N1055-20101026NOV Response Letter

KILPATRICK
\ STOCKTON LLP
Attorneys at Law
October 26, 2010
John Patrone
Division of Waste Management
Solid Waste Section
585 Waughtown Street
Winston-Salem, NC 27107
RECEIVED
i
N.C. Dept. of ENR
OCT 2 7 2010
Winston-Salem
Regional Office
1001 West Fourth St,
Winston-Salem NC 27101-2400
t 336 607 7300 f 336 607 7500
www.KilpatrickStockton.com
Stephen R. Berlin
direct dial 336 607 7304
direct fax [phone]
[e-mail]
Re: Notice of Violation - Andrews Farm LCID Landfill - Forsyth County
Dear Mr. Patrone:
We represent James Andrews (the "client') regarding the environmental issues for the
Above referenced landfill and we are responding to your September 28, 2010 Notice of
Violation (NOV). We disagree with a number of the findings and the conclusion of your
NOV. Further, we have provided guidance to our client intended to allow us to reach
agreement on full compliance at this site. On behalf of the client, we are notifying you that
all disposal of solid waste on the property has been suspended. Furthermore, our client has:
(1) posted no trespassing/no dumping signs; and, (2) taken actions to prevent unauthorized
entry to the site.
Background
In 2002, James Andrews initiated his effort to site a land clearing and inert debris
(LCID) landfill at the above -referenced location. Over the next five years, Mr. Andrews
worked with local government staff and successfully received: (1) Forsyth County Planning
Board approval, (2) erosion control and grading permits; (3) zoning permit; and (4) other
necessary approvals/permits. Forsyth County approved the Andrews Farm property as an
LCID landfill (less than two acres).
The Winston-Salem/Forsyth County Unified Development Ordinance, Chapter C,
Article IV defines landfill as "A facility for the disposal of solid waste on land in a sanitary
manner in accordance with Chapter 130A Article 9 of the North Carolina General Statutes."
Since the landfill opened, local inspectors have conducted frequent site visits to monitor
compliance issues. Our client has worked with the local regulators to correct any operational
issues noted during inspections.
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ATLANTA AUGUSTA CHARLOTTE DUBAI NEWYORK OAKLAND RALEIGH STOCKHOLM WASHINGTON WINSTON-SALEM

John Patrone
October 26, 2010
Page 2
While it appears that the Division of Waste Management "notification" was not filed,
any oversight was inadvertant and it does not erase the substantial, good faith efforts made
by the client in his opening the landfill in accordance with regulations. Furthermore, the
overlap between the local and state regulations is significant and local regulatory oversight of
our client's operation revealed significant compliance with the State's substantive
requirements for such landfills. Certainly, to the average citizen, after receiving permits and
approvals from the local authorities and after complying with inspectors' requirements over
the years, it appeared that the landfill was in compliance with all regulations.
On September 22, 2010, you conducted an inspection of the Andrews Farm Landfill
property. As noted above, we have concerns and questions about your findings.
Total Disposal Area
During your inspection, you noted that "the entire landfill/dump site is — 2.6 acres in
size." This is incorrect. First, the LCID landfill rule requires sites with a "total disposal
area" of two or more acres to be permitted.' 15A NCAC 13B .0563. "Total disposal area" is
not defined in either the rule or the statute. The plain language of the phrase indicates that
"total disposal area" means the total area in which solid waste disposal actually occurs — a
waste disposal footprint. Despite the fact that the landfill was permitted by the local
government as smaller than two acres, the local regulators, who regularly visited the site,
were unconcerned with the acreage issue.
In light of the above, areas where solid waste physically are placed in or on the land
(hereinafter referred to as "solid waste disposal areas") would be counted toward the "total
disposal area." Areas in between these solid waste disposal areas should not be included as a
part of the "total disposal area." Therefore, acreage associated with roads, buffers and land
where no disposal has occurred would not be included as a part of the "total disposal area"
calculation. While we believe that the interpretation of this phrase is clear, we have
confirmed our interpretation with Solid Waste Section staff in Raleigh.
Because of the above reasons and other reasons provided below, the "total disposal
area" is less than two acres.
Much of the material stacked on the land was not "disposal" activity. Our client
evaluates the land clearing debris for recycling potential, sorts the material according to this
potential and places any solid waste in a staging area near the landfill area. This is a practice
that should be commended and supported as it is a fundamental and environmentally -friendly
' The phrase "entire landfill/dump site" has no regulatory meaning in the context of whether or not a LCID landfill
should be permitted pursuant to 15A NCAC 13B .0563.
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John Patrone
October 26, 2010
Page 3
approach for waste minimization. Subsequently, Mr. Andrews sends the recyclable material
offsite. The client continues to ship the recyclable material offsite to appropriate locations.
Our client's operational practice of sorting debris for its recycling potential is clearly
supported and encouraged by State law. We believe that the material staged for
recycling/recovery is excluded from the definition of "solid waste." N.C. Gen. Stat. §§
130A-290(a)(24), 130a-309.05(c). Even the local regulatory inspectors never questioned this
environmentally -friendly operational practice.
Options/Conclusion
First, we are preparing a Land Clearing and Inert Debris Landfill Notification form
for our client's notarized signature. When he returns from an out-of-state trip, we will
submit the completed form to your office.
Next, we request recission of the issued NOV. The characterization of this site as a
"non -conforming solid waste management site" is inappropriate in light of the facts outlined
above. Furthermore, the NOV provided only one option — a draconian measure to remove all
of the solid waste from the landfill and send it elsewhere.
We believe that any regulatory concerns can be resolved such that this landfill may
continue to operate in compliance with the applicable regulations. Therefore, we respectfully
request a meeting with the appropriate Solid Waste Section to discuss these issues. Please
contact Richard Sieg of this office regarding any questions you may have.
Sincerely yours,
Stephen R. Berlin
CC: V ason Watkins
Minor Barnette
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