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472 Part 116—Designation of Hazardous Substances

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472 Part 116—Designation of Hazardous Substances § 113.4 40 CFR Ch. I (7±1±97 Edition) actions as the Federal On-Scene Coor- tion 311 of the Act, as limited by this dinator may determine to be necessary subpart. to minimize or mitigate damage to the public health or welfare, including but PART 116ÐDESIGNATION OF not limited to, fish, shellfish, wildlife, HAZARDOUS SUBSTANCES and public and private property, shore- lines, and beaches. Sec. Additionally, the terms not otherwise 116.1 Applicability. defined herein shall have the meanings 116.2 Abbreviations. 116.3 Definitions. assigned them by section 311(a) of the 116.4 Designation of hazardous substances. Act. AUTHORITY: Secs. 311(b)(2)(A) and 501(a), Federal Water Pollution Control Act (33 § 113.4 Size classes and associated li- U.S.C. 1251 et seq.). ability limits for fixed onshore oil storage facilities, 1,000 barrels or § 116.1 Applicability. less capacity. This regulation designates hazardous Unless the United States can show substances under section 311(b)(2)(A) of that oil was discharged as a result of the Federal Water Pollution Control willful negligence or willful mis- Act (the Act). The regulation applies to conduct within the privity and knowl- discharges of substances designated in edge of the owner or operator, the fol- Table 116.4. lowing limits of liability are estab- lished for fixed onshore facilities in the [43 FR 10474, Mar. 13, 1978] classes specified: § 116.2 Abbreviations. (a) Aboveground storage. ppm=parts per million Size class Capacity (bar- Limit mg=milligram(s) rels) (dollars) kg=kilogram(s) I .................................................... Up to 10 ........ 4,000 mg/l=milligrams(s) per liter= (approx.) II ................................................... 11 to 170 ...... 60,000 ppm III .................................................. 171 to 500 .... 150,000 mg/kg=milligram(s) per kilogram= IV .................................................. 501 to 1,000 200,000 (approx.) ppm (b) Belowground storage. [43 FR 10474, Mar. 13, 1978] § 116.3 Definitions. Size class Capacity (bar- Limit rels) (dollars) As used in this part, all terms shall I .................................................... Up to 10 ........ 5,200 have the meaning defined in the Act II ................................................... 11 to 170 ...... 78,000 and as given below: III .................................................. 171 to 500 .... 195,000 The Act means the Federal Water IV .................................................. 501 to 1,000 260,000 Pollution Control Act, as amended by the Federal Water Pollution Control § 113.5 Exclusions. Act Amendments of 1972 (Pub. L. 92± This subpart does not apply to: 500), and as further amended by the (a) Those facilities whose average Clean Water Act of 1977 (Pub. L. 95± daily oil throughout is more than their 217), 33 U.S.C. 1251 et seq.; and as fur- fixed oil storage capacity. ther amended by the Clean Water Act (b) Vehicles and rolling stock. Amendments of 1978 (Pub. L. 95±676); Animals means appropriately sen- sitive animals which carry out respira- § 113.6 Effect on other laws. tion by means of a lung structure per- Nothing herein shall be construed to mitting gaseous exchange between air limit the liability of any facility under and the circulatory system; State or local law or under any Federal Aquatic animals means appropriately law other than section 311 of the Act, sensitive wholly aquatic animals which nor shall the liability of any facility carry out respiration by means of a gill for any charges or damages under structure permitting gaseous exchange State or local law reduce its liability between the water and the circulatory to the Federal Government under sec- system; 472 VerDate 06-NOV-97 15:50 Nov 06, 1997 Jkt 174145 PO 00000 Frm 00472 Fmt 8010 Sfmt 8010 Y:\OLD_ECFR\174145.048 174145 Environmental Protection Agency § 116.3 Aquatic flora means plant life associ- swamps, marshes, bogs and similar ated with the aquatic eco-system in- areas; the term adjacent means border- cluding, but not limited to, algae and ing, contiguous or neighboring; higher plants; (2) Tributaries of navigable waters of Contiguous zone means the entire the United States, including adjacent zone established or to be established by wetlands; the United States under article 24 of (3) Interstate waters, including wet- the Convention of the Territorial Sea lands; and and the Contiguous Zone; (4) All other waters of the United Discharge includes, but is not limited States such as intrastate lakes, rivers, to, any spilling, leaking, pumping, streams, mudflats, sandflats and wet- pouring, emitting, emptying or dump- lands, the use, degradation or destruc- ing, but excludes (A) discharges in tion of which affect interstate com- compliance with a permit under sec- merce including, but not limited to: tion 402 of this Act, (B) discharges re- (i) Intrastate lakes, rivers, streams, sulting from circumstances identified and wetlands which are utilized by and reviewed and made a part of the interstate travelers for recreational or public record with respect to a permit other purposes; and issued or modified under section 402 of (ii) Intrastate lakes, rivers, streams, this Act, and subject to a condition in and wetlands from which fish or shell- such permit, and (C) continuous or an- fish are or could be taken and sold in ticipated intermittent discharges from interstate commerce; and a point source, identified in a permit or (iii) Intrastate lakes, rivers, streams, permit application under section 402 of and wetlands which are utilized for in- this Act, which are caused by events dustrial purposes by industries in occurring within the scope of relevant interstate commerce. operating or treatment systems; Navigable waters do not include prior LC50 means that concentration of converted cropland. Notwithstanding material which is lethal to one-half of the determination of an area's status the test population of aquatic animals as prior converted cropland by any upon continuous exposure for 96 hours other federal agency, for the purposes or less. of the Clean Water Act, the final au- Mixture means any combination of thority regarding Clean Water Act ju- two or more elements and/or com- risdiction remains with EPA. pounds in solid, liquid, or gaseous form Offshore facility means any facility of except where such substances have un- any kind located in, on, or under, any dergone a chemical reaction so as to of the navigable waters of the United become inseparable by physical means. States, and any facility of any kind Navigable waters is defined in section which is subject to the jurisdiction of 502(7) of the Act to mean ``waters of the the United States and is located in, on, United States, including the territorial or under any other waters, other than seas,'' and includes, but is not limited a vessel or a public vessel; to: Onshore facility means any facility (1) All waters which are presently (including, but not limited to, motor used, or were used in the past, or may vehicles and rolling stock) of any kind be susceptible to use as a means to located in, on, or under, any land with- transport interstate or foreign com- in the United States other than sub- merce, including all waters which are merged land; subject to the ebb and flow of the tide, Otherwise subject to the jurisdiction of and including adjacent wetlands; the the United States means subject to the term wetlands as used in this regula- jurisdiction of the United States by tion shall include those areas that are virtue of United States citizenship, inundated or saturated by surface or United States vessel documentation or ground water at a frequency and dura- numbering, or as provided for by inter- tion sufficient to support, and that national agreement to which the Unit- under normal circumstances do sup- ed States is a party. port, a prevelance of vegetation typi- A discharge in connection with activi- cally adapted for life in saturated soil ties under the Outer Continental Shelf conditions. Wetlands generally include Lands Act or the Deepwater Port Act of 473 VerDate 06-NOV-97 15:50 Nov 06, 1997 Jkt 174145 PO 00000 Frm 00473 Fmt 8010 Sfmt 8010 Y:\OLD_ECFR\174145.049 174145 § 116.4 40 CFR Ch. I (7±1±97 Edition) 1974, or which may affect natural re- the coast which is in direct contact sources belonging to, appertaining to, or with the open sea and the line marking under the exclusive management author- the seaward limit of inland waters, and ity of the United States (including re- extending seaward a distance of 3 sources under the Fishery Conservation miles. and Management Act of 1976), means: (1) Vessel means every description of A discharge into any waters beyond the watercraft or other artificial contriv- contiguous zone from any vessel or on- ance used, or capable of being used, as shore or offshore facility, which vessel a means of transportation on water or facility is subject to or is engaged in other than a public vessel; activities under the Outer Continental Shelf Lands Act or the Deepwater Port [43 FR 10474, Mar. 13, 1978; 43 FR 27533, June Act of 1974, and (2) any discharge into 26, 1978, as amended at 44 FR 10266, Feb. 16, any waters beyond the contiguous zone 1979; 58 FR 45039, Aug. 25, 1993] which contain, cover, or support any natural resource belonging to, apper- § 116.4 Designation of hazardous sub- stances. taining to, or under the exclusive man- agement authority of the United The elements and compounds appear- States (including resources under the ing in Tables 116.4 A and B are des- Fishery Conservation and Management ignated as hazardous substances in ac- Act of 1976). cordance with section 311(b)(2)(A) of Public vessel means a vessel owned or the Act. This designation includes any bareboat-chartered and operated by the isomers and hydrates, as well as any United States, or a State or political solutions and mixtures containing subdivision thereof, or by a foreign na- these substances.
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