20080868 Ver 2_Staff Notes_20090728

Summary of recent actions related to PCS Phosphate, Inc. mine expansion
Prepared by John Dorney, DWQ
July 28, 2009
Timeline to date
The final 401 Certification for PCS Phosphate was issued on January 15, 2009.
Soon thereafter, an OAH suit was filed by a consortium of environmental groups
(Pamlico-Tar River Foundation, Neuse River Foundation, Sierra Club and Coastal
Federation) represented by the Southern Environmental Law Center. Also, PCS
Phosphate filed a lawsuit in OAH against the NC Natural Heritage Program concerning
their determination of the Bonnerton Hardwood Flat as a wetland of national
significance. The Natural Heritage case has not yet been heard or scheduled. On June
11, 2009, the Division (John Dorney), our AG attorney (John Payne), PCS Phosphate and
their lawyers and the environmental groups and their lawyers met to try to develop a
settlement agreement. That meeting ended without any settlement agreement being
agreed to. On May 6, 2009, the US Army Corps of Engineers released the 404 Permit for
the PCS Phosphate mine expansion thereby triggering a time-limited review by the EPA.
On June 17, 2009, the EPA decided not to veto the 404 Permit that the Corps had
proposed and the 404 Permit became official.
Remaining actions for DWQ
1. Defend the 401 Certification in OAH. As noted above, the case has not been
scheduled. On July 27, 2009 another attempt was made by PCS and DWQ to
meet with the petitioners to attempt a settlement agreement but that attempt
was rejected on July 28, 2009. In any event, the coming months will be filled
with depositions, interrogatories and similar processes which will involve a
variety of DWQ staff from the Central and Regional Offices. A trial date has
not been set for the hearing.
2. Ensure that the conditions of the 401 Certification are met. A number of 401
conditions trigger on the issuance of the 404 Permit. DWQ staff will work
with PCS Phosphate staff to ensure that those conditions are met.
3. Track the status of the PCS Phosphate case against the NC Natural Heritage
Program. The outcome of this case may (and may not) affect the 401
Certification so DWQ staff will keep up to date on this case.
4. Review annual monitoring reports and mitigation plans and reports. This is an
ongoing responsibility of DWQ Regional and Central Office staff.