone of the restored hardwood flat. The width of the
reclamation zone shall ensure that a continuous hardwood flat is restored to reconnect the
two undisturbed hardwood flats with a width similar to the width of the remnant, undisturbed
hardwood flats. Revegetation shall be done with native tree species. The mining corridor
shall be restored and replanted within ten (10) years of the initiation of mining preparation
PCS Phosphate Company, Inc.
Page 7 of 8
January 15, 2009
for the area. DWQ shall be copied on a letter once that mining preparation begins on the
mining corridor in order to establish this ten year clock.
10. Additional minimization of appx. 3 acres of wetland impact shall be provided for the NCPC
tract as depicted on the letter from PCS Phosphate dated November 3, 2008 to John
Dorney of the NC Division of Water Quality.
11. South of 33 tract - The impact boundaries for the South of 33 tract shall be as outlined in an
email from Mr. Tom Walker of the US Army Corps of Engineers dated August 19, 2008
(forwarded to Mr. John Dorney of the Division of Water Quality on December 13, 2008).
Monitoring
12. Groundwater monitoring - Additional written approval is required from DWQ for a final
groundwater monitoring plan that supplements and compliments the existing groundwater
monitoring that is being conducted by PCS for various state and federal agencies. In
addition to other parameters subject to groundwater standards, cadmium and fluoride shall
be monitored in the final groundwater monitoring plan. This plan shall include groundwater
monitoring of the protected portion of the Bonnerton Road Non-Riverine Wet Hardwood
Forest as noted in condition 9 above in order to ensure that the existing hydrology of this
site is maintained. This monitoring shall focus on the "58A" area of the Bonnerton Road
Non-Riverine Wet Hardwood Forest to ensure that its groundwater hydrology is maintained.
13. Stream and watershed monitoring - The existing water management and stream monitoring
plan for water quality, water quantity and biology (macrobenthos and fish) shall be continued
for the life of the Permit by the applicant. Additional monitoring shall be proposed by the
applicant and approved by DWQ for tributaries in the Bonnerton and South of 33 tracts
before land clearing or impacts occur to those locations. 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. Monitoring locations shall include
the upper end of Porter Creek in the "58A" portion of the Bonnerton Road Non-Riverine Wet
Hardwood Forest in order to ensure that hydrology of this wet hardwood forest is
maintained.
The plan shall identify any deleterious effects to riparian wetland functions including by not
limited to water storage, pollutant removal, streambank stabilization, as well as resident
wetland-dependent aquatic life and resident wetland-dependent wildlife and aquatic life in
wetlands and streams tributary to the Pamlico River in the NCPC, Bonnerton and South of
33 tracts. If necessary, management activities to protect or restore these uses will be
required for all the tributaries of these three tracts.
PCS shall notify DWQ in writing at least one month in advance of any biological sampling so
DWQ biologists can accompany PCS biologists as needed. Also a certified lab is required
for the identification of freshwater benthic macroinvertebrate samples. For estuarine
samples, a knowledgeable lab shall be used until such time as DWQ certifies laboratories
for estuarine analysis and after that time, only suitably certified labs shall be used. Finally a
fish monitoring plan shall be included in the final monitoring plan submitted to DWQ for
written approval.
PCS Phosphate Company, Inc.
Page 8 of 8
January 15, 2009
This stream and watershed monitoring plan shall be submitted to DWQ for written approval
within six months of the issuance of the 404 Permit. Seven copies (two hard copies and five
CD's) of the draft plan and annual reports shall be submitted to DWQ for circulation and
review by the public and other federal and state agencies.
Expiration of Certification - This approval to proceed with your approved impacts or to conduct
impacts to waters as depicted in your application shall expire upon expiration of the 404 Permit
with the proviso that changes to this Certification may be made in accordance with condition 5
(Continuing Compliance) above.
If this Certification is unacceptable to you, you have the right to an adjudicatory hearing upon
written request within sixty (60) days following receipt of this modified Certification. Since as
noted above, this Certification completely replaces the one issued to you on December 6, 2008,
the sixty (60) day appeal period is for all the conditions of this modified Certification. Any
request for adjudicatory hearing must be in the form of a written petition conforming to Chapter
1506 of the North Carolina General Statutes and filed with the Office of Administrative Hearings,
6714 Mail Service Center, Raleigh, N.C. 27699-6714. If modifications are made to an original
Certification, you have the right to an adjudicatory hearing on the modifications upon written
request within sixty (60) days following receipt of the Certification. Unless such demands are
made, this Certification shall be final and binding.
This the 15th day of January 2009
(;oleenZH. N OF WAT QUALITY
Sull s
CHS/jrd
W A ?F9QG
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DWQ Project No.:
Applicant:
Project Name:
County:
Beverly Eaves Perdue, Governor
Dee Freeman, Secretary
North Carolina Department of Environment and Natural Resources
Coleen H. Sullins, Director
Division of Water Quality
Date of Issuance of 401 Water Quality Certification:
Certificate of Completion
Upon completion of all work approved within the 401 Water Quality Certification or
applicable Buffer Rules, and any subsequent modifications, the applicant is required to return
this certificate to the 401/Wetlands Unit, North Carolina Division of Water Quality, 1650 Mail
Service Center, Raleigh, NC, 27699-1650. This form may be returned to DWQ by the
applicant, the applicant's authorized agent, or the project engineer. It is not necessary to send
certificates from all of these.
Applicant's Certification
I, , hereby state that, to the best of my abilities,
due care and diligence was used in the observation of the construction such that the
construction was observed to be built within substantial compliance and intent of the 401
Water Quality Certification and Buffer Rules, the approved plans and specifications, and other
supporting materials.
Signature:
Agent's Certification
Date:
I, , hereby state that, to the best of my abilities,
due care and diligence was used in the observation of the construction such that the
construction was observed to be built within substantial compliance and intent of the 401
Water Quality Certification and Buffer Rules, the approved plans and specifications, and other
supporting materials.
Signature:
Date:
If this project was designed by a Certified Professional
I, , as a duly registered Professional
(i.e., Engineer, Landscape Architect, Surveyor, etc.) in the State of North Carolina, having
been authorized to observe (periodically, weekly, full time) the construction of the project, for
the Permitee hereby state that, to the best of my abilities, due care and diligence was used in
the observation of the construction such that the construction was observed to be built within
substantial compliance and intent of the 401 Water Quality Certification and Buffer Rules, the
approved plans and specifications, and other supporting materials.
Signature
Date
Registration No.
401 Oversight/Express Review Permitting Unit
1650 Mail Service Center, Raleigh, North Carolina 27699-1650
2321 Crabtree Boulevard, Suite 250, Raleigh, North Carolina 27604
Phone: [phone] / FAX [phone] / Internet: littp://h2o.ejir,state.iic.us/iic,,vetlands
NorthCarolina
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