1123.05 CONTROL OF POTENTIAL PUBLIC WATER SUPPLY POLLUTANTS.
   (a)    Public Water Supply Regulations and Penalty.
      (1)    Purpose. The purpose of this section is to safeguard the public health, safety and welfare and to provide for the protection and availability of existing and future potable water supply by instituting rational and objective requirements, standards and criteria for the control of toxic or otherwise hazardous substances within the Well Field Protection Overlay District as established by the Zoning Code for the territory in and around the present and future public wells and well fields of Montgomery County, and/or other protected public water supplies, thereby enhancing the protection of the public potable water supply from contamination.
      (2)   Scope.
         A.    The provisions of this section shall be effective within the Well Field Protection Overlay District. This section provides for pollution control pertaining to the public water supply.
         B.    Nothing contained in this section 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 section.
      (3)    Administration. Except as otherwise provided herein, the Zoning Officer for the City of Moraine or his/her designee, hereinafter referred to as the Zoning Officer, shall administer, implement and enforce the provisions of this section.
      (4)    Notice of violation.
         A.    Any person found in violation of any provision of this section or any order, requirement, rule or regulation issued under the authority of such section 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 (c)(2) hereof and provided further, that if the Zoning Officer 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 Zoning Officer may dispense with establishing another time period for compliance.
         B.    The notice shall be served in the manner provided by law for the service of civil due 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.
      (5)    Inspections. The Zoning Officer or authorized designee, bearing proper identification, and authorized by the City Manager may request permission to enter private property at any reasonable time for the purposes of inspection, observation, measurement, sampling and records examination pertaining to the requirements of this section to ensure that activities are in accordance with the provisions of this section. Information obtained as a result of such inspections shall be subject to the Ohio Public Records Law in accordance with Ohio R.C. Chapter 149. If the owner or tenant does not consent to the entry of the Zoning Officer or the authorized designee for the above stated purposes, the Zoning Officer with authorization from the City Manager may apply to a court of competent jurisdiction for an appropriate warrant or other authority to enter said property.
      (6)    Severability. A finding by any court or other jurisdiction that any part or provision of this section is invalid shall not affect the validity of any other part or provision of this section which can be given effect without the invalid parts or provisions.
      (7)    Subject area.
         A.    The area subject to the provisions of this section is the Well Field Protection Overlay District as shown on the Official Zoning Map of the City of Moraine.
         B.    Maps designating the Well Field Protection Overlay District shall be included as part of the Official Zoning Map for the City of Moraine.
      (8)    Determination of applicability. It shall be the responsibility of any person owning real property or owning or operating a business within such Overlay District to make a determination of the applicability of this section as it pertains to the property or business and failure to do shall not excuse any violations of such sections.
   (b)    Management of Regulated Substances.
      (1)    Handling to be in conformance. No person shall place, deposit, or permit to be deposited, stored, processed, used, produced, disposed of, transported or discharged, hereinafter referred to as "handled", any regulated substance on public or private property within the Well Field Protection Overlay District in violation of this section.
      (2)    Violation to be nuisance. Any violation of subsection (b)(l) hereof is hereby determined to be a nuisance. Penalties for such nuisances are administered under Section 1123.99(b).
   (c)    Reporting and Protection Requirements.
      (1)    Regulated substances activity inventory.
         A.    Applicability.
            1.    Except as provided in subsection (c)(l)B. hereof, any owner or occupant of any land in the Well Field Protection Overlay District at the effective date of this section, shall file a Regulated Substance Activity Inventory Report with the Zoning Officer. Such report shall be filed within 180 days from the effective date of this section and at twenty-four (24) month intervals thereafter.
            2.    Except as provided in subsection (c)(l)B. hereof, any new owner or occupant of any land in the Well Field Protection Overlay District shall file a Regulated Substance Activity Report prior to receipt of a certificate of occupancy and at twenty-four (24) month intervals following the date of occupancy. For purposes of this section, new shall be defined as subsequent to the effective date of this section.
            3.    Where a person owns, operates or occupies more than one location, Regulated Substances Activity Reports shall be made for each location.
         B.    Exclusions to Activity Inventory Reporting.
            1.    Any exclusion set forth in this subsection shall apply provided that such exclusion does not substantially increase any risk or hazard to the public health or water supply, wells or well fields; and provided further that any spill, leak, discharge or mishandling shall be subject to the provisions of subsection (c)(2) hereof. 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 160 pounds at any time for each location.
               b.    The total use of regulated substances may not exceed fifty-five (55) gallons or 450 pounds in any twelve (12) month period for each location.
            3.    A limited exclusion from Regulated Substance Activity Inventory Reporting is hereby authorized for non-routine maintenance or repair of property in the Well Field Protection Overlay District provided the uses are limited as follows:
               a.    The aggregate of regulated substances in use may not exceed fifty-five (55) gallons or 450 pounds at any time for each location.
               b.    The total use of regulated substances may not exceed 110 gallons or 900 pounds in any twelve (12) month period for each location.
            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 110 gallons or 900 pounds at any time at each location. 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 Well Field Protection Overlay District, 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 250 gallons or 2,000 pounds at each location.
            6.    A limited exclusion from Regulated Substance Activity Inventory Reporting is hereby authorized for the transportation of regulated substances through the Well Field Protection Overlay District provided that the transporting vehicle is in compliance with applicable City ordinances and Federal and Ohio laws and regulations, and provided that the regulated substance is fueling the transportation vehicle or the transportation vehicle is in continuous transit, making delivery, or is stopped for a period of time not to exceed twenty-four (24) hours.
            7.    A limited exclusion from Regulated Substance Activity Inventory Reporting is hereby authorized for owners and occupants of single, two-family, or multi-family residences provided, however, the storage and use of regulated substances are related to the maintenance of the residence or vehicles under the 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 Well Field Protection Overlay District shall, if such a spill, leak or discharge escapes containment, contacts a non-impervious ground surface and is not immediately and completely remediated, give immediate notice to the operator on duty at the City of Moraine Police and Fire Dispatch Center, and the Director of the Montgomery County Sanitary Engineering Department or the operator on duty at the Montgomery County Sanitary Engineering Department Water Division, and the land owner of record, agent and lessee. 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.    Any entity or person who spills, leaks or discharges a regulated substance within the Well Field Protection Overlay District shall be liable for any reasonable expense, loss or damage in response to such an incident incurred by Montgomery County, the City of Moraine, and other protected public water supply utilities operating within the City of Moraine, in addition to the amount of any fines imposed on account thereof under Ohio and federal law. Such person shall document and maintain sufficient records so as to reflect accurately the circumstances related to any such incident and develop and 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 180 days after the incident.
      (3)    Underground storage tanks.
         A.    Underground Storage Tanks Declared to Constitute Dangerous Nuisances.
            1.    With the exception of the residential use of home heating fuel in tanks having a capacity equal to or less than 500 gallons, and underground storage systems for accessory vehicle fuel, vehicle lubricants, fuel for building heating and fuel for process heating, any storage of Regulated Substances in underground storage tanks within the Well Field Protection Overlay District 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 section.
            2.    With the exception of residential use of home heating fuel in tanks having a capacity equal to or less than 500 gallons, any underground storage tank systems for accessory vehicle fuel and lubricants and fuel for building and/or process heating which are not currently monitored in accordance with State statute within the Well Field Protection Overlay District must be removed within five (5) years from the effective date of this section and must be secondarily contained and monitored in accordance with plans submitted to and approved by the Zoning Officer.
      (4)    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 section.
(d)    Public Water Supply Protection Authorities.
      (1)    Application. If any activity or use of a regulated substance in the Well Field Protection Overlay District is deemed by the Zoning Officer to pose a real and present danger of contaminating surface and/or ground water which would normally enter the public water supply, the Zoning Officer is authorized to use the nuisance abatement and control authority granted by Ohio R.C. 715.44 to:
         A.    Cause cessation of such activity or use of the regulated substance;
         B.    Require the provision of administrative controls and/or facilities sufficient to mitigate such 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 Zoning Officer shall first consult with the City Manager and 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 future. The Zoning Officer 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 Zoning Officer is authorized to exclude certain regulated substances that pose no threat to groundwater from the provisions of this section. Prior to authorizing the exemption of any regulated substance, the Zoning Officer shall have such request for exemption reviewed by a designated review board as selected by Council. The recommendation of the board shall be binding on the Zoning Officer.
      (4)    Technical consultants. Upon application for a Zoning Certificate and/or Occupancy Permit for a use within the WP Well Field Protection Overlay District, the Zoning Officer may employ such technical expertise as needed to ensure compliance with the provisions of this section. All costs 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 a zoning certificate and/or occupancy permit.
   (e)    Well Field Protection Appeals Board.
      (1)    Appeals. Any person may appeal an action of the Zoning Officer in subsection (d) hereof, by filing with the Council Clerk a notice of appeal within twenty (20) days of such action. Failure to do so shall be deemed a waiver of the right to appeal. The notice of appeal shall include all information contained on such notice of appeal and not limited to name; address; telephone number; date; and a statement of intent to appeal. In addition a description of the nature of the appeal, and any pertinent documentation shall be filed with such appeal.
      (2)    Appeals Board. The Board of Zoning Appeals of the City is hereby appointed to hear Well Field Protection Appeals. The Board is authorized to consult with and obtain technical assistance, when in the Board's sole discretion, it deems assistance to be necessary, from technical experts. The decision of the Board shall constitute a final administrative order that may be appealed by the City or by any aggrieved party to the Court of Common Pleas of Montgomery County as provided by law.
(Ord. 1025-93. Passed 6-10-93.)