NIMBY Notes: The Long Haul

There is very little finality in the waste business. Contracts are always up for renewal, technology is frequently being improved, and competitors are constantly gaining or losing market share to one another. Permitting for waste facilities follows the same track, and smart developers can sometimes bring written-off applications back from the dead. That’s what’s happening in Cobb County, Ga., where a proposed expansion of the Bankhead Transfer Station is getting the Lazarus treatment.

The transfer station, long a construction-and-demolition waste-only facility, became a hot button topic in May of last year after its management sought to take in municipal solid waste as well. The required rezoning was denied by the Cobb County Commission after a public outcry from well-organized neighbors. The case for rezoning was further hampered by a Federal Aviation Administration (FAA) report, which warned of the hazards of attracting birds at a site so close to Fulton County Airport. Bankhead’s operators had the option to appeal, but the county could point to negative recommendations from the Georgia Department of Transportation (GDOT), based in part on the FAA report.

To their credit, the company controlling Bankhead did not retreat. Careful analysis of the FAA report revealed a major flaw: it incorrectly believed the Bankhead site was an open-air landfill, and it consequently assumed a much greater problem with bird traffic than that of an enclosed transfer station.

The mistake was serious enough to cast doubt on the entire FAA report, and consequently the GDOT recommendation.

Armed with the facts, the company controlling Bankhead opted to appeal. The legal process has taken the better part of a year, and is still ongoing (this may not necessarily be a bad thing, as it has allowed impassioned NIMBY opponents some time to cool off). And in the interim, GDOT has revisited its recommendation and determined that the proposal would meet proper guidelines if certain odor and dust controls were implemented, as well as building additional enclosures.

As the saying goes, “the wheels of justice grind slow, but they grind exceedingly fine.” Bankhead’s management now has the upper hand in its legal case against Cobb County, and the county has been presented with a settlement offer that will enable the transfer station to accept 150,000 tons of MSW per year. As of this writing, the commission has a few weeks until it must vote on the offer. The commissioners could choose to fold immediately, or to fight it out until the bitter end, but either result is a dramatic reversal of fortune for a project that had long been thought dead.

The Bankhead case is a great example of the longevity of the application process, especially when legal questions join political and technical ones. We advise clients to prepare themselves for a long and convoluted path from the first concept art to the final vote. Long-term planning allows a developer to correctly budget for the significant expenses of legal fees, consultant costs and an effective community outreach program that come with a high-profile application. It can be an emotionally draining procedure as well.

However, a lengthier approval process can sometimes work in the applicant’s favor. NIMBY sentiment is hot-tempered and very spur-of-the-moment, and some opponents will eventually lose interest or passion after months and months of delays and inconclusive hearings. Skillful community outreach during this time period can accelerate that “cooling off” process. Also important is taking that time to adjust a project’s particulars (operating hours, truck routes, daily intake) to address the concerns of important political and regulatory entities.

That permit applications are usually measured in months and years instead of weeks is a simply a byproduct of regulatory necessity and the unpopularity of waste facilities near residential areas. But it’s not an impossible obstacle to effective permitting. As the Bankhead example demonstrates, a long, measured process can often yield better results than a shortened timeframe where freshly motivated NIMBYs hold sway.