Cities, residents seek to overturn rezoning of property to Heavy Industrial

HAMLET — Two couples who live near the possible future site of International Tie Disposal’s biochar plant on Friday joined with Hamlet and Dobbins Heights to file a complaint against Richmond County in Superior Court claiming that the site’s recent rezoning to Heavy Industrial should be voided.

The plaintiffs argue that the county failed to comply with North Carolina General Statute 153A-341(b) which requires that the Board of Commissioners describe why the rezoning is or is not consistent with the county’s land use plan and explain why it’s in the public interest before they approve or reject a rezoning request.

The complaint cites the Board of Commissioners’ consistency statement which reads only that the Board “does find that this action is reasonable and in the public interest due to its consistency with strategic land use plans and policies …”

The second argument for voiding the rezoning made by the plaintiffs is that the county failed to consider all of the permissible uses allowed in the Heavy Industrial zoning district. They allege that CSX requested this rezoning “on the sole basis that the property would be used for a biochar production facility, and upon information and belief, the (Board) relied on this representation when it rezoned the property” and further that International Tie Disposal’s (ITD) plant “is the only use that the (Board) considered when it approved the rezoning.”

Economic Developer Martie Butler told the Daily Journal last month that the Board of Commissioners did not know at the time of their vote that ITD had applied for a permit to build at the site. Butler told the Daily Journal Friday afternoon that she was unavailable to comment on the complaint. County Manager Bryan Land and County Attorney Bill Webb did not return calls to their offices nor emails seeking comment Friday.

The couples, Chad and Lisa Gardner and Lonnie and Hope Norton, whose properties are adjacent to the site and who have been the most outspoken against the rezoning and in scrutinizing International Tie Disposal’s (ITD) business model, lay out the same concerns they’ve had about the plant that they voiced during the public hearing on the rezoning. They argue that this rezoning of CSX’s property on Marks Creek Church Road from Agricultural Residential and Rural-Residential to Heavy Industrial, if upheld, would be “an invasion of a legally protected interest” in protecting — primarily — their property values and quality of life.

The Gardners operate chicken houses on their property, and the Nortons maintain beehives on their property, both of which they believe would be adversely affected.

For their part, Hamlet and Dobbins Heights are the two nearest municipalities to the proposed industrial plant, and argue that they will suffer significantly more damages from the plant being built than any other municipalities. The City of Hamlet’s water supply, Marks Creek, is less than 2,500 feet from the site and serves more than 10,000 residents, including those in Dobbins Heights, according to the complaint.

“The City filed this complaint with the other co-plaintiffs based on our shared interest regarding industrial development in Richmond County,” said Hamlet City Manager Matthew Christian. “If the county is going to change the county zoning to allow development, the county must follow the proper procedures. The complaint details where we believe the county failed to follow the law, why that is important, and how it impacts the health, safety, and welfare of our community.”

The county has 30 days to respond to the complaint. A court date has not yet been set.

Permit, possible public hearing still pending

ITD, based in Weddington, North Carolina, submitted an application for a synthetic minor construction permit on Sept. 15 that would authorize the development of a biochar production site at 174 Marks Creek Church Road. The Department of Environmental Quality (DEQ) has yet to make a ruling on this application. On Nov. 6, Christian sent a letter to Heather Carter, regional supervisor for DEQ’s Division of Air Quality who is based in Fayetteville, asking that they require a public hearing on ITD’s permit application in order to allow the process to be as public as possible.

“On one hand, I want to believe that the proposed pyrolysis of creosote treated railroad ties (ITD’s core production process) will have no adverse impact on our community; I want to believe that science and modern technology can neutralize the negative effects of this known carcinogen; I want to believe that our county leaders are considering the second and third order effects of industrial development,” Christian wrote. “However, I do not have confidence that any of these beliefs will hold true if the proposed permit is approved in its current form, especially without meaningful input from the public.

He continued, saying that, “There are too many unanswered questions, and wishful thinking certainly won’t protect us from these uncertainties.”

ITD is working on gathering more data in response to questions posed by the Gardners and the Nortons, as well as other residents. This data review — to be conducted by a “third party,” according to Butler — is chiefly focused on the concern about the future plant’s risk of harmful water runoff. The “third party” is Minnow Aquatic Environmental Services, which is a subsidiary of Trinity Consulting, the same company that prepared ITD’s permit application.

In an emailed response to Hope Norton that has since been shared with all of the residents, Basil Polivka Jr., who is serving as director of pyrolysis implementation for the ITD site, countered the doubts about the company’s ability to lower its negative impacts on the surrounding area. He claimed that damage to air quality “should not be a concern” because the plant will not produce any more toxins than a typical gas stove, charcoal grill, or poor exhaust from a vehicle.

Pending the results of the third party review, Polivka provided data on the impact of creosote itself on surrounding bodies of water. One study Polivka cited on the effect of creosote on water found that polycyclic aromatic hydrocarbons (PAHs), the harmful compounds within creosote, increase within the water column in the first seven days of installation of a railroad but declined significantly over the next 84 days.

The abstract of a study entitled “Polycyclic Aromatic Hydrocarbon Migration From Creosote-Treated Railway Ties Into Ballast and Adjacent Wetlands” studied the amount of PAH present in water surrounding treated railroad ties over a period of two summers following installation. The abstract of the study reports that PAH levels were higher in the water when the new railroad ties were introduced, but these levels declined until they were “statistically significant” by the second summer.

The company is also looking into other means of reducing the size of the railroad ties without shredding them, a process which the residents are concerned will produce a great deal of noise and fugitive emissions into the air.

Concerns over relationship

Christian has not been encouraged by what he’s heard from the Polivkas (Jr. and his father, who is CEO of Polivka International, the parent company of ITD). He referred to several comments made at a meeting between Polivka Sr. and Jr. and about a dozen of the residents in late October, which Christian only observed.

“When the Marks Creek residents asked about their quality of life, the younger Mr. Polivka said you would first have to define ‘quality of life,’ as if our rural values must be delineated to be considered,” Christian wrote in an email, referring to a back-and-forth that the Daily Journal also witnessed. “It seemed like a straightforward question to me, and I found the response — or lack thereof — disconcerting.”

Christian was concerned that the Polivkas had looked into a facility in Colorado that used untreated wood in their production process to conduct background research on their own process, but were unaware of Georgia Renewable Power, which had in the last year been banned from burning treated railroad ties in the last year because of the negative environmental impacts. The Georgia facility was also working with CSX, but burned the railroad ties rather than put them through pyrolysis, which the Polivkas argue is a cleaner process. ITD will be the first facility to produce biochar using pyrolysis of treated railroad ties, according to Polivka Jr.

Additionally, Christian felt the company was condescending to the residents at this meeting.

“The Polivkas told the residents the pyrolysis facility was probably the best thing they were going to get there, as if to say the residents should be grateful,” Christian wrote. “While they may not see a lot of potential in Richmond County, I see things much differently; I know the neighbors do too.”

Throughout the process, Christian has taken issue with the lack of communication between the county and municipal leaders. ITD reached out to Hamlet prior to applying for its permit, a required preliminary step to ensure that a property is properly zoned, but Christian wanted more communication from the county prior to the process advancing. Dobbins Heights and Hamlet were both told about the permit application by in mid-September North Carolina Department of Environmental Quality Secretary Michael Regan.

By Oct. 7, the day before the county was to vote on the rezoning, Hamlet Mayor Bill Bayless expressed frustration that he “hasn’t heard a word” from the county about this application.