20031554 Ver 2_More Info Received_20100505

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WILLIAMS MULLEN
REC NED
Direct Dial: 919.981.4010 MAR ? 012010
[e-mail] M
February 26, 2010 ??OtC fsS?NY
aff,
Stephen T. Smith
Chair Y r
N.C. Environmental Management Commission pEtt_rr"
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1617 Mail Service Center
Raleigh, NC 27699-1617
Re: Request for Reconsideration of January 1, 2010 Authorization of Major Variance
for City of High Point North Carolina
Dear Mr. Smith:
On behalf of the City of High Point, North Carolina (the "City"), and pursuant to the
Environmental Management Commission's (the "EMC") May 11, 2000 Delegation of Authority
to the Water Quality Committee (the "WQC"), we hereby respectfully request that the WQC's
November 18, 2009 decision to require the City to provide compensatory buffer mitigation as a
condition of the granting of a Major Variance to the Randleman River Riparian Buffer Protection
Rules, 15A NCAC 2B.0248(c), (the Randleman Rules") be forwarded to the-full Commission for
reconsideration. A copy of the January 1, 2010 final Major Variance Authorization letter
(Revised 3) with Additional Conditigns'feflecting the WQC's.November 1.81". decision is
attached hereto. We are requesting that the full Commission reconsider only the Condition on
page 2 of the Authorization requiring Compensatory Buffer Impact Mitigation.
The Major Varian ce.applied for by the Cityis necessary io implement the DENR
approved Remedial Action Plan ("RAP").Being implemented by the City and Seaboard Group II
(the "Group") at the'City's closed Riverdale Drive Landfill ("Landfill") and the.adjacent former
Seaboard Chemical Corp. facility (collectively, the `.`Site" ). The RAP is required by the
Remedial Action Settlement Agreement ("RASA") entered into on December 29, 2008 by
DENR, -the City, the Group and Work Party members of the Group. The total estimated'cost of
remedial activities at the Site is $40 Million, with costs to be shared by the City and the Group.
As part of the RAP, the City proposes to divert the headwaters of a stream located to the north of
the. former Landfill (the Northern Intermittent Stream or "NIS"). When the Landfill was
constructed, the NIS was.piped under the Landfill and is now covered with many feet of garbage
under the Landfill cap. Over time, the pipe conveying the NIS under the Landfill has. developed
leaks, allowing contaminated leachate to seep into the pipe and flow into the Deep River (now
the Randleman Reservoir),
A Professional Corporation
NORTH CAROLINA • VIRGINIA • WASHINGTON) D.C. • LONDON
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RBC Plaza 301 Fayetteville St. (27601) P.O. Box 1000 Raleigh, NC 27602-1000 Tel: [phone] Fax: [phone]
www.williai-nstnullen.com
t, 1
February 26, 2010
Page 2
The purpose of the RAP is to protect water quality in the Randleman Reservoir, and that
is the sole purpose of the diversion of the NIS, for which the Major Variance is required. No
new built upon area or development is proposed. Other alternatives to diverting the NIS were
fully evaluated and found to be infeasible. Because the sole purpose of the NIS diversion is
protection of water quality in Randleman Reservoir, the WQC erred in requiring the City to pay
compensatory mitigation for 38,903 feet of buffer impacts to a piped stream, at a cost of over
$37,000. It should be noted that the City has already paid $72,006.50 to the NCEEP for the
compensatory mitigation requirements of the 401 Water Quality Certification/Section 404 permit
for this same project.
The City seeks reconsideration of the WQC's compensatory mitigation condition,
because neither the Randleman Rules nor N.C.G.S. § 143-214.1, et seq., authorize the WCQ to
impose the mitigation obligations reflected in the WQC Decision as a condition of the subject
Major Variance. Additionally, the City believes the WQC acted erroneously, failed to use proper
procedure and failed to act as required by law or rule. The City has also this date filed a Petition
in the Office of Administrative Hearings ("OAH") to preserve its rights to challenge the WQC
Decision through a contested case hearing. For efficiency, the City would propose to enter into a
stay by consent of the proceedings at OAH while the EMC addresses the City's request for
reconsideration. The City also requests an opportunity to meet with representatives of DWQ and
the Commission to see if this matter can be resolved informally.
Thank you very much for your consideration of this important matter. Please contact the
undersigned if you have questions or need additional information.
Respecffully submitted,
Arfiog CD
son, IIF, Esq.
AV'
Williams Mullen
301 Fayetteville St., Suite 1700
Raleigh, NC 27601 [phone]
to e Esq.
. E arp ,
Sp
Smith Moore Leatherwood
300 N. Green St., Suite 1400
Greensboro, NC 27401 [phone]
Attorneys for the City of High Point

Attachment
February 26, 20 10
Page 3
cc: Colleen Sullins, DWQ
Chuck Wakild, DWQ
Frank Crawley, Esq., NC DOJ
Mary Penny Thompson, Esq., DENR
Stephen W. Earp, Esq.
Chris Thompson, City of High Point
Jim LaRue, Seaboard Group II
Frank Brown, Esq., Seaboard Group II
Bob Zarzecki, S&EC
8340213_I.DOC
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North Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves Perdue Coleen H. Sulllns Dee Freemen
Governor Director Secretary
January 1, 2010
DWQ # 2003-1554x2;
Guilford County.
City of High Point
Attn: Mr, Christopher Thompson
Division of Public Services VJ
211 South Hamilton Street
High Point, NC 27261
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Subject Property Riverdale Landfill, 5898 Rivet-dale Drive, Jamestown, NC iJy-\'o118 Frtvhrmnfi 1911,'011- t 'it
UT to Deep River/Randleman Lake [030608,17-(4), WS-IV, N
= C
AUTHORIZATION of Randleman River Riparian Buffer Protection Rules MAJOR VAPIANCE
[15A NCAC 2B.02501 with ADDITIONAL CONDITIONS - REVISED3
Dear W. Thompson,
You have our authorization, in accordance with the conditions listed below, to impact 17,531
square feet (if) of Zone 1 of the protected buffers and 14,480 square feet (fl?). of Zone 2 of the protected
buffers to pipe a stream on the subject property as described within your major variance request dated
November 18, 2009, received by the Division of Water. Quality (DWQ) on October 23, 2009 with a final:
signed hardeopy version received by DWQ on November 27, 2009, and approved by the Water Quality
Committee on November 18, 2009. This letter shall act as your Major Variance authorization as
described within 15A NCAC 2B .0248(e) and 15A NCAC 213. 0104(r). This Major Variance
authorization replaces the MWor Variance authorization issued on December 23, 2009. In addition,
you should get any other required federal, state or local permits before you proceed with your project
including (but not limited to) Sediment and Erosion Control. This authorization shall expire five years
from the date of this authorization.
This authorization is only valid for the purpose and design that you described in your Major
Variance Request. If you change your project, you must notify us and you may be required to send us a
new request for authorization. if the property is solu, the now owner must be given a copy cf 'tis
authorization and is thereby responsible for complying with all conditions, For this authorization to be
valid, you must follow the conditions listed below,
No impacts to jurisdictional streams, buffers or wetlands can occur at the site nn6l all
applicable permits from the Corps of Engineers and DWQ have been obtained.
2. Certificate of Completion
Upon completion of all work approved within this Buffer Authorization, the applicant is
required to return the attached certificate of completion to the 401 Oversight/Express Review:
Permitting Unit, North Carolina Division of Water Quality, 1650 Mail Service Center,
Raleigh, NC, 27699-1650.
4010verslphIlExprew Review Permitting Unit Nan pj?
1650 Mall Servke Center, Raleigh, North Carolina 27699-1650 i C 0
Location: 2321 Crdblree Blvd., Rale?h, North Carolina 27604 iiL
Phone: [phone] FAX: [phone]
tnte nst: hllpllh2o enr,state.ne.uslncwetlandat
An Frnml NOON* t AftaUve Mlon Employer
1 . 1.
City of High Point
Page 2 of 2
January.l, 2010
3, Mitigation: Compensatory Mitigation Usuig the Ecosystem Enhancement Program (EEP)
Mitigation must be provided for the proposed impacts as specified in the table below. We
understand that you wish to make a payment to the NC Ecosystem Enhancement Program
(EEP) to meet this mitigation requiremetit. This has been determined by the DWQ to be a
suitable method to meet the mitigation requirement, Until the EEP receives and clears your
check (made payable to: DENR - Ecosystem.Enhaneement Program Office), no impacts
specified in this Authorization shall occur. Kelly Williams at the EEP should be contacted at
[phone] if you have any questions concerning payment into a restoration fund. You
have one month from the date of this authorization to make this payment. For accounting
purposes, this Authorization authorizes payment into the Buffer Restoration Fund to meet the
following compensatory mitigation requirement:
If you do not accept any of the conditions of this authorization, you may ask for and adjudicatory
h4ring. You must act within 60 days of the date that you receive this letter. To ask for a hearing, send a
written petition which conforms to Chapter 150B of the North Carolina General Statutes to the Office of
A4ministrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714. This authorization and its
conditions are final and binding unless you ask for a }tearing.
This letter completes the review of the Division of Water Quality under the Randleman Lake
Ri?arian Buffer Protection Rules (15A NCAC 2B .0250]. Please call Amy Chapman at 919-715-6823 or
Cy,•ndi Karol)' at 919-733-1786 if you have any questions or require copies of our rules or procedural
mAterials.
Sin r y,
Enclosure: Certificate of Completion
NC EEP Letter
V Coleen*H, Sullins
CklS/cbk/asc ,
Oct
Sue Homewood,•DWQ Winston Salem Regional Office
Bob Zarreckh S&EC, 11010 Raven Ridge Rd, Raleigh, NC 27614
Pile Copy
File; 431S54v2 iverdoleLandlill(Ouilford)MeJVAR Revised3
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