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HomeMy WebLinkAbout20160279 Ver 1_Dept of Justice Decision_20160610Roy CooPER ATTORNEY GENERAL e.+4n1r STATE OF NORTH CAROLINA DEPARTMENT OF JUSTICE P.O. Box 629 RALUGF1, NC 27602 June 10, 2016 RERt,v To:.iENNIE Wiu u -,.i m HAcsE R ExviRONwEX,rm, llrvlslon TEL: (919) 716-6962 FAX: (919) 716-6767 jliauser@iicdoj.gov David W. Pepper, Director Certified Mail/Return Receipt Waste Industries, High Point Requested Landfill, LLC 3301 Benson Drive Raleigh, NC 27609 Re: Final Decision Granting Variance with Conditions Dear Mr. Pepper: At its May 11, 2016 meeting, the Water Quality Committee of the Environmental Management Commission granted WI High Point Landfill, LLC's request for a variance with conditions. Attached is a copy of the Final Agency Decision. If for some reason you do not agree with the terms of the variance as issued, you have the right to appeal the Commission's decision by filing a petition for judicial review in the superior court of the county in which you reside within thirty days after receiving the order pursuant to the procedure set forth in the North Carolina General Statutes § 15013-45. A copy of the judicial review petition must be served on the Commission's agent for service of process at the following address: Sam M. Hayes, General Counsel Dept. of Environmental Quality 1601 Mail Service Center Raleigh, NC 27699-1601 If you choose to file a petition for judicial review, I request that you also serve a copy of the petition for judicial review on me at the address listed in the letterhead. If you have any questions, please feel free to contact me. Sincere, Jennie Wilhelm Hauser Special Deputy Attorney General and Counsel for the Environmental Management Commission David W. Pepper Page 2 cc: w/ encl.: Steven J. Rowlan, Chair of the Commission, electronically Julie A. Wilsey, Chair of the WQC, electronically Karen Higgins, Supervisor, electronically Sue Homewood, Environmental Specialist electronically Lois Thomas, recording secretary for Commission, electronically Adriene Weaver, Environmental Specialist, electronically STATE OF NORTH CAROLINA COUNTY OF WAKE IN THE MATTER OF: PETITION FOR VARIANCE FROM 15A NCAC 2B.0250 RANDLEMAN LAKE BUFFER PROTECTION RULES BY WI HIGH POINT LANDFILL, LLC. BEFORE THE ENVIRONMENTAL MANAGEMENT COMMISSION DECISION GRANTING MAJOR VARIANCE WITH CONDITIONS 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. This matter came before the Water Quality Committee at its meeting on May 11, 2016 in Raleigh, North Carolina upon WI High Point Landfill, LLC's (the Applicant's) request for approval of a major variance from the Randleman Lake Riparian Area Protection Rules pursuant to 15A NCAC 02B .0250 to allow expansion of the High Point Construction and Demolition (C&D) Landfill (the Site). The proposed development will impact 23,484 square feet of Zone 1 and 16,111 square feet of Zone 2. The Applicant has agreed to provide mitigation for the proposed impacts by purchasing mitigation credits for the site. Based on the information provided, the Division of Water Resources supported the request for a major variance. Sue Homewood, Environmental Senior Specialist, Water Quality Regional Operations Section of the Division of Water Resources (DWR) presented the request for major variance to the Water Quality Committee. -2 - Upon consideration of the record documents, the request and the staff recommendation, and based upon the approval of the Water Quality Committee, the Commission hereby makes the following: FINDING OF FACTS A. The Applicant owns the Site which is located at 5822 Riverdale Drive Jamestown, N.C. The Site is a 153.8 -acre tract. Existing development on the property includes a scale house and office, a recycling center, a maintenance building and parking/storage area, and an existing C&D landfill. B. The property was purchased on March 28, 2012, which is after the effective date of the Randleman Lake Riparian Area Protection Rule (the Rule). C. The Site lies within the Deep River watershed of the Cape Fear River. Stream and wetland resources on the Site drain to an unnamed tributary of Richland Creek (a classification WS -IV stream). D. The Applicant has requested a major variance to allow it to develop the Site to provide additional construction and demolition waste capacity to serve growth and development over the next 20 years in the High Point and Triad area. E. The Applicant will not be able to develop the site as proposed without the variance. F. The Applicant cannot make reasonable use of the property without impacting the protected riparian buffer. G. The proposed development will impact 23,484 square feet of Zone 1 and 16,111 of Zone 2 of the protected riparian buffer. -3- I. The Applicant's plan for mitigation includes purchasing 94,619 square feet of buffer credits provided by the NC Division of Mitigation Services. Based upon the foregoing Findings of Fact, the Environmental Management Commission makes the following, CONCLUSIONS OF LAW A. The Site owned by WI High Point Landfill, LLC is subject to the Randleman Lake Riparian Area Protection Rule, 15A NCAC 2B .0250. B. 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 .0250 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 and substantial justice has been done. C. The Commission affirmatively concludes that the Applicant has demonstrated the following: First Factor: There are practical difficulties or unnecessary hardships that prevent compliance with the strict letter of the riparian buffer protection requirements. In its assessment of whether the Applicant had made a showing of "practical difficulties or unnecessary hardships", the Commission considered the following factors. i. If the applicant complies with the provisions of this Rule, he or she can secure no reasonable return from, nor make reasonable use of, his or her property. Merely proving that the variance would permit a greater profit from the property shall not be considered adequate justification for a variance. Moreover, the local government, or the Director for the cases involving activities listed in Item (3) of this Rule, shall consider whether the variance is the minimum possible deviation from the terms of this Rule that shall make reasonable use of'the property possible. -4 - ii. The hardship results from application of this Rule to the property rather than from other factors such as deed restrictions or other hardship. iii. The hardship is due to the physical nature of the applicant's property, such as its size, shape, or topography, and 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 special privilege denied to others, and would not promote equal justice; and. iv. The applicant did not cause the hardship by knowingly or unknowingly violating this Rule. (b)The variance is in harmony with the general purpose and intent of the State's riparian buffer protection requirements and preserves its spirit; and (c)In granting the variance, the public safety and welfare have been assured, water quality has been protected, and substantial justice has been done. 15A NCAC 0213 .0250 (12)(a) -(c). The Commission affirmatively concludes that the Applicant has made the required showing that there are practical difficulties preventing compliance with the strict letter of the riparian buffer protection requirements. Specifically, A. The Applicant cannot make reasonable use of the property without impacting the protected riparian buffer. B. The hardship results from the application of this rule rather than from other factors. There are no other restrictions on the proposed landfill that would restrict its desired expansion. C. The hardship is due to the physical nature of the applicant's property. The 35 -acre watershed of the subject stream is contained almost entirely on the site. Expansion to the south is not possible due to required compliance with the water Supply Watershed critical area for the Randleman Reservoir; expansion to the west is not possible due to a perennial stream and the City of High Point's -5 - Municipal Solid Waste Landfill; and expansion to the north is not possible because of an existing road and an established recycling facility, which is required by the Applicant's Conditional Use Permit. D. The applicant did not cause the hardship by knowingly or unknowingly violating this Rule. The Site is currently in compliance with the Rule. E. The applicant purchased the property on March 28, 2012, which is after the effective date of this Rule. F. The hardship is unique to the applicant's property. 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 affirmatively concludes that the Applicant has demonstrated it meets the second factor required under 15A NCAC 02B .0250(12)(b). The Applicant cannot make reasonable use of the property without impacting the protected riparian buffer; however, the purpose of the riparian buffer rules is to protect existing riparian buffer areas. The Applicant has agreed to purchase 94,619 square feet of buffer mitigation credits. Additionally, stormwater management and rerouting of drainage on the site can eliminate most of such discharge moving through the buffer in such a way as to reach the stream, which is the intended function of the buffer. Moreover, the Application indicates that although the proposed development will impact the buffer, the amount of impervious surface associated with the project is minimal (less than 4% of the project). Given this situation, granting the variance with the conditions specified below will ensure the proposed development will be in harmony with the general purpose and intent of the riparian buffer protection rules and preserve their spirit. IM Third Factor: In granting the variance, the public safety and welfare have been assured, water quality has been protected and substantial justice has been done. The Commission affirmatively determines that the Applicant has demonstrated its meets the third factor required under 15A NCAC 02B .0250(12)(c). By requiring the Applicant to meet the conditions set forth below prior to developing the Site so as to impact the buffer, the Commission concludes that public safety has been assured, the proposed development will protect water quality, and substantial justice has been ensured. 1;_I _ ' 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 pursuant to 15A NCAC 2B .0250 as a major variance to the Randleman Lake Riparian Area Protection Rule with the following conditions: 1. Mitigation. The Applicant shall provide mitigation for the proposed impacts by purchasing 94,619 square feet of buffer credits from the N.C. Division of Mitigation Services or an environmental mitigation bank approved by the Division of Water Resources. 2. Site Plan. A final Site Plan (including the Watershed Control Plan component and BMPs) shall be approved by the High Point Technical Review Committee (TRC) prior to any disturbance within the buffer area. 3. CWA 404/401 Approval/Certification. This major variance shall only apply if the USACE and NCDEQ approve impacts to the streams associated with the subject buffers. This is the 11��day of June, 2016. ENVIRONMENTAL MANAGEMENT COMMISSION Steven J. R_oowlan, Chairman 7 - 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: David W. Pepper, Director Capital Projects Waste Industries 3301 Benson Drive Raleigh, NC 27609 Phillip May Carolina Ecosystems, Inc. 3040 NC 42 West Clayton, NC 27520 Terry A. Kuneff, P.E. CFM City of High Point Engineering Services Dept. P.O. Box 230 High Point, NC 27261 Mark Schroeder City of High Point Planning & Development P.O. Box 230 High Point, NC 27261 Sue Homewood 401/Buffer Coordinator 401 & Buffer Permitting Unit Division of Water Resources Karen Higgins, Supervisor Division of Water Resources This is the Lb 1--L day of June, 2016. Certified Maib Return Receipt Requested and day id.peooer(a�wasteindustries. coin US Mail and E-mail: phiI.mav@carolinaeco.com US Mail and E-mail: terry.kuneftna hiehpointnc.gov US Mail and E-mail. mark.schroeder(a�highpointnc.eov E-mail: Sue.Homewoodou ncdenr.gov E-mail: Kiren.Higgiiis@ncdenr.gov ROY COOPER Attorney Gen ral 0 Jennie Wilhelm Hau er Special Deputy Attorney General