Code of Federal Regulations: Containing a Codification of Documents of ...

(f) Manner of the payment of any money which may be paid to the United States;

(g) Right to request a hearing; and (h) The procedures for requesting a hearing including the right to be represented by counsel.

§ 114.5 Request for hearing.

Within thirty (30) days of the date of receipt of a Notice of Violation, the person named in the Notice may request a hearing by submitting a written request signed by or on behalf of such person by a duly authorized officer, director, agent, or attorney-infact, to the Regional Administrator.

(a) Requests for hearings shall: (1) State the name and address of the person requesting the hearing;

(2) Enclose a copy of the Notice of Violation; and

(3) State with particularity the issues to be raised by such person at the hearing.

(b) After a request for hearing which complies with the requirements of paragraph (a) of this section has been filed, a hearing shall be scheduled for the earliest practicable date.

§ 114.6 Presiding Officer.

The hearing shall be conducted by the Presiding Officer. The Regional Administrator may designate any attorney in the Environmental Protection Agency to act as the Presiding Officer. No person shall serve as a Presiding Officer where he has any prior connection with the case including without limitation the performance of investigative or prosecuting functions or any other such functions. The Presiding Officer appointed shall have the full authority to conduct the hearing, decide issues and to assess a civil penalty as appropriate.

§ 114.9 Conduct of hearing.

The hearing shall be held in the general location of the facility where the alleged violation occurred or as agreed to by EPA and the person charged. The Presiding Officer shall have the duty to conduct a fair and impartial hearing, to take action to avoid unnecessary delay in the disposition of proceedings, and to maintain order. The person charged with the violation may offer relevant facts, statements, explanations, and other items which such person feels should be considered in defense to the charges, bearing on the person's efforts to achieve compliance after notification of the violation or which may bear upon the penalty to be assessed. The EPA or other appropriate Agency personnel shall have the opportunity to offer facts, statements, explanations and other items including testimony of other appropriate Agencies personnel in order for the Presiding Officer to be fully in

formed. In the event the matter cannot be resolved by settlement the person charged with the violation shall be informed in writing, of the decision of the Presiding Officer and shall be advised of his right to appeal.

§ 114.10 Decision.

Within thirty (30) days after the conclusion of the hearings, the Presiding Officer shall issue findings with respect to the matter, including, where appropriate to the amount of the civil penalty. In assessing the civil penalty the Presiding Officer shall consider the factors set forth in § 114.3. A copy of the Presiding Officer's decision shall be sent to the person charged in the Notice of Violation. The decision of the Presiding Officer shall become the final decision of the Environmental Protection Agency unless within fifteen (15) days from the date of receipt of such decision, the person assessed the penalty appeals the decision to the Administrator, or unless the Administrator shall have stayed the effectiveness of the decision pending review.

§ 114.11 Appeal to Administrator.

(a) The person assessed a penalty in the Presiding Officer's determination shall have the right to appeal an adverse decision to the Administrator upon filing a written Notice of Appeal in the form required by paragraph (b) of this section within fifteen (15) days of the date the receipt of the Presiding Officer's decision.

(b) The Notice of Appeal shall:

(1) State the name and address of the person filing the Notice of Appeal; (2) Contain a concise statement of the facts on which the person relies;

(3) Contain a concise statement of the legal basis on which the person relies; and

(4) Contain a concise statement setting forth the action which the person proposed that the Administrator take. (c) The Administrator may delegate this authority to act in a given case. (d) The Administrator, after Notice of Appeal in proper form has been filed, shall render a decision with respect to the appeal promptly. In rendering his decision, the Administrator may adopt, modify, or set aside the de

As used in this part, all terms shall have the meaning defined in the Act and as given below:

"The Act" means the Federal Water Pollution Control Act, as amended by the Federal Water Pollution Control Act Amendments of 1972 (Pub. L. 92500), and as further amended by the Clean Water Act of 1977 (Pub. L. 95217), 33 U.S.C. 1251 et seq.; and as further amended by the Clean Water Act Amendments of 1978 (Pub. L. 95-676);

"Discharge" includes, but is not limited to, any spilling, leaking, pumping, pouring, emitting, emptying or dumping, but excludes (A) discharges in compliance with a permit under section 402 of this Act, (B) discharges re

sulting from circumstances identified and reviewed and made a part of the public record with respect to a permit issued or modified under section 402 of this Act, and subject to a condition in such permit, and (C) continuous or anticipated intermittent discharges from a point source, identified in a permit or permit application under section 402 of this Act, which are caused by events occurring within the scope of relevant operating or treatment systems;

"Otherwise subject to the jurisdiction of the United States" means subject to the jurisdiction of the United States by virtue of United States citizenship, United States vessel documentation or numbering, or as provided for by international agreement to which the United States is a party.

"Vessel" means every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water other than a public vessel;

"Public vessel" means a vessel owned or bareboat-chartered and operated by the United States, or a State or political subdivision thereof, or by a foreign nation, except when such vessel is engaged in commerce.

"Onshore facility" means any facility (including, but not limited to, motor vehicles and rolling stock) of any kind located in, on, or under, any land within the United States other than submerged land;

"Offshore facility" means any facility of any kind located in, on, or under, any of the navigable waters of the United States, and any facility of any kind which is subject to the jurisdiction of the United States and is located in, on, or under any other waters, other than a vessel or a public vessel;

"Navigable waters" is defined in section 502(7) of the Act to mean "waters of the United States, including the territorial seas," and includes, but is not limited to: (1) All waters which are presently used, or were used in the past, or may be susceptible to use as a means to transport interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide, and including adjacent wetlands; the term "wetlands" as used in this regulation shall include those

areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevelance of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas; the term "adjacent" means bordering, contiguous or neighboring; (2) tributaries of navigable waters of the United States, including adjacent wetlands; (3) interstate waters, including wetlands; and (4) all other waters of the United States such as intrastate lakes, rivers, streams, mudflats, sandflats and wetlands, the use, degradation or destruction of which affect interstate commerce including, but not limited to:

(i) Intrastate lakes, rivers, streams, and wetlands which are utilized by interstate travelers for recreational or other purposes; and

(ii) Intrastate lakes, rivers, streams, and wetlands from which fish or shellfish are or could be taken and sold in interstate commerce; and

(iii) Intrastate lakes, rivers, streams, and wetlands which are utilized for industrial purposes by industries in interstate commerce.

"Contiguous zone" means the entire zone established or to be established by the United States under article 24 of the Convention of the Territorial Sea and the Contiguous Zone;

"Territorial seas" means the belt of the seas measured from the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters, and extending seaward a distance of 3 miles.

A discharge "in connection with activities under the Outer Continental Shelf Lands Act or the Deepwater Port Act of 1974, or which may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the United States (including resources under the Fishery Conservation and Management Act of 1976)," means: (1) A discharge into any waters beyond the contiguous zone from any vessel or onshore or offshore facility, which vessel or facility is subject to or is engaged in

activities under the Outer Continental Shelf Lands Act or the Deepwater Port Act of 1974, and (2) any discharge into any waters beyond the contiguous zone which contain, cover, or support any natural resource belonging to, appertaining to, or under the exclusive management authority of the United States (including resources under the Fishery Conservation and Manage

ment Act of 1976).

"Aquatic animals" means appropriately sensitive wholly aquatic animals which carry out respiration by means of a gill structure permitting gaseous exchange between the water and the circulatory system;

"Animals" means appropriately sensitive animals which carry out respiration by means of a lung structure permitting gaseous exchange between air and the circulatory system;

"Aquatic flora" means plant life associated with the aquatic eco-system including, but not limited to, algae and higher plants;

"Mixture" means any combination of two or more elements and/or compounds in solid, liquid, or gaseous

Common name

Acetaldehyde..

Acetic acid

Acetic anhydride

Acetone cyanohydrin.

Acetyl bromide

Acetyl chloride.

Acrolein

form except where such substances have undergone a chemical reaction so as to become inseparable by physical

means.

"LC50" means that concentration of material which is lethal to one- half of the test population of aquatic animals upon continuous exposure for 96 hours or less.

[43 FR 10474, Mar. 13, 1978; 43 FR 27533, June 26, 1978, as amended at 44 FR 10266, Feb. 16, 1979]

§ 116.4 Designation of hazardous substances.

The elements and compounds appearing in Tables 116.4 A and B are designated as hazardous substances in accordance with section 311(b)(2)(A) of the Act. This designation includes any isomers and hydrates, as well as any solutions and mixtures containing these substances. Synonyms and Chemical Abstract System (CAS) numbers have been added for convenience of the user only. In case of any disparity the common names shall be considered the designated substance.