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113-LIABILITY

PART LIMITS FOR SMALL ONSHORE STORAGE FACILITIES

Subpart A-Oil Storage Facilities

Sec.

113.1 Purpose.

113.2 Applicability.

113.3

Definitions.

113.4 Size classes and associated liability limits for fixed onshore oil storage facilities, 1,000 barrels or less capacity. 113.5 Exclusions.

113.6

Effect on other laws.

AUTHORITY: Sec. 311(f)(2), 86 Stat. 867, 33 U.S.C. 1251 (1972).

SOURCE: 38 FR 25440, Sept. 13, 1973, unless otherwise noted.

Subpart A-Oil Storage Facilities

§ 113.1 Purpose.

This subpart establishes size classifications and associated liability limits for small onshore oil storage facilities with fixed capacity of 1,000 barrels or less.

§ 113.2 Applicability.

This subpart applies to all onshore oil storage facilities with fixed capacity of 1,000 barrels or less. When a discharge to the waters of the United States occurs from such facilities and when removal of said discharge is performed by the United States Government pursuant to the provisions of subsection 311(c)(1) of the act, the liability of the owner or operator and the facility will be limited to the amounts specified in § 113.4.

§ 113.3 Definitions.

As used in this subpart, the following terms shall have the meanings indicated below:

(a) “Aboveground" storage facility means a tank or other container, the bottom of which is on a plane not more than 6 inches below the surrounding surface.

(b) "Act" means the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1151, et seq.

(c) "Barrel" means 42 United States gallons at 60 degrees Fahrenheit.

(d) "Belowground" storage facility means a tank or other container located other than as defined as "Aboveground".

(e) "Discharge" includes, but is not limited to any spilling, leaking, pumping, pouring, emitting, emptying or dumping.

(f) "Onshore Oil Storage Facility" means any facility (excluding motor vehicles and rolling stock) of any kind located in, on, or under, any land within the United States, other than submerged land.

(g) "On-Scene Coordinator" is the single Federal representative designated pursuant to the National Oil and Hazardous Substances Pollution Contingency Plan and identified in approved Regional Oil and Hazardous Substances Pollution Contingency

Plans.

(h) "Oil" means oil of any kind or in any form, including but no limited to, petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other than dredged spoil.

(i) "Remove" or "removal" means the removal of the oil from the water and shorelines or the taking of such other actions as the Federal On-Scene Coordinator may determine to be necessary to minimize or mitigate damage to the public health or welfare, including but not limited to, fish, shellfish, wildlife, and public and private property, shorelines, and beaches.

Additionally, the terms not otherwise defined herein shall have the meanings assigned them by sec. 311(a) of the act.

§ 113.4 Size classes and associated liability limits for fixed onshore oil storage facilities, 1,000 barrels or less capacity. Unless the United States can show that oil was discharged as a result of willful negligence or willful misconduct within the privity and knowledge of the owner or operator, the following limits of liability are established for fixed onshore facilities in the classes specified:

(a) Aboveground storage.

NON-TRANSPORTATION RELATED ONSHORE AND OFFSHORE FACILITIES

Size class

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$ 114.1 General applicability.

Owners or operators of facilities subject to § 112.3 (a), (b) or (c) of this subchapter who violate the requirements of Part 112 of this Subchapter D by failing or refusing to comply with any of the provisions of $ 112.3, 112.4, or 112.5 of this subchapter shall be liable for a civil penalty of not more than $5,000 for each day such violation continues. Civil penalties shall be assessed and compromised in accordance with this Part. No penalty shall be assessed until the owner or operator shall have been given notice and an opportunity for hearing in accordance with this Part.

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$ 113.5 Exclusions.

This subpart does not apply to:

(a) Those facilities whose average daily oil throughout is more than their fixed oil storage capacity.

(b) Vehicles and rolling stock. § 113.6 Effect on other laws.

Nothing herein shall be construed to limit the liability of any facility under State or local law or under any Federal law other than sec. 311 of the Act, nor shall the liability of any facility for any charges or damages under State or local law reduce its liability to the Federal Government under section 311 of the Act, as limited by this subpart. PART 114-CIVIL PENALTIES FOR

VIOLATION OF OIL POLLUTION
PRE TION REGULATIONS

§ 114.2 Violation.

Owners or operators of facilities shall be liable for a civil penalty for noncompliance with the requirements of Part 112 of this subchapter, including but not limited to failure to:

(a) Prepare a Spill Prevention Control and Countermeasure (SPCC) plan in accordance with § 112.3 of this subchapter;

(b) Have a SPCC plan certified by a Registered Professional Engineer as required by $ 112.3 of this subchapter;

(c) Implement the SPCC plan as required by $ 112.3 of this subchapter;

(d) Submit information after a spill as required by $ 112.4 of this subchapter;

(e) Amend plan as required by § 112.4 of this subchapter;

(f) Implement amendment as required by $ 112.4 of this subchapter;

(g) Amend plan after change in facility design as required by $ 112.6 of this subchapter;

(h) Review plan every three years as required by $ 112.5 of this subchapter;

(i) Amend plan after review as required by $ 112.5; or

(j) Have amendment certified as required by § 112.5 of this subchapter and implemented.

NON-TRANSPORTATION RELATED ONSHORE AND

OFFSHORE FACILITIES Sec. 114.1 General applicability. 114.2 Violation. 114.3 Determination of penalty. 114.4 Notice of Violation. 114.5 Request for hearing. 114.6 Presiding Officer. 114.7 Consolidation. 114.8 Prehearing conference. 114.9 Conduct of hearing. 114.10 Decision. 114.11 Appeal to Administrator.

AUTHORITY: Secs. 311(j), 501(a), Pub. Law 92-500, 86 Stat. 868, 885 (33 U.S.C. 1321(j), 1361(a)).

SOURCE: 39 FR 31602, Aug. 29, 1974, unless otherwise noted.

$ 114.3 Determination of penalty.

(a) In determining the amount of the penalty to be assessed the following factors shall be considered:

(1) Gravity of the violation; and (2) Demonstrated good faith efforts to achieve rapid compliance after notification of a violation.

(b) The amount of the civil penalty to be assessed may be settled by compromise at any stage of the proceedings.

(c) Civil penalties may be assessed by the Regional Administrator where there is no request for a hearing pursuant to § 114.5.

§ 114.4 Notice of Violation.

The Notice of Violation shall be sent to the person charged with a violation and shall specify the:

(a) Date of issuance;

(b) Nature of violation, including the law or regulation that he is charged with violating;

(c) Amount of the maximum penalty;

(d) Amount of the proposed civil penalty;

(e) The right to present written explanations, information or any materials in answer to the charges or in mitigation of the penalty, or bearing on the person's efforts to achieve compliance after notification of the violation;

(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.

(c) Extensions of the time for the commencement of the hearing may be granted for good cause shown.

§ 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.

§ 114.7 Consolidation.

The Presiding Officer may, in his discretion, order consolidation of any hearings held under this Part and arising within one Region whenever he determines that consolidation will expedite or simplify the consideration of the issues presented. The Administrator may, in his discretion, order consolidation, and designate one Region to be responsible for the conduct of any hearings held under this Part which arise in different Regions whenever he determines that consolidation will expedite or simplify the consideration of the issues presented. Consolidation shall not affect the right of any person to raise issues that could have been raised if consolidation had not occurred. At the conclusion of the hearing the Presiding Officer shall render a separate decision for each separate civil penalty case.

§ 114.8 Prehearing conference.

The Presiding Officer may hold one or more prehearing conferences and may issue a hearing agenda which may include, without limitation, decisions with regard to any or all the following:

(a) Stipulations and admissions; (b) Disputed issues of fact;

(c) Hearing procedures including submission of oral or written testimony and the time allotted for oral arguments; and

(d) Any other matter which may expedite the hearing or aid in disposition of any issues raised therein.

sion to the Administrator, or unless the Administrator shall have stayed the effectiveness of the decision pending review.

8 114.9 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 informed. In the event the matter cannot be resolved by settlement the person charged with the violation shall be informed in writing, of the de. cision of the Presiding Officer and shall be advised of his right to appeal.

8 114.11 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 a 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 decision of the Presiding Officer in any respect and shall include in his decision a concise statement of the basis therefore. The decision of the Administrator on appeal shall be effective when rendered.

PART 115_REQUIREMENTS FOR AP

PROVAL OF DISCHARGES TO AQUACULTURE PROJECTS

Subpart A-General

§ 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 deci.

Sec. 115.1 Definitions. 115.2 Purpose and scope. 115.3 Approval of discharges to aquacul

ture projects. 115.4 Delegation of authority.

Subpart B-Processing of Pormits

115.5 General provisions. 115.6 Application for a permit.

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30-101-79--4

part proposes to confine the cultivated species, utilizing a method or plan of operation (including, but not limited to, physical confinement) which, on the basis of reliable scientific evidence, is expected to ensure that specific individual organisms comprising an aquaculture crop will enjoy increased growth attributable to the discharge of pollutants permitted under this part, and suffer harvesting within a defined geographic area.

(f) The term "Administrator" means the Administrator of the U.S. Environmental Protection Agency.

(g) The term "Regional Administrator" means one of the ten Regional Administrators of the U.S. Environmental Protection Agency.

(h) The term "applicant" means an applicant for a permit for a discharge of pollutants to an aquaculture project and the operation of the aquaculture project.

(i) The term "operator" means the person or persons operating the aquaculture project in the designated project area.

(j) The term "supplier of the pollutant" means the person or persons operating the point source from which the discharge of pollutants associated with an aquaculture project are made.

(k) The term "permit" means any permit or equivalent document or requirement issued to regulate the discharge of pollutants to an aquaculture project.

§ 115.2 Purpose and scope.

(a) The regulations in this part establish the procedures and guidelines for approval of an aquaculture project and for approval of any discharge of pollutants associated with an aquaculture project.

(b) The regulations are intended to authorize, on a selective basis, controlled discharges which would otherwise be unlawful under the Act in order to determine, in a carefully supervised manner, the existing and potential feasibility of utilizing pollutants to grow aquatic organisms which can be harvested and used beneficially, and to encourage such projects, while at the same time protecting other beneficial uses of the waters.

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