HomeMy WebLinkAbout20160279 Ver 1_Dept of Justice Decision_20160610Roy CooPER
ATTORNEY GENERAL
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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.
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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.
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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.
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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
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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
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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:
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