§ 1135.02. Definitions.
The following definitions shall apply to the terms used in this Article:
(1)
Abatement action means any activities that are or may be necessary to respond to an existing or imminently threatened nuisance, specifically including, but not limited to, all of the following activities:
a.
The investigation, study, analysis, or assessment of the nature and extent of any known or suspected nuisance, including, but not limited to, any known or potential endangerments to the public health, safety, welfare, or the environment resulting from or contributed to by such nuisance within or affecting the City;
b.
In those circumstances where this municipal code requires compliance with the National Oil and Hazardous Substances Pollution Contingency Plan ("National Contingency Plan" or "NCP"), the analysis and selection of suitable methodology and technology for the conduct of a comprehensive remedial investigation in compliance with the requirements of this municipal code, the assessment of the qualifications of, and retention of, appropriate technical, legal, and scientific personnel determined by the City to be necessary or appropriate to the conduct of a remedial investigation by the City or under its oversight and monitoring, and the creation, finalization, and implementation of the comprehensive work plan for the appropriate remedial investigation approved by the City Manager;
c.
In those circumstances where this municipal code requires compliance with the National Oil and Hazardous Substances Pollution Contingency Plan ("National Contingency Plan" or "NCP"), the analysis and selection of suitable methodology and technology for the conduct of a comprehensive feasibility study (including any necessary or appropriate endangerment analysis or treatability studies) in compliance with the requirements of this municipal code; the assessment of the qualifications of, and retention of, the technical, legal, and scientific personnel necessary or appropriate to the conduct of a feasibility study (including any necessary or appropriate endangerment analysis or treatability studies) by the City or under its oversight and monitoring; and the creation, development through the review and comment process determined appropriate by the City, finalization, and implementation of the comprehensive work plan for the appropriate feasibility study approved by the City Manager;
d.
The development and implementation of a nuisance abatement action plan that adequately protects, or restores to the maximum extent practicable, necessary and appropriate protection of the public health, safety, welfare, environment, natural resources, and current and potential beneficial uses of the environment;
e.
Such actions as are necessary and proper for the City to provide comprehensive and effective oversight and monitoring of the performance of any abatement actions being undertaken by a liable person approved by the City Council as capable of implementing an approved removal action or remedial action, or both such actions, with respect to any nuisance within the City, within the area surrounding the City and within one mile of the City boundary, or affecting the City; and
f.
Such actions as are necessary and proper for the City effectively to coordinate and cooperate with the lawful actions of appropriate agencies of Federal, State or County government in responding to any nuisance.
(2)
Abatement action costs means any legal, technical or administrative fees and costs incurred and to be incurred by the City in performing or preparing to perform an abatement action, and shall include, but shall not be limited to, the following costs incurred or to be incurred by the City, together with interest on such costs:
a.
For expert assistance in health, law, engineering and environmental science, expert witness services and legal fees (including, but not limited to, costs of the City Solicitor or outside legal counsel deemed necessary at the sole discretion of the City) to study, investigate, abate, remove, remediate or respond to an actual or threatened nuisance or any endangerment to the public health, welfare or the environment that may be presented by an actual or threatened nuisance;
b.
To investigate or respond to the existence, or threat of a nuisance;
c.
To monitor, assess or evaluate an nuisance or any endangerment to the public health, welfare or the environment that may be presented by an actual or threatened nuisance;
d.
To prevent, minimize, or mitigate a nuisance or any endangerment to the public health, welfare or the environment that may be presented by an actual or threatened nuisance; or
e.
To oversee and monitor the performance by any responsible party of any investigation or abatement action in response to a condition which is or may be a nuisance;
f.
To include interest on such costs, which interest shall accrue from the later of:
1.
The date payment of a specified amount is demanded in writing, or
2.
The date of the expenditure concerned.
The rate of interest on the outstanding unpaid balance of such costs recoverable under this municipal code shall be the same rate as is specified for prejudgment interest determined in accordance with the provisions of W. Va. Code § 56-6-31.
(3)
Action level or advisory level ("AL") means the maximum level established by valid legal authority of the United States or of the State of West Virginia at which a hazardous constituent may lawfully be present in a drinking water supply and also remain protective of both human health and the environment.
(4)
CERCLA means the Federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, Pub.L. 99-499, 100 Stat. 1613, and as further amended by the Asset Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996, Pub.L. 104-208, 110 Stat. 3009, 42 U.S.C. §§ 9601-9675 (also sometimes known as the "Federal Superfund Act"), as the same may be amended from time to time.
(5)
Confidential information means records, reports, information or data, or a particular portion thereof, that reveal a trade secret, contain protected information relating to homeland security, or are subject to another exemption provided by the West Virginia Freedom of Information Act, W. Va. Code § 29B-1-1 et seq.; and records, reports or information, or a particular portion thereof, that if made public would:
a.
Divulge production or sales figures or methods, processes or production unique to the submitting person;
b.
Otherwise tend to adversely affect the competitive position of a person by revealing trade secrets, including intellectual property rights; or
c.
Present a threat to the safety and security of any water supply, including information concerning water supply vulnerability assessments.
(6)
Dilution and attenuation factor ("DAF") means a factor that is used to estimate the dilution and attenuation for toxic constituents contained in a waste as they travel from the point of leachate generation in a landfill through the subsurface to the point of human or environmental exposure, such as, a drinking water well, discharge into a publicly owned treatment works ("POTW"), or an aerated leachate collection pond. [Note: The U.S. EPA uses chemical specific DAFs to determine if toxic contaminates listed in the National Drinking Water Standards are present in waste to identify the waste stream as a "Hazardous Waste listed or identified by the Administrator" of U.S. EPA pursuant to Subtitle C of RCRA, 42 U.S.C. §§ 6901-6992k, using the U.S. EPA Toxicity Characteristic Leachate Procedure ("TCLP"). An identical process is followed by Secretary of the West Virginia DEP in determining if toxic contaminates listed in the National Drinking Water Standards are present in waste to identify the waste stream as a regulated hazardous waste under the West Virginia Hazardous Waste Management Act, Article 22-18 of the West Virginia Code. The U.S. EPA uses a maximum DAF of 100 unless other information exists to use a different DAF.]
(7)
Disposal means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any waste into or on any land or water so that such waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including groundwaters.
(8)
Effective settlement means a good faith settlement of all or any part of any joint and several liability or obligation imposed pursuant to this municipal code that has been resolved between the City Manager, with the advice and written consent of the City Solicitor, and one or more potentially liable parties, or by and between the City Solicitor and any responsible or potentially responsible party, and which, considering all appropriate factors and circumstances, is fair and effectuates the purposes and goals of this municipal code, and which settlement has been either reduced to, and is wholly contained in, a writing, or all the material terms of which have been recited and agreed to on the public record before the City Council or before a court of record of competent jurisdiction. The City Council or court shall not take final action on the effective settlement until after providing appropriate public notice of the settlement and its upcoming final consideration by court or by the City Council, and after providing an appropriate period of no less than ten days for submission of public comments. Any effective settlement agreed to by the parties and the City Manager and approved by the City Solicitor in writing shall be valid and binding unless and until such settlement is rejected by the City Council or court at its next scheduled proceeding at which the settlement may be properly considered and acted upon.
(9)
Environment means any surface water, groundwater, soil water, drinking water supply, soil, land surface, subsurface strata, or ambient air within, or affected by conditions emanating from the City of Hurricane or from the area surrounding the City of Hurricane and within one mile of the City boundary.
(10)
Hazardous substance shall have the same meaning as is provided in section 104(14) of CERCLA, as interpreted by the decisions of the Courts of the United States having jurisdiction to interpret and apply the provisions of CERCLA.
(11)
Hazardous waste means a waste or combination of wastes, which because of its quantity, concentration or physical, chemical or infectious characteristics may:
a.
Cause, or significantly contribute to, an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or
b.
Pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, disposed of or otherwise managed;
and which also meets any one or more of the following criteria:
1.
It is a waste or wastes the lawful disposal of which would require a Federal hazardous waste treatment, storage or disposal permit issued pursuant to RCRA, or a West Virginia hazardous waste treatment, storage or disposal permit issued pursuant to the West Virginia Hazardous Waste Management Act (hereinafter: "WV HWMA"), Article 22-18 of the West Virginia Code; or
2.
It is a waste producing a "TCLP Liquid Extraction" containing any chemical constituent which has an "AL" and a concentration greater than the product of the DAF and the reported concentration in the waste stream; or
3.
It is a waste producing a "TCLP Liquid Extraction" containing any chemical constituent which has a concentration greater than the product of the DAF and three times the odor detection threshold determined for the chemical constituent.
(12)
Land disposal means disposal in or on the land, including placement in a landfill, surface impoundment, waste pile, injection well, land treatment facility, salt dome formation, salt bed formation, or underground mine or cave, or placement in a concrete vault or bunker intended for disposal purposes.
(13)
National Contingency Plan or NCP means the National Oil and Hazardous Substances Pollution Contingency Plan promulgated by the U.S. Environmental Protection Agency and codified at 40 C.F.R., Part 300, in accordance with Section 105 of CERCLA, 42 U.S.C. Section 9605, as the same may be amended or re-promulgated from time to time, which plan, as referenced in and for purposes of interpreting and applying this Article 1135 and related Articles of this Municipal Code, shall be interpreted, read and understood, unless the context unambiguously requires otherwise, as the City of Hurricane being and acting in every regard as the "lead agency."
(14)
Nuisance means any of the conditions, acts, events and activities defined and declared to be a nuisance in this Municipal Code or any other duly enacted municipal ordinances of the City, specifically including, but not limited to, those set forth in Section 1135.04 of this Municipal Code.
(15)
Odor detection threshold means the lowest concentration of a given odor compound that is perceivable by the human sense of smell.
(16)
Person means an individual, trust, firm, joint stock company, corporation, including a governmental corporation, dissolved or bankrupt corporation to the extent of its available insurance assets or undistributed non-insurance assets, bankruptcy trustee, debtor in possession under the Federal bankruptcy laws, limited liability company, limited liability partnership, partnership, association, consortium, joint venture or commercial entity. The term also includes any municipality, county, commission, district, any state, any department or agency thereof or any political subdivision thereof, any interstate body, or the United States and any of its agencies or instrumentalities to the extent authorized by law, as well as the estate of a deceased individual to the extent of available insurance assets.
(17)
Prohibited hazardous substance means a hazardous substance that resulted or is resulting in whole or in part from a removal action, remedial action, site cleanup action undertaken at any site from which any hazardous substance has been or is being transferred for land disposal at any location within the City or at any place within the area surrounding the City and within one mile of the City boundary, and such term shall include any environmental media or other material contaminated in whole or in any part with a hazardous substance that resulted or is resulting from a removal action or remedial action, or any clean-up or abatement action at any site, regardless of by whom directed or performed.
(18)
RCRA means the Federal Solid Waste Management Act, as amended by the Resource Conservation and Recovery Act of 1976, as further amended by the Hazardous and Solid Waste Amendments of 1984, as it may be further amended from time to time (also sometimes known as the "Federal Hazardous Waste Management Act"), 42 U.S.C. §§ 6901-6992k.
(19)
Remedial action shall have the same meaning set forth in CERCLA section 104(24), 42 U.S.C. Section 9601(24), as construed and interpreted by the decisions of the Courts of the United States having jurisdiction to interpret and apply the provisions of CERCLA, and shall specifically include every such remedial action regardless of whether undertaken pursuant to CERCLA or otherwise.
(20)
Removal action shall have the same meaning as is provided in CERCLA section 104(23), 42 U.S.C. Section 9601(23), as interpreted and construed by the decisions of the Courts of the United States having jurisdiction to interpret and apply the provisions of CERCLA, and shall specifically include every such removal action regardless of whether undertaken pursuant to CERCLA or otherwise.
(21)
Storage , when used in connection with waste, means the containment of waste, either on a temporary basis or for a period of years, in such a manner as not to constitute disposal of such waste.
(22)
TCLP liquid extraction means the liquid phase of a waste that is obtained using the U.S. EPA Method 1311.
(23)
Toxicity characteristic leaching procedure ("TCLP") means the U.S. EPA Method 1311, Toxicity Characteristic Leaching Procedure designed to determine the mobility of both organic and inorganic analytes present in liquid, solid, and multi-phasic wastes.
(24)
Trade secrets mean, but are not limited to, any formula, plan, pattern, process, tool, mechanism, compound, procedure, production data, or compilation of information, that:
a.
Is not patented; and
b.
Is known only to certain individuals within a commercial concern who are using it to fabricate, produce or compound an article or trade or a service or to locate minerals or other substances, having commercial value; and gives its users an opportunity to obtain business advantage over competitors.
(25)
Waste means any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant or air pollution control facility and other discarded material including solid, liquid, semisolid or contained gaseous material resulting from industrial, commercial, mining and agricultural operations and from community activities, but does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under Section 402 of the Federal Water Pollution Control Act, as amended, or source, special nuclear or by-product material as defined by the Federal Atomic Energy Act of 1954, as amended.
(Ord. of 9-2-2014(4))