20180133 Ver 2_Edgecombe County Variance Request Decision_20180801

Homewood, Sue
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Dear Mr. Evans,
Reynolds, Phillip <[e-mail]>
Wednesday, August 1, 2018 12:58 PM
[e-mail]
JD Solomon; Albert Rubin; Culpepper, Linda; Higgins, Karen; Homewood, Sue;
Thomas, Lois; Weaver, Adriene; Vinson, Toby
[External] Edgecombe County Variance Request Decision
2018-08-01_EMC FD Granting Major Variance w Conditions for Edgecombe
County.pdf, 2018-08-01_Ltr_EMC Variance re Edgecombe Co. Major Variance w
Conditions.pdf
High
Please find attached the Final Agency Decision of the Environmental Management Commission granting Edgecombe
County's variance request with conditions, as well as a transmittal letter. Both documents are being sent to you certified
mail today.
Please let me know if you have any questions related to the decision document.
Thank you,
Phillip T. Reynolds
Special Deputy Attorney General
Environmental Division
Commissions, Coastal and Administrative Section
Phone: [phone]
Email: [e-mail]
114 W. Edenton St., Raleigh, NC 27603
www.ncdoo.gov
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STATE OF NORTH CAROLINA BEFORE THE
ENVIRONMENTAL MANAGEMENT
COUNTY OF WAKE COMMISSION
}
IN THE MATTER OF: )
PETITION FOR VARIANCE )
FROM ) DECISION GRANTING MAJOR
15A NCAC 2B.0259 } VARIANCE WITH CONDITIONS
}
TAR-PAMLICO RIVER RIPARIAN )
AREA PROTECTION RULES BY )
EDGECOMBE COUNTY )
}
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 9, 2018 in Raleigh, North Carolina upon Edgecombe County's
(the "Applicant's") request for approval of a major variance from the Tar -Pamlico River Riparian
Area Protection Rules pursuant to 15A NCAC 02B .0259 to allow construction of the proposed
Triangle Tyre facility within Zone 1 and Zone 2 of the buffer at Kingsboro CSX Select Site — Pad
B in Edgecombe County NC (the "Site"). The proposed project will impact 70,326 square feet of
Zone 1 and 89,824 square feet of Zone 2.
Based on the information provided, the Division of Water Resources (DWR) supported the
request for a major variance.
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:

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FINDING OF FACTS
A. According to the NC Department of Commerce, Edgecombe County was
considered the most economically depressed county in North Carolina in 2017 and 2018.
B. Edgecombe County has identified the Kingsboro CSX Select Site (Kingsboro
Industrial Park) to attract major industrial companies to locate infrastructure and bring jobs to the
area.
C. The proposed site has been identified as the most appropriate location for the
proposed facility given Triangle Tyre Company's specific needs.
D. The proposed site is bounded on the north by a large wetland and pond complex,
on the southeast by a large wetland/stream complex, on the east by setbacks to roadways, and on
the west by an unnamed tributary to Walnut Creek and buffers.
E. A first order unnamed tributary to Walnut Creek and its associated buffer bisects
the western portion of Pad B and cannot be avoided.
F. An unnamed tributary which flows into a wetland complex in the southeastern
corner of the property cannot be avoided.
E. The Applicant has requested approval of a major variance from the Tar -Pamlico
River Riparian Area Protection Rules pursuant to 15A NCAC 02B .0259 to allow construction of
the Triangle Tyre facility. Baring the Applicant's request would prevent the proposed project from
being constructed; therefore, the Applicant cannot make reasonable use of the property without
impacting the protected riparian buffer.
I. The proposed development impacts 70,326 square feet of buffer Zone 1 and 89,824
square feet of Zone 2.

992
J. The Applicant's plan for mitigation includes purchasing 300,713 square feet of
buffer credits.
K. The Applicant plans to implement a Stormwater Management Plan (SMP) to treat
stormwater runoff from the facility. The plan will be approved by Edgecombe County before any
of the proposed area us built upon.
Based upon the foregoing Findings of Fact, the Environmental Management Commission
makes the following,
CONCLUSIONS OF LAW
A. The Site is located within the Kingsboro Industrial Park located in Edgecombe
County, and is subject to the Tar -Pamlico River Riparian Area Protection Rule, 15A NCAC 2B
.0259.
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 .0259 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.

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A. If 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 profit 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 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 different 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 .0259 (9)(a)(i)(A) through (F).
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 proposed site is constrained by wetlands and stream channels and buffers to
the north, south and west, and by Harts Mill Road to the east. The tributaries protrude into the
building site, limiting the space available to provide adequate facilities as required by Triangle
Tyre Company. Compliance with the riparian buffer protection requirements would prevent
Applicant's use of the land. If not for operation of this rule, there would be no restriction to the
proposed development beyond compliance with the Rule and Clean Water Act regulations.

-5-
B. The Applicant has not violated this Rule.
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 .0259(9)(a)(ii). The purpose of the riparian buffer
rules is to protect existing riparian buffer areas; however, where available and applicable,
mitigation credits can be utilized in lieu of strict compliance with the buffer rules. Here, the
Applicant cannot make reasonable use of the land without impacting the protected riparian buffer.
The Applicant has agreed to purchase 300,713 buffer mitigation credits and a obtained a EEO
Mitigation Acceptance Letter from the Division of Mitigation Services. Triangle Tyre has also
agreed to secure an approved SMP from Edgecombe County, pursuant to its delegated authority,
and to obtain confirmation from the North Carolina Department of Environmental Quality that the
SMP complies with the provisions of the variance request. Granting the requested 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 preserves their spirit.
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 concludes that the Applicant has demonstrated it meets the
third factor required under 15A NCAC 02B .0259(9)(a)(iii). Specifically, in granting the variance
subject to the conditions that the Applicant (1) purchase 300,713 square feet in buffer mitigation
credits and (2) secure an approved SMP from Edgecombe County before any impacts authorized
in this approval occur, the proposed development public safety and welfare have been assured,
water quality has been protected and substantial justice has been done.

In
r ` r
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 .0259(9)(c)
as a major variance to the Tar -Pamlico River Riparian Area Protection Rule with the following
conditions:
1. Mitigation. The Applicant shall provide mitigation for the proposed
impacts by purchasing 300,713 buffer credits from the Division of Mitigation
Services or from an environmental mitigation bank approved by the Division of
Water Resources.
2. Stormwater Management Plan. The Applicant shall secure an approved
SMP from Edgecombe County before any impacts authorized in this approval
occur.
3. This major variance shall only apply if the USACE and NCDEQ approve
impacts to the streams associated with the subject buffers.
4. The SMP may not be subsequently modified without prior written
authorization from the Division. To request a modification, a copy of the approval
letter and plans/calculations of the modified SMP shall be submitted to the Division
for approval prior to the commencement of the modifications.
This is the 1St day of August, 2018.
ENVIRONMENTAL MANAGEMENT COMMISSION
J. D. Solomon, 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:
Eric Evans, County Manager
Edgecombe County
P.O. Box 10
Tarboro, NC 27886
Sue Homewood
Winston-Salem Regional Office
Division of Water Resources
Karen Higgins, Supervisor
401 & Buffer Permitting Branch
Division of Water Resources
1650 Mail Service Center
Raleigh NC 27699-1650
This is the I" day of August, 2018.
Certified MaiUReturn Receipt Requested
And email. [e-mail]
E-mail. sue homewoodaamcdenr.zov
E-mail: Karen [e-mail]
JOSH STEIN
Attorney General
�� .e_
Philli T. Reynol
Special Deputy Attorney General
P. 0. Box 629
Raleigh, N. C. 27602

STATE OF NORTH CAROLINA
JOSH STEIN DEPARTMENT OF JUSTICE PHILLIP TT. . REYNOLDS
ATTORNEY GENERAL PO BOX 629 ENVIRONMENTAL DIVISION
PREYNOL
RALEIGH, NORTH CAROLINA 27602 CDOJ.GOV
(919))716-716-6971
August 1, 2018
Eric Evans Certified Mail/ Return Receipt Requested
Edgecombe County Manager No.: 7005 2570 0002 0988 9354
P.O. Box 10
Tarboro, NC 27886
Re: Final Decision Granting Variance with Conditions
Dear Mr. Evans:
At its May 9, 2018 meeting, the Water Quality Committee of the Environmental
Management Commission granted Edgecombe County'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 within thirty days after receiving the order
pursuant to the procedure set forth in the North Carolina General Statutes § 150B-45. A copy of
the judicial review petition must be served on the Commission's agent for service of process at the
following address:
William F. Lane, 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.
Sincerely,
Phil p T. Reyno ds
Special Deputy Attorney General and
Counsel for the Environmental Management Commission

Edgecombe County
Page 2
cc: w/ encl.: J.D. Solomon, Chair of the Commission, electronically
Dr. Albert Rubin, Chair of the WQC, electronically
Linda Culpepper, Director, DWR, electronically
Sue Homewood, DWR, Winston-Salem Regional Office, electronically
Karen Higgins, Supervisor, electronically
Lois Thomas, recording secretary for Commission, electronically
Adriene Weaver, Environmental Specialist, electronically
WWW.NCDOJ.GOV 114 W. EDENTON STREET, RALEIGH, NC 27603 919.716.6600
P. O. Box 629, RALEIGH, NC 27602-
0629