1. Existing nonconformities for land uses/activities will be allowed within a capture zone only if in accordance with Chapter 9: Nonconformities," of Appendix A (Zoning Ordinance) of the City of Kalamazoo Code of Ordinances.
2. 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 ordinance or one year from the date of contact from the City regarding recognition of nonconforming status, whichever is sooner. The City reserves the right to approve/determine which option(s) is to be implemented for the specific circumstance.
A Spill Contingency Plan is 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.
These Best Management Practices and engineering controls are contained within the document "City of Kalamazoo Performance Standards for Groundwater Protection within Wellhead Protection Capture Zones and Stormwater Quality Management."

Requirements Regarding Release of Regulated Substance.

1. 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. 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 Environmental Services Superintendent or designee by said persons.
2. All releases shall be documented in writing and mailed to the Department within 10 business days of said incident. Initial release notification shall include, at a minimum, the following:

a) Location of the release (name, address, and phone);
b) Reporting party's name, address, and phone (if different from above);
c) Emergency contact and phone;
d) Description of the nature of the incident, including date, time, location, and cause of the incident; type, concentration, and volume of substance(s) released;
e) Map showing exact release location, and relevant site features (i.e., paved area, storm sewer catch basins/inlets, water features, etc.), scale, and North arrow;
f) All measures taken to clean up the release; and
g) All measures proposed to be taken to reduce and prevent any future release.

3. The Environmental Services Superintendent 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.

Inactive Operations. 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:

1. 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;
2. Within 30 days of the operation becoming inactive, provide to the Superintendent 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
3. 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.

Enforcement.

1. Whenever the Department determines that a person has violated a provision of this Ordinance, the Department may order compliance by issuing a written Notice of Violation to the responsible person/facility.
2. If the Department requires abatement of a violation and/or restoration of affected property, the notice shall set forth a deadline by which such action must be completed. Said notice may further advise that, should the violator fail to remediate or restore within the established deadline, the work will be performed by the Department, with the resulting expense thereof charged to the violator.

Variance/Appeal Rights.

1. If an owner of property within a capture zone believes the requirements of this ordinance 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 ordinance. 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.
2. 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.
3. 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.

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 Ordinance 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.

Injunctive Relief. If a person has violated or continues to violate the provisions of this Ordinance, 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.

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 Ordinance 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.

Criminal Prosecution. Any violation of this Ordinance shall be considered a misdemeanor, punishable by a fine of not more than $500 or imprisonment of not more than 90 days. Each day a violation exists shall be deemed a separate violation. A citation charging such a misdemeanor may be issued by the Director, his or her designee, or a member of Public Safety.

Remedies Not Exclusive. The remedies listed in this Ordinance 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.

For a list of regulated substances see § A-3.5B, definition for "Regulated Substances".