20150465 Ver 1_EMC Major Variance Request Final Decision_20150807

STATE OF NORTH CAROLINA
COUNTY OF JOHNSTON
IN THE MATTER OF: }
PETITION FOR VARIANCE FROM }
15A NCAC 2B .0233 )
NEUSE RIVER RIPARIAN AREA )
PROTECTION RULES BY )
NOVO NORDISK )
PHARMACEUTICALS, INC. )
BEFORE THE
ENVIRONMENTAL MANAGEMENT
COMMISSION
DECISION GRANTING
MAJOR VARIANCE
On May 11, 2000, the North Carolina Environmental Management Commission
(Commission) delegated to the Commission's Water Quality Committee all decisions relating to
requests for variances from the riparian buffer. The above - referenced matter came before the
Water Quality Committee at its meeting on July 8, 2015, in Raleigh, North Carolina upon Novo
Nordisk Pharmaceuticals, Inc.'s (the Applicant's) request, pursuant to 15A NCAC 02B .0233,
for approval of a major variance from the Neuse River Riparian Area Protection Rule to allow
the construction of a roadway and loading dock expansion and perimeter fence within the
riparian buffer at the Applicant's facility located at 3612 Powhatan Road in Clayton, North
Carolina (the Project). Commission members Kevin C. Martin and Dr. Robert Rubin were
recused from the deliberation on and decision of this matter.
Jennifer Burdette, the 401 /Buffer Coordinator for the 401 and Buffer Permitting Unit of
the Division of Water Resources, presented the request for a major variance to the Water Quality
Committee. The Division of Water Resources (DWR) supported the request for a major variance
with conditions.

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Upon consideration of the record documents, the request and the staff recommendation,
and based upon the Water Quality Committee's decision to grant the variance request, the
Commission hereby makes the following:
FINDING OF FACTS
1. The Applicant owns the property at 3612 Powhatan Road in Clayton, North
Carolina, through which runs an unnamed tributary of the Neuse River (the Site).
2. The property was purchased February 25, 1991, which is prior to the effective
date of the Neuse Riparian Area Protection Rule.
3. The Applicant has requested approval of a major variance from the Neuse River
Riparian Area Protection Rule pursuant to 15A NCAC 02B .0233 to allow the construction of a
roadway and loading dock expansion and a perimeter fence on the Site. The proposed
development will impact 9,918 square feet of Zone 1 and 6,924 square feet of Zone 2 of the
buffer. The request indicated that the Applicant will not be able to complete the project without
the variance.
4. In support of the variance request, the Applicant agreed to provide mitigation for
the proposed impact by purchasing 8,793 buffer credits from one of the EBX Buffer Mitigation
Banks with mitigation sites located within the Upper Neuse subbasin (HUC 03020201), as
indicated in the confirmation document from EBX Buffer Mitigation Banks included with the
application for variance.
Based upon the foregoing Findings of Fact, the Environmental Management Commission
makes the following,

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CONCLUSIONS OF LAW
1. The Project owned by Novo Nordisk Pharmaceuticals, Inc. is subject to the Neuse
River Riparian Area Protection Rule, 15A NCAC 2B .0233.
2. The purpose of Rule 15A NCAC 213 .0233 is to protect and preserve existing
riparian buffers and to maintain their nutrient removal functions in the entire Neuse River Basin.
3. The Environmental Management Commission is authorized to issue a final
decision granting the variance including riparian buffer mitigation conditions pursuant to a
request under 15A NCAC 2B .0233 upon a finding that:
(1) There are practical difficulties or unnecessary hardships;
(2) The variance is in harmony with the general purpose and intent of
the buffer protection and preserves its spirit; and
(3) In granting the variance, the public safety and welfare have been
assured, water quality has been protected and substantial justice
has been done.
l5A NCAC 2B .0233(9)(a).
4. The Commission determines the following:
First Factor: There are practical difficulties or unnecessary hardships that prevent
compliance with the riparian buffer protection requirements.
In its assessment of whether the Applicant made a showing of "practical difficulties or
unnecessary hardships," the Commission considered the following factors.
(i) There are practical difficulties or unnecessary hardships that prevent
compliance with the strict letter of the riparian buffer protection
requirements. Practical difficulties or unnecessary hardships shall
be evaluated in accordance with the following:
(A) ff the applicant complies with the provisions of this Rule,
he /she can secure no reasonable return from, nor make
reasonable use of, his /her property. Merely proving that the
variance would permit a greater profrt from the property shall
not be considered adequate justification for a variance.
Moreover, the Division or delegated local authority shall
consider whether the variance is the minimum possible

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deviation from the terms of this Rule that shall make
reasonable use of the property possible.
(B) The hardship results from application of this Rule to the
property rather than from other factors such as deed
restrictions or other hardship.
(C) The hardship is due to the physical nature of the applicant's
property, such as its size, shape, or topography, which is
d fferent from that of neighboring property.
(D) The applicant did not cause the hardship by knowingly or
unknowingly violating this Rule.
(E) The applicant did not purchase the property after the effective
date of this Rule, and then requesting an appeal.
(F) The hardship is unique to the applicant's property, rather than
the result of conditions that are widespread. If other
properties are equally subject to the hardship created in the
restriction, then granting a variance would be a special
privilege denied to others, and would not promote equal
justice.
15A NCAC 02B .0233(9)(a)
The Commission determines there are "practical difficulties or unnecessary hardships"
preventing compliance with the strict letter of the riparian buffer protection requirements;
specifically,
A. The Applicant would not be able to resolve safety and efficiency
issues that could result in a shut -down of the plant, which would
have significant medicine - delivery consequences. Although DWR
determined that the Applicant could make reasonable use of their
property without additional impacts to the protected riparian
buffer, DWR agreed that the Applicant has limited space to
address safety and efficiency issues that are anticipated to worsen
with increasing demands for diabetes - fighting medicines.
B. The hardship results from the application of this rule.
C. The hardship is due to the physical nature of the Applicant's
property. An unnamed tributary to the Neuse River bisects the
existing facility and parking areas.
D. The Applicant did not cause the hardship by violating this Rule.

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E. The Applicant purchased the property on February 25, 1991, which
is prior to the effective date of this Rule.
F. The hardship is unique to the Applicant's property in that the
existing facility was constructed between the railroad track and the
unnamed tributary prior to the implementation of this Rule. Any
expansion of the pharmaceutical facility would require impacts to
Zone 1 and 2 of the buffer.
Second Factor: The variance is in harmony with the general purpose and intent of the
State's riparian buffer protection requirements and preserves its spirit.
The Commission determines that the Applicant has demonstrated it meets the second
factor required under 15A NCAC 02B .0233(9)(a)(ii). Specifically, the purpose of the riparian
buffer rules is to protect existing riparian buffer areas. Although the Applicant is currently
making reasonable use of their property without impacting the riparian buffer, resolution of
safety and efficiency issues is not possible without impacts to the buffer.
The Applicant is proposing to purchase 8,793 buffer mitigation credits and has an
existing stormwater management system to treat the stormwater runoff from the proposed
expansion of the roadway and loading dock. Allowing the proposed development by granting
the request for a major variance under these conditions is in harmony with the general purpose
and intent of the riparian buffer protection rules and preserves their spirit.
Third Factor: The variance would assure the public welfare, protect water quality, and
ensure substantial justice has been done.
The Commission determines that the Applicant has demonstrated it meets the third factor
required under 15A NCAC 02B .0233. The Applicant is proposing to purchase 8,793 buffer
mitigation credits and has an existing stormwater management system to treat the stormwater
runoff from the proposed expansion of the roadway and loading dock. Under these conditions,

the Applicant has established that water quality will be protected and substantial justice will be
done.
GJ •
Based on the Findings of Fact and Conclusions of Law set forth above, IT IS HEREBY
ORDERED that the request for the variance is GRANTED with the conditions that Novo
Nordisk Pharmaceuticals, Inc. purchases 8,793 buffer mitigation credits and have a stormwater
management system to treat stormwater runoff on the Site. In addition, before any impacts
occur, the Applicant shall provide DWR with a copy of the modified SMP with proof of
Johnston County's approval.
This is the 7th day of August 2015.
ENVIRONMENTAL MANAGEMENT COMMISSION
Gerard P. Carroll, Chairman

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CERTIFICATE OF SERVICE
This is to certify that I have this day served the foregoing Decision Granting Major
Variance upon the Applicant and the Division of 'Water Resources in the manner described
below as follows:
Palle Thorsen, General Manager
Novo Nordisk Pharmaceuticals, Inc.
3612 Powhatan Road
Clayton, NC 27527
Donald L. Curry, P.E.
Curry Engineering
205 S. Fuquay Ave.
Fuquay- Varina, NC 27526
Jennifer A. Burdette
401 /Buffer Coordinator
401 & Buffer Permitting Unit
Division of Water Resources
1617 Marl Service Center
Raleigh NC 27699 -1617
Karen Higgins, Supervisor
Division of Water Resources
1650 Mail Service Center
Raleigh NC 27699 -1650
This is the 7h day of 2015.
Certified Mail/ Return Receipt Requested
io b una ,n o von o rdisk. co m
Regular U.S. Marl
E -mail: Jennifer.Burdetteemcdennp -ov
E -mail: Karen. Hiuinsamcdenr. Lzov
ROY COOPER
Attorney General
ennie ilhelm Hauser
Special Deputy Attorney General
P. O. Box 629
Raleigh, N. C. 27602