20080868 Ver 2_PCS Science Panel Processing Agreement_20180213

dutrien-
Feeding the Future -
Federal Express
February 13, 2018
Mr. Tom Steffens
U.S. Army Corps of Engineers
Washington Regulatory Field Office
2407 West 5a' Street
Washington, North Carolina 27889
Mr. Anthony Scarbraugh
NC Division of Water Resources
Department of Environmental Quality
943 Washington Square Mall
Washington, North Carolina, 27889
Dear Mr. Steffens and Mr. Scarbraugh:
Re: PCS Phosphate' Science Panel Processing Agreement
Dear Mr. Steffens and Mr. Scarbraugh:
RECEIVED/NCDENR/DWR
FEB 14 2018
Water Gua. }: Regicnar
Operatio,m S.=.c i0rt
Washingbm,,Zcgio,u opiCH
Enclosed is the Corps and PCS attorney -approved draft of the Processing Agreement for
engaging Science Panel members with an honorarium to review the annual creeks monitoring
report. The Science Panel is required as part of Department of the Army Permit No. 200110096
Conditions U, W and X. Also included is a copy of the email from Corps attorney Carl Pruitt
agreeing to the final set of revisions.
Please review this Agreement, and if acceptable, let me know and we will obtain the signatures.
If you have any questions, please call me at [phone], or e-mail me at
ieff.ffimess(@nutrien.com.
lis or Scientist
Enclosure
pc: 23-16-010
1 Effective January 1, 2018, PCs Phosphate Company, Inc. is an indirect subsidiary of Nutrien Ltd. PCS Phosphate Company, Inc. remains the
legal operating entity and permittee.
1530 NC Hwy 306 South, Aurora, NC USA 27806 nutdan com

RECEIVED/NCDFNH CT i
PROCESSING AGREEMENT BETWEEN FEB 14 2018
THE UNITED STATES ARMY CORPS OF ENGINEERS AND
PCS PHOSPHATE COMPANY, INC. Watercr::;r:y ;•,,;
Washhin9tonRnr ;��-�;.,
I. INTRODUCTION AND PURPOSE
A. This Processing Agreement ("Agreement") provides a framework in which the United
States Army Corps of Engineers ("USACE") will manage a Science Panel required by
paragraphs U, W, and X of Department of the Army Permit No. 200110096 issued June 10,
2009 to PCS Phosphate Company, Inc. ("PCS") (the "Permit"). This Agreement describes the
relationship of the above named parties in the performance of their obligations under the Permit.
B. PCS shall nominate and USACE will review and approve or reject members of the
Independent Multidisciplinary Science Panel (the "Panel") required by the Permit. Upon
approval, PCS shall be the party responsible for engaging and retaining the Panel members with
funds provided by PCS.
C. It is the purpose of this Agreement to establish an understanding between PCS and the
USACE regarding the responsibilities of the parties and the conditions and procedures to be
followed in the selection and performance of the Panel.
D. The parties hereto intend that the selection and performance of the Panel will satisfy the
pertinent requirements of the Permit.
H GENERAL PROVISIONS
A. The USACE will be responsible for assuring compliance by the Panel with all the
applicable requirements of the Permit.
B. PCS will engage and retain the Panel Members, approved by the USACE, for the
performance of the work required by paragraphs U, W and X of the Permit.
C. PCS will provide, through its staff, the site knowledge, staffing, and technical capabilities
required for the Panel to perform the Statement of Work ("SOW") attached hereto as Exhibit A.
The USACE will determine the specific scope of the Panel's activities related to the SOW and
will independently evaluate all information, environmental data and analyses submitted by PCS
to the Panel, and revise or cause additional study and analyses to be performed as necessary to
comply with the terms of the Permit.
D. The engagement agreements between PCS and Panel Members for the performance of the
SOW (collectively the "Engagements") shall be consistent with the provisions of this Agreement
and shall specifically incorporate those provisions herein which address the conduct of PCS and
the Panel Members. PCS shall provide, and PCS hereby represents, consistent with 40 C.F.R. §
1506.5(c), that PCS and the Panel Members have not entered into and, during the lifetime of the
Permit, will not enter into any agreement that would provide Panel Members with any direct or
indirect material financial interest in the planning, design, construction or operation of the Permit

except for the performance of the Engagements. PCS may provide a Panel Member with an
Honorarium in accordance with Exhibit B attached hereto. A Panel Member's participation in a
401(k) plan or similar retirement plan that includes funds that include PCS Phosphate Company
stock would not provide a Panel Member with a material financial interest in the planning, design,
construction or operation of the Permit. Further, PCS shall ensure that PCS and the Panel Members
shall specifically limit any remedies available to PCS and any Panel Members, so as to
affirmatively relieve the United States of America, the USACE, and any officer, agent or employee
of same, from any liability arising directly out of the performance or termination of the
Engagements.
(1) Prior to beginning the SOW under the Engagements, each Panel Member shall
sign the "Disclosure Statement" which is attached to this Agreement as Exhibit 1.
(2) The USACE shall evaluate the Disclosure Statement prior to its approval.
E. PCS shall facilitate the coordination of effort and the exchange of information related
to the Science Panel's work between the Science Panel and the USACE. PCS shall make all
reasonable efforts to assure the satisfactory and timely performance of the duties of the
Science Panel as specified in this Agreement.
F. PCS shall ensure that the Science Panel has all the information necessary to perform the
SOW.
G. All costs incurred in connection with the Engagements of the Science Panel shall be the
sole responsibility of PCS and PCS agrees to hold harmless and indemnify the USACE, its
officers, agents, and employees, with respect to any and all judgments or settlements arising
from claims, demands, causes of action, and the like, in connection with the Engagements
which may arise from the termination or performance of the Engagements or any other services,
or purchase of materials utilized for the work of the Science Panel or from termination of this
Agreement. This indemnification by PCS does not extend to administrative or legal costs of the
USACE, including costs associated with suits by third parties (other than the Members of the
Science Panel) against the USACE, involving the legality or adequacy of the USACE's
compliance with laws and regulations, to the extent of the USACE's liabilities on those issues.
PCS shall cooperate and shall ensure that the Science Panel Members cooperate in defense of
any such suit.
III. PROCEDURES
A. Under the direction of the USACE, PCS shall prepare and revise the SOW to meet the
obligations of USACE and PCS under the Permit. Exhibit A attached hereto contains the initial
approved SOW.
B. Unless otherwise directed by the USACE, any and all work performed by the Science
Panel in accordance with the SOW shall be submitted directly to the USACE and to PCS
simultaneously. PCS may communicate with the Science Panel during the performance of the
SOW, but no prior review or discussion of conclusions developed by the Science Panel shall be

afforded PCS. In no case will PCS attempt to modify or edit the opinions and work of the
Science Panel prior to submission to the USACE, or be provided the opportunity to do so. All
suggestions for modifications or changes by PCS shall only be made to the USACE.
C. The USACE reserves the right to review periodically and modify the SOW to ensure
that requirements under the Permit are satisfied.
D. The USACE shall review each communication from the Science Panel and, after
consultation with PCS, shall approve, modify, comment thereon and/or direct further work with
regard to such communications as necessary.
E. PCS shall be responsible for the costs associated with the printing, publication, and
mailing of the draft and final copies of information which the Science Panel may wish to be put
in writing.
F. In all instances involving questions as to the content or relevance of the
environmental data and analyses, and evaluations and wording prepared by the PCS or the
Science Panel, the USACE, with appropriate advice and consultation where deemed
necessary by the USACE, will make the final determination on the inclusion, deletion or
modification of the same in any report or written communication of the Science Panel.
G. The USACE will maintain the confidentiality of, and will not release or allow access to,
any information, documents or materials which it determines are validly designated as confidential
by PCS or the Science Panel and which contain trade secrets, proprietary data, or commercial or
financial information. Information developed under this Agreement is disclosable to the public to
the extent required by law. In any instance where the USACE proposes to release to the public or
allow access to any information, documents or materials which PCS or the Science Panel has
designated as confidential, it shall notify PCS and the Science Panel of its intention to do so and
provide PCS and the Science Panel the opportunity to appeal the decision in accordance with
applicable regulations and statutes on such release or access prior to any such release or access.
IV. CESSATION AND TERMINATION
A. Any of the parties to this Agreement may withdraw from the terms of this Agreement for
good cause upon 30 days written notice to the other party. During this period, the parties will
actively attempt to resolve any disagreement.
B. In the event of a termination of this Agreement, it is agreed as follows:
(1) The USACE shall have access to all documentation, reports, analyses and data
prepared by PCS and the Science Panel, with confidentiality governed by paragraph
III.G.
(2) Liability for termination shall be in accordance with paragraph II. G hereof.
V. NO RIGHTS FOR NON-PARTIES. No rights or privileges are created or intended to
be created by this Agreement in anyone not a signatory of this Agreement.

VI. MODIFICATION. This Agreement represents the entire agreement and may be modified
by the parties hereto only by written agreement by all the parties.
UNITED STATES ARMY CORPS OF
Colonel, U.S. Army District Commander
PCS Phosphate Company, Inc.
Date
Date

DISCLOSURE STATEMENT
I, , a Member of the Science Panel, do hereby certify that I have not entered
into and, during the lifetime of the Engagement, will not enter into any agreement affording me with
any direct or indirect material financial interest in Army Permit No. 200110096 issued June 10, 2009
to PCS Phosphate Company, hic. (the "Permit'). In making this certification, I acknowledge that I
have read, considered, and am in compliance with the EPA/EIS-related provisions of 40 CFR §
1506.5(c), and the Council on Environmental Quality (CEQ) Forty Questions, Questions 16 & 17
(copies attached), as those provisions apply to the Statement of Work for the Science Panel
established pursuant to the Permit, rather than an EIS. I further certify that I will make a full
disclosure of the scope and extent of my prior involvement with PCS Phosphate Company, Inc.
[Panel Member]
By:
Title:
Date:

40 CFR § 1506.5(c)
Environmental impact statements. Except as provided in §§ 1506.2 and 1506.3 any
environmental impact statement prepared pursuant to the requirements of NEPA shall be
prepared directly by or by a contractor selected by the lead agency or where appropriate under §
1501.6(b), a cooperating agency. It is the intent of these regulations that the contractor be chosen
solely by the lead agency, or by the lead agency in cooperation with cooperating agencies, or
where appropriate by a cooperating agency to avoid any conflict of interest. Contractors shall
execute a disclosure statement prepared by the lead agency, or where appropriate the cooperating
agency, specifying that they have no financial or other interest in the outcome of the project. If
the document is prepared by contract, the responsible Federal official shall furnish guidance and
participate in the preparation and shall independently evaluate the statement prior to its approval
and take responsibility for its scope and contents. Nothing in this section is intended to prohibit
any agency from requesting any person to submit information to it or to prohibit any person from
submitting information to any agency.
CEQ Forty Questions, Questions 16 & 17
All 40 questions can be found at: biip://cgq.eh.doe.govinepairegs/40/4Op3.htm
Question 16. Third Party Contracts. What is meant by the term "third party contracts" in
connection with service on the Science Panel? See Section 1506.5(c). When can "third party
contracts" be used?
A. As used by EPA and other agencies, the term "third party contract" refers to the preparation of EISs
by contractors paid by the applicant. hi the case of an EIS for a National Pollution Discharge
Elimination System (NPDES) permit, the applicant, aware in the early planning stages of the proposed
project of the need for an EIS, contracts directly with a consulting firm for its preparation. See 40
C.F.R. 6.604(g). The "third party" is EPA which, under Section 1506.5(c), must select the consulting
fun, even though the applicant pays for the cost of preparing the EIS. The consulting firm is
responsible to EPA for preparing an EIS that meets the requirements of the NEPA regulations and
EPA's NEPA procedures. It is in the applicant's interest that the EIS comply with the law so that. EPA
can take prompt action on the NPDES permit application. The "third party contract" method under
EPA's NEPA procedures is purely voluntary, though most applicants have found it helpful in
expediting compliance with NEPA.
If a federal agency uses "third party contracting," the applicant may undertake the necessary
paperwork for the solicitation of a field of candidates under the agency's direction, so long as the
agency complies with Section 1506.5(c). Federal procurement requirements do not apply to the
agency because it incurs no obligations or costs under the contract, nor does the agency procure
anything under the contract.
Question 17a. Disclosure Statement to Avoid Conflict of Interest. If an EIS is prepared with
the assistance of a consulting firm, the firm must execute a disclosure statement. What criteria
must the firm follow in determining whether it has any "financial or other interest in the outcome
of the project" which would cause a conflict of interest?

A. Section 1506.5(c), which specifies that a consulting firm preparing an EIS must execute a
disclosure statement, does not define "financial or other interest in the outcome of the project." The
Council interprets this term broadly to cover any known benefits other than general enhancement of
professional reputation. This includes any financial benefit such as a promise of future construction
or design work on the project, as well as indirect benefits the consultant is aware of (e.g., if the
project would aid proposals sponsored by the firm's other clients). For example, completion of a
highway project may encourage construction of a shopping center or industrial park from which
the consultant stands to benefit. If a consulting firm is aware that it has such an interest in the
decision on the proposal, it should be disqualified from preparing the EIS, to preserve the
objectivity and integrity of the NEPA process.
When a consulting firm has been involved in developing initial data and plans for the project, but
does not have any financial or other interest in the outcome of the decision, it need not be
disqualified from preparing the EIS. However, a disclosure statement in the draft EIS should
clearly state the scope and extent of the firm's prior involvement to expose any potential conflicts
of interest that may exist.
17b. If the firm in fact has no promise of future work or other interest in the outcome of the
proposal, may the firm later bid in competition with others for future work on the project if the
proposed action is approved?
A. Yes.

EXHIBIT A
STATEMENT OF WORK
(Corps of Engineers Permit #200110096 Creek Monitoring Science Panel
Responsibilities)
PCS has developed a Plan of Study to address the effects of the reduction in
headwater wetlands on the utilization of Porter Creek, Tooley Creek, Jacobs
Creek, Drinkwater Creek, and Jacks Creek as nursery areas by resident fish
and appropriate invertebrate species.
A. This Plan of Study addresses the following issues:
1. Has mining altered the amount or timing of water flows within the
creeks?
2. Has mining altered the geomorphic or vegetative character of the
creeks?
3. Has mining altered the forage base of the creeks?
4. Has mining altered the use of the creeks by managed fish?
5. Has mining increased contaminate levels within the creek sediments
to levels that could impact fish or invertebrates?
6. Has mining altered overall water quality within the creeks?
B. PCS and its contractor will oversee all data collection and reporting.
Panel members are encouraged to be involved in data collection (if they
wish). The main commitment for panel members is to review the data and
provide comments. However, PCS is ultimately responsible for ensuring work
is complete and all timelines are met in accordance with the permit
conditions.
C. The Panel is not a decision making body - your input is provided as
observations and suggestions. While consensus is desired, the Panel may
submit input as a group or as individuals. The Corps/DWR will fully consider
all information presented by the Panel as well as comments from state and
federal agencies and all other parties supplying input to determine if
corrective actions or permit modifications are needed.
D. The Panel can make suggestions to improve/modify data collection to
better address the subject questions and the Corps/DWR will consider
requiring implementation of said change(s).
E. Regarding Panel suggestions to study further hypotheses or other areas of
interest, the Corps/DWQ will not require anything outside the purview of the
permit special conditions, but PCS may choose to implement such suggestions
at its discretion.
F. The Panel will receive all data by way of an annual report on or before
July 1 following each calendar year of data collection.

G. The Panel will meet annually with the Corps, DWR, PCS Phosphate and other
interested state and federal agencies on or before August 30 of each year.

Exhibit B
HONORARIUM
The following provisions shall apply to any Honorarium paid to any Science Panel
Member:
1) Each panel member will receive an annual honorarium to be funded by PCS
Phosphate Company, Inc. ("PCS"). The amount to be paid as an honorarium is a non -negotiated
token of appreciation for services and shall be for the purpose of refunding the expenses incurred
by a person who, at no charge, serves as a Panel Member.
(2) The total amount of an Honorarium may not exceed $1,500.00 and is intended to
cover all likely expenses, including travel expenses, to be incurred by the recipient in lieu of a
claim for separate reimbursement.
(3) The provision and acceptance of an honorarium is qualified by an overarching
requirement. It must not appear to a reasonable person that acceptance of the honorarium would
undermine the Panel Member's independence, integrity or impartiality. The Panel Member is
expected to maintain their scientific integrity and objectivity at all times. Therefore, the receipt
of the honorarium shall not be contingent on any particular opinion of the Panel Member.
(4) Participation as a Panel Member on this Panel does not make the Panel Member an
employee of PCS or of the federal government, and therefore they are not entitled to workman's
compensation benefits, unemployment insurance, or any other type of insurance or benefit
normally provided to employees. In addition, PCS is not responsible for withholding federal or
state income taxes or Social Security from the honorarium paid. PCS will issue a Form 1099 to
report the payment of any honorarium to the Panel Member, the Internal Review Service, and
any required State taxing authority.
(5) If a Panel Member terminates their service as a Panel Member, PCS reserves the
right, subject to the approval of the USACE, to prorate or withhold the amount of the
honorarium.

Jeff Furness
From:
Sent:
To:
Cc:
Subject:
Attachments:
I concur with the revisions.
Carl E. Pruitt
Assistant District Counsel
U.S. Army Corps of Engineers
Wilmington District
Pruitt, Carl E Jr CIV USARMY CESAW (US) <[e-mail]>
Wednesday, September 27, 2017 2:14 PM
George House
Jeff Furness; Lekson, David M CIV USARMY CESAW (US); Steffens, Thomas A CIV
USARMY CESAW (US)
[EXT SENDER] RE: PCS Science Panel Documentation
GREENS BORO-#1105006-vl-Science_Panel SOW.DOCX; GREENSBORO-#1105002-vl-
Honorarium_Exhibit.docx; GREENSBORO-#1105000-vl-PCS-
Corps_Science_Panel_Processi ng_Ag reement.docx
This email may contain attorney-client privileged information or attorney work product. Do not release to third parties
without approval.
-----Original Message -----
From: George House[mailto:[e-mail]]
Sent: Wednesday, September 27, 2017 12:04 PM
To: Pruitt, Carl E Jr CIV USARMY CESAW (US) <[e-mail]>
Cc: Jeff Furness <[e-mail]>
Subject: [EXTERNAL] PCS Science Panel Documentation
Here are our proposed final amendments to the Science Panel documents that I received from you.
I could not find a reference to the Honorarium attachment in the Processing Agreement, so I added reference to an
Exhibit B. I think we need to tie them together.
A few other changes including the addition of PCS Phosphate Company, Inc. as the real party in interest.
Let me know if you concur and we can finalize and sign.

George House <Blockedhttp://www.brookspierce.com/our-people/attorneys/george-w-house>
<Blockedhttp://www.brookspierce.com/>
t: 336.271.3114
f: 336.232.9114
2000 Renaissance Plaza
230 North Elm Street
Greensboro, NC 27401
P.O. Box 26000 (27420)
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