The following is a compilation of five articles written to address concerns and issues with the City of Dayton's Well Field Protection Program and it's impact on our local industry and economy.
City of Dayton Killing Jobs, Hurting Economic Development
by Steve Staub (President, Staub Manufacturing Solutions)
“City of Dayton recognized for killing jobs, not letting companies expand and making land worthless.”
City of Dayton Killing Jobs, Hurting Economic Development
by Steve Staub (President, Staub Manufacturing Solutions)
“City of Dayton recognized for killing jobs, not letting companies expand and making land worthless.”
That should have been the title for the January 2013 edition of “Dayton Extra” an advertising publication put out by the City of Dayton. Instead the title was “Dayton has again been named a Groundwater Guardian Community by The Groundwater Foundation in recognition of the Source Water Protection Program (Well Field Protection Area)”. The Groundwater Foundation is a not-for-profit organization that anyone can join by contributing funds, so touting recognition as a milestone of accomplishment is somewhat disingenuous and self serving…but it is an award. Frankly my title is much more accurate than the one Dayton chose to run.
You might be thinking that I'm being a little harsh. Well, sometimes the truth hurts. While we do need to protect our city's water supply, we also need to use common sense and this is what seems to be lacking when it comes to Dayton’s oversight of the Well Field Protection Program. In this series of articles we will look at the history of this program, the current situation, show how other cities are working to change the situation and provide common sense solutions to this problem. In the end we will have a call to action for leaders of the City of Dayton. They created this monster and they have the ability to fix it.
At the time the ordinance was implemented there were approximately 160 million pounds of regulated items (aka “hazardous chemicals”) in this area. Today the number is in the high 140 million pound range. There have been 150-160 million pounds of chemicals in continuous use in the protected zone for over 25 years and the City is using the same well field. In all of this time the aquifer has not been harmed and, aside from the education that has occurred, the ordinance has done nothing to protect the aquifer. The fact is, this ordinance appears to be more about career development for a few individuals than it is about water protection.
History of the program: How we got here
In the early 1980’s the Dayton City Commission decided to allow construction of an industrial park to create jobs and provide tax revenue for the City. Normally this would be considered a positive event except, in this case, the industrial park was going to be built directly above an aquifer from where the city pumps a significant portion of its drinking water. It should be noted that the Commission approved this project at the objection of the Ohio EPA.
In 1987 there was a terrible fire at the Sherwin-Williams Paint Warehouse located in that industrial park. The warehouse contained over 1.5 million gallons of paints and other products and was directly located over the aquifer. Chemical run-off from fighting the fire could have potentially contaminated the water supply; therefore the decision was made not to apply water to the warehouse fire and to let the fire burn out on its own. As a result there was no contamination to the aquifer.
The fire was the beginning of the end for that industrial park and the birth of the Dayton Well Field Ordinance. The Ordinance started off as an effort to stop the development of the industrial park (which is now Kitty Hawk Golf Course) and to provide ministerial oversight and reporting. The ordinance sought to create an inventory of all the “Hazardous Chemicals” for the properties located within the area defined as the “Well Field Protection Area”. Unfortunately what was originally touted as a business-friendly program has evolved into a massive confiscation of private property rights without the City paying any compensation to property owners. It was not fair or equitable but they found a way to use the system to do it (we will discuss this in detail later).
(Part 2)
I personally know many business and property owners in the Well Field Protection Area that...
- would love the ability to use additional materials so they could expand and/or diversify their business.
- have lost renters due to the limitations of the Well Field Protection Program.
- have property zoned industrial and deemed worthless - it can't be used for industrial purposes.
- have property zoned industrial, with all utilities, that realtors won’t list for sale (have you ever heard of a realtor not listing industrial property!).
- own property in the Well Field Protection Area and have been forced to purchased land outside. the area to build and expand their businesses just so they would not have to “fight the Well Field”.
You may be wondering, "What are the "hazardous" chemicals that are limited at businesses in this protected area?" The answer is, just about everything. The list includes normal items like oil, gasoline, paint, solvents, coolants and the like, but it also contains standard household items such as cleaners, mineral spirits, printer ink, cosmetics and, yes, even White-Out!
An aspect of this ordinance that I find to be really disturbing is the boundaries identified as the Well Field Protection Area. These boundaries are also referred to as the “1 year time of travel” and “geological boundaries”. The Dayton Water Department, for years, has made the claim that this area was chosen as part of a scientific study and that the area designated is all within the “one year time of travel”. The theory is that if you dump one gallon of a chemical in the soil in this area it could make it to the Well Field within one year. Not "would", but "could".
The problem is with the boundaries themselves in that they are based on very limited science (I am being generous here). Several well-respected environmental professionals have reviewed the “1 year time of travel” boundaries being used by the City and have concluded that they are potentially a 5 year time of travel or maybe even more.
This conclusion is somewhat supported by the fact that the Dayton Water Department requested nearly $1 million in taxpayer funds to perform a study that included time of travel studies for 2010. If they did a correct and accurate study in 1987 why would they need to spend $1 million to do another time of travel study in 2010? Obviously they wouldn’t. I don’t think they completed the 2010 study for fear of the outcome not supporting what they have been preaching for the last 26 years!
An aspect of this ordinance that I find to be really disturbing is the boundaries identified as the Well Field Protection Area. These boundaries are also referred to as the “1 year time of travel” and “geological boundaries”. The Dayton Water Department, for years, has made the claim that this area was chosen as part of a scientific study and that the area designated is all within the “one year time of travel”. The theory is that if you dump one gallon of a chemical in the soil in this area it could make it to the Well Field within one year. Not "would", but "could".
The problem is with the boundaries themselves in that they are based on very limited science (I am being generous here). Several well-respected environmental professionals have reviewed the “1 year time of travel” boundaries being used by the City and have concluded that they are potentially a 5 year time of travel or maybe even more.
This conclusion is somewhat supported by the fact that the Dayton Water Department requested nearly $1 million in taxpayer funds to perform a study that included time of travel studies for 2010. If they did a correct and accurate study in 1987 why would they need to spend $1 million to do another time of travel study in 2010? Obviously they wouldn’t. I don’t think they completed the 2010 study for fear of the outcome not supporting what they have been preaching for the last 26 years!
Another funny thing about those protection-area boundaries… they run along streets, uphill and along property lines. What sort of scientific calculations were used to arrive at the borders surrounding the Well Field Protection Area? Good question!
Or how about this. There is a huge commercial gas station that is NOT in the well field area, yet a property just 50 feet away from the gas station is. This property is limited to just 200 pounds of chemical usage yet the property next door has a pound limit in excess of 41,000,000 (yes, that's million!). If 41 million pounds of chemicals is acceptable in that general area, how can limiting an adjacent property to only 200 pounds be protecting anything?
Or in my case, there is a very large (hundreds of thousands of square feet) plastics manufacturing facility at a higher elevation right next door to my business that is NOT in the well field protection area, but our property, which is just 40 feet away, is. Does this sound to you like regulations, boundaries and limits that actually reduce the risk of Well Field contamination or, better yet, even employ common sense? I don't think so either.
(Part 3)
The Well Field Fund Board:
The original concept of the Well Field Protection Area was fair for the region and for local business; however, over the years the ordinance has become much more restrictive. When the program began, an automatic replenishing fund of $10,000,000 was established to be used to make property owners “whole if they were negatively affected by the Well Field Protection Area Ordinance”. The intent was and is, if the fund (which is effectively controlled by the Dayton Water Dept.) dropped below the $10 million mark it would be automatically replenished with a tax on every Dayton Water Dept. customer.
The concept made sense and was a cornerstone concept that got the business community behind acceptance of the ordinance. Minutes from meetings as well as affidavits from former City staff document that the concept of making property owners “whole” was an integral part of the ordinance. Unfortunately, the Dayton Water Department refuses to recognize this concept.
If a little regulation is good then a lot of regulation must be better
In 1995 The Dayton Water Department decided to increase the restriction the ordinance placed on properties in the Well Field Area. Not because it was necessary but because it was their original intent to begin with. The concepts they were proposing in 1995 had been proposed prior to passage of the 1988 ordinance, but to the chagrin of the Water Department the City leaders chose less restrictive language.
By 1995 there was much concern about the ordinance and increasing the restrictions so the changes had to be done cautiously to avoid pushback from the business community and property owners. As we know, a great way to avoid pushback is to provide less than full disclosure to the Commission and the property owners. Prior to passage of these more restrictive regulations in 1995, then Mayor (now Congressman) Mike Turner asked if the proposed changes were “More or less lenient than the existing regulations”.
Unfortunately he was told that the proposed changes were “More lenient” than the current regulations and the changes were passed by the Commission. A reading of the history between the differences in the ordinance reveals that Mayor Turner did not receive correct information! In fact the revised ordinance contained many more restrictive terms that were never included in the original ordinance.
Our family has owned industrially zoned property in the Well Field long before there was ever a Well Field. When the property was purchased in the early 1980’s the family paid $40,000 per acre for the land. Today this property is still for sale and has been for over 20 years, all due to the over-burdensome Well Field restrictions. A realtor did an appraisal on the land and has declared it virtually worthless. So on behalf of our family and the land that we own we recently put in a request for funds “to be made whole”. Unfortunately, the Well Field Fund committee recommended to the board that this request be denied!
They did not make a recommendation on IF the request was right or wrong, good or bad, prudent or irrelevant, but that it might, in the words of Kenton R. Domer-Shank RS, “set a bad precedent”. Set a bad precedent. Yes that was reason the committee and City of Dayton attorney gave the Well Field Fund Board! Given that making affected businesses whole was the intent of the fund in the first place how could it possibly set a bad precedent?
The fact is the Dayton Water Department has continuously maintained that the Well Field Ordinance did not impact property values and making a payment for damages would be going against the ruse they have promoted over the past 25 years. The Board was actually very well-rehearsed in their questions and it was obvious their minds were made up long before the meeting. The City of Dayton attorney present also had done her homework and would not let anyone answer any tough questions… such as “what would the precedent be”?
They had the power and the authority to do the right thing and they decided to hide and take cover instead. I often talk to people about doing the right thing. Too bad we can’t get The Dayton Water Dept., the Fund board and Dayton & Montgomery County Public Health to listen! The fund board has essentially become an extension of the Dayton Water Department and they do as they wish knowing that the average business cannot afford to take them to task and unfortunately the Dayton City Commission is allowing them to get away with it.
The original concept of the Well Field Protection Area was fair for the region and for local business; however, over the years the ordinance has become much more restrictive. When the program began, an automatic replenishing fund of $10,000,000 was established to be used to make property owners “whole if they were negatively affected by the Well Field Protection Area Ordinance”. The intent was and is, if the fund (which is effectively controlled by the Dayton Water Dept.) dropped below the $10 million mark it would be automatically replenished with a tax on every Dayton Water Dept. customer.
The concept made sense and was a cornerstone concept that got the business community behind acceptance of the ordinance. Minutes from meetings as well as affidavits from former City staff document that the concept of making property owners “whole” was an integral part of the ordinance. Unfortunately, the Dayton Water Department refuses to recognize this concept.
If a little regulation is good then a lot of regulation must be better
In 1995 The Dayton Water Department decided to increase the restriction the ordinance placed on properties in the Well Field Area. Not because it was necessary but because it was their original intent to begin with. The concepts they were proposing in 1995 had been proposed prior to passage of the 1988 ordinance, but to the chagrin of the Water Department the City leaders chose less restrictive language.
By 1995 there was much concern about the ordinance and increasing the restrictions so the changes had to be done cautiously to avoid pushback from the business community and property owners. As we know, a great way to avoid pushback is to provide less than full disclosure to the Commission and the property owners. Prior to passage of these more restrictive regulations in 1995, then Mayor (now Congressman) Mike Turner asked if the proposed changes were “More or less lenient than the existing regulations”.
Unfortunately he was told that the proposed changes were “More lenient” than the current regulations and the changes were passed by the Commission. A reading of the history between the differences in the ordinance reveals that Mayor Turner did not receive correct information! In fact the revised ordinance contained many more restrictive terms that were never included in the original ordinance.
Our family has owned industrially zoned property in the Well Field long before there was ever a Well Field. When the property was purchased in the early 1980’s the family paid $40,000 per acre for the land. Today this property is still for sale and has been for over 20 years, all due to the over-burdensome Well Field restrictions. A realtor did an appraisal on the land and has declared it virtually worthless. So on behalf of our family and the land that we own we recently put in a request for funds “to be made whole”. Unfortunately, the Well Field Fund committee recommended to the board that this request be denied!
They did not make a recommendation on IF the request was right or wrong, good or bad, prudent or irrelevant, but that it might, in the words of Kenton R. Domer-Shank RS, “set a bad precedent”. Set a bad precedent. Yes that was reason the committee and City of Dayton attorney gave the Well Field Fund Board! Given that making affected businesses whole was the intent of the fund in the first place how could it possibly set a bad precedent?
The fact is the Dayton Water Department has continuously maintained that the Well Field Ordinance did not impact property values and making a payment for damages would be going against the ruse they have promoted over the past 25 years. The Board was actually very well-rehearsed in their questions and it was obvious their minds were made up long before the meeting. The City of Dayton attorney present also had done her homework and would not let anyone answer any tough questions… such as “what would the precedent be”?
They had the power and the authority to do the right thing and they decided to hide and take cover instead. I often talk to people about doing the right thing. Too bad we can’t get The Dayton Water Dept., the Fund board and Dayton & Montgomery County Public Health to listen! The fund board has essentially become an extension of the Dayton Water Department and they do as they wish knowing that the average business cannot afford to take them to task and unfortunately the Dayton City Commission is allowing them to get away with it.
(Part 4)
Vandalia, Riverside and Harrison Township to the rescue:
There has been a bright spot recently with this whole Dayton Well Field Protection Area fiasco. Three progressive and growing municipalities understand the problems this situation has created for local businesses. These three municipalities 'get it' and are doing the right thing! They understand that this ordinance does little to protect the aquifer and I am pleased to announce that the City of Vandalia, the City of Riverside and Harrison Township have all recently allowed local companies (including ours) to add jobs and grow their companies right here in the Dayton Region!
How did they do it? They did it by allowing companies to add to their existing TMDI (Total Maximum Daily Inventory) that was incorrectly and, in my opinion, surreptitiously imposed on every property. These three municipalities understand the restrictive nature of the ordinance and are willing to work with their businesses and not against them.
Congratulations you three, you did the right thing!
There has been a bright spot recently with this whole Dayton Well Field Protection Area fiasco. Three progressive and growing municipalities understand the problems this situation has created for local businesses. These three municipalities 'get it' and are doing the right thing! They understand that this ordinance does little to protect the aquifer and I am pleased to announce that the City of Vandalia, the City of Riverside and Harrison Township have all recently allowed local companies (including ours) to add jobs and grow their companies right here in the Dayton Region!
How did they do it? They did it by allowing companies to add to their existing TMDI (Total Maximum Daily Inventory) that was incorrectly and, in my opinion, surreptitiously imposed on every property. These three municipalities understand the restrictive nature of the ordinance and are willing to work with their businesses and not against them.
Congratulations you three, you did the right thing!
(Part 5)
There are solutions to this problem other than just saying, "No".
Unfortunately, this is the current practice in Dayton. Let’s start with an understanding that 150 million to 160 million pounds of TMDI (Total Maximum Daily Inventory) materials have existed above the aquifer for at least 25 years and have not destroyed the aquifer. Let’s add that the river is the single largest source of recharge for the aquifer and the contents of the river are a far more significant risk. With this in mind let's look at some possible solutions.
Three solutions that need to be considered:
A. Allow TMDI Growth:
This was the original intent of the ordinance. In the original ordinance there was not an approval of or an intent to set a cap on the TMDI of each property. So, if the amount of restricted material is allowed to go up to 165 million pounds to support job growth then that is a positive thing, right? There is no logical argument that 160 million pounds is an acceptable risk and 165 million pounds is not. Oh sure, 100 years ago people used to dump waste material on the ground, but that is a thing of the past. Environmental practices have evolved, it is time for the Dayton Well Field Ordinance to do the same!
It is a weak argument to advocate that any protection is provided by a time of travel line to a few hundred properties while a property just feet away has no limit and could have millions of pounds of TMDI. This aura of protection is yet another part of the ruse that surrounds this ordinance and how it’s administered.
Unfortunately, this is the current practice in Dayton. Let’s start with an understanding that 150 million to 160 million pounds of TMDI (Total Maximum Daily Inventory) materials have existed above the aquifer for at least 25 years and have not destroyed the aquifer. Let’s add that the river is the single largest source of recharge for the aquifer and the contents of the river are a far more significant risk. With this in mind let's look at some possible solutions.
Three solutions that need to be considered:
A. Allow TMDI Growth:
This was the original intent of the ordinance. In the original ordinance there was not an approval of or an intent to set a cap on the TMDI of each property. So, if the amount of restricted material is allowed to go up to 165 million pounds to support job growth then that is a positive thing, right? There is no logical argument that 160 million pounds is an acceptable risk and 165 million pounds is not. Oh sure, 100 years ago people used to dump waste material on the ground, but that is a thing of the past. Environmental practices have evolved, it is time for the Dayton Well Field Ordinance to do the same!
It is a weak argument to advocate that any protection is provided by a time of travel line to a few hundred properties while a property just feet away has no limit and could have millions of pounds of TMDI. This aura of protection is yet another part of the ruse that surrounds this ordinance and how it’s administered.
B. Trade pounds
What if we do leave the cap at 160 million pounds and let the "available" (unused) pounds be traded among the Well Field property owners who need it. This could be administered by the Dayton Water Department as long as there is an independent board (like a Well Field Poundage Board) to oversee the distribution. In an effort to ensure the authenticity of the Board the make up could be as follows: (1) Water Dept. official, (1) Dayton – Montgomery County Health Dept. official and (7) people that own land in the Well Field.
C. Hazard sensors
How about this for a simple answer… get rid of all the gallons / poundage stipulations on the Well Field Protection Area and install a monitoring well for each property that has a TMDI in excess of some scientific established risk level, say 50,000 pounds for example. It would be immediately known that there is a risk (possibly much sooner than today) and appropriate actions can be taken to shift production wells utilization while the risk is present. This shifting in production was the logic given by the City of Dayton when State officials questioned the development of the Miami North Well Field due to the proximity to the North Incinerator land fill, which is unlined. There’s more than enough cash in the Well Field fund to cover the installation of monitoring wells.
Three other changes that need to be implemented:
1. Redefine the boundaries:
Independent studies show that what is the “official” one year time of travel boundary being used by the Dayton Water Dept. is not correct. New studies need to be done to show what the official area needs to be. Let’s give the Commissioners the facts to make decisions, not just a one sided argument based on what the Water Department wants.
2. Change the make up of the Well Field Fund Board and Environmental Advisory Board:
Currently both are composed of City of Dayton employees, representative from Dayton-Montgomery County Health Dept and other governmental agencies. There is virtually NO representation from the local business community; the people who have invested in the area based on broken promises. They have all the risk but yet no representation. There is very little objectivity or oversight with the current construct. In fact when the head of Economic Development attended a Well Field Fund Board meeting to voice concerns about the application of the ordinance and suggested changes that were pro-business, the minutes reveal that the then head of the Water Department decided not to invite her back because she did not support the party line. This is a clear cut case where the wolves are indeed guarding the hen house!
3. Put Zoning back in a Zoning Ordinance:
Prior to the inception of the Well Field Ordinance there was concern over who should have oversight for the ordinance; The Water Department wanted complete oversight. City Commissioners went on record stating they were concerned about giving them oversight for fear of overreaching and over regulating. As a result, the ordinance was drafted and implemented as a Zoning Ordinance to provide checks and balances and provide some level of protection to property owners.
Since the inception there have been several modifications to the ordinance and each modification has reduced the oversight of zoning. Today the ordinance is essentially a Water Department Ordinance but called a Zoning Ordinance. The changes that were made were based on modifications that were suggested and put forth as truth by the Water Department. Why the need for the changes? Minutes of meetings reveal that the Water Department was not comfortable with Zoning's ability to manage the oversight.
Apparently the Dayton Water Department trumps the City Commission.
Call to action:
Dayton City Manager Tim Riordan and Dayton City Commissioners, this problem is on your shoulders. Now is the time for you to do something about it! There are piles of evidence and mountains of paperwork that can prove beyond a shadow of a doubt that the truth is not and has not been told about the Well Field Protection Area for many years. On behalf of all of the nearly 600 property owners in this area we ask you to open up public hearings on this topic. I know of experts willing to testify about what has happened and support the above solutions.
Dayton City Commissioners, are you finally willing to hold these people accountable? The City of Dayton needs you now more than ever! IT IS TIME FOR YOU TO DO THE RIGHT THING!
Closing personal sentiment:
If you would like to discuss the Dayton Well Field or if you’re a property owner in the Well Field Protection Area please feel free to contact me at daytonwellfield@aol.com. I am also in the process of developing the website www.DaytonWellField.com as a forum to help other property owners located within the Well Field Protection Area.
As a fifth generation Daytonian I am proud of Dayton’s past and deeply saddened by the decline of the city. However, after seeing the heroic actions of three suburbs surrounding Dayton I can certainly understand why the suburbs are growing while the city core is declining.
I believe that Dayton can recover, but it will take the firm commitment of its leaders to make the necessary changes to bring this about. And if they do, we may get to read a headline like this:
"City of Dayton Leaders Do the Right Thing, City Grows, Jobs Added, Economy Strong"
The choice is up to them.
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