(a) Scope. Nothing contained in this chapter shall be construed so as to interfere with any existing or future lawful requirements that may be, or heretofore were, imposed by any other public body authorized to enact sanitary, health or water pollution abatement restrictions so long as such requirements are consistent with, or more stringent than, the stated purpose of this chapter.
(b) Administration. Except as otherwise provided herein, the City Manager for the City of Fairborn or his designee, shall administer, implement, and enforce the provisions of this chapter.
(c) Notice of Violation.
(1) Any person found in violation of any provision of this chapter or any order, requirement, rule or regulation issued under the authority of this chapter will be served with a written notice stating the nature of the violation and providing reasonable time for compliance; provided, however, written notice of violation may be dispensed with under the conditions described in subsection (i)(2) and provided further, that if the Fairborn City Manager has previously promulgated a schedule of compliance or issued an order addressing the same type of or a similar violation and the time for compliance has passed, the Fairborn City Manager may dispense with establishing another time period for compliance.
(2) The notice shall be served in the manner provided by law for the service of civil process. Where the address of the violator is unknown, service may be made upon the owner of the property involved at the tax-mailing address of the owner as shown on the County tax record.
(d) Inspections. Subject to applicable provisions of law, the Fairborn City Manager or authorized designee bearing proper identification, shall be permitted to enter private property at any reasonable time, with reasonable cause or with prior notification, for such purposes as inspection, observation, measurement, sampling, and records examination pertaining to the requirements of this chapter to ensure that activities are in accordance with the provisions of this chapter. Upon request of the entity which is the subject of the inspection, and if permitted by the State Public Records Law, information obtained as a result of the inspection shall be maintained as confidential. If the owner or tenant does not consent to the entry of the Fairborn City Manager for the above stated purposes, the Fairborn City Manager may apply to a court of competent jurisdiction for an appropriate warrant or other authority to enter said property.
(e) Vandalism. No person shall maliciously, willfully, or negligently break, damage, destroy, uncover, deface or tamper with any structure, appurtenance, property, or equipment which is part of or used in conjunction with water facilities of a protected public water supply, or which results in the violation of the provisions of this chapter.
(f) Severability. A finding by any court or jurisdiction that any part or provision of this chapter is invalid shall not affect the validity of any other part or provision of this chapter which can be given effect without the invalid parts or provisions.
(g) Handling of Regulated Substances.
(1) No person shall place, deposit, or permit to be deposited, store, process, use, produce, dispose of, transport, or discharge, hereinafter referred to as “handle”, any Regulated Substance on public or private property within a Wellfield Protection Area or in any area under the jurisdiction of the City of Fairborn except as provided by law, statute, ordinance, rule or regulation.
(2) Any violation of this paragraph is hereby determined to be a nuisance and must be abated.
(h) Underground Storage Tanks Declared to Constitute Dangerous Nuisances.
(1) With the exception of the underground storage fuel and lubricants for vehicular operations and fuel for building heating and/or process heating in conjunction with permitted and conditional uses in the Wellfield Protection Area, any storage of Regulated Substances in underground storage tanks within the Wellfield Protection Area shall be deemed to constitute a dangerous nuisance. Every such nuisance must and shall be abated no later than five (5) years from the effective date of this chapter.
(2) With the exception of residential use of home heating fuel in tanks having a capacity equal to or less than five hundred (500) gallons, any underground storage tank system for vehicle fuel and lubricants and fuel for building and/or process heating within the Wellfield Protection Area not removed within five (5) years from the effective date of this chapter must be secondarily contained and monitored in accordance with plans submitted to and approved by the Fairborn City Manager or authorized designee and the City of Fairborn Fire Department.
(i) Reporting Requirements.
(1) Regulated substance activity inventory.
A. Applicability.
1. Except as provided in subsection (i)(1)(B), any owner or occupant of any land in the Wellfield Protection Area at the effective date of the chapter, shall file a Regulated Substance Activity Inventory Report with the Fairborn City Manager or his authorized designee. Said Report shall be filed within one hundred and eighty (180) days of the effective date of this chapter and at twenty-four (24) month intervals thereafter.
2. Except as provided in subsection (i)(l)(B), any new owner or occupant of any land in the Wellfield Protection Area shall file a Regulated Substance Activity Inventory Report and at twenty-four (24) months intervals following the date of occupancy. For purposes of this paragraph, “new” shall be defined as subsequent to the effective date of this chapter.
3. Where a person owns, operates or occupies more than one location, Regulated Substance Activity Inventory Report shall be made for each location.
4. Agricultural uses shall file a Regulated Substance Activity Inventory Report within one hundred eighty (180) days of the effective date of this chapter and at twelve (12) month intervals thereafter. Regulated Substance Activity Inventory Reports for agricultural uses shall include total annual on-site application of Regulated Substances for the reporting property.
B. Exclusions to activity inventory reporting.
1. Any exclusion set forth in this subsection shall apply provided that said exclusion does not substantially increase any risk or hazard to the public health or water supply, wells or well field; and provided further than any spill, leak, discharge or mishandling shall be subject to the provisions of subsection (i)(2). Any exclusions granted herein shall not remove or limit the liability and responsibility of any person or activity involved.
2. A limited exclusion from Regulated Substance Activity Inventory reporting is hereby authorized for incidental uses of Regulated Substances provided the uses are limited as follows:
a. The aggregate of Regulated Substances in use may not exceed twenty (20) gallons or one hundred and sixty (160) pounds at any time.
b. The total use of Regulated Substances may not exceed fifty (50) gallons or four hundred (400) pounds in any twelve (12) month period.
3. A limited exclusion from Regulated Substance Activity Inventory reporting is hereby authorized for non-routine maintenance or repair of property or equipment in the Wellfield Protection Area provided the uses are limited as follows:
a. The aggregate of Regulated Substances in use may not exceed fifty (50) gallons or four hundred (400) pounds at any time.
b. The total use of Regulated Substances may not exceed one hundred (100) gallons or eight hundred (800) pounds in any twelve (12) month period.
4. A limited exclusion from Regulated Substance Activity Inventory reporting is hereby authorized for Regulated Substances which are cleaning agents, provided however, such cleaning agents are packaged for personal or household use or are present in the same form and concentration as a product packaged for use by the general public and provided the aggregate inventory of such cleaning agents shall not exceed one hundred (100) gallons or eight hundred (800) pounds at any time. In no case shall Regulated Substances claimed under the exclusion include hydrocarbon or halogenated hydrocarbon solvents.
5. A limited exclusion from Regulated Substance Activity Inventory reporting is hereby authorized for medical and research laboratory uses in the Wellfield Protection Area, provided however, Regulated Substances shall be stored, handled or used in containers not to exceed five (5) gallons or forty (40) pounds of each substance and the aggregate inventory of Regulated Substances shall not exceed two hundred and fifty (250) gallons or two thousand (2,000) pounds.
6. A limited exclusion from Regulated Substances Activity Inventory reporting is hereby authorized for the transportation of Regulated Substances through the Wellfield Protection Area provided that the transportation vehicle is in compliance with applicable local, State, and Federal laws and regulations; provided that substance is fueling the transportation vehicle; and provided that the transportation vehicle is in continuous transit, making delivery, or is stopped for a period of time not to exceed seventy-two (72) hours.
7. A limited exclusion from Regulated Substance Activity Inventory reporting is hereby authorized for owners and occupants of single or two family residences, provided however, the storage and use of Regulated Substances are related to the maintenance of the residence or vehicles under control of the occupant and provided waste Regulated Substances are appropriately disposed of to a permitted solid waste facility or a permitted publicly-owned wastewater treatment works.
(2) Spills, Leaks or Discharges.
A. Any person with direct knowledge of a spill, leak or discharge of a Regulated Substance within the Wellfield Protection Area shall, if such spill, leak or discharge escapes containment or contacts a pervious ground surface and is not immediately and completely remediated, give notice to the Public Works Director of the City of Fairborn or the operator on duty at the affected or potentially affected water treatment facility by telephone within thirty (30) minutes. The notification shall include at a minimum, the location of the incident, name and telephone number, date and time thereof, type of substance(s), concentration and volume, and control or corrective action taken. Such notification shall in no way alleviate other local, State, and Federal reporting obligations as required by law.
B. The application of agricultural chemicals, fertilizers, mineral acids, organic sulphur compounds, etc., used in routine agricultural operations, including plant nutrients and crop protection materials, applied under Best Management Practices as indicated by soil tests, agricultural experts, or label directions approved by the United States EPA or the Ohio Department of Agriculture, shall not be considered a spill, leak, or discharge subject to the reporting provisions of this paragraph.
C. Any entity or person who spills, leaks or discharges said substance(s) shall be liable for any reasonable expense, loss or damages incurred by the City of Fairborn in response to such an incident, in addition to the amount of any fines imposed on account thereof under State and Federal law; said entity or person shall document and maintain sufficient records so as to reflect accurately the circumstances related to any such incident and develop an implement procedures to substantially eliminate the likelihood of reoccurrence of such spills, leaks or discharges as soon as practicable following the incident, but no later than one hundred eighty (180) days after the incident.
(3) Falsifying information. No person shall make any false statement, representation, or certification in any report or other document filed or required to be maintained pursuant to this chapter.
(4) Retention of records. Any report or records compiled or submitted pursuant to this paragraph shall be maintained by the user for a minimum of five (5) years or so long as enforcement or judicial proceedings are being pursued, whichever is longer.
(j) Public Water Supply Protection Authorities.
(1) Application. If any activity or use of Regulated Substance is deemed by the Fairborn City Manager or authorized designee to pose a real and present danger of contaminating surface and/or groundwater which would normally enter the public water supply, the Fairborn City Manager, in accordance with Section 713.13 of the Ohio Revised Code, is authorized to:
A. Cause cessation of said activity or use of the Regulated Substance;
B. Require the provision of administrative controls and/or facilities sufficient to mitigate said danger; and/or
C. Cause the provision of pollution control and/or abatement activities.
(2) Considerations. When considering the exercise of any of the above authorities or actions, the Fairborn City Manager or authorized designee shall consult with the appropriate administrative official of any potentially affected protected public water supply. Such consultation shall determine what measures need to be taken to ensure the public water supply is reasonably and adequately protected from contamination for the present and the future. The Fairborn City Manager may take into consideration any evidence represented by the entity regarding cost effectiveness and the economic effectiveness and the economic impact imposed by the requirements or actions.
(3) Exemption of certain regulated substances. The Fairborn City Manager is authorized to exclude certain Regulated Substances, that pose no threat to ground water, from the provisions of these regulations. Prior to authorizing the exemption of any Regulated Substance, the Fairborn City Manager shall have such request for exemption reviewed by the Environmental Advisory Board. The recommendation of the Environmental Advisory Board shall be binding on the City Manager.
(4) Upon application for a Zoning Certificate and/or Occupancy Certificate for a use within the Wellfield Protection Area, the Fairborn City Manager may employ such technical expertise as needed to ensure compliance with the provisions of this chapter. All reasonable costs as determined by the Fairborn City Manager incurred in the compliance review process shall be passed through to the applicant and shall be in addition to those fees normally charged by the City to review an application for a Zoning Certificate and/or Occupancy Certificate.
(k) Wellfield Protection Appeals Board.
(1) Appeals. Any person may appeal an action of the Fairborn City Manager made pursuant to this chapter by filing a Notice of Appeal within twenty-one (21) days of said action and a Statement of Appeal within thirty (30) days of the date that the order being appealed was issued. A Notice of Appeal shall include at a minimum, name, address, telephone number, date, and a statement of intent to appeal. A Statement of Appeal shall include all information contained in the Notice of Appeal, a description of the nature of the appeal, and any pertinent documentation.
(2) Appeals Board. The Board of Zoning Appeals of the City of Fairborn shall hear Wellfield Protection Area appeals. Said Board shall have the authority to take appeals, investigate matters related to said appeals, deny, uphold, or otherwise modify or waive, the City Manager’s actions on a case-by-case basis.
(3) Findings of the Board. No modification or waiver of the requirements of this chapter shall be authorized by the Board unless they find beyond a reasonable doubt, that all of the following facts and conditions exist.
A. Exception burden. That there are exceptional circumstances regarding the property or its conforming uses which make enforcement of this chapter an unreasonable burden on the continuation of such conforming uses.
B. Lack of increased hazard. That the waiver or modification shall not increase the threat of contamination of the community’s potable water supply.
(l) Penalties for Violations. Any violation or continuing violation of the provisions of this chapter other than subsection (e) hereof, beyond the time limit for compliance set forth by the Fairborn City Manager, Notice of Violation, or compliance schedule established by the Fairborn City Manager, shall constitute a first degree misdemeanor. Each day’s continuance of the violation shall be considered a separate offense.
(Ord. 11-97. Passed 3-3-97.)
(Ord. 11-97. Passed 3-3-97.)