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Environmental Protection Agency Pt. 116 of the owner or operator and the facil- § 113.4 Size classes and associated li- ity will be limited to the amounts spec- ability limits for fixed onshore oil ified in § 113.4. storage facilities, 1,000 barrels or less capacity. § 113.3 Definitions. Unless the United States can show As used in this subpart, the following that oil was discharged as a result of terms shall have the meanings indi- willful negligence or willful mis- cated below: conduct within the privity and knowl- (a) Aboveground storage facility edge of the owner or operator, the fol- means a tank or other container, the lowing limits of liability are estab- bottom of which is on a plane not more lished for fixed onshore facilities in the than 6 inches below the surrounding classes specified: surface. (a) Aboveground storage. (b) Act means the Federal Water Pol- Capacity (bar- Limit lution Control Act, as amended, 33 Size class rels) (dollars) U.S.C. 1151, et seq. (c) Barrel means 42 United States gal- I .................................................... Up to 10 ........ 4,000 lons at 60 degrees Fahrenheit. II ................................................... 11 to 170 ....... 60,000 III .................................................. 171 to 500 ..... 150,000 (d) Belowground storage facility IV .................................................. 501 to 1,000 .. 200,000 means a tank or other container lo- cated other than as defined as ‘‘Above- (b) Belowground storage. ground’’. (e) Discharge includes, but is not lim- Size class Capacity (bar- Limit ited to any spilling, leaking, pumping, rels) (dollars) pouring, emitting, emptying or dump- I .................................................... Up to 10 ........ 5,200 ing. II ................................................... 11 to 170 ....... 78,000 (f) Onshore Oil Storage Facility means III .................................................. 171 to 500 ..... 195,000 any facility (excluding motor vehicles IV .................................................. 501 to 1,000 .. 260,000 and rolling stock) of any kind located in, on, or under, any land within the § 113.5 Exclusions. United States, other than submerged This subpart does not apply to: land. (a) Those facilities whose average (g) On-Scene Coordinator is the single daily oil throughout is more than their Federal representative designated pur- fixed oil storage capacity. suant to the National Oil and Haz- (b) Vehicles and rolling stock. ardous Substances Pollution Contin- gency Plan and identified in approved § 113.6 Effect on other laws. Regional Oil and Hazardous Substances Pollution Contingency Plans. Nothing herein shall be construed to (h) Oil means oil of any kind or in limit the liability of any facility under any form, including but not limited to, State or local law or under any Federal petroleum, fuel oil, sludge, oil refuse, law other than section 311 of the Act, and oil mixed with wastes other than nor shall the liability of any facility dredged spoil. for any charges or damages under State or local law reduce its liability (i) Remove or removal means the re- to the Federal Government under sec- moval of the oil from the water and tion 311 of the Act, as limited by this shorelines or the taking of such other subpart. actions as the Federal On-Scene Coor- dinator may determine to be necessary to minimize or mitigate damage to the PART 116—DESIGNATION OF public health or welfare, including but HAZARDOUS SUBSTANCES not limited to, fish, shellfish, wildlife, and public and private property, shore- Sec. lines, and beaches. 116.1 Applicability. Additionally, the terms not otherwise 116.2 Abbreviations. defined herein shall have the meanings 116.3 Definitions. assigned them by section 311(a) of the 116.4 Designation of hazardous substances. Act. AUTHORITY: 33 U.S.C. 1251 et seq. 139 VerDate Sep<11>2014 13:51 Sep 30, 2019 Jkt 247174 PO 00000 Frm 00149 Fmt 8010 Sfmt 8010 Y:\SGML\247174.XXX 247174 jspears on DSK3GMQ082PROD with CFR § 116.1 40 CFR Ch. I (7–1–19 Edition) § 116.1 Applicability. and reviewed and made a part of the This regulation designates hazardous public record with respect to a permit substances under section 311(b)(2)(A) of issued or modified under section 402 of the Federal Water Pollution Control this Act, and subject to a condition in Act (the Act). The regulation applies to such permit, and (C) continuous or an- discharges of substances designated in ticipated intermittent discharges from Table 116.4. a point source, identified in a permit or permit application under section 402 of [43 FR 10474, Mar. 13, 1978] this Act, which are caused by events occurring within the scope of relevant § 116.2 Abbreviations. operating or treatment systems; ppm = parts per million LC50 means that concentration of mg = milligram(s) material which is lethal to one-half of kg = kilogram(s) mg/l = milligrams(s) per liter= (approx.) ppm the test population of aquatic animals mg/kg = milligram(s) per kilogram= upon continuous exposure for 96 hours (approx.) ppm or less. [43 FR 10474, Mar. 13, 1978] Mixture means any combination of two or more elements and/or com- § 116.3 Definitions. pounds in solid, liquid, or gaseous form As used in this part, all terms shall except where such substances have un- have the meaning defined in the Act dergone a chemical reaction so as to and as given below: become inseparable by physical means. The Act means the Federal Water Navigable waters is defined in section Pollution Control Act, as amended by 502(7) of the Act to mean ‘‘waters of the the Federal Water Pollution Control United States, including the territorial Act Amendments of 1972 (Pub. L. 92– seas.’’ 500), and as further amended by the (1) For purposes of the Clean Water Clean Water Act of 1977 (Pub. L. 95– Act, 33 U.S.C. 1251 et seq. and its imple- 217), 33 U.S.C. 1251 et seq.; and as fur- menting regulations, subject to the ex- ther amended by the Clean Water Act clusions in paragraph (2) of this defini- Amendments of 1978 (Pub. L. 95–676); tion, the term ‘‘waters of the United Animals means appropriately sen- States’’ means: sitive animals which carry out respira- (i) All waters which are currently tion by means of a lung structure per- used, were used in the past, or may be mitting gaseous exchange between air susceptible to use in interstate or for- and the circulatory system; eign commerce, including all waters Aquatic animals means appropriately which are subject to the ebb and flow sensitive wholly aquatic animals which of the tide; carry out respiration by means of a gill (ii) All interstate waters, including structure permitting gaseous exchange interstate wetlands; between the water and the circulatory (iii) The territorial seas; system; (iv) All impoundments of waters oth- Aquatic flora means plant life associ- erwise identified as waters of the ated with the aquatic eco-system in- United States under this section; cluding, but not limited to, algae and higher plants; (v) All tributaries, as defined in para- Contiguous zone means the entire graph (3)(iii) of this definition, of zone established or to be established by waters identified in paragraphs (1)(i) the United States under article 24 of through (iii) of this definition; the Convention of the Territorial Sea (vi) All waters adjacent to a water and the Contiguous Zone; identified in paragraphs (1)(i) through Discharge includes, but is not limited (v) of this definition, including wet- to, any spilling, leaking, pumping, lands, ponds, lakes, oxbows, impound- pouring, emitting, emptying or dump- ments, and similar waters; ing, but excludes (A) discharges in (vii) All waters in paragraphs compliance with a permit under sec- (1)(vii)(A) through (E) of this definition tion 402 of this Act, (B) discharges re- where they are determined, on a case- sulting from circumstances identified specific basis, to have a significant 140 VerDate Sep<11>2014 13:51 Sep 30, 2019 Jkt 247174 PO 00000 Frm 00150 Fmt 8010 Sfmt 8010 Y:\SGML\247174.XXX 247174 jspears on DSK3GMQ082PROD with CFR Environmental Protection Agency § 116.3 nexus to a water identified in para- a portion is located within the 100-year graphs (1)(i) through (iii) of this defini- floodplain of a water identified in para- tion. The waters identified in each of graphs (1)(i) through (iii) of this defini- paragraphs (1)(vii)(A) through (E) of tion or within 4,000 feet of the high tide this definition are similarly situated line or ordinary high water mark. and shall be combined, for purposes of Waters identified in this paragraph a significant nexus analysis, in the wa- shall not be combined with waters tershed that drains to the nearest identified in paragraph (1)(vi) of this water identified in paragraphs (1)(i) definition when performing a signifi- through (iii) of this definition. Waters cant nexus analysis. If waters identi- identified in this paragraph shall not fied in this paragraph are also an adja- be combined with waters identified in cent water under paragraph (1)(vi), paragraph (1)(vi) of this definition they are an adjacent water and no when performing a significant nexus case-specific significant nexus analysis analysis. If waters identified in this is required. paragraph are also an adjacent water (2) The following are not ‘‘waters of under paragraph (1)(vi), they are an ad- the United States’’ even where they jacent water and no case-specific sig- otherwise meet the terms of para- nificant nexus analysis is required. graphs (1)(iv) through (viii) of this defi- (A) Prairie potholes. Prairie potholes nition. are a complex of glacially formed wet- (i) Prior converted cropland. Not- lands, usually occurring in depressions withstanding the determination of an that lack permanent natural outlets, area’s status as prior converted crop- located in the upper Midwest.

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