While not all states allow local governments to regulate air pollution, Illinois does. The City of Chicago, following the lead of several east coast municipalities and the City of Los Angeles, has recently established a bold plan that will likely cause industrial project developers to incur additional costs and extended timelines for their projects involving construction and expansion of existing facilities whose uses will now be regulated for their impact on air quality.
City of Chicago Air Quality Zoning Ordinance
On March 24, 2021, the Chicago City Council passed an air quality zoning ordinance that adds new environmental review requirements in connection with any site plan submitted for construction or expansion of certain industrial facilities that cause or contribute to air pollution. The ordinance sets forth a formal review process by the City’s Department of Planning and Development (DPD), the Chicago Department of Public Health (CDPH) and the Chicago Department of Transportation (CDPT) that requires applicants to submit site plans that include traffic studies and air quality impact studies. Under the ordinance, site plan review and approval is required for the following types of operations:
- Class III recycling
- Class IVA recycling
- Class IVB recycling
- Class V recycling
- Container storage
- Freight terminals
- Intensive manufacturing, production, and industrial services
- Outdoor storage of raw materials as a principal use
- Warehousing, wholesaling, and freight movement
- Waste-related uses
- Coke and coal bulk material uses
- Windrow composting
- Manganese-bearing material uses
According to the City, the air quality impact study must model potential emissions from the business and its proposed operations. While the City has recommended certain software that can be used to conduct the air quality impact study (such as the U.S. Environmental Protection Agencies’ AERMOD Modeling System) to evaluate emissions from various sources, including processing equipment, diesel engines of yard and on-road vehicles, paved and unpaved surfaces, material handling and wind erosion of stockpiles, the ordinance does not specify what should be included in an air quality impact study in order to satisfy the ordinance’s requirements. Furthermore, the ordinance does not outline any review criteria that the City must adhere to when evaluating an air quality impact study.
Authority for the Ordinance
Under the Federal Clean Air Act (CAA), the U.S. Environmental Protection Agency has delegated CAA authority to state and local governments in Illinois. The Illinois Environmental Protection Act also authorizes local governments to enact their own environmental protection standards. However, there are limits to the City’s authority. The ordinance is authorized so long as it does not exceed the scope of the City’s CAA delegation or conflict with or is less stringent than state or federal law.
What This Means for Project Developers
The concept of regulating emissions in the industrial sector at the local level—particularly with respect to warehouse use and development—is gaining momentum. The scope, detail and minimum compliance standards of the air quality impact studies and traffic studies required under the ordinance are not specified in the ordinance, and thus may result in additional costs and planning time for developers of facilities subject to the ordinance to deliver City-acceptable studies. Project developers will also need to budget for a lengthened review period, and may choose to work with legal counsel to prepare for possible legal challenges, due to the fact that the ordinance requires multiple opportunities for public review and comment on each traffic study and air quality impact study before the Zoning Administrator will issue a zoning certification. Moreover, it is unclear from the language of the ordinance whether these air quality regulations pertain to construction and expansion of projects throughout the City with targeted uses or to only those projects within Planned Manufacturing Districts (PMDs) with targeted uses.
Given these uncertainties, a prudent developer should consider contacting Saul Ewing Arnstein & Lehr to discuss any questions you may have about the new ordinance and to let us help you successfully navigate compliance with the new regulations and complete your industrial projects in the City.
