[HISTORY: Adopted by the City Commission
of the City of Kalamazoo 10-17-2022 by Ord. No. 2057.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also repealed former Ch. 39,
Weights, Scales and Measures, adopted as Adm. Code § A213.41,
as amended 8-27-1979 by Ord. No. 1169.
The intent of the City of Kalamazoo Wellhead Protection Ordinance
is to safeguard the health, safety, and welfare of persons served
by the City of Kalamazoo Public Water Supply System by protecting
groundwater that serves as drinking water, thus providing a safe potable
water supply now and for future generations.
The following definitions apply to this chapter:
A public sanitary sewer system located in a right-of-way,
easement, highway, street, or public way which crosses, adjoins, or
abuts upon the property and passing not more than 200 feet at the
nearest point from a structure in which sanitary sewage originates.
The best available methods, activities, maintenance procedures,
technologies, operating methods, or management practices for preventing
or reducing the quantity of regulated substances entering groundwater
and surface water from a particular land use activity.
That area through which water travels below the surface and
reaches a City well or wellfield within a specified period (under
specified conditions set by the EGLE). This chapter addresses both
a one-year and ten-year time-of-travel capture zone.
The City of Kalamazoo.
The water below the land surface in a zone of saturation,
excluding those waters in underground piping for water, wastewater,
or stormwater distribution/collection systems.
Including its predecessor and successor agencies.
Those BMPs and engineering controls contained within the
document "City of Kalamazoo Performance Standards for Groundwater
Protection within Wellhead Protection Capture Zones and Stormwater
Quality Management."
The Resource Conservation and Recovery Act of 1976 (Pub.
L. No. 94-580; 42 U.S.C. § 6901 et seq.), as amended.
Municipal potable water service is available at a street
adjacent to the property and can be delivered to the property at pressures
and flows that meet the 10 States Standards for Water Works.
Includes:
Substances for which there is a safety data sheet (SDS), as
established by the United States Occupational Safety and Health Administration,
and the SDS cites possible health hazards for said substance;
Hazardous waste, as defined by the Solid Waste Disposal Act,
being Title II of Public Law 89-272, as amended by the Resource Conservation
and Recovery Act of 1976, 42 U.S.C. §§ 6901 to 6992k,
Part 111, as amended;
Hazardous substances, as defined by the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA) when the hazardous
substance is the focus of remedial or removal action being conducted
under CERCLA in accordance with the U.S. EPA regulations;
Radioactive materials; and
Biohazards.
The term "regulated substances" does not include:
Substances in an amount equal or less than 2,200 pounds that
are in an area capable of fully containing a total release of said
substance or an area that would drain the substance to a wastewater
treatment system, excluding septic tanks systems, capable of treating
the released substance(s);
Substances in a parked or stopped vehicle in transit, provided
the vehicle is stopped or parked for less than 72 hours;
Substances, such as gasoline or oil, in operable motor vehicles
or boats so long as used solely for the operation of the vehicle,
but not the tanker portion of a tank truck;
Pressurized gases such as chlorine, propane, hydrogen, and nitrogen
when in a chemical storage tank;
Refrigerants contained within equipment and used for on-site
air cooling or in household appliances;
Substances contained within electrical utility transformers/switches;
or
Substances used in construction for which all necessary permits
have been obtained, and in accordance with the "Performance Standards."
The spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, or disposing
of one or more regulated substances upon or into any land or water
within a capture zone. "Release" includes, without limitation, leakage
of such materials from failed or discarded containers or storage systems
and disposal of such materials into any on-site sewage disposal system,
dry well, catch basin, or landfill. The term "release," when used
and applied in this chapter, does not include:
Disposal, in accordance with all applicable legal requirements,
including those in RCRA and CERCLA, of hazardous wastes in a facility
that has received and maintained all necessary legal approvals for
that purpose;
Disposal of any substance in compliance with applicable legal
requirements, including, without limitation, the terms and provisions
of a valid municipal, state, or federal permit;
Disposal, in accordance with all legal requirements, of any
substance to a sanitary sewer system that has received and maintained
all necessary legal approvals for that purpose;
Disposal, in accordance with all legal requirements, of sanitary
sewage to subsurface sewage disposal systems as defined and permitted
by the State of Michigan or Kalamazoo County Environmental Health;
A release for which there is no obligation to report under federal,
state, or other local regulations that occurs on an impervious ground
surface (e.g., building floor or concrete driveway) that is effectively
cleaned up before reaching permeable ground (e.g., unpaved), a dry
well, a storm sewer, or surface water body; or
The application of agricultural chemicals, fertilizers, mineral
acids, organic sulfur compounds, etc., as used in routine agricultural
operations and applied under the Generally Accepted Agricultural and
Management Practices, and consistent with label directions approved
by the United States Environmental Protection Agency or the Michigan
Department of Agriculture.
A written site-specific plan conforming to the specifications
contained in the Performance Standards, including the documentation
of general site operations; regulated substance storage areas; potential
for releases of regulated substances and an analysis of the potential
destination of such releases; and procedures to be followed in the
event of a release.
Any well used for supplying water.
The City's Department of Public Services ("Department")
shall administer, implement, and enforce the provisions of this chapter.
Any powers granted or duties imposed upon the Department may be delegated
in writing by the Department Director to third parties as said Director
deems appropriate.
Within a ten-year time-of-travel (TOT) capture zone, no person
shall, nor cause or allow another over whom he or she has control
to:
A.
Release or allow the release of a regulated substance, alone or in
combination with other materials (such as fill) in such a manner that
the substance gains access to the ground, to a storm sewer or surface
water or in any other way such that the substance might enter the
groundwater if doing so creates a reasonable likelihood of an adverse
impact upon the groundwater.
B.
Possess a regulated substance, including fuels (e.g., gasoline, diesel,
kerosene, etc.) exceeding 55 gallons aggregate for liquid materials,
or 440 pounds aggregate for dry weights, unless prepackaged and intended
for retail sale or for commercial or household use (such as salt used
in water softeners, fertilizers, pesticides, herbicides, etc.), or
unless engineering controls are designed and implemented consistent
with the City's Performance Standards, BMPs, the City's
Fire Code, and applicable State of Michigan and federal laws and regulations.
The following, however, shall not be considered prohibited activities:
(1)
The use of underground oil/water separators and stormwater treatment
structures which meet the conditions of the Performance Standards;
(2)
The use of current hazardous waste storage areas at RCRA permitted
facilities; and
(3)
Laboratory activities, consistent with all federal, state, and local
regulations.
C.
Operate a junk, scrap, recycling, or salvage yard;
D.
Operate a sanitary/solid waste landfill;
E.
Use oil, waste oil or similar liquid petroleum-type products for
dust suppression;
F.
Install a private water well for the purpose of drinking water or
irrigation if, in the determination of the Department, a reasonably
available public water service exists;
G.
Install or use a private water well for a purpose other than drinking
water or irrigation unless it is determined by the Department that
the well owner (or the representative of the well owner) has scientifically
demonstrated that the well will not cause an adverse impact to the
public water supply;
H.
Excavate, extract, or mine sand, gravel, bedrock, or any other type
of earth if a permit or site plan review is required unless the property
owner has established, to the Department's satisfaction, that
the activity will not cause an adverse impact to the public water
supply;
I.
Allow the presence of an abandoned well, which is defined as any
well which has either been discontinued for more than one year, is
in such disrepair that its continued use for obtaining groundwater
is impractical, has been left uncompleted, is a threat to groundwater
resources, or is a health or safety hazard. A well shall not be considered
abandoned if it has been properly plugged pursuant to the Groundwater
Quality Control Act, Part 127, 1978 P.A. 368; or
J.
Drill for natural gas or petroleum, whether for exploration, production
or otherwise.
K.
Except for facilities approved by the Kalamazoo County Human Services
Department in accordance with the county public health code sewage
disposal regulations, it shall be unlawful to construct or maintain
any privy, privy vault, septic tank, cesspool, or other facility intended
or used for the disposal of domestic or nondomestic wastewater within
the City.
Within a one-year time-of-travel (TOT) capture zone, no person
shall, nor cause or allow another, over whom he or she has control,
to:
A.
Engage in any activity prohibited in the ten-year TOT capture zone;
B.
Possess regulated substances, including fuels (e.g., gasoline, diesel,
kerosene, etc.) exceeding 55 gallons aggregate for liquid materials
or 440 pounds aggregate for dry weights, such as sometimes occurs
with activities such as fueling service establishments, motor vehicle
repair, body repair; trucking or bus terminals; primary metal product
industries; metal plating, polishing, etching, engraving, anodizing
or similar processes; lawn, garden, pesticide and agricultural services
with on-site bulk mixing or blending of fertilizers, pesticides and
other industry-related chemicals for commercial application; and dry-cleaning
facilities with on-site cleaning service;
C.
Construct or replace any privy, privy vault, septic tank, cesspool,
or other facility intended or used for the disposal of domestic or
nondomestic wastewater where an available municipal sanitary sewer
system exists; or
D.
Construct or replace any dry wells.
Within either capture zone, no person shall cause or allow uses
or activities that would violate the terms and conditions set forth
in the document "Minimum Well Isolation Distances (From Contamination
Sources and Buildings), Part 127, Act 368, P.A. 1978 and Act 399,
P.A. 1976," as prepared by the EGLE, Water Division, as it may be
amended, which, for the purpose of this section, shall be deemed to
apply to all persons, unless approved in writing by the Department
Director or his or her designee.
In determining whether a property is within a capture zone,
the following shall apply:
A.
Where a capture zone line that delineates the boundary of one or
more TOT zones passes through a property, the entire parcel shall
be subject to the restrictions that apply to the more restrictive
zone.
B.
The Public Services Director, or his or her designee, shall have
the authority to interpret the capture zone and determine where the
boundaries of the different zones fall, if in dispute. Said interpretation
may be appealed to the Director.
A.
Existing nonconformities for land uses/activities will be allowed
within a capture zone only when in conformance with the City of Kalamazoo
Zoning Ordinance.
B.
In addition, the facility must meet the requirements of the Performance
Standards and/or shall prepare a spill contingency plan within two
years from the adoption date of this chapter or one year from the
date of contact from the City regarding recognition of the nonconforming
status, whichever is sooner. The City reserves the right to approve/determine
which option(s) is to be implemented for the specific circumstance.
C.
Nothing in this chapter shall be interpreted to prevent the City
from undertaking any actions to prevent or enjoin a nonconforming
use in a capture zone from activities that negatively impact groundwater
within a capture zone that violate the provisions of this chapter.
A.
If hazardous substances or any other contamination is known or suspected
to have migrated or discharged to a City-owned utility or corridor,
or caused an illicit stormwater discharge, the City shall be immediately
contacted to abate or remedy any potential public health and safety
risks, including, but not limited to, vapor inhalation, fire, explosion,
direct contact, discharge to a surface water body and/or impact to
groundwater drinking water supplies.
B.
Upon discovery of a release within a capture zone, the owner and
person in control of the property on which a release occurred, as
well as the person responsible for the release, shall take appropriate
reasonable actions to mitigate the potential impact of the release
on groundwater and remediate the release. Within 24 hours of a known
or suspected release, the release must be reported to the State of
Michigan, Pollution Emergency Alerting System (PEAS) at (800) 292-4706.
Remediation must be conducted in a timely manner and in accordance
with applicable law. Wastes generated during remediation of a regulated
substance release must be handled in accordance with all applicable
legal requirements. Storage of these materials for a period of greater
than 90 days must be reported to, and approval obtained from, the
Public Services Director or designee of said official.
C.
All releases shall be documented in writing and mailed or emailed
to the Department within 10 business days of said incident. Initial
release notification shall include, at a minimum, the following:
(1)
Location of the release (name, parcel address, and phone);
(2)
Reporting party's name, mailing address, email address and phone
(if different from above);
(3)
Emergency contact person(s) (including email address and phone);
(4)
Description of the nature of the incident, including date, time,
location, and cause of the incident; type, concentration, and volume
of substance(s) released;
(5)
Map showing exact release location, and relevant site features (i.e.,
streets, paved area, storm sewer catch basins/inlets, water features,
etc.), scale, and North arrow;
(6)
All measures taken to clean up the release; and
(7)
All measures proposed to be taken to reduce and prevent any future
release.
D.
The Public Services Director or his/her designee shall use the regulated
substance release report to determine if and where any additional
investigative work needs to be completed to assess the potential impact
of the release. The owner or operator shall retain a copy of the written
notice for at least three years.
This section applies to any business or other operation ("operation")
that is inactive, is within a capture zone, and at which there are
regulated substances. For purposes of this section, "inactive" is
defined to include those businesses/operations that are unoccupied
and have no activity for at least 30 days. Those who own or control
such an inactive operation shall do the following:
A.
Within seven days of the operation becoming inactive, take such steps
as necessary to secure the site such that vandals and all other persons
cannot gain access to the regulated substances;
B.
Within 30 days of the operation becoming inactive, provide to the
Public Services Director a document that identifies the site, the
date of inactivity, the regulated substances that exist on site, and
the name, address, and telephone number of both the owner and the
person in control of the site; and
C.
Within six months of the operation becoming inactive, remove all
regulated substances from the site; this does not include those substances
used for heating, cooling, or electrical lighting.
A.
Municipal civil infraction. Any violation of this chapter is a municipal
civil infraction, punishable by a fine of up to $10,000 and any equitable
remedies necessary to abate the violation, including but not limited
to the costs incurred for abatement and cleanup. Each day a violation
exists shall be deemed a separate violation. A citation charging such
a violation may be issued by the Director, his or her designee, or
an officer of the Department of Public Safety.
B.
Abatement/remedial activities by the Department.
(1)
The Department is authorized to take or contract with others to take
reasonable and necessary abatement or remedial activities whenever
the Department determines a violation of this chapter has occurred
and that the responsible party cannot or will not timely correct the
violation, or when no known responsible party exists. The responsible
party shall reimburse the City for all reasonable expenses thus incurred
by the City.
(2)
If the City desires the responsible party to reimburse it for reasonable
abatement activity expenses, the City shall, within 90 days of the
completion of said activities, mail to that person a notice of claim
outlining the expenses incurred, including reasonable administrative
costs, and the amounts thereof. The person billed shall pay said sum
in full within 30 days of receipt of the claim. If the person billed
desires to object to all or some of the amount sought by the Department,
said person may file, within the same thirty-day period, a written
objection so stating. The Department shall, within 30 days of its
receipt of the objection, provide an opportunity for the objecting
party to present facts or arguments supporting said objection. If
the Department determines that some or the entire amount originally
billed is appropriate, the person shall pay said sum within 30 days
of receipt of that determination. If the amount due is not timely
paid, the City may cause the charges to become a special assessment
against the property and shall constitute a lien on the property.
In the alternative, the City may attempt collection of the sum due
by filing a civil lawsuit.
C.
Injunctive relief. If a person has violated or continues to violate
the provisions of this chapter, the Department may petition the appropriate
court for injunctive relief restraining the person from activities
that would create further violations or compelling the person to perform
necessary abatement or remediation.
D.
Violations deemed a public nuisance. In addition to the enforcement
processes and penalties provided, any condition caused or permitted
to exist in violation of any of the provisions of this chapter is
a threat to public health, safety, and welfare, and is declared and
deemed a nuisance, and may be summarily abated or restored at the
violator's expense, and/or a civil action to abate, enjoin, or
otherwise compel the cessation of such nuisance may be taken by the
City.
E.
Remedies not exclusive. The remedies listed in this chapter are not
exclusive of any other remedies available under any applicable federal,
state, or local law and it is within the discretion of the Department
to seek cumulative remedies.
A.
If an owner of property within a capture zone believes the requirements
of this chapter impose an unreasonable burden on the use of the owner's
property, the owner may seek a variance from the Department Director
(or his or her designee). Such a request must be in writing with enough
detail to allow the Director to understand the situation and proposed
variance. If the Director determines that additional information is
needed, the request for additional information shall be made within
30 days of the owner's request. Within 30 days of the receipt
of such additional information, or, if no such request is made, within
30 days of the owner's request, the Director shall issue a written
response to the owner. The response shall grant, deny, or partially
grant the request. A grant, partial or complete, may relieve the property
owner from strict compliance with this chapter. Reasonable conditions
may be imposed as part of such a grant. The Director shall be guided
by the primary goal of protecting the City's wellfields without
creating undue hardship upon the property owners affected.
B.
Any person receiving a notice of violation may appeal the determination
set forth within the notice to the Department Director by submitting
a written notice of appeal to the Department. The notice of appeal
must be received by the Director within 30 days from the date of the
notice of violation, with enough detail to allow the Director to understand
the situation. Within 30 days of the receipt of such an appeal, the
Director shall issue a written response to the appeal unless additional
information is requested by the Director, in which case the response
shall issue within 30 days of receipt of the information. The Director's
response shall affirm, reverse, or modify the notice of violation
being appealed.
C.
If the person who has made a variance request or an appeal of a notice
of violation does not agree with the Director's decision, said
person may appeal the matter by filing an action in the Kalamazoo
Circuit Court, which may affirm, reverse, or modify the decision being
appealed. Such an appeal must be filed within 30 days of the Director's
final decision.
