The room was packed with people who wanted to know whether the Ohio EPA would grant an air permit to Shelly Materials to operate an asphalt plant at the southeast entrance to the village of Alexandria.
When Jami Wengatz got the microphone during the EPA’s June 8 hearing, she asked the question many in the room wanted answered: “Is there any way we can stop this?”
The room burst into applause.
And then the residents who are fighting proposals to site two asphalt plants a mile apart at each entrance to Alexandria on Rt. 37 received an answer that left them cold:
“I make the analogy about the Bureau of Motor Vehicles,” said Max Moore, public involvement coordinator for the Ohio EPA. “If you go in for your driver’s license … if you have passed the test, passed the vision, passed the written, passed the driving, have all the qualifications for it. You have to issue them a driver’s license.”
“I understand what you’re saying,” said Wengatz, of Johnstown. “But in the same sense, if I am a bad driver, and I wreck into five people, they take my permit.”
Wengatz was expressing the frustration repeated multiple times during the hearing that evening by residents of the area who say that Shelly has violated environmental regulations.
But the EPA was telling them that it would not consider past violations in deciding whether to issue permits for the proposed asphalt plant at 1400 Tharp Road. Representatives of the EPA indicated, in numerous ways, that their mandate is limited. Their job, they said, is to issue permits if the company meets permit requirements, and to issue violations if the terms of those permits are violated.
Local concerns about Shelly Materials’ environmental record begin in Alexandria. Ben Halton, with the central district office’s division of air pollution control, wrote in an internal Ohio EPA email obtained by The Reporting Project, “Shelly previously operated an asphalt plant at the same physical location using the 1400 Tharp Rd address and operated an aggregate plant on the same physical location using a 1402 Tharp Rd address.”
Some area residents say they long believed the old asphalt plant was buried on the Tharp Road site, which is in a floodplain – a floodplain next to Racoon Creek, which is part of the aquifer from which the village of Granville obtains drinking water for both Granville and Alexandria residents.
One area resident wrote to the Ohio EPA to inquire about whether the rumor was true. The Reporting Project obtained the email thread with that inquiry, as well as the EPA’s internal discussion about how to respond, all of which is public record.
The resident wrote, “The word going around is that [Shelly was allowed] to bury an old asphalt plant as well as ‘tanks’ of toxic substances on the site.” The resident suggests that this burial altered the elevation of the floodplain, which had recently caused the Licking County Planning Commissions’ Technical Review Committee to issue a violation to Shelly.
The resident received this reply from the EPA: “Ohio EPA is not aware whether or not the current violations for the property are related to [the burial of the old asphalt plant]. Licking County Planning Commissions’ TRC handles enforcement of local regulations that are separate from Ohio EPA’s rules.”
In written comments to the EPA opposing the granting of the air permit for the proposed asphalt plant, lawyers representing the Village of Granville and Denison University said this about the old asphalt plant: “We request a full investigation by Ohio EPA to verify that there has been no improper disposal of waste at the site and that fill used at the site complies with all solid waste, hazardous waste, and other environmental requirements.”
On March 15, 2023, an inspection was made of the Tharp Road property, initiated by the Licking County Soil and Water Conservation District on a report of construction without a permit. The inspection revealed a pit filled with metal debris. Soil and Water referred the matter to the Licking County Health Department, which issued an order for the waste to be removed.
Scott Morris, Environmental Health Director at the Licking County Health Department, wrote that during his inspection, he found multiple steel beams in a pit of water. The owner was told to abate the nuisance and properly dispose of the solid waste within 10 days of the date of the letter, which was June 23, 2023. Morris said Shelly Materials has yet to respond to the Licking County Health Department with the timeline of when the debris will be removed.
Also present at the March 15 inspection was Thomas D. Frederick, St. Albans Township Zoning Inspector. He sent a letter to Mr. James E. Geiger and Mrs. Colleen Geiger, who lease the Tharp Road property to Shelly Materials. Mr. Frederick wrote, “I have noticed that you have started construction of an Asphalt Plant building at 1434 Tharp Rd. without a Zoning Permit.”
St. Albans has filed a zoning violation against the owners of the property.
Lawyers representing Shelly Materials have filed an appeal. A public hearing on the appeal will be held at 7 p.m. on Wednesday, July 18, at the St. Albans Firehouse. As an attorney representing the Geigers and Shelly Materials, Aaron L. Underhill wrote in a letter to St. Albans Township, “The activities on the site do not concern any building or structure (as such terms are defined in the Zoning Resolution) and therefore no permit is necessary. Furthermore, as an accessory use to the mining operations that been [sic] undertaken on the Property for decades, an asphalt batch plant does not constitute a change of use of the Property, but merely a permissible expansion of its primary use.”
Shelly Materials has not returned repeated requests for comment from The Reporting Project about this specific incident, about residents’ concerns regarding the proposed plant in Alexandria, or about the company’s ongoing environmental record.
Shelly has faced civil penalties from the EPA in the past, according to James Lee, media relations manager for the Ohio EPA. Shelly challenged one of these penalties, and it led to an important ruling in the Ohio Supreme Court.
The Ohio Attorney General v. Shelly Holding Company decision, in 2012, said that Shelly was fined for exceeding emissions allowed from one of its asphalt plants. An emissions test was done when the plant was running at full capacity, and Shelly was to have been fined each day until it could demonstrate that it had fixed the problem.
The company filed a lawsuit against the EPA to contest the penalty on the basis that it was an unreasonable burden to the company. What if it ran the plant at less than full load? Then it would not exceed emissions standards, and it should not be fined that day. The company argued that each day it was fined, it should be tested, which the EPA argued would place a burden on it to return each day to test the stacks.
The Ohio Supreme Court “disagreed with Shelly and concluded the burden was on the company to demonstrate it returned to compliance,” according to the Ohio Environmental Law Blog.
This decision has set a standard of law that applies to all companies that violate their permits. But it has no application for a community that wants to keep a potential polluter from operating next to their homes and water source.
So in Alexandria, the revelation of the buried asphalt plant is just more bad news for those hoping to halt a new operation on the same site.
Lee, the EPA media relations manager, said, “It is usually preferable that new businesses operate on previously used sites, (as in this case), rather than previously undeveloped locations.”
Public comment on the requested permit ended on June 15, and the EPA has not yet issued the permit. Even if it approves the permit, the final say in whether a plant could operate on that site rests with the county planning commission and the St. Albans Township Board of Zoning Appeals.
The same is true for the asphalt plant proposed by Mar-Zane Materials, a Shelly & Sands affiliate, for the Martin Trucking property on the northwest side of Alexandria. The EPA has said a new air permit is not required for that plant because the EPA already issued an air permit for the portable plant, which is currently operating south of Columbus and would be moved to Alexandria.
Elaine Robertson, an Alexandria resident and founder of Clean Air and Water for Alexandria and St. Albans Township, said that she finds it offensive that Shelly might be able to run an asphalt plant because the EPA does not consider past violations by the company on that site.
Robertson said the location makes business sense because of easy access to Rt. 161 and all of the construction going on around the $20 billion computer-chip factory Intel is building less that 10 miles away. But she said it also would sit next to people, housing, and an important aquifer.
“We feel frustrated,” she said. “I feel offended; we feel helpless with this change. But I refuse to give up.”
Caroline Zollinger and Doug Swift write for TheReportingProject.org, the nonprofit news organization of Denison University’s journalism program, which is sponsored in part by the Mellon Foundation. [email protected]