Ohio Environmental Law Blog : Ohio Environmental Lawyer & Attorney : Joseph Koncelik : Frantz Ward Law Firm : Environmental Regulation, Land Use, Compliance : Cleveland, Ohio

The Sustainable Cleveland 2019 summit was unlike any other conference or summit I had attended.  I have been to plenty where the goal was simply to raise awareness-  Typically a parade of talking heads followed up by urgent pleas to do something in the future. 

The Cleveland Summit was much different.  It took some 700 attendees who represented a cross-section of the community and put them to work on development of an strategic plan to build green jobs in Northeast Ohio. 

The process used was called "Appreciative Inquiry" (AI) which was developed by Professor Cooperrider at Case Western Reserve University.  AI has been used by businesses and even the United Nations.  AI's basic concept is that small groups put limits on development of a strategic plans. For that reason it is much better to tap into the knowledge of a large group.   

I have to say I was skeptical of the process going in.  But I was continually amazed at the number of talented people in my working groups that represented a cross-section of the community.  Here are some examples of people who sat at my tables:

• CEOs
• Non-profit representatives
• Small business owners
• Sustainability experts
• Advocates
• Students
• City and County Government Officials
• Attendees from other cities and countries

It was a great mix and cross-section of the community.  I would be lying if I didn't find some of the ideas and opinions offered to be "wild" or out of touch with reality.   There were also times when the Summit got to be a bit too much cheer-leading and not enough specific action.  However, there was no denying the energy and purpose of the group. 

There was an excellent advance briefing paper that was given to participants.  The Sustainable Cleveland briefing paper includes good information as to groups, initiatives and progress to date in Northeat Ohio on sustainability.  There were also notable speakers at the Summit.  Here are a couple thoughts or observations that I found interesting that were offered by some of the speakers:

• Mayor Jackson's opening remarks:  He said Cleveland had made the mistake in the past of waiting to change course until the economy had improved.  He said "Cleveland won't make that mistake again" and that Cleveland will "emerge first in developing a green economy."  My comment:  I like the sentiment of not waiting, but Cleveland is already behind many other cities in moving this direction.  We have to be realistic in our assessment of where we are now to get some place in the future...
• Van Jones of the Obama Administration:  He made the observation that everyone points to China as the example of a dirty or old style industrial economy.  He said China has seen the direction of the future economy and is spending $12 million dollars an hour on development of clean energy.  My comment:  I thought this really was a good observation that we are in a global competition of developing clean energy.
• Dr. Peter Senge, MIT:  He made some interesting observations regarding sustainability principles.  For example, to produce a computer chip you must use 630 times the weight of the chip in materials to construct it.  That is an amazing amount of waste those goes into developing a single small product.  The observation was made to show the opportunity to reduce waste in the process thereby saving money

Overall, I thought the Summit was a testament to the a growing positive attitude in Cleveland about change. Attendees were willing to devote three days in dark hall of the Convention Center to discuss these topics and develop a plan. 

A Dose of Reality

I will conclude by making an observation regarding building success out of the Summit.  I was lucky to participate directly in the Great Lakes Regional Collaboration (GLRC).  The GLRC was a on-going process to develop a plan for protecting and cleaning up the Great Lakes. It was initiated by President Bush by Executive Order.  The idea was to follow the Florida Everglades model and secure significant funding for restoration of the Great Lakes.

The GLRC was on a scale five times the size of the Cleveland Sustainability Summit.  It involved multiple federal agencies, Indian tribes, state representatives, non-profit groups and environmental groups.

Similar to the Cleveland Sustainability Summit there was tremendous energy and optimism from the participants.  However, that optimism also led to the inclusion of some very unrealistic goals and actions in the GLRC plan for the Great Lakes.  I remember continually raising the concern that the plan had to be realistic and build toward the future.

Some of the most unrealistic proposals were included in the final plan.  What happened...after a full year in development, the plan was virtually shelved due to budget concerns at the federal level.  Participants were disheartened and charges were thrown around that the process was purely a political tool. 

I hope the concept of a lasting 10 year strategic plan for attracting green jobs to Cleveland does not follow a similar path.  Significant progress is possible, but it must include a dose of reality.

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Cleveland has is trying to increase momentum toward become a hub of green industry.  As a recent Clevelander I appreciate the efforts to promote sustainability, renewable power, and other green industry as a means of attracting jobs and improving the economy.  (photo:flickr:heidigoseek)

I have had the luxury of working with many of the cities around the State on environmental issues.  I honestly believe Cleveland has more resources and a more developed culture on sustainability then the other major Ohio metropolitan areas.   If you think differently check out the compiled list on Positively Cleveland of 75 Green Thing in Cleveland Plus.

But make no mistake about it, Cleveland is facing tough competition.  Frankly, Michigan and Pennsylvania have been more aggressive in promoting policies that would attract green industry to their states which puts Cleveland at a disadvantage. Those windmill blades you see traveling up I-71, those were not built in Ohio and are more than likely not going to be put up at a site in Ohio.   So, if we want to be serious about a green industry in Cleveland we will have to be prepared to beat the competition.

Mayor Jackson is trying to take the first step toward putting together a strategic plan for attracting green industry.  On August 12-14 he is holding a summit called Sustainable Cleveland 2019.  Here is the description of the summit off of the City's webpage:

From August 12-14, Mayor Frank G. Jackson will host a three-day summit, bringing together a diverse group of people vested in and dedicated to Cleveland to use their vast knowledge and imagination to create an action plan for building a green economy for Cleveland’s future. This summit will be facilitated by Dr. David Cooperrider of the Fowler Center for Sustainable Value at Case Western Reserve University. The goal is to create an action plan for economic sustainability that will support business growth; protect the environment; and, create opportunities for individuals to prosper.

I will be participating and no doubt will offer my opinions on the success of the summit in future blog posts.  But for right now, I am just pleased to see a focus on developing a strategy.  Now lets see if a viable strategy emerges. In a very general way, such a strategy should include:

• Specific action items that focus on building a culture and structure needed to compete for green jobs
• Courage and vision to make difficult choices.
• An on-going commitment by more than just a few to implement the strategy
• Participation by the business community
• Linkage to Cleveland's other major growth industry- Health Care

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June 22nd will mark the 40 year anniversary of the famous 1969 fire on the Cuyahoga River.  A picture of the fire in Time magazine was credited with bringing national focus to water pollution in the United States.  Here is a quote from a recent Cleveland Plain Dealer Article on the notorious fire:

"The fire did contribute a huge amount to the new environmental movement and it put the issue in front of everyone else, too," said Jonathan Adler, environmental historian and law professor at Case Western Reserve University. "Water pollution became a tangible, vivid thing -- like it had never been on a national level. "There was a sense of crisis at that point. It was: Oh, my God -- rivers are catching on fire.' "

In 1972, Congress passed the Clean Water Act whose stated goal is to make waterways across the country "fishable and swimmable."  Forty years ago, achieving the goal of the Clean Water Act seemed impossible for rivers like the Cuyahoga. 

The River was virtually dead from the release of industrial wastes and untreated sewage along with intensive urban and industrial development.  I remember talking with some of the original employees of the Ohio EPA who described the rivers like the Cuyahgoa and the Mahoning were virtually boiling from steel mills and other industrial sources that did not cool their water prior to discharging into the River.      

Flash forward to 2009, we are about to celebrate the anniversary of the fire by marking a significant achievement  in its recovery.  The Cuyahoga River Remedial Action Plan along with Ohio EPA has submitted a request U.S. EPA to take official action by removing most of the river  from list of the most polluted rivers in the Great Lakes (delisting request).  As the Chairman of the Cuyahoga RAP, I was lucky enough to sign the letter submitting the official request to U.S. EPA. 

The area of recovery stretches from Akron to 50 miles down the River to its navigation channel.  A once dead River is now teaming with life.  The River so notorious for its fire is now become a favorite for steelhead fly fishing. 

Perhaps no aspect of the recovery tells the story better then the return of fish to the River. The chart to the left is part of the delisting request to U.S. EPA.  It is a compilation of years of data collection from the River.  The horizontal axis is the miles of the River.  The vertical axis is the number of fish species. 

1969 is represented by the nearly flat purple line across the bottom indicatng virtually no life in the River except for its upper most reaches.  The green line across the top is 2008 which shows between 15 to 25 species living in the River.  (The dip in the green line is the Route 83 dam which shows how dams can have dramatic impacts on water quality)

What an amazing recovery.  From dead in 1969 to a River that has a wide variety of species and healthy fish in 2008.  Here are some more details on the return of fish to the River:

• In 1984 the relative number of fish caught per kilometer was 53. In 2008 the relative number was 657 fish per kilometer. 
• Total species in 1984 was 28, compared to 43 in 2008 with ¼ fewer sites. 
• In 1984 there was only 1 individual of a sensitive species. In 2008 there were 10 sensitive species comprising 1412 individuals (31% of the total catch). 
• In 1984 there were only 8 bass caught. In 2008 there were 221 bass caught, with the dominant species being Smallmouth Basin. 
• In 1984 there was only 1 darter individual collected. In 2008 there were 5 species of darters (228 individuals). 
• In 1984 there were no redhorse species (sensitive) in the entire reach. In 2008 there were 3 species (96 individuals). 

What are the reasons behind the miraculous recovery of the Crooked River?  It took a combination of major investment, successful environmental regulation and protecting the sensitive corridors along its banks. 

1. Major investment by private industry and municipal wastewater treatment facilities- the North East Ohio Regional Sewer District and Akron's wastewater system have invested billions of dollar upgrading treatment.  Industry along the river has invested millions in new treatment wastewater treatment technology and improved business practices.
2. Environmental regulation- Often maligned, the recovery demonstrates that regulation can be effective.  The Clean Water Act brought permits to all the major discharges to the River.  Overtime, as technology improved, the permits ratcheted down how much pollution dischargers could put into the river.
3. The Cuyahoga Valley National Park and Cleveland Metroparks- Maintaining natural vegetation along the banks of rivers and streams has major benefits to water quality.  This vegetation operates as filters-absorbing non-point pollution before  it can impact waterways.  It also provide habitat for important bugs and critters that breathe life into streams.  The Cuyahoga Valley National Park protects 33,000 acres along the banks of the Cuyahoga River.  The park system operates as a massive riparian corridor along the River. 

Local news coverage of the remarkable comeback of the burning River has been good.  The Cleveland Plain Dealer has a series dedicated to the Year of the River.  But this deserves to be a national story.  So often the Midwest and Cleveland seem to be the epicenter of bad news- from a down economy to the housing crisis.  Don't get me started on the sports teams. 

What once brought Cleveland into the national spotlight for all the wrong reason should now bring attention for the rights ones.  How great would it be to see Time Magazine revisit the River forty years later!  Maybe with a picture of some fly fishing on the River.  Another reason to highlight the recovery nationally, the Obama Administration has requested $475 million in funding for the Great Lakes. What a better poster child for showing investment in the Great Lakes can work than the Cuyahoga.

If you want to do your part to help the river, you can purchase t-shirts and mugs embossed with the four fish graphic at the beginning of this post.   Money raised will be used to support on-going efforts to restore the River.  If you happen to be in the Cleveland area come down to the River on the 22nd and celebrate this amazing story or re-birth.  You can get details form of the events planned from the Cuyahoga RAP's website.

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There is good news for area businesses.  Additional compliance costs and restrictions on economic growth will be avoided that were deemed all but certain a few years ago.  The compliance costs were associated with new air pollution controls needed to achieve  U.S. EPA's 1997 8-hour ozone standard (0.85 ppm). The deadline to meet this standard is 2009.

When I was Director of Ohio EPA,  all the modeling and projections showed there was no way Cleveland would meet the standard by the deadline. I remember giving speeches around the State with the basic theme- "we would have to de-populate Cleveland to meet the Ozone deadline."   I remember briefing the Governor that it appeared likely the Cleveland-Akron-Lorain Nonattainment Area would have to "bump up" to the next category of nonattainment-"serious."  By bumping up Cleveland would buy time to reach the standard, but the cost was a list on new federally mandated controls and restrictions.  Bump up would have had devastating impacts on the local economy.

[This is a slide taken from one of the speeches on reaching the ozone standard.  The numbers show various ozone levels at each monitor in the nonattainment area after imposing various control options.  The black number was a series of draconian measures that would have devastated the local economy.  Even after imposing those controls the models predicted continued nonattainment.]

Perhaps this is a lesson about not putting too much faith in modeling, but  based upon recent air quality monitoring Cleveland has indeed attained the 1997 8-hour ozone standard.   Area businesses may never be fully aware of the crisis that was averted.  But this is certainly good news for an area that has struggled to meet federal air quality standards.

Below is additional background on the recent Ohio EPA submittals.

In 2008, Ohio EPA submitted an State Implementation Plan (SIP) for the Cleveland-Akron-Lorain nonattainment area that requested redesignation to attainment status.  This was based on monitoring data from 2005,2006 and 2007 that showed Cleveland close to attainment [0.0853 compared to 0.0853]. 

This month, February 2009 Ohio EPA has prepared an updated attainment demonstration for the Cleveland that incorporates the most recent air monitoring data from the summer of 2008.  Due to ever improving air quality, the updated monitoring data shows Cleveland complies with the Standard [0.084 compared to 0.085 standard]. 

Here is additional detail regarding the two submissions:

2008 Ohio EPA Redesignation Request to U.S. EPA
In the February 2008, Ohio EPA submitted its request to U.S. EPA to have the Cleveland-Akron-Lorain nonattainment area redesignated to attainment. The document included two key conclusions:

1) Monitoring data for 2005-2007 showed the area just above the standard. The data showed 0.853 ppm compared to the 0.85 ppm standard.

2) Ohio EPA was requesting redesignation of the Cleveland-Akron-Lorain area based upon modeling that showed it expected the area to attain the standard by 2009. This was known as the "weight of evidence" approach (WOE). Under the WOE policy, U.S. EPA can redesignate an area attainment even though monitoring data shows it has not met the standard.  However, Ohio EPA must provide the federal EPA convincing evidence the area will reach the standard by the 2009 deadline.

Ohio EPA included the following language in the January 2008 submittal to U.S. EPA:

"The (air) modeling results as well as the previously submitted weight of evidence information supports the conclusion that Cleveland-Akron-Lorain OH area should attain the eight-hour ozone standard on time.

In spite of this evidence, Ohio EPA is developing additional emission reduction options. Ohio EPA recognizes that the ozone standard is currently under review and a final revision to the standard will most likely result in a revised standard that will require additional emission reductions above those necessary to achieve the existing standards. Ohio EPA is currently in discussions with U.S. EPA and local stakeholders assessing the options available to meet the future standard, including the use of lower Reid-Vapor Pressure gasoline. "

Bottom line: Ohio EPA left open the possibility it would impose additional control measures to support its WOE demonstration to U.S. EPA.

2009 Revised Ohio EPA Redesignation Request to U.S. EPA: Ozone levels improved significantly in the summer of 2008. The average of the 2006, 2007 and 2008 ozone seasons shows an overall average of 0.84 ppm which is below the 0.85 ppm standard.

This is very good news for the Cleveland-Akron-Lorain area. This means Ohio EPA no longer has to propose a WOE approach to U.S. EPA. Rather, Ohio EPA can rely on the real monitoring data which already shows attainment with the standard. As a result, all of the language I quoted above regarding evaluating additional control options has been dropped. In the 2009 submittal Ohio EPA states:

"The Cleveland-Akron-Lorain ozone nonattainment area has attained the 1997 NAAQS for ozone and complied with the applicable provisions of the 1990 Amendments to the Clean Air Act regarding redesignations of ozone nonattainment areas...Based on this presentation, the Cleveland-Akron-Lorain ozone nonattainment area meets the requirements for redesignation under the CAA and U.S. EPA guidance....Furthermore, because the area is subject to significant transport of pollutants, significant regional NOx reductions will ensure continued compliance (maintenance) with the standard with an increasing margin of safety."

Bottom line: It appears Ohio EPA is no longer evaluating additional controls to comply with the 1997 ozone standard. In addition, the language referring to "subject to significant transport of pollutants" is a reference to the fact our ozone levels are heavily influenced by emissions from elsewhere in Ohio and the Midwest. This means continued strengthening of programs like CAIR (power plant reductions) will continue to result in improved air quality.

Of course the story does not end here... U.S. EPA is in the process of imposing the new 2008 ozone standard (0.75 ppm). Current monitoring shows Cleveland is a long way from achieving the new standard. Unfortunately, this means Cleveland-Akron-Lorain will not get out from under its nonattainment status anytime in the near future.  But at least we are no longer discussing draconian measures to meet the old ozone standard.

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When a former Secretary of State (George Shultz) and a Vice President (Al Gore) can't seem to navigate local ordinances to install solar systems on their own homes, what are the chances for everyone else? 

These are two high profile examples cited in a recent report that discusses streamlining the local approval process for solar and small wind projects-  Taking the Red Tape Out of Green Power.  

After interviewing experts from around the Country regarding various local impediments, the study includes seven principle recommendations:

1. Remove barriers to photovoltaics (PV) systems from building and zoning codes.
2. Simplify PV permit application forms and review processes.
3. Adopt flat permit fees or fee waivers for PV and small wind systems.
4. Incorporate information about wind energy opportunities into municipal comprehensive planning.
5. Establish small wind turbines as permitted uses, with appropriate design guidelines, performance standards, and review processes.
6. Ease permitting processes by establishing statewide interconnection standards and educating building and electrical inspectors about proper installation procedures for distributed renewable energy systems.
7. Adopt legislation at the state level mandating consistent and appropriate permitting requirements for distributed renewable energy systems.

A review of recent articles from around the Ohio shows zoning ordinances pertaining to solar and wind projects have become a hot topic.  Local governments would be wise to examine the study to determine ways to draft ordinances and administer local permit processes to encourage development of renewable energy projects. (See Dispatch:  "To avoid fights, set rules for windmills now")

Granville- debate over allowing solar panels in a historic district.

Morrow County-  Established zoning ordinances governing utility scale wind projects, but local governments ignore standards for small scale wind project. 

Hamilton County Planning and Zoning Officials- Consider an array of zoning regulations including restrictions on height, noise and placement for energy-generating windmills, solar panels and outdoor furnaces. Example regulations:

• Windmills may not exceed 100 feet in height, cannot be in front or side yards, and their noise may not exceed 62 decibels between 10 p.m. and 7 a.m. (roughly the volume of a conversation).
• Solar panels on roofs may not be taller than the highest point of the roof. Detached solar panels may not exceed 14.5 feet.

Clermont County- Windmills and outdoor furnaces are lumped into the "accessories" category of the zoning code which means there is a 14-foot height limit without a permit.

City of Columbus-  According to an article appearing in Ohio Planner's News (November/December 2006 Issue) discussed some Ohio zoning code application to solar and small wind turbine projects.

The City of Columbus staff recommends that the request for a solar installation be preceded by “preliminary zoning clearance review,” which is an official way of saying, “bring in your request and a map of the property.” According to the plans examiner, a solar installation would probably be handled under local code enforcement by your contractor (under the engineered systems section) and comply with the National Electric Code regulations per Article 690 Solar Photovoltaic Systems and Chapter 14 of the Ohio Mechanical Code.
 

The City of Columbus also states that, “A wind tower as a principal use on residentially zoned property does require a use variance (Council variance) because said use is not permitted in many districts. However, a wind tower as an accessory use to a principal dwelling may be permitted but most certainly is subject to specific development standards…” Notice the distinction between “principal use” (the only use for the property) and “accessory use” (a use that fulfills a need for the house) and the ability to avoid a variance. The distinction is critical for easy success in the hearing process.

For additional Resources:

Wind:  The American Wind Energy Association (AWEA) has a web site that goes state by state discussing various aspects of small wind projects.  The AWEA also has put together various resources to assist in permitting small wind projects as well as local policies to encourage their development.

Solar:  GE has a list of frequently asked questions about residential solar projects.  However, there is also plenty of information provided at the state level regarding residential solar project.  For example, the Ohio Department of Development also has made available resources for Ohioans interested in installing solar panels on their home, including the Ohio Consumer Guide to Buying a Solar Electric System.

See http://www.green-energy-efficient-homes.com/green-electricity.html for more information on green energy options for your home.

(Photo:  Great Valley Center Image Bank/everystockphoto.com)

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