There are a myriad of federal statutes that require your company to report a spill to any of the following:

  • National Response Center
  • State Emergency Response Center (SERC)
  • Local Emergency Planning Committee (LEPC)
  • Local Fire Department

Failure to report a spill can lead to an enforcement action as well as civil penalties.  Also, failure to respond appropriately following a spill can lead to serious ramifications for your company in terms of exposure to greater clean up costs, property damages, or environmental harm. 

Due to the liability exposure associated with managing and reporting spills appropriately, its wise for all corporations to have prepared an internal corporate policy for spill response.  The policy would not only cover when you have a legal obligation to report a spill to regulators, but also how to communicate about a spill internally within the company.

Depending on the facts and circumstances surrounding the spill event, you are not always under a legal obligation to report a spill to the authorities.  Its wise to know your regulatory obligations before making the decision to report.  Otherwise, you may be inviting teams of regulators to your facility unnecessarily. (Click here for U.S. EPA’s Website on Spill Reporting)

The facts of each event are different.  Therefore, each must be analyzed independently to determine your regulatory obligations.  However, its wise to get familiar with the triggers for mandatory reporting.

Attached is a series of power point slides which contains information regarding the most commonly applied federal regulations that may trigger mandatory reporting to federal or state regulators.  The spreadsheet shows the event, regulation, trigger level and reporting requirement. 

These charts were based upon a more limited spreadsheet prepared by Region VII of U.S. EPA called the Fact Sheet on Emergency Release Reporting Requirements.  They are meant for reference only and cannot substitute for analysis of each regulation and the facts surrounding your particular event.  However, I hope they are useful to you in getting familiar with the mandatory reporting obligations that exist.

On March 21, 2011, U.S. EPA issued final air toxic standards for industrial and commercial boilers.  The rules regulated emissions of hazardous air pollutants (HAP) from industrial, commercial, and institutional boilers and process heaters located at major sources of HAP emissions (the "Major Source Boiler MACT").  The EPA also issued final rules regulating emissions from commercial and industrial solid waste incineration units (the "CISWI Rule"). 

While the rules were issued, EPA also announced that it would reconsider the rules to address certain technical issues.  Some of those technical issuesunder EPA review include:

  • Revising major subcategories in the major source rule;
  • Establishing work practice standards for limited use major source boilers;
  • Standards for biomass and oil-fired source boilers based on available control technology; and
  • Providing an affirmative defense for malfunction events.

The effective date for each of the new rules was supposed to be May 20th.  However, the industry has provided significant input that the standards are not realistic and will be too costly. A number of business associations filed motions for reconsideration and requested a stay of the effective date while EPA completed its reconsideration of the rules.

Yesterday, EPA announced it  has issued a temporary stay of their effectiveness and will seek comments through July 15, 2011. 

Thus, the long and winding road of this rule package just got a little longer.  The Agency consistently seems to miss the mark necessitating pulling back from its proposals and gathering more data. 

Below is a portion of U.S. EPA’s announcement:

Following the April 2010 proposals, the agency received more than 4,800 comments from businesses and communities, including a significant amount of information that industry had not provided prior to the proposals. Based on this input, EPA made extensive revisions to the standards, and in December 2010 requested additional time for review to ensure the public’s input was fully addressed. The court only granted EPA 30 days, resulting in the February 2011 final rules. The agency is reconsidering the standards because the public did not have sufficient opportunity to comment on these changes, and, as a result, further public review and feedback is needed.

EPA will accept additional data and information on these standards until July 15, 2011.

 

Governor John Kasich has not revealed his true feeling regarding the Renewable Energy Portfolio (called the Advanced Energy Portfolio Standard in Ohio) which mandates a certain percentage of electricity should be generated from renewable sources like solar, wind, biomass and others.  Ohio’s RPS was instituted as part of Governor Strickland’s major energy legislation- S.B. 221.

While the Governor has not affirmatively announced a position, there appears growing sentiment he may be cool to the idea of energy generation mandates.  He recently announced an energy summit with Battelle in Columbus. The Summit will be held on September 21st ad 22nd and will be called "Ohio Governor’s 21st Century Energy & Economic Development Summit." Leaders from energy, business, education, government and economic development have all been asked to participate.

However, his comments in announcing the summit suggest he believes major reform is needed and perhaps SB 221 needs review.

"Right now, Ohio essentially has no energy policy, but at the same time energy costs are major factors in the success of every sector of our economy, especially manufacturing and agriculture," said Kasich, as reported in The (Cleveland) Plain Dealer.

Reasons to Support RPS

Those in favor of the RPS say its a job creator by supporting green energy and suppliers to green energy development companies.  They also point to Ohio’s heavy reliance on coal power- nearly 90% of generation.  While cost of baseload coal may be cheaper than renewable sources, the difference is shrinking due to advances in green technology and more and more regulation on coal.

The regulatory trend line for coal does nothing but continue to point upward.  With each new regulation the cost of coal power continues to climb.  Here is examples of regulations recently issued by EPA affecting coal:

  • Rule on toxic emissions from power plants
  • Toxic standards from industrial boilers
  • Clean Air Transport Rule for coal fired power plants
  • Revisions to the NAAQS, including a potential tightening of the ozone standard in August
  • Potential regulation of coal ash (EPA seeking comments)
  • Soon to be proposed cooling water intake structures rule
  • New Source Review Enforcement Cases (Includes recent TVA settlement)
  • EPA existing ad future greenhouse gas regulations

A shift away from Ohio’s heavy reliance on coal will takes years to accomplish.  Supporters of S.B. 221 argue the RPS puts Ohio on a steady path to diversify its portfolio.

Opponents of RPS

Those who oppose RPS mandates argue it drives up energy prices by forcing utilities to purchase more expensive renewable energy.  As energy prices escalate, they argue, companies face higher operating costs.

The Debate Has Already Commenced

Supporters of S.B. 221 and the RPS are already starting to make their voices heard.  Perhaps they are anticipating a potential assault on Ohio’s fledgling RPS.  

"Since inception of the energy law, over 1,700 renewable energy projects have been approved, including over 1,000 MW of wind power – enough energy to power over 300,000 homes." Guest Column Larry Feist is Program Chair in Electro-Mechanical Engineering Technology and Power Systems Engineering Technology at Cincinnati State Technical and Community College.  (Click here to read Cincinnati Enquirer Article)

Other states have already made the decision to increase their green energy mandates. Governor Jerry Brown signed into law Special Senate Bill 2, raising California’s Renewable Portfolio Standard (RPS) from 20% to 33% by 2020.

Governor Kasich’s budget slashed funding for renewable energy projects by 38% causing some in the industry to question his support going forward.  This from a Business First article:

The president of SolarVision LLC in Westerville said alternative power sources, such as wind and solar, take a backseat to drilling for oil and natural gas when he hears the governor talk about energy in the state. Kasich often mentions the promising potential for oil and natural gas wells in eastern Ohio where new drilling methods have opened up the huge Marcellus and Utica shale formations for development.

The debate in Ohio appears to be just heating up.  One thing is certain, businesses don’t like uncertainty.  As long as the possibility that S.B. 221 and the Ohio RPS may be repealed or revamped, it creates uncertainty which creates head winds for projects moving forward. 

As the debate over the budget ends in July, there is no doubt that energy policy will once again take center stage especially with rising commodity prices.

(Photo: Great Valley Center Image Bank- Everystockphoto.com)

The Ohio Department of Development working with the Ohio Water Development Authority (OWDA) has released their policies for use of the revamped low interest brownfield loan program.  Under the program, private companies (among others) can get a low interest loan up to $500,000 for performing sampling (assessment) and up to $5 million for clean up.

As discussed in my prior post announcing changes to the loan program, the single biggest change is that the loan program now allows companies that own contaminated property and caused or contributed to the contamination to qualify for the program.  Any company that caused or contributed to contamination is not directly eligible for Clean Ohio funding.

Here are some key requirements that are spelled out in the new policies governing the program.

  • Clean Up Loans– Must already have done all the assessment and have designed a remedy to qualify for a clean up loan. 
  • Redevelopment Requirement?-  The ODOD website says the project must involve redevelopment for the property to be qualify for the loan.  Therefore, it would appear an existing company with no expansion plans cannot qualify for the loan if they simply want to address historical contamination issues on property they own.  As discussed below, the actual wording of the policy may provide greater flexibility.
  • Eligible Costs– assessment, demolition, remediation and consultant costs
  • Payment Term– below market interest rate over a 10 year term

Biggest Disappointment

The most disappointing aspect of the policies governing the new loan program is the requirement for redevelopment of the property.   The loan program will have a very limited appeal to only existing companies responsible for historical contamination wishing to expand. 

However, the actual wording of the policy says projects are eligible "where expansion or redevelopment is complicated by known or potential releases of hazardous substances.”  This is far more open ended that requiring a demonstration actual expansion or redevelopment will occur.

Hopefully, ODOD and OWDA will allow a more expansive interpretation of this language. Why not give the benefit of the low interest loan to companies who simply want to address historical contamination on their property?  Certainly the State could justify rewarding these "volunteers" because the policy explicitly make clear any company that is under a legal mandate (order or permit requirement) to clean their property is ineligible. 

 Policy 1.03 CERCLA Limitation for Eligible Borrowers:

Policy 1.03- Borrowers must be exempt from Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), as amended CERCLA liability for hazardous substance cleanup applications.

I don’t know what "exempt from CERCLA" really means.  Is this a reference to Bona Fide Purchaser defense?  There are very few exemptions from CERCLA for companies responsible for existing contamination.  Policy 1.03 could use further clarification.

Will There Be Interest?

Whle the greater flexibility provided by the new policies make the program more attractive, it will be interesting to see whether it garners any interest.  Even with the changes, the program will appeal to a small subset of companies looking to address historical contamination.  Any other party that has no responsibliity for contamination has a far better option under the Clean Ohio program.

On April 5th, Ohio EPA Director Nally testified on the Agency’s proposed budget before the House Finance and Appropriations – Agriculture and Natural Resources Subcommittee.  According to the Director’s Testimony, Ohio EPA is not asking for any fee increases.  Ohio EPA’s proposed budget calls for a reduction of 11.8% for fiscal year 2012 and 13.8% for fiscal year 2013.  To meet these budget reductions, the Agency is planning on reducing 53 current positions through attrition.

The Director also mentioned the consolidation of the Division of Hazardous Waste Management  (DHWM) into the Division of Solid & Infectious Waste (DSIWM) along with other components in the Division of Emergency Remedial Response (DERR).  DHWM’s permitting and inspection activities will be in DSIWM and clean up will be with DERR.

In addition to budget reductions and the consolidation of DHWM, Director Nally also hinted at other initiatives the Agency is planning to undertake in the near future. 

New Ohio EPA Initiatives

“In-lieu Fee” Program –  The Director signaled potential significant change on wetland and stream mitigation requirements.  Typically the 404/401 permit applicant must find appropriate mitigation projects and include those proposals in their permit application.  With an “in-lieu fee" program, the applicant is relieved of the burden of finding a mitigation project .  Rather, the applicant pays a few based on the acreage of wetlands or feet of stream impacted by the project.  The Director has recently announced a "listening session" to hear from the regulated community and others regarding the proposal.

Permitting efficiencies/Permitting Backlog – Most every Ohio EPA Director faces the pressure to get permits out the door faster.  Director Nally is no different.  Upon taking office, he announced this would be a top priority of his administration.  His testimony suggests he will be re-looking at permit-by-rule and general permits to streamline permit approvals.  While the Agency has utilized these tools in the past, business complain that the terms and requirements are too onerous.  Modifying air permitting requirements can present unforeseen issues, as the business community learned after the Courts stepped in blocking major changes adopted in Senate Bill 265.

IT initiatives and Compliance Assistance –  Ohio EPA has moved toward allowing more reports and permitting to be performed using the web or through special electronic systems.  These systems provide flexibility, but businesses complain they can be difficult to use.  The Director announced training sessions to assist businesses with understanding how to use these systems better. 

Brownfields redevelopment – The Director testimony contained a vague reference to a new initiative with brownfield redevelopment.  The current structure has the Ohio Dept. of Development passing out the grant money and Ohio EPA monitoring the clean up.  It will be interesting to watch whether Ohio EPA announces new initiatives in this area to accelerate re-use of  brownfields.

Marcellus and Utica Shale – ODNR has the lead with regard to permitting for gas exploration.  However, U.S. EPA has indicated it will be closely watching and may exercise enforcement authority at sites where drilling has gone wrong or resulted in polluted groundwater.  The Director intends to support ODNR’s efforts in light of U.S. EPA’s scrutiny.

Expedited Settlement Program (ESP) — No details were given regarding this new concept to accelerate resolution of enforcement actions.  Here was the Director’s testimony…Given my priority of compliance first, I am initiating modifications to the current enforcement process to help drive quicker compliance.  Historically, the existing enforcement options have been time consuming and resource intensive for both the agency and the regulated entity. By developing new steps to be used early in the enforcement process, I hope to resolve uncomplicated cases
expeditiously, putting a facility on notice of a problem, and quickly achieving compliance. 

Perhaps Ohio EPA intends to make modifications at the Notice of Violation (NOV) stage.  The Agency could improve tracking of NOVs and notify businesses more quickly when issues have been resolved.

The Director’s testimony did provide a good insight into his early priorities.  Details were not provided so we will need to watch closely as they are released.

In 2000, Ohio originally voted to approve the Clean Ohio Fund as a $400 million dollar bond program. In 2008, the Clean Ohio Fund was reauthorized through a ballot initiative known as Issue 2. The ballot initiative was overwhelmingly approved in all 88 counties which extended the Fund with another $400 million dollars.

Clean Ohio is probably the most successful brownfield redevelopment program in the Country.  Approximately $400 million of the $800 million in funding went to brownfield projects in the last twelve years.  Here is an outdated chart from the Clean Ohio Fund Report which shows the number of projects and dollars used for brownfield revitalization just in the first four rounds of the program. 

Since the first four rounds that State has gone to two rounds per year.  We are now up to Round number 10. 

The Clean Ohio Fund Interactive Map provides the location and project information for over 1,200 projects financed through the Clean Ohio Fund, representing over $627 million in awards to date.

Four Rounds Left After July 

Round 10 is in July.  Then there is enough funding for Round 11-2 (Round 12 will be May 2012).  That is not a lot more opportunities to use the program if you have a project that you think would be a good match for Clean Ohio funding.  It takes around 6-8 months to get a project ready for a Clean Ohio Revitalization Fund (CORF) project.  Which means projects for Round 10 are basically getting ready to be finalized and Round 11 projects are already being discussed.

Will Clean Ohio Continue?

The Clean Ohio program has been wildly successful.  Funding projects across the State.  Many significant development projects simply would not have happened with out the grant funds available through the program. 

While perhaps a little premature, its time to start planning another ballot initiative if suporters are going to seek to renew the program.  Governor Kasich has not been asked his opinion as to whether the program should continue.  While the program is funded through bonds it still takes state revenue to retire those bonds.  With an $8 billion budget hole and a difficult budget process, the challenges facing renewal have never been greater.

What Happens if Clean Ohio is Not Renewed?

The major source of assistance in Ohio to spur brownfield redevelopment will disappear.  There are other federal and local programs, but none with the resources and successful track record like Clean Ohio.  Unfortunately, if the program is not renewed, many brownfield sites with significant contamination will simply be avoided.  New development will be pushed out to greenfields and perhaps away from our urban core.

With the number of brownfield sites remaining in the State, the need for the program remains as strong as it was in 2000.

In 1994, the State created the Voluntary Action Program (VAP) to promote voluntary clean up of industrial and commercial sites, including those currently utilized as well as brownfields.

By 1994 standards the VAP program was cutting edge.  It utilized certified professionals (CPs) who performed the investigation and implemented clean ups to meet standards established by Ohio EPA.  In this sense it was a privatized program.  Letting the company or developer ("volunteer") control the clean up process.

By allowing CPs to direct the clean ups to meet standards, costs would be reduced comparative to other clean up programs.  Rather than having sampling plans reviewed back and forth, the CP had to meet the rule.  Rather than debating appropriate remedies in documents back and forth, the CP designed the remedy and it was acceptable as long as it met VAP standards. 

There are many positive elements of the VAP program seventeen years later.  However, a look at just the numbers raises the question as to whether its enough or whether other programs need to be developed to get ahead of Ohio’s growing brownfield problem. 

Here are the VAP statistics presented by Ohio EPA this winter: 

  • 422 No Further Action Letters ("NFAs") have been issued by CPs–  A NFA is the document that details the clean up meets VAP standards. 
  • 386 requests for Covenants not to Sue ("CNS")- There is no requirement that a volunteer h submit the NFA to Ohio EPA in order to obtain a CNS (the legal release)
  • 18 denied CNSs
  • 25 Withdrawn
  • 29 pending review 
  • 314 CNSs have been Issued

To summarize, to Ohio EPA’s knowledge 422 NFAs have been issued by CPs in the seventeen (17) years the program has been in operation.  I say "to Ohio EPA’s knowledge" because there is no requirement that you even disclose to Ohio EPA that an NFA was prepared.  In fact, many companies elect to simply obtain an NFA an never pursue the CNS from Ohio EPA due to the added administrative costs.

In seventeen (17) years, 314 sites have received a CNS, meaning Ohio EPA has verified the site meets VAP standards and issued a legal release. 

Brownfields-  Ohio Needs More Tools in its Tool Box

Focusing on brownfields, VAP is the only State tool to remove environmental legal liability with contaminated properties. (Click here for discussion of gaps in federal "AAI Rule")  To only have 314 sites addressed in 17 years has to raise the question whether we need other tools than VAP to address these sites in order to get ahead of a growing inventory of brownfield properties.

For comparison, a 1996 study identified approximately 350 brownfields and 1,000, to 2,000 condemned structures in Cleveland.  I can’t imagine these number improved following the recent recession.

If you broaden out to Cuyahoga County, the Cuyahoga County Planning Commission found that 40,000 acres, or 14%, of the County’s land, has at some time been devoted to an industry that has historically been known to be a higher risk for environmental contamination.

Those are staggering figures – 314 VAP sites in 17 years versus an estimated 350 sites in Cleveland alone.  This represents only one city and one county in Ohio.  Just looking at the statistics suggests the VAP alone isn’t  enough to encourage reuse of brownfields sites in the State.

Phase I environmental assessments have become the norm in virtually any commercial or industrial property transaction.  Almost any financial institution will require a Phase I report prior to agreeing to finance a transaction.  

In this regard, Phase I’s have become a commodity- A box that needs to checked off before a deal can go through.  But buyer beware, beyond securing your financing you may not truly know the condition of your property.  Or even worse, you may not secure the legal protections from environmental liability you intended by procuring your Phase I.

A recent U.S. EPA study evaluated the quality of 35 Phase I reports that were performed on brownfields in connection with federal grant funding.  The Phase I reports were evaluated against basic requirements necessary to secure protections under the "All Appropriate Inquiries Rules (AAI)" (a shield from CERCLA liability for innocent purchasers).

"All Appropriate Inquiries"

Under federal law, in order to establish a shield from liability under CERCLA, a purchaser must, prior to the date of acquisition, perform "all appropriate inquiries" into ownership and uses of the property.  In 2005, U.S. EPA finalized its rule establishing mandatory standards for conducting AAI to secure liability protection.

IG Evaluates 35 Phase I’s

In the study, the Inspector General evaluated the 35 Phase I reports to see if they met the required elements of the AAI rule.  Not one of the reports met the U.S. EPA required elements (or alternative ASTM standard).  Worse yet, the missing components were simply formalistic elements necessary for a Phase I to meet U.S. EPA standards.  They did not evaluate the professional judgments in the reports which would be more prone to varying opinion.  Aspects evaluated included:

  1. Environmental Professional Qualification Statement- U.S. EPA AAI rule requires a boiler plate statement to be included in the report that the consultant meets the standards to be considered an environmental professional. 
  2. Signature-  The environmental professional who responsible for the assessment must sign the report. 
  3. Data Gaps-  The professional must identify any data gaps that may have impacted their ability to identify whether conditions at the property indicate a release or potential release occurred at the site.
  4. Opinion Statement-  The report must include a conclusion section that summarizes all "recognized environmental conditions" at the property.  Any areas where there were conditions identified on the property which indicate a release or potential release occurred.

In the opinion of the Inspector General, not a single one of the 35 reports evaluated adhered to all of the requirements set forth above. 

The report is another example of the risks associated with hiring an environmental consultant to perform a Phase I.  From my discussions banks don’t often evaluate the quality of the consultant or even whether the report meets the ASTM or EPA rule requirements. 

What are the risks to the future property owners in the transaction?  The Inspector General summarized the risks as follows:

Improper AAI investigations introduce risk that the environmental conditions of a property have not been properly or adequately assessed. Consequently, decisions about appropriate uses of redeveloped or reused brownfields properties may be based on improper assessments. Ultimately, threats to human health and the environment could go unrecognized.

Beyond the risks of the unknown conditions, you also could be jeopardizing the legal protections available under the AAI rule.  The rule is very specific in mandating an ASTM or EPA regulatory compliant Phase I assessment before the legal liability protections kick in.  Years later, when an issue arises, you may find you have no shield from liability due to an inadequate Phase I.

Recommendations:

  • If you want a true evaluation of the conditions of the property hire a quality environmental consultant.  Avoid consultants who are simply churning Phase I’s to move deals forward.  Low ball pricing can often be a red flag regarding the quality of the report.
  • Review the Phase I for compliance with standards to secure liability protections.

Continue Reading Questions Persist Regarding the Quality of Environmental Assessment

As reported in the Columbus Dispatch, Ohio EPA has experienced a drop in revenue attributable to reduced fees collected associated with its various programs due to the recession.  Governor Kasich has not proposed any fee increases to restore the loss in funding. 

Fee increases are seen as additional direct taxes on business which runs counter to the Governor theme of restoring a pro-business environment to Ohio.  Here is the discussion of the budget impacts reported in the Columbus Dispatch:

Since 2005, the Ohio Environmental Protection Agency has relied on fees it collects from businesses to fight pollution and clean the state’s air, land and water.

It’s an arrangement that worked pretty well until the recession hit. EPA officials hoped to collect $130 million this fiscal year, but estimate they’ll fall short by $21.4million.

That led to the proposed 11.8 percent overall spending cut in Gov. John Kasich’s proposed two-year budget plan, which begins July 1.

The article reports that the loss in revenue will not lead to layoffs, but Ohio EPA will eliminate 14 vacant positions. From some Ohio EPA staff I have talked to the Agency will also experience a slow attrition because it will not filling vacant positions with departures or retirements. 

The Collective Bargaining Bill (S.B. 5) is also having an impact on the Agency beyond the changes to the law.  It has accelerated retirements of long time Agency employees who fear that S.B. 5 is the first step toward additional changes to the State’s retirement system (PERS).  Long-time employee (30 years of experience or more) are leaving in hopes of locking retirement benefits under the current structure.

The loss of institutional knowledge will have a greater impact than the elimination of vacant positions or a de facto hiring freeze.  Staff with thirty years of experience have managed numerous challenging sites, permits and issues.  They also understand the history behind various environmental programs.

While young staff can bring a much needed fresh perspective to management.  Experienced staff are often the most capable problem solvers. 

The  cuts and loss of experienced staff also coming at a time when U.S. EPA continues to place more and more work on State EPAs.  The loss of staff couples with additional demands means Ohio EPA will need to do even more with less…to borrow a phrase from former Governor Voinovich.

(Chart from Dispatch Article)

Bay Village has been debating establishing a riparian setback for the last few years.  The proposal which began with a 75 foot setback has now been scaled down to 25 feet.  Yet the ordinance is still controversial and City Council decided to delay its vote enacting the provision.

The debate before Council was covered in the West Shore Sun:

Council took the items off the March 21 meeting agenda after hearing concerns voiced by Lake Road resident and attorney, Homer Taft… 

Taft told council he felt the proposed legislation was onerous, would impose unfair hardships on some residents, and could be found unconstitutional.

Residents near creeks wanting to make changes on their property could face thousands of dollars in additional engineering expenses, he said. In addition, some residents could find themselves facing restrictions on developing significant portions of their property.

“I believe this ordinance is unfair to property owners and rather draconian,” Taft said.

He also questioned whether the city is really obligated to pass the legislation.

“I know you are being told the EPA requires this,” Taft said. “I challenge anyone to provide written evidence that’s true.”

Riparian setback ordinances are appearing all over Northeast Ohio due to a strong push by the Northeast Ohio Areawide Coordinating Agency, local officials with Ohio EPA and the Cuyahoga Soil & Water Conservation District.  I am willing to bet that more areas are covered by riparian setback requirements in Northeast Ohio than anywhere else in Ohio.

From the article is appears there is still confusion as to whether Ohio EPA is mandating local municipalities adopt the ordinances to comply with NPDES permit requirements to control stormwater.  As discussed in a previous post, setbacks are but one option municipalities can utilize to meet their stormwater control requirements.

From an environmental standpoint do setback have value?  There is no debate setbacks have value by providing flood retention, filtering of pollutants and habitat to improve water quality.  While there are benefits, they also restrict owners ability to fully utilize their property. 

Many municipalities passed setback ordinances without really understanding what they were placing on their books.  City Councils then faced outraged citizens who complained about "no build zones" on their properties.  Some Boards of Zoning Appeals were faced with controversial variance requests to appease local citizens.  Given the controversy its a good idea that Bay Village is having a robust debate.