Gray Styers says he'd much rather live next to an asphalt plant than a bakery or house with a wood-burning stove. It may seem strange to prefer the reek of melted petrochemical compounds to the scents of fresh bread or hickory smoke, but Styers believes that having an asphalt plant as a neighbor is ultimately healthier than breathing emissions from hot ovens or woodstoves. Referring to those who would object to an asphalt plant but accept the presence of these other hazards, Styers says that "from a factual, scientific, health-risk perspective, it seems completely irrational to me."
It's not hard to find contrary opinions. But Styers, an attorney with corporate law titan Kilpatrick Stockton, has a stake in the debate, and not because he lives next to an asphalt plant. One of his clients, Doug Robins, owns a company called Asphalt Experts, which wants to build a plant near downtown Hillsborough. Robins chose the Hillsborough site after Durham residents helped thwart his attempt to soften the city's zoning restrictions and locate a plant there (see "Paving the Way" by Jennifer Strom, 2/20/02).
With Styers leading the interference, Robins has taken his would-be plant to the Hillsborough Board of Adjustment, which must issue preliminary approval before the project can proceed. The board has put off its decision three times, the latest after a packed public hearing at which speakers railed unanimously against the proposal.
If Styers hopes to convince town officials or residents that asphalt plants are benign community assets, he has a long way to go. Asphalt plants emit chemicals known to cause cancer and respiratory problems; state toxicologist Ken Rudo testified at the hearing on behalf of his office that "we cannot give you an assurance that this facility will be safe for people." Witnesses from other locales where asphalt plants operate told of serious health, odor and noise problems. Board of Adjustment member Larry Carroll drew cheers when he challenged Styers about a Chatham County plant that had been recommended as an example of the new, clean plant technology that would be duplicated in Hillsborough. Carroll said he visited the plant and, after a few minutes standing outside its gates, could hardly breathe.
Though the proposed site is zoned for industry, its proximity to various residential and commercial centers has alarmed even the most business-friendly town officials. The plant would be located within one half mile of the Tuscarora neighborhood, Orange Charter School and several of the town's biggest employers. Partin's Mobile Home Park sits even closer, within a quarter mile of the plant boundary; and the nearest home is about 750 feet away. Orange Industries, which provides vocational training to more than 100 developmentally challenged adults (some with chronic health problems), directly abuts the plant site.
Perceived threats to the health of residents and workers aren't the only issues raised by plant opponents. They worry that pollution and noise from an asphalt plant could lower property values in the area. Cates Creek, a tributary of the Eno River, runs through the property and poses questions about potentially toxic runoff. The recent heavy rains would have triggered at least two mandatory releases of toxins into the creek, according to Orange County officials who have studied the issue.
Given all that, it's now impossible to find a soul in Hillsborough who wants the asphalt plant, including the pro-growth forces who generally support projects that will increase the town's tax base and provide jobs. "I haven't heard anyone in favor of it," says town commissioner Ken Chavious, "except the people who want to develop it."
But as is often the case in such contentious matters, the will of the people may be irrelevant to the outcome. Styers, who has extensive experience representing the asphalt industry, contends that as long as Asphalt Experts meets the requirements set forth in the town's zoning ordinance and state regulations, the law requires approval of the plant regardless of how the locals may feel. The state, for example, sets emissions standards in its permits, and as long as the plant meets those standards it doesn't matter if the townsfolk think it will be hazardous to their health. "The law is what it isÉ and it would be illegal for the town to try to substitute its opinion for the law," Styers says.
The town code says the Board of Adjustment has the right to reject an application if the facility in question would have "adverse impacts" on the health or well-being of the citizens. That's tough to prove, especially since Asphalt Experts has yet to say exactly how much asphalt the plant will produce or what the plant might pump from its smokestacks. The company has not yet applied for its state air quality permit, which will set limits on the types and volumes of pollutants. "I don't see how they can make the claim [of no adverse impacts] without having the air quality permit in hand," says John Runkle, an attorney representing citizens who oppose the plant. "They haven't submitted the technical information to anybody."
Therein lies a key bone of contention. Styers contends that his client doesn't have to submit its air quality numbers until the Board of Adjustment gives its conditional approval; the town wants to see the permit numbers first. "There may be a chicken and egg relationship here," Styers says.
Beyond that, however, the town has limited ability to say no. The plant satisfies the relatively weak setback requirements in the zoning ordinance, in this case no closer than 75 feet from the nearest residence. (In contrast, Durham's setback is 1,500 feet, which killed the proposed plant there.) A noise provision offers token protection that, if invoked, might wither under a legal challenge.
And though reasonable people may differ on the merits of the various technical and legal arguments, the deck is heavily stacked in favor of Asphalt Experts. State pollution limits are set with considerable input from industry, which flexes its political muscle whenever the numbers are crunched for possible adjustment. Small towns like Hillsborough lack the expertise and financial resources to fight the likes of the asphalt industry, which has the best lawyers and lobbyists at its disposal. And once a plant is approved, no matter how bad the experience of its neighbors, the state's barely functional monitoring and enforcement arms ensure that getting rid of it is like trying to shut down a nuke.
But Hillsborough does have another card to play: As this issue of the Independent went to press, the town commissioners were mulling a moratorium on asphalt plants and other petrochemical-based manufacturing or processing facilities. The moratorium would give the town time to study the issue and, if desired, change its ordinance and set new development guidelines. According to Runkle, moratoriums have frequently been invoked across the state in similar circumstances; in Ashe County, a hold on asphalt plants was upheld last year in the federal courts, as was a revised ordinance that set new limits on plant locations.
Attorney Styers says he's not familiar enough with the Ashe County moratorium to comment--even though his firm, Kilpatrick Stockton, represented the asphalt plant in that case. But he does argue that a moratorium would be unfair to his client. "Just as the ref cannot change the rules in the middle of a basketball game," he says, "cities should not be allowed to change the rules in the middle of a permitting process."
Styers also won't reveal whether Asphalt Experts will challenge any adverse decision by the town in court, saying only that "it would be premature to speculate." Judging from his insistence that the town must approve the application or be in violation of the law, however, there seems little doubt of where the issue will land.
Playing David to the asphalt industry's Goliath will cost Hillsborough time and money it can ill afford to spend. But the right to self-determination is worth even the heftiest price tag. "If the decision is to go ahead and fight it all the way, I don't think finances will be an issue," says commissioner Chavious.
And what of these outsiders who would profit from the plant, Doug Robins and his legal henchmen? None of them apparently give a rat's ass if they're hated by everyone in town, an unthinkable situation for most businesses looking for a home. The issue may be more complicated than that, however - reliable information passed to the Independent suggests that Robins may not be the sole investor in the plant. The identity of other possible owners could not be confirmed, though paving industry giant APAC was among those mentioned. APAC's Greensboro office did not return phone calls for comment.
Whether or not Robins is the asphalt plant's sole proprietor, Asphalt Experts does have another, more neighborly option: Sit down with town and county officials to find an alternative site suitable to everyone. "We would be absolutely thrilled to do that," says Orange County planner Carla Thames.
Provided that the process was conducted in good faith, says Styers, "I am sure that Mr. Robins would be willing to discuss alternative locations."
Let the negotiations begin.
Contact Burtman at firstname.lastname@example.org