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March 12, 2009
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Environmental Protections Must be Upheld as Mining Expands
Geoff Gisler, Associate Attorney, 919-967-1450
Kathleen Sullivan, Communications Manager, 919-967-1450 (email)
Representing:
EDF - Sam Pearsall, 919-881-2938
EDF - Dave McNaught, 919-881-2921
Sierra Club - Molly Diggins, 919-833-8467
N.C. Coastal Federation - Jim Stephenson, 252-393-8185
CHAPEL HILL, NC -
A permit issued by the N.C. Division of Water Quality illegally approves the largest destruction of wetlands in the
state's history by PCs Phosphate, according to papers filed by the Southern Environmental Law Center today in
state administrative court. The permit presumes the state will write new rules that accommodate the company's
ambitions.
"This permit challenge asks whether PCS's mine expansion has to comply with the laws protecting the environment,
fisheries and public health," said Geoff Gisler, attorney, Southern Environmental Law Center. "The long-term
economic and environmental health of eastern North Carolina depends on the state holding PCS to those standards.
By issuing this permit, the state is strip-mining the law and the region's future."
In April 2008, after delaying the permit process for several years by pushing for illegal mining in public waters and
pursuing court proceedings, PCS Phosphate--a subsidiary of Potash Corp of Saskatchewan, Inc.--applied for a
permit to destroy approximately 4,000 acres of wetlands and almost five miles of streams along the Pamlico River
and upriver from the Pamlico Sound, an area about two-thirds the size of Ocracoke Island. By permitting the mine
expansion in January 2009, the state authorized this massive destruction.
A pre-existing permit authorizes ongoing mining by PCS Phosphate until December 2017. The company has
identified about 70,000 acres of land in the area that contain economically recoverable phosphate ore.
"A win-win alternative must be found that will protect North Carolina's economy, its environment and public health,
instead of selling North Carolina's people and natural systems short," said Sam Pearsall, an ecologist from
Environmental Defense Fund.
According to the U.S. Fish and Wildlife Service, the Pamlico River and its tributary creeks are critical parts of an
essential nursery habitat for most commercial and recreational fish and shellfish in the North Carolina coastal area
and important habitat for waterfowls, shorebirds and other migratory birds.
"Expanding the existing mine into sensitive wetlands threatens immediate and long-term harm to these ecosystems
and natural resources," said Pat Carstensen, chair of the NC Chapter, Sierra Club.
The most immediate impacts would be felt in adjacent waters. According to records from the last 11 years, the
section of the Pamlico River within Beaufort County produced nearly $3 million annually in commercial finfish and
shellfish harvests. Annual commercial landings for Beaufort County had an average dockside value of $6.5 million
between 1994 and 2005. Effects from the mine would also be felt further downstream, adversely affecting the
statewide commercial finfish and shellfish industry in North Carolina which produced nearly $1 billion annually
between 1994 and 2005.
Because of these impacts, both the U.S. Fish and Wildlife Service and the N.C. Division of Marine Fisheries
recommended denial of PCS Phosphate's proposed mine expansion. The National Marine Fisheries Service and the
South Atlantic Marine Fisheries Commission have also publicly declared that the mine expansion would do long-
term damage to fisheries in this estuary system.
In addition to providing habitat, natural wetlands improve water quality, buffer hurricanes and storms, and act as
freshwater reservoirs when water is scarce. These benefits are ever more vital for North Carolina as the climate
changes.
In filing today's challenge in state administrative court the Southern Environmental Law Center represents
Environmental Defense Fund, North Carolina Coastal Federation, Pamlico-Tar River Foundation, and North Carolina
Sierra Club. The suit is filed against the North Carolina Division of Water Quality.
About Southern Environmental Law Center
http://www. southernenvironment.org/newsroomlpress_releases/pcs_phosphate_filing_3_ 1... 3/12/2009
Southern Environmental Law Center)) Newsroom)) Pcs Phosphate Filing 3 12 09 Page 2 of 2
The Southern Environmental Law Center uses the power of the law to protect the health and environment of the
Southeast (Virginia, Tennessee, North and South Carolina, Georgia, and Alabama). Founded in 1986, SELC's staff of
40 attorneys includes experts on air and energy, water, forests, the coast and wetlands, transportation, and land
use. SELC is a non-profit organization and works with more than 100 partner groups.
www.SouthernEnvironment.org
About North Carolina Sierra Club
Sierra Club is the nation's oldest and largest grassroots environmental organization with over 17,000 members in
North Carolina.
About Pamlico-Tar River Foundation
The Pamlico-Tar River Foundation, founded in 1981, is a grassroots environmental organization representing
greater than 2000 members and a licensed member of Waterkeeper Alliance, Inc. Our mission is to enhance and
protect the Pamlico-Tar River watershed through education, advocacy, and research.
About North Carolina Coastal Federation
The North Carolina Coastal Federation (NCCF) is the state's only non-profit organization focused exclusively on
protecting and restoring the coast of North Carolina through education, advocacy and habitat restoration and
preservation. www.nccoast.org
About Environmental Defense Fund
A leading national nonprofit organization, Environmental Defense Fund represents more than 500,000 members.
Since 1967, Environmental Defense Fund has linked science, economics, law and innovative private-sector
partnerships to create breakthrough solutions to the most serious environmental problems. For more information,
visit www.edf.org .
contact us I privacy policy
http://www.southernenviromnent.org/newsroom/press releases/pcs phosphate filing 3 1... 3/12/2009
PLEASE. PRINT CLEARLY Ott TYPE
STA'T'E OF NORTH CAROt,INA
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF (1) Wakc :__
(2) P=11eo-Tar River FouWatjon. North Carolina Coastal )
Federation, Environmcntal_[?efense Fund, and Sjgrra Club
(your name) PH'ITI'10NERS, )
PETITION
V. ) FOR A
CON'T'ESTED CAST: HEARING
(3) North Carolina Dopartmenl of Fnvironmenl ?alural )
Rcsources - Division of Witter Quali
. RESPONDENT.
(The State agency or board about which you are complaining)
I hereby ask Ibr a contested case hearing as provided for by North Carolina General Statute § 150B-23 to challenge the actions of the Department of
Environment and Natural Resources - Division of Water Quality in issuing Water Quality Certification No. 3771 to PCS Phosphate Company on
January 15, 2009: The Water Quality Certification authorizes an expansion of PCS's phosphate mine in violation of water quality standards and the
designated existing uses within the affected area. (Please seo attached statement)
This petition challenges the Division of Water Quality's issuance of Water Quality Certification No. 3771 to PCS Phosphate's Aurora operation, the
permitted facility in the recent contested case U.S. Department of the Interior Y. N.C. Depaftment of EnvironnicM and Natural Resources (08 EHR
1067-Morrison).
(If more space is needed, attach additional pages.)
(4) Because of these facts, the Slate agency or board has: (check at least one from each column)
--..-deprived me of property; x exceeded its authority orjurisdiclion;
ordered me to pay a fiue or civil penalty; or X_acted erroneously;
x_ otherwise substantially prejudiced my rights; AND ;x failed to use proper procedure;
x acted arbitrarily or capriciously; or
X -Failed to act as required by law or rule.
(5) Date: March 12, 200'1
(6) Your phone number: [phone]'
(7) Print your full address: 200 W. Franklin 't Suite 330 Chapel lfill, NC 27
. (st?ress p.o. ox city) stale zip
(8) Print your name: Geoff Gisler
(9) Your signature:
You must mail or dclivcr a COPY of this Petition to the State agency or board named on line (3) of this form. You should contact the agency or
board to determine the name of the person to be served.
CERTIFICATE OF SERVICE
i certify that this Petition has been served on the State agency or board named below by depositing a copy of it with the United States Postal Service
with sufficient postage affixed OR by delivering it to the named agency or board:
(10)-Mary Penn?Thompson (11) N.C. DeRartment of Environment and Natural Resources
(name ol'person served) (State agency or board listed on line 3)
(12) 512 North Salisbury Street, 10 Ftoar Raleigh . NC 27604'
(street addruW- p.o. box) (city) (state) (zip code)
(13) This the 12th rday of March 2Q(?9
(14) --
r (your signature)
When you have completed this form, you MUST mail or deliver the ORIGINAL AND ONE COPY to the Office of Administrative Hearings, 6714
Mail Service Center, Raleigh, NC: 27699-6714.
H-06 (12108)
Pamlico-Tar River Foundation, et al. v. N.C. Division of Water Quality
Attachment to Form H-06
1. INTRODUCTION
The Pamlico-Tar River Foundation, North Carolina Coastal Federation,
Environmental Defense Fund, and Sierra Club (collectively "Citizen Croups")
respectfully submit this Petition for a Contested Case Hearing ("Petition") to formally
object to a final action of the North Carolina Division of Water Quality ("DWQ")
approving and issuing Water Quality Certification No. 3771 ("Water Quality
Certification" or "401 Certification".) to PCS Phosphate, Inc. ("PCS") for its proposed
expansion of its strip-mining operation northwest and west of Aurora in Beaufort County.
The Citizen Groups respectfully file this petition because the Water Quality Certification
authorizes PCS to expand its mining operation into nearly 4,000 acres of wetlands and
'approximately S miles of streams in violation of state water quality standards. A copy of
the Water Quality Certification issued on January 15, 2009 is included as Exhibit 1 to this
Petition.
II. JURISDICTION AND STANDING
A. This Petition is Timely
The North Carolina Administrative Procedure Act sets forth a 60-day general
limitation for filing a petition in a contested case, which "shall commence when notice is
given of the agency decision." N.C. Geri. Stat. § 150B-23(f). DWQ approved the Water
Quality Certification on January 15, 2009. Therefore, Citizen Groups timely file this
Petition for a Contested Case Hearing within' the 60-day limitation prescribed by N.C.
Gen. Stat. § 15013-23(f) and stated within the terms of the Water Quality Certification.
B. Citizen Groups are Entitled to Bring this Contested Case as "Persons
Aggrieved" Within the Meaning of North Carolina's Administrative
Procedure Act
North Carolina's Administrative Procedure Act, N.C. Gen. Stat. § 150B-23,
provides that a contested case may be brought by a "person aggrieved." The Act defines
"person aggrieved" as "any person or group of persons of common interest directly or
indirectly affected substantially in his or its person, property, or employment by an
administrative decision," N.C. Gen. Stat. § 150B-2(6). A "person" is defined to include
"any natural person, partnership, corporation, body politic and any unincorporated
association, organization, or society." N.C. Gen. Stat. § 150B-2(7). As alleged in further
detail below, DWQ has substantially prejudiced Citizen Groups' rights by issuing the
Water Quality Certification for the mine expansion.
1. Pamlico-Tar River Foundation
The Pamlico-Tar River Foundation, Inc. ("PTRF") is a North Carolina non-profit
corporation founded in 1981. For generations, the Tar-Pamlico River has supported life
in the watershed, and its future health is directly tied to impacts from future development.
2
Pamlico-Tar River Foundation, et al. v. N.C. Division of Water Quality.
Attachment to Form H-06
PTRF strives to preserve the high quality of life of residents.in the Tar-Pamlico
watershed by protecting the river's environmental resources.
- . PTRF has approximately 2,000 members, most of whom live and work on ornear
the Pamlico and Tar Rivers. PTRF has its principal office in Washington, Beaufort
County, North Carolina. Many PTRF members visit, recreate, fish, hunt, boat, swim,
view wildlife, and otherwise use and enjoy the waters of the Pamlico River.
Protecting the quality of the nutrient-sensitive waters of the Pamlico River is one
of PTRF's central missions. The organization is involved in educational initiatives,
documenting environmental impacts on the river, legislative efforts, and submitting
comments during regulatory rulemaking. PTRF has sought to protect the water quality of
the Pamlico River during the process leading to this 401 Certification by participating in
the Review Team that provided input during the environmental impact statement ("EIS")
process as well as commenting on the draft El S, supplemental EIS, final EIS, and 401
Certification application.
The 401 Certification would substantially affect the interests of PTRF and its
members in protecting the water quality of the Tar-Pamlico River basin. Specifically, the
Water Quality Certification would allow destruction of wetlands, surface waters, and
riparian buffers that are integral to PTRF's efforts to protect basin-wide water quality and
would impair the use of waters in the Tar-Pamlico River basin and downstream for .
commercial and recreational fishing, recreational boating, wildlife, and fish and aquatic
life propagation and survival.
2. North Carolina Coastal Federation
The North Carolina Coastal Federation ("Coastal Federation") is a non-profit
corporation dedicated to the promotion of better stewardship of coastal resources. The
Coastal Federation was founded in 1982 and has approximately 8,500 members,
including numerous' members who live near, shellfish or fish in, or regularly visit the
Pamlico River estuary, Pamlico Sound, and nearby coastal waters.
Part of the Coastal Federation's purpose is to protect coastal waters and estuaries
for the use and enjoyment of all of the citizens of the state. As part of this work, the
Coastal Federation has played a lead role in investigating, documenting, publicizing, and
seeking enforcement of violations of state and federal sedimentation, stormwater, water
quality, and wetlands laws. In addition, to protect coastal waters from degradation from
stormwater-borne pollutants, the Coastal Federation is working extensively through the
state regulatory process to improve and strengthen the State's stormwater control
program applicable to coastal areas.
The Coastal Federation has actively participated in the deliberations and
rulemaking proceedings initiated by the Coastal Resources Commission and the
Environmental Management Commission that relate to wetlands, stormwater, water
quality, coastal outstanding resource waters, and shellfish issues, and has been a party to
Pamlico-Tar River Foundation, et al. v. N.C. Division of Water Quality
Attachment to Form H-06
several administrative and judicial appeals related to these matters. "Through regular
participation in informal and formal proceedings arid through its,broader public education
efforts, the Coastal Federation represents its members' interests in the Appropriate
stewardship of North Carolina's coastal resources, including its public trust waters.
To further those environmental protection goals, the Coastal Federation joined
PTRF, Environmental- Defense Fund, and other organizations as intervenors in PCS's
variance request before the Water Quality Committee in September 2008. That challenge
built on the Coastal Federation's long track record of direct participation in permit
decisions involving the phosphate mining operations now managed by PCS. In the mid-
1980s it was instrumental in identifying, and pushing for adoption of, significant
enhancements to the operation's National Pollution Discharge Elimination System
wastewater permit. DWQ required the facility to implement the recycling technology
that the Coastal Federation advocated for, resulting in reduced pollution discharges from
the site.
The 401 Certification would substantially affect the interests of the Coastal
Federation and its members in protecting the water quality, wetlands, and nursery areas
that are essential to a productive coastal ecosystem. The impacts to wetlands, streams,
and riparian buffers approved by the 401 Certification will have long-term impacts on
finfish and shellfish in the Pamlico River, Pamlico Sound, and coastal North Carolina.
Those impacts will impair.Coastal Federation members' use of waters downstream for
fishing, recreational boating, wildlife, and fish and aquatic life propagation and survival.
3. Environmental Defense Fund
The Environmental Defense Fund ("EDF"), representing a national board and
membership of more than 300,000 individuals, is dedicated to protecting the integrity and
function of important ecosystem resources and processes, including wetlands and other
aquatic systems. With more than 9,000 members in North Carolina, EDF has had a
formal presence in the state since 1987. Since the establishment of the North.Carolina
office, EDF has been intimately engaged in the environmental affairs of eastern North
Carolina and specifically with the issues related to. protection of wetlands and water
quality at the PCS facility site.
Since 1987, EDF has been directly engaged in multi-agency discussions relating
to proposed mining advance scenarios, which would disrupt thousands of acres in the
central Pamlico watershed. EDP has reviewed and commented on a series of mine
advance and mitigation documents, including those produced in the inter-agency
discussions held by the U.S. Army Corps of Engineers {"Carps") since 2001. EDIT has
been a member of the Corps' Review Team convened to provide input during PCS's
Clean Water Act permit process and the development of the environmental impact
statement. EDF submitted substantive comments on the draft EIS for the proposed mine
expansion and has consistently expressed reservations about the company's most recent
alternative which is the basis for the current 401 Certification.
4
Pamlico-Tar River Foundation, et al. v. N.C. Division of Water Quality
. Attachment to Form TI-06
This involvement by EDF fits within the organization's overall goal to protect the
health of the Albemarle-Pamlico estuary. An essential ingredient in this effort is to
protect habitats and water quality that serve as the nurseries for juvenile finfish and
shellfish that supply the commercial and recreational fisheries on the North Carolina
coast and beyond. The plan also includes promoting efforts to control nutrient inputs into
the Tar-Pamlico River basin.
The mine expansion approved by the 401 Water Quality Certification includes the
destruction of wetlands, streams, and buffers in locations and on a scale that will thwart
EDT's efforts to protect this estuarine system. Moreover, the impacts of the mine
expansion will impair use of waters downstream for fishing, recreational boating,
wildlife, and fish and aquatic life propagation and survival. These impacts will adversely
affect both EDF's organizational purpose and the interests of its members in fishing,
swimming, paddling, and recreating in the Pamlico River.
4. Sierra Club
'Me Sierra Club is a national grassroots conservation organization with over 1.3
million members nationally and approximately 16,500 members in North Carolina. The
organization has a three tier structure, with national, state, and local bodies. The Sierra
Club has had a statewide chapter in North Carolina for over 20 years and a chapter office
in North Carolina since 1997. That statewide chapter oversees 13 local groups, including
the Greenville-based Cypress Group. The Cypress Group represents more than 1,000
members in the 23 counties of northeastern North Carolina, including Beaufort County.
The mission of the Sierra Club is to protect "communities, wild places, and the
planet itself " At the state level, the organization advocates for strong water quality and
coastal protection through the development of policy positions, education of the public
and the media, grassroots organizing, and direct advocacy to elected and appointed
officials. At a local level, the Cypress Group educates members and local citizens
through educational programs; monthly meetings; and Biking, kayaking, and wildlife
viewing trips, including trips on the Pamlico River in the vicinity of the PCS site.
The 401 Certification authorizes impacts to wetlands, surface waters, and riparian
buffets that will adversely affect the efforts of the national,-state, and local levels of the
Sierra Club. As permitted, the mine expansion will have significant impacts to water
quality, wildlife habitat, and downstream fisheries and will consequently impede the
purpose of the national, state, and local levels of the Sierra Club as well as substantially
affecting the interests of its members.
This substantial harm to PTRF's, NCCF's, EDF's, Sierra Club's, and their
respective members' interests can only be redressed by a decision vacating the 401 Water
Quality Certification issued to PCS Phosphate and remanding consideration of the permit
to the Division of Water Quality,

5
Pamlico-"Car River Foundation, ct at. v. N.C. Division of Water Quality
Attachment to Form H-06
Ill. GROUNDS FOR OBJECTION
In issuing the 401 Certification, DWQ exceeded its authority, acted erroneously,
failed to use proper procedure, acted arbitrarily and capriciously, and failed to act as
required by law or rule. Thus, DWQ issued a Water Quality Certification for the
destruction of nearly 4,000 acres of wetlands and close to 5 miles of streams that will not
protect water quality or existing uses of the Pamlico River and its watershed. Because
Citizen Groups and their members live, work, and recreate in the area affected by the 401
Certification, DWQ's final agency decision will substantially prejudice Citizen Groups'.
rights. Therefore, Citizen Groups object to DWQ's issuance of the Water Quality
Certification on the following non-exclusive grounds:
A. Factual Background
The Pamlico River carries the freshwater of the Tar River into the Pamlico Sound,
where it joins with the Albemarle Sound to create the nation's second largest estuary
system. In addition to its great scenic beauty and widespread recreational opportunities,
the Pamlico River hosts commercially and recreationally important fish and shellfish
species as well as waterfowl, shorebirds, and other migratory birds. The Albemarle-
Pamlico estuary system functions as a nursery for more than 90 percent of the
commercial seafood species caught in North Carolina, a $1 billion annual industry. The
stretch of the Pamlico River within Beaufort County alone contributes nearly $3 million
annually in commercial fish and shellfish.
In the Water Quality Act of 1987, Congress identified the Albemarle-Pamlico
Sound as an estuary in need of priority actions to address water quality problems. 33
U.S.C. § 1330(2)(B). In October 1987, the State of North Carolina and the U.S.
Environmental Protection Agency ("EPA") designated the Albemarle-Pamlico estuary as
an estuary of national significance and convened a management conference to assess
water quality and recommend measures to control sources of pollution.
Albemarle/Pamlico Sounds: State/EPA Conference Agreement for National Estuary
Program Designation Under the Water Quality Act of 1987 (Oct. 20, 1987). In
designating the Albemarle-Pamlico estuary, the state and EPA identified wetland loss,
excessive nutrients, decline in fisheries productivity, and fish diseases as major sources of
environmental stress.
PCS applied to expand its strip-mining operation along the Pamlico River in
Beaufort County in November 2000 and modified that permit application the following
August to request a mine expansion into 3,500 acres, including 2,400 acres of wetlands
and 7 miles of streams, as well as 3 creeks identified as primary nursery areas for juvenile
finfish and shellfish. The site of the proposed expansion is immediately adjacent to the
Pamlico River and South Creek, a special secondary nursery area. Because of the
project's proposed impacts to wetlands and streams, the U.S. Army Corps of Engineers
initiated thq. development of an environmental impact statement in early 2001. That
evaluation compared PCS's preferred 15-year mine expansion to other alternatives in a
draft EIS released in October 2006. That draft was supplemented in November 2007 to
6
Pamlico-Tar River Foundation, et al. v. N.C. Division of Water Quality
Attachment to Form H-06
add two. new alternatives, including Alternative L. The Corps released the final EIS
("kEIS") on May 23, 2008.
One month before the final EIS was released, in April 2008, PCS abandoned its
15-year preferred alternative and requested a 37-year permit for mine expansion from the
Corps. That 37-year mine expansion alternative, Alternative L, was also the subject of
the company's 401 Water Quality Certification application to DWQ. In it, the company
requested authorization to mine more than- 1 acres, including 4,135 acres of
wetlands and approximately 5 miles of streams.
DWQ granted PCS's 401 Certification request on December 5, 2008, authorizing
the destruction of 3,789 acres of wetlands, 3.5 miles of streams, and 28 acres of
strearnside, riparian buffers. That Certification is attached as Exhibit 2. PCS objected to
that Certification, requesting that DWQ relax its terms to allow additional mining., DWQ
issued a modified 401 Certification on January 15, 2009. incorporating PCS's requested
modifications.
That Certification, which Citizen Groups challenge in this petition, authorizes
PCS to destroy 3,953 acfes of wetlands, 4.9 miles of streams, and 48 acres of riparian
buffers that are protected under the Tar-Pamlico Riparian Buffer Rules. Within those
wetland acres, the 401 Certification approves the destruction of more than 50 acres of a
hardwood wetlands forest that is a nationally significant natural heritage area as defined
by the N.C. Natural Heritage Program. The remaining parts of the forest would be
bisected by a 1,200 foot wide corridor as part of a plan that includes mining on three
sides of both of the remaining forest segments..
B. Legal Framework
1. Water Quality Certification Requirements
. This case arises under Clean Water Act § 401 and North Carolina's water quality
and pollution control regulations. Under § 401 of the Clean Water Act, the Corps cannot
issue a § 404 permit for impacts to surface waters and wetlands unless DWQ first
certifies that the project will comply with all applicable water quality standards. Section
401(a)(1) provides:
Any applicant for a Federal license or permit to conduct
any activity ... which may result in any discharge into the
navigable waters, shall provide the licensing or permitting
agency a certification' from the State in which the discharge
originates or will originate ... that any such discharge will
comply with the applicable provisions of [the Clean Water
Act].
33 U.S.C. § 1341(a)(1).
7
Pamlico-Tar River Foundation, et al. v. N.C. Division of Water Quality
Attachment to Form 1-1-06
According to the federal Clean Water Act and North Carolina law, DWQ must
ensure compliance with all applicable state water quality standards before issuing a § 401
water quality certification. If expansion of PCS's strip-mine would violate water quality
standards and cannot reasonably be expected to meet water quality standards through
remedial actions, DWQ must deny certification. See 33 U.S.C. § 1341(a)(1), (3). The
federal Clean Water. Act also authorizes DWQ to conditionally approve a § 401.
certification by imposing any conditions or "any other appropriate requirement of State
law" necessary to ensure compliance with water quality standards. See 33 U.S.C. §
1341(d).
The North Carolina Environmental Management Commission has adopted rules
that control DWQ's issuance of 401 certifications. Those procedures require DWQ to
evaluate specific factors before issuing a 401 certification for wetland and stream
impacts. Before issuing the certification, the state must find that the project:
1.) has no practical alternatives;
2) will minimize adverse impacts to surface waters;
3) does not result in the degradation of groundwaters and surface waters;
4) does not result in cumulative impacts that will cause a violation of water
quality standards;
5) protects downstream water quality standards with on-site stormwater control
measures; and
6) provides for replacement of existing uses through wetland or stream
mitigation.
15A N.C. Admin. Code 02H .0506(b), (c). In addition to these factors, if the applicant.
proposes impacts to wetlands of exceptional state or national significance, the state must
find that those impacts are necessary to meet a demonstrated public need before a 401
certification can issue. 15A N.C. Admin. Code 0211.0506(e).
Because of the location of PCS's proposed project, the Tar-Pamlico Buffer Rules
also apply to this 401 Certification. Those rules, implemented to protect water quality in
the Tar-Pamlico River, provide protection for 50-foot streamside, riparian buffers within
the Tar-Pamlico watershed. See 15A N.C. Admin. Code 02B .0259. Under those rules,
PCS's proposed mine plan requires buffer mitigation for every acre of buffer impacted
according to established ratios. Buffers that are destroyed within the 30 feet closest to the
surface water must be mitigated at a 3:1 ratio. When the section of buffer from 30 to 50
feet from the surface water is impacted, it must be mitigated at a 1.5:1 ratio. 15A N.C..
Admin. Code 02B .0259(4). Further, the rules specify that mitigation must be done at
least as close to the Pamlico estuary as the proposed impact and as close to the impact as
feasible. 15A N.C. Admin. Code 02B.0260(4).
Pamlico-Tar River Foundation, ct al. v. N.C. Division of Water Quality
Attachment to Form. -1-06
2. Federal and North Carolina Law Require Restoration and Protection of
Water Quality and Existing and Designated Uses
Congress enacted the Clean Water Act not merely'to preserve existing.water
quality, no matter how degraded, but to "restore and maintain the chemical, physical, and
biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). One of the goals of the
Act is to achieve, "wherever attainable ... water quality which provides for the
protection and propagation of fish, shellfish, and wildlife and provides for recreation in
and on the water." Id. at § 1251(a)(2).
. The Act further requires states to develop standards and measures to meet these
goals. Under -§ 303 of the Clean Water Act, state water quality standards must "consist of
the designated uses of the navigable waters involved and the water quality criteria for
such waters based on such uses." 33 U.S.C. § 1313(c)(2)(A). The U.S. Supreme Court
has made clear that "§ 303 is most naturally read to require that a project be consistent
with both components, namely the designated use and the water quality criteria." PUD
No. 1 of Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700, 715 (1994)
(emphasis in original). 't'hus, "a project that does not comply with a designated use of the
water does not comply with the applicable water quality standards." Id. It is therefore
beyond question that DWQ is prohibited from approving a water quality certification for
a project that will not protect water quality and designated uses.
North Carolina's General Assembly has acted to protect the water quality and
beneficial uses of the State's waters by declaring "the public policy of this State to
provide for the conservation of its water and air resources." N.C. Gen. Stat. § 143-
211(x). Further, "[ijt is the public policy of the State to maintain, protect, and enhance
water quality within North Carolina." N.C. Gen. Stat. § 143-211(b) (emphasis added).
The EMC has promulgated regulations to implement the General Assembly's mandate to
develop "[s]tandards of water and air purity ... designed to protect human health, to
prevent injury to plant and animal life, to prevent damage to public and private property,
to insure the continued enjoyment of the natural attractions of the State ... and to secure
for the people of North Carolina, now and in the future, the beneficial uses of these great
natural resources." N.C. Gen. Stat. § 143-211(c).
To ensure protection of the existing uses as well as designated uses based on a
water's classification, the regulations further provide that any "sources of water pollution
which preclude any of these uses on either a short-term or long-term basis shall be
considered to be violating a water quality standard." 15A N.C. Admin. Code 0213
.0211(2). In the 401 certification process, DWQ must ensure that "existing uses are not
removed or degraded" for waters and wetlands. 15A N.C. Admin. Code 0213.0506(b),
(c), (e).
9
Pamlico-Tar River Foundation, et al. v. N.C. Division of Water Quality
Attachment to Form H-06
C. Practical Alternatives Exist to the 35-Year Mine Expansion Plan Authorized
by the Water.Quality Certification
The Division of Water Quality can only approve a 401 certification if it finds
there are no practical alternatives to the proposed project, yet issued this 401 Certification
for a 35-year project that has practical alternatives. Because the 401 Certification issued
to PCS relies on the fundamentally flawed economic analysis presented in the Corps'
FEIS, DWQ's analysis of practical alternatives is both incomplete and erroneous.
It is undisputed that DWQ did not conduct a practical alternatives analysis for the
last 20 years of mining.that is authorized by the 401 Certification. Because DWQ must
find that no practical alternatives with less, adverse impact to surface waters or wetlands.
exist for the entire project, DWQ cannot approve a project based on a practical
alternatives analysis of only part of that project. But in issuing this 401 Certification,
DWQ relied on the practicability analysis in the FEIS, an analysis that only considered
potential reconfiguration of the first 15 years of PCS's mine expansion. Based on that
analysis - and absent any evaluation of alternative mine plans in years 16 through 35 -
the 401 Certification authorizes 35 years of mine expansion. Moreover, when compared
to the original 401 Certification, the modified 401 Certification approved additional
wetland and stream impacts during this time period without any evaluation of the
practical alternatives to that expanded impact.
DWQ's reliance on the FEIS's analysis of practical alternatives over the first 15
years is also erroneous. The Corps's economic analysis that is at the heart of the FEIS's
practicability analysis is arbitrarily limited to 1.5 years, relies on erroneous analyses, and
omits important factors. Because of these flaws, the analysis favors more
environmentally destructive mine plans at the expense of reasonable alternatives..
DWQ's reliance on the fundamentally flawed analysis in the FEIS is misplaced.
Indeed, practical alternatives to the 35-year mine expansion exist. Economic
analyses submitted during the EIS process both identified the flaws of the )hEIS'S
practicability analysis and demonstrated that PCS can economically mine substantially
fewer acres of waters and wetlands by implementing alternative mine plans to avoid the
most sensitive environmental areas.
D. The 401 Certification Approves Buffer Impacts That
Are Not Mitigated as Required by the Tar-Pamlico Buffer Rules
The 401 Certification must, but does not, provide reasonable assurance that PCS's
mine expansion complies with state water quality standards, including the Tar-Pamlico
Buffer Rules. See 15A N.C. Admin. Code 02B .0259, et seg. The 401 Certification
authorizes 48 acres of riparian buffer impacts, which require more than 100 acres of
mitigation, yet does not include any mitigation that complies with the state water quality
standards established by the rules.
10
Pamlico-Tar River Foundation, et al. v. N.C. Division of Water Quality
Attachment to Form H-06
It is undisputed that PCS cannot provide adequate mitigation to offset the buffer
impacts authorized by the 401 Certification under existing mitigation rules. The
Certification fails to disclose the amount of mitigation required under existing rules, but
PCS has conceded that it cannot comply with existing riparian buffer mitigation
requirements by twice requesting a variance from the Environmental Management
Commission that would allow the company to bypass the requirements. PCS's initial
request was denied and the second request was withdrawn. The 401 Certification
acknowledges this violation, conditioning the approved impacts on anticipated.
rulemaking by the EMC and PCS's future compliance with these currently nonexistent
rules through the eventual submission of plans and DWQ's approval of those plans under
authority that will presumably be granted by the to-be-developed rules. DWQ's
conditioning of the 401 Certification on compliance with standards that do not yet exist
violates the basic purpose of the certification process, to assure federal permitting
agencies that the project complies with state water quality standards, and in fact confirms
that the project does not comply with state law.
Even the buffer mitigation DWQ approved fails to meet the requirements of the
Tar-Pamlico Buffer Rules. Those rules require all buffer mitigation to be done. at least as .
close to the estuary as the proposed impacts. Despite this requirement, DWQ did not
assess the proximity of the 24.4 acres of buffer mitigation accepted in the 401
Certification or determine whether the proposed buffer mitigation is at least as close to
the estuary as the impact as required by the rules. Instead, DWQ relied on a new draft
interpretation of the buffer mitigation rules released for public comment one day, before
the original 401 Certification was issued. That draft interpretation, however, conflicts
with both the enabling legislation, for riparian buffer mitigation and the history of the Tar-
Pamlico Buffer Rules. Without this unlawful interpretation, none of PCS's proposed
buffer mitigation meets the rule's location requirements.
E. The 401 Certification Authorizes the Destruction of Wetlands of Exceptional
National Significance Without the Required Determination of Public Need
The Division of Water Quality failed to make the mandatory public need
determination before authorizing impacts to wetlands of exceptional national ecological
significance in the 401 Certification. The nonriverine wet hardwood forest that is within
the proposed mine expansion represents one of the top five examples of nonriverine wet
hardwood forests that remain in the nation. The N.C. Natural Heritage Program has
designated the forest a nationally significant natural heritage area. Thus, under the
elevated standards for wetlands of exceptional national ecological significance, DWQ
must conduct an analysis of the public need for mining impacts to the wet hardwood
forest. DWQ did not conduct that analysis. There is no public need for the impact to
these wetlands of exceptional ecological significance and authorizing these impacts
therefore violated wator quality standards.
11
Pamlico-Tar River Foundation, et Al. v. N.C. Division of Water Quality
Attachment to Form H-06
F. The 401 Certification Would Impair Existing Uses of Surface Waters
and Wetlands
The impacts approved by the 401 Certification will degrade existing uses of
surface waters and wetlands in violation of water quality standards. As described above,
the Pamlico River plays an important role in the entire coastal ecosystem of North
Carolina. The tributaries to the Pamlico Rivet are integral to the river's natural and
economic value. The mine expansion authorized by the 401 Certification will reduce the
drainage basins of nine creeks within the project area by at least half of their existing
basins, including four creeks that the N.C. Wildlife Resources Commission has identified
as primary nursery areas because of the habitat they provide for juvenile finfish and
shellfish. Three of those primary nursery areas, as well as other creeks that will be
affected by mining, flow into a special secondary nursery area, South Creek.
Impacts to these sensitive areas will affect food webs within the estuarine
ecosystem, alter the rate of nutrient loading into the estuary, and reduce important
freshwater inputs from the drainage basins. The mine expansion will have significant
adverse impacts to public trust waters, fish habitat, and water quality. The indirect
effects of the project include negative impacts associated with heavy metal
contamination, drainage basin reductions, long-term water quality impacts from mining,
and loss of wetland functions. Because of these significant adverse impacts to natural
resources, the N.C. Division of Marine Fisheries, N.C. Wildlife Resources Commission',
U.S. Fish and Wildlife Service, National Marine Fisheries Service, and South Atlantic
Fisheries Management Council recommended denial of a permit for the mine expansion
authorized by the 401 Certification.
Further, the authorized mine expansion would degrade existing uses within the
nationally significant nonriverine wet hardwood forest. The 401 Certification approves
mining on three sides of the remnant segments.of this forest, an excavation scheme that
will disturb the existing hydrological structure that supports this rare forest.
Rather than modifying the mine plan to avoid these impacts, the 401 Certification
requires monitoring to confirm these adverse effects. But monitoring for the loss of
existing uses, and therefore violations of water quality standards, does not fulfill DWQ's
obligation to provide reasonable assurance that the project will not violate water quality
standards.
In addition, the proposed mitigation will not replace existing uses that will be
eliminated by the mine expansion. A substantial portion of the proposed mining impacts
will occur adjacent to the Pamlico River, eliminating wetlands and surface waters that
currently buffer the river from the impacts of PCS's mine operation. The location of
these wetlands and tidal creeks is important in determining the uses they provide. PCS's
proposed mitigation sites are not near the estuary, will not perform the same functions as
the existing streams and wetlands, and cannot replace the existing uses that will be lost
under this 401 Certification.
12
Pamlico-Tar River Foundation, ct al. v. N.C. Division of Water Quality
Attachment to Form H-06
G. The-Modified 401 Certification Was Issued Without Public Notice
Required by the Original 401 Certification
The 401 Certification that DWQ issued on December 5, 2008 required DWQ to
provide public notice. under the standards established in 15A N.C. Admin. Code 02H
.0503. That rule requires that the agency follow established procedures before taking
action on a 401 certification. Those procedures require DWQ to inform the public of the
specific plan under consideration and provide a minimum of 15 days of notice before'
taking agency action. Despite this requirement, the agency issued the modified 401
.Certification on January, 15, 2009 without public notice.
IV. CONCLUSION
For the foregoing reasons, DWQ exceeded its authority, acted erroneously, failed
to use proper procedure, acted arbitrarily and capriciously, and failed to act as required by
law or rule in approving and issuing the Water Quality Certification. Accordingly, the
Water Quality Certification for PCS Phosphate's mine expansion must be vacated and
remanded to DWQ.
Respectfully submitted this 12th day of March, 2009.
De`V aster
Geoff Gisler
SOUTHERN ENVIRONMENTAL LAW CENTER
200 West Franklin Street, Suite 330
Chapel Hill, NC 27516
(919) 9671450
[e-mail]
[e-mail]
Attorneys for the PAMLICO-TAR RIVER FOUNDATION,
NORTH CAROLINA COASTAL FEDERATION,
ENVIRONMEN'T'AL DEFENSE FUND, and SIERRA CLUB
13
.Q?OF W AT ??QG
;
? Y
Mr. Ross M. Smith, Manager
Environmental Affairs
PCS Phosphate. Company, Inc.
P.O. Box 48
Aurora, NC 27808
13overly Kamm Perdue, lJoverna
Doe Freeman. Saoralor)
N.rAh Carolina Delmrtrnatt ari:nviroutnont and Natufal kescxtrcts
I
3
January 15, 2009.
Coleco, 11. Suflins, Director
Division of Water QuAlkv
Re: PCs Phosphate Mine Expansion, Beaufort Counter
DWQ #2008-0668, version 2.0; USAGE Action ID`. No. 2001'10096
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, Pam 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 contect us.
S' lye
olefin H. ullins
CHS/jrd
Attachments: Certificate of completion
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
A[ Hodge, DWQ, Washington Regional Office
DLR Washington Regional Office
File Copy
Matt Matthews, DWQ Wetlands and Stor'mwater Branch
Cyndi Karoly, DWQ
John Payne, NC Attorney General's Office, Environmental Division
Mike Schafele, NC Natural Heritage Program
101 over.6Z1 F-vprexs ltevic%v Permitting Unil
1650 A1nil S(wicc Cenler, Raleigh, Norlh Carolina 27699-1650
232.1 CraUrac Boulevortl. Suilc 230, Italcieh, North Carolina 27604
Phone: [phone]% r rAN 914.733-U93 ! [memo: hEtn;;?l o.clgsla?a.ne p « dr
N l'lt(.'aroiintt
J??furn!lj
EXHIBIT 1
PCS PhosPhalc Compmy, 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 Commissipn
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
ITS 1'hosplrutc.(:ompurly, Inc.
Page 3 ol'8
.1anuary 13, 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 min€no 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 map's 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 giver' 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
wetiand, 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 iri a change in stream, buffer or wetland impact or an increase in
impervious surfaces, the DWQ shall be notified in writing qnd 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 ore met. No!other impacts are approved including
Inc€denial 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.
PC5 Phosphatc Comp(my, Inc,
I'fige 4 of 3
January 15, ?009
Amount Approve'd~ Plan Location or Reference

Streams 25,727 feet Final EIS, page a as well as
June 6, 2008 and December
I 191 2008 submittals to_DWQ
4041CAMA Wetlands 3,953 acres i Final EIS, page a as well as
June 6, 2008 and December
19 2008 submittals to_DWQ
1Naters 19 acres Final EIS, page e'as well as
June 6, 2008 and December
19, 2008 submittals to DW_ Q
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 surfaco waters standards:
a. The erosion and sediment control measuresifor the project must be designed,
installed, operated, and maintained in accordance with the most recent version of the
North Carolina Sediment and Erosion Contrgl 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 Nerth Carolina. Sediment and Erosion
Control Manual. The devices Oall 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 4041401 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.
s
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,Aesign 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 upstrea'ni and down stream of the above
structures. All sediment and erosion control devises shall be removed and the natural
f'CS Phosplin[e Company, .lne.
1'nge j of 8
Janmory 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:
6. PCS Phosphate Company, Inc. shalliconduct construction activities in a manner
consistent with Stale 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.Q504. 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).
Mitigation:
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'Iocated should follow the guidance for
out of HUG mitigation as described in "Guidance on the Use of Compensatory Mitigation in
Adjacent Cataloging Units" dated May 120, 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 on1 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 avid written approval from DWQ is required for these
plans before planting or land grading occurs.
PCS Phosphate Company, inc.
Page 6 or 8
Jauuttr' 15.2009
8. Pother 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 dnd 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-riparlan.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 wi(h 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 ("158 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-Rivetine 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 Bonnerion
Road Non-Riverine Wet Hardwood Forest, Mining is`;also allowed in the northeast triangle of
8A" WHR area as outlined in exhibit 14 of PCS'sDecember 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 wottand 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 dellsting ad 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 orde i 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 siratigraphic study is
done or restoration is initiated. Groundwater monitoring shall be done before, during and
after mining and restoration for at laast 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 io the width of the remnant, undisturbed
hardwood flats. Revegetation shalt be done with n6tive tree species. The mining corridor
shall be restored and replanted within ten ('!0) yeas of the initiation of mining preparation
ITS .Phos}iLAle Cuanpan),, Lie,
IIngo 7 of fi
lAnu. l5, 2009
for the area.. DWQ shall be copied on ar letter once that mining preparation begins on the
mining corridor in order to establish this 'ten year cloek.
10. Additional minimization of app)(. 3 acres of weiland'impacf 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),
oni or n
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 Bonner on- 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 itsgroundwater hydrology is maintained.
13. Stream' and watershed monitoring - The existing water management and stream monitoring
plan for water quality, water quantity and biology (marrobenthos 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 qual€ty 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 wet€and-: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 its 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 suitablycertified labs shall be used, Finally a
fish monitoring plan shall be included in the final monitoring plan submitted to DWQ for
written approval.
PCs Phollkate company, tile.
Page 9 of 8
Anuay I5, 3009
This stream and watershed monitoring plan shall Uo 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 agoncies.
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 th+? 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 bf this modified Certification. Any
request for adjudicatory hearing must be in the form of 4 written petition conforming to Chapter
15013 of the North Carolina General Statutes and fled 4th the Office of Administrative Hearings,
6744 Mail Service Center, Raleigh, N.C. 27699-6714, It 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
DI N OF OWATQQUALITY
oleen H, SuCHS/jrd

o
\?CF WA
T
A '<
Midmel r. Easley, Oovemor
Willitun Q. Ross Jr., Secretary
North Carolina Dolmriment of Environment and Natural Resources
Woo H. Sullins, Dimfor
Division of Water Quality
December 5, 2008
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. 200190096
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 December 5, 2008. 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.
If we can be of further assistance, do not hesitate to contact us'.
CHS/jrd
Attachments: Certificate of Completion
Sincerely,
Coleen H. Sulli s
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, Washingtoni 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
Linda Pearsall, NC Natural Heritage Program
401 oversight/E.xpross Review Permitting Unit
1650 Mail Service Center, Raleigh, North Carolina 27699-1650
2321 Crahlntc Boulevard. Suite 250, Raleigh, North Carolina 27604
Phone: [phone] FAX [phone] / Interact: tall !/ oar slate nc ushrcrrctlands
N,{O?{ihCarolina
,/ W111VII1f
An Equal Opportunely/Affinnetivc Action Employer- 56% Rccyelad/l0°/. Post Consumer Paper EXHIBIT 2
PCS Phosphatc Company, Inc.
Page 2 of 7
Decombar 5, 2008
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
Bill Ross, 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
Filename: 20080888v2PCSPhosphate(Beaufort) 401
PCS Phosphate Company, Inc.
Page 3of7
December 5, 2008
NORTH CAROLINA 409 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 and 55.14 acres of stream buffers in the Pamlico River Basin, associated with the -
expansion of PCS Phosphate's mining operation 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) and November 3, 2008 (received November 5, 2008).
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 anew 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.
Amount Approved Plan Location or Reference
Units
Streams 18,621 feet Final EIS, page.e and June
-6, 2008 submittal to DWQ
404/LAMA Wetlands 3,789 acres Final EIS, page a and June
6, 2008 submittal to DWQ
Waters 19 acres Final EIS, page a and June
_ 6 2008 submittal to DWQ
Buffers 28.14 acres Final EIS, page a and June
6, 2008 submittal to DWQ
PCS Phosphate Company, Inc.
Page 4 of 7
December 5, 2008
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 an*Omplementation 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 4041401 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
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,
PCS Phosphate Company, Inc.
Page 5 of 7
December 5, 2048
provide public notice in accordance with 15A NCAC 2H.0503 and provide opportunity for
public hearing in accordance with 15A NCAC 21-1.0504. 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).
Mitigation
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 23.2 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, then disturbance of buffers in the NCPC, Bonnerton or South of 33
tracts shall not be done beyond the limits of the 2014 mining tract shown on PCs' Project
Impact Schedule Year 2008-2016 (generally south of Drinkwa(er 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.
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.
Additional Minimization of impact
9. Hardwood Flat Avoidance impact to the 135 acre (0135 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
PCS Phosphate Company, Inc.
Page 6 of 7
December S, 2009
cleared since this wetland Is a "wetland of exceptional state or national ecological
significance" in accordance with 16A NCAC 2H .0506(e).. In order to protect the uses of this
wetland, a conservation easement shall be placed on the wetland 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. The only exception
to this avoidance Is that a dragline walkpath 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. The exact location of this walkpath'shall be
submitted to DWQ for written approval. In addition, a revegetation plan for the walkpath
shall be submitted to DWQ for written approval and revegetation shall be done with native
tree species once the walkpath has been accessed and is no longer needed for equipment
access.
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, 2048 to John
Dorney of the NC Division of Water Quality.
11. South of 33 tract -- The boundaries for the SCR alternative shall be followed for the South of
33 tract.
M on
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, 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-R€verlne Wet Hardwood Forest in order to
ensure that the existing hydrology of this site 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. This plan shall be designed to assure the
protection of downstream water quality standards including Primary and Secondary Nursery
Area functions In all tributaries to South Creek, Porter Creek, Durham Creek and the
Pamlico River adjacent to the mine site. 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.
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
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 biological samples. For estuarine samples, a
PCS Phosphate Company, Inc.
Page 7 of 7
December S, 2008
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.
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
CA'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 proposed 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 Certification. This request must be
in the form of a written petition conforming to Chapter 150E 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 5th day of December 2008
DIVISION OF WATFR QUALITY
Coleon H. Sulli
CHSIjrd

Attachment One
Riparian Buffer Mitigation
PCS Phosphate, Inc. 401 Certification
December 5, 2008 ^1l
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2010 2574
.12 1021
2014 - 2_74
2016 -« --
TOTAL Lf. 0 6427
0.
f 600 7100
Y KMS w rsN
• NCPC ALTERNATIVE L - BIOTIC COMMUNITIES
PROJECTED IMPACT SCHEDULE YEAR 2000 ? 2016
PCS PHOSPHATE
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Attachment Two
Hardwood Flat Avoidance
PCS Phosphate, Inc. 401 Certification
December 5, 2008
Se
? CW ? ,b1 C.C.? 1l V? e = CJ'(V "G? {"i ? S ?C.?. h c.?, 1t..th-- l't- tl..rilQ. vlrr-wo-??
Pamlico-Tar River Foundation, ct al. v. N.C. Division of Water Quality
Attachment to Form H-06
CERTIFICATE OF SERVICE
I hereby certify that I delivered the foregoing Petition for a Contested Case
Hearing, with attachments, by electronic mail and by U.S. mail, first-class postage
prepaid, to the following:
Otfice.of Administrative Hearings
6714 Mail Service Center
Raleigh, NC 27699-6714
[e-mail], gov
I further certify that I served the foregoing Petition for a Contested Case Hearing,
with attachments, on the following in the manner indicated:
Mary Penny Thompson.
General Counsel and Registered Agent
N.C. Department of Environment and
Natural Resources
512 North Salisbury St.
14th Floor
Raleigh, NC 27604
Via certified mall
George W. House
Brooks, Pierce, McLendon, Humphrey
& Leonard
2000 Renaissance Plaza
230 North Elm Street
Greensboro, NC 27401
Via first-class mail
PCS Phosphate Company, Inc.
c/o Corporation Service -Company,
Registered Agent
327 Hillsborough Street
Raleigh, NC 27603
Via certified mall
Ross Smith
PCS Phosphate ,Company, Inc.
PO Box 48
Aurora, NC 27808
Via first-class mail
This the 12th day of March, 2009.
John A, Payne
Assistant Attorney General
State of North Carolina
Dept. Of Justice
PO Box 629
Raleigh, NC 27602
Via.first-class mall
.G
tiro" er
Southern Environmental Law Center
14