Major industrial projects are subject to a wide variety of feasibility risks at the level of environmental and land use permitting, yet many enterprises are stuck in the mindset of picking a location for their project and then tasking consultants to make the project fit the location. At times, this is impossible. In the modern regulatory climate, this mindset is backwards and sabotages many otherwise sound projects. Before locking in your project locations, there are some strategic siting considerations and related development details to keep in mind:
- Type of proposed action? If you're handling hazardous materials or generating tons of emissions, there are some places where obtaining necessary permits includes huge hurdles due to often subtle differences in local laws, regulations, and policies that are typically not readily apparent to the business enterprise. Try to determine early on which jurisdictions in your target development area would be more amenable to your activity. Informally meeting agency staff prior to selecting your final site and submitting permit applications is a useful part of site assessment due diligence. Some projects may be practically impossible in one jurisdiction but perfectly straightforward nearby across a state or even a city or county line.
- Are land use permits triggered? The lead land use agency may have jurisdiction by requiring a Conditional Use Permit, General Plan Amendment, Zone Change etc. depending on the site identified and what is allowed in that site. Some cities/counties will allow an industrial activity by right in some zones; in other zones there could be additional time-consuming and costly regulatory requirements triggered. Some of those filing processes may be configured in a way that allows the “Not In My Backyard” community to exercise a de facto veto over a project. This is a largely uncontrollable risk. It's worth asking if there are any zones where your project is allowed by right prior to making a final site decision.
- Are Environmental Impact Assessment (EIA) action(s) triggered? If NEPA/ CEQA or other state-level comprehensive environmental regulations are triggered, siting can be an important factor for whether a project qualifies for an exemption (the swiftest path) or a major EIS-level process (the most time-consuming and costly path). Details related to air and non-air impacts, such as criteria pollutants, odors, greenhouse gases, and air toxics emissions levels, as well as hazards, noise, traffic, and water could influence this compliance path. Pre-application screening studies can inform if potential project impact areas would be above or below relevant thresholds. When designing projects to be below impact thresholds, impact assessment compliance paths can be streamlined when the project site is not in a cumulatively impacted area.
- Are Prevention of Significant Deterioration (PSD) requirements triggered? PSD permits for new major sources of air pollutants in attainment areas are not universally obtainable. Part of the permitting process is demonstrating through dispersion modeling that the proposed emissions, in the context of all of the existing sources for up to a 50 km radius, will have an acceptable overall impact. Depending on the other sources, there may not be a workable solution for any emissions increase. Applying a GIS level review can reveal the location or locations that maximize the chances of obtaining a permit and potentially reduce the need for expensive emission controls for the new facility.
- Are Nonattainment New Source Review (NNSR) requirements triggered? NNSR permitting requires purchasing emission offsets and demonstrating that the project meets the Lowest Achievable Emission Rate (LAER, called major BACT in some areas) without any consideration of the cost impact. Many are familiar with the idea that air quality nonattainment areas should be avoided in siting new facilities to circumvent the need for NNSR permitting. However, not all nonattainment areas are the same. Across areas and jurisdictions, the emission thresholds triggering NNSR permitting vary wildly, and in some cases less-expensive emission controls can be acceptable. Additionally, the cost and availability of emission offsets varies just as much, and sometimes there is no availability of offsets at any price. Additionally, some nonattainment areas may have stringent source-specific emission control regulations for your source type, but others may not.
- What is the agency track record? Not all agencies are applying their discretionary authority equally. When conducting your siting analysis, consider looking at the agency public records for projects similar to yours. The agency planner may tell you that they can approve your project in 6 to 9 months, but the public records for previous approvals may show that agency has taken 24-36 months for similar projects in the past. In addition to whether they've approved similar projects, also look at what conditions were added to those approvals, the level of community engagement and the time span of their permitting requirements. Also consider the political climate in the area. There are states where the economic development commission or governor will apply significant and effective pressure to administrative agencies to find a way to say “yes” to a project, and others where they have no desire or effective power to do so, even when they say they do.
- Location of sensitive receptors? What potential sensitive receptors are in close proximity to your location? Schools? Homes? Hospitals? Understand what additional notification laws might apply to your project given the proximity to these sensitive receptors, depending on jurisdiction.
- Benefits of historical records search? Most due diligence includes some form of a Phase I environmental site assessment, which includes a historical records search for a site. Consider ordering your historic records search directly and if there is a lot at stake, consider ordering a second search from an alternate independent historic research firm prior to committing to the preferred site through lease or purchase. Obtaining a clear historic snapshot of your preferred site is well worth the extra research costs when there are tens of millions of dollars on the table.
- When does using a local firm pay off? It is tempting to use all of your tried and true consultants when you have a well-established project development team. However, the preparation of the site plan for the local land use permit application can be location-specific and at times it can be tricky to meet quirky local land use agency expectations. This is one of those circumstances where working with a local, reputable engineering firm with a publicly verifiable successful track record will pay off. They can prepare your site plan in a way that suits local expectations the first time. They'll have established positive relationships with the local staff, and they'll know when you might need to adjust your site design to obtain approval, when you'll need a variance from local codes, and whether a new site survey will be a worthwhile investment.
We encourage industry to involve a confidential strategic partner that is experienced with development projects in a wide variety of jurisdictions. At the earliest ideation of a project, such a partner can consider your desired timetable and fundamental siting goals (proximity to other plants, transportation infrastructure, energy, water, etc.), and help guide the siting process strategically to a location and jurisdiction that optimizes overall cost and timetable while minimizing the risk of a regulatory quagmire that derails the project. Contact Trinity's siting team by emailing Valerie Rosenkrantz or Wes Younger.