[Federal Register Volume 62, Number 233 (Thursday, December 4, 1997)]
[Rules and Regulations]
[Pages 64154-64161]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-31486]
[[Page 64154]]
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DELAWARE RIVER BASIN COMMISSION
18 CFR Part 401
Rules of Practice and Procedure; Amendments to Administrative
Manual--Rules of Practice and Procedure
AGENCY: Delaware River Basin Commission.
ACTION: Final rule.
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SUMMARY: At its November 19, 1997 business meeting, the Delaware River
Basin Commission amended its Administrative Manual--Rules of Practice
and Procedure for clarification and conformance with existing
Commission interpretations and practices.
EFFECTIVE DATE: November 19, 1997.
ADDRESSES: Copies of the Commission's Administrative Manual--Rules of
Practice and Procedure are available from the Delaware River Basin
Commission, P.O. Box 7360, West Trenton, New Jersey 08628.
FOR FURTHER INFORMATION CONTACT:
Susan M. Weisman, Commission Secretary, Delaware River Basin
Commission: Telephone (609) 883-9500 ext. 203.
SUPPLEMENTARY INFORMATION: On October 22, 1997 the Commission held a
public hearing on proposed amendments to its Rules of Practice and
Procedure as noticed in the Federal Register, Vol. 62, No. 168, August
29, 1997 and Vol. 62, No. 200, October 16, 1997. In response to
comments received on that proposal, the Commission made several
modifications to its initial proposal, providing further clarification,
correcting typographical errors and revising language concerning
assessment of Hearing costs.
List of Subjects in 18 CFR Part 401
Administrative practice and procedure, Environmental impact
statements, Freedom of information, Water pollution control, Water
resources.
18 CFR Part 401 is amended as follows:
SUBCHAPTER A--ADMINISTRATIVE MANUAL
PART 401--RULES OF PRACTICE AND PROCEDURE
1. The authority citation for Part 401 continues to read as
follows:
Authority: Delaware River Basin Compact, 75 Stat. 688.
2. Section 401.0 Introduction is revised to read as follows:
Sec. 410.0 Introduction.
(a) The Delaware River Basin Compact requires the Commission to
formulate and adopt a Comprehensive Plan and Water Resources Program.
In addition, the Compact provides in Section 3.8 that no project having
a substantial effect on the water resources of the Basin shall be
undertaken unless it shall have been first submitted to and approved by
the Commission. The Commission is required to approve a project
whenever it finds and determines that such project would not
substantially impair or conflict with the Comprehensive Plan. Section
3.8 further provides that the Commission shall provide by regulation
for the procedure of submission, review and consideration of projects
and for its determinations pursuant to Section 3.8.
(b) The Comprehensive Plan consists of all public and those private
projects and facilities which the Commission has directed be included
therein. It also includes those documents and policies which the
Commission has determined should be included with the Comprehensive
Plan as being needed to insure optimum planning, development,
conservation, use, management and control of the water resources of the
Delaware Basin to meet present and future needs. The Comprehensive Plan
is subject to periodic review and revision as provided in Sections 3.2
and 13.1 of the Compact.
(c) The Water Resources Program is based upon the Comprehensive
Plan. It is required to be updated annually and to include a systematic
presentation of the quantity and quality of water resources needs of
the area to be served for such reasonably foreseeable period as the
Commission may determine, balanced by existing and proposed projects
required to satisfy such needs. The Commission's review and
modification of the Water Resources Program is conducted pursuant to
the provisions of Articles 3.2 and 13.2 of the Compact.
(d) The Commission's Rules of Practice and Procedure govern the
adoption and revision of the Comprehensive Plan, the Water Resources
Program, the exercise of the Commission's authority pursuant to the
provisions of Article 3.8 and other actions of the Commission mandated
or authorized by the Compact.
(e) These Rules of Practice and Procedure extend to the following
areas of Commission responsibility and regulation:
Article 1--Comprehensive Plan.
Article 2--Water Resources Program.
Article 3--Project Review Under Section 3.8 of the Compact.
Article 4--(Reserved).
Article 5--Appeals or Objections to Decisions of the Executive
Director in Water Quality Cases.
Article 6--Administrative and Other Hearings.
Article 7--Penalties and Settlements in Lieu of Penalties.
Article 8--Public Access to the Commission's Records and
Information.
Article 9--General Provisions.
(f) These rules are subject to Commission revision and modification
from time to time as the Commission may determine. The Commission
reserves the right to waive any Rule of Practice and Procedure it
determines should not be applicable in connection with any matter
requiring Commission action. All actions by the Commission, however,
shall comply fully with the applicable provisions of the Compact.
3. Subpart A--Comprehensive Plan is revised to read as follows:
Subpart A--Comprehensive Plan
Sec.
401.1 Scope.
401.2 Concept of the Plan.
401.3 Other agencies.
401.4 Project applications and proposed revisions and changes.
401.5 Review of applications.
401.6 Proposed revisions and changes.
401.7 Further action.
401.8 Public Projects under Article 11 of the Compact.
401.9 Custody and availability.
Sec. 401.1 Scope.
This subpart shall govern the submission, consideration, and
inclusion of projects into the Comprehensive Plan.
Sec. 401.2 Concept of the Plan.
(a) The Comprehensive Plan shall be adopted, revised and modified
as provided in Sections 3.2 and 13.1 of the Compact. It is the
Commission's responsibility to adopt the Comprehensive Plan, after
consultation with water users and interested public bodies, for the
immediate and long-range development and uses of the water resources of
the Basin. The Plan shall include the public and private projects and
facilities which the Commission determines are required for the optimum
planning, development, conservation, utilization, management and
control of the water resources of the Basin to meet present and future
needs. In addition to the included projects and facilities, the
Comprehensive Plan consists of the statements of policies, and programs
that the Commission determines are necessary to govern the proper
development and use of the River Basin. The documents within the
Comprehensive Plan expressing the
[[Page 64155]]
Commission's policies and programs for the future, including the means
for carrying them out, may be set forth through narrative text, maps,
charts, schedules, budgets and other appropriate means.
(b) Specific projects and facilities and statements of policy and
programs may be incorporated, deleted or modified from time to time to
reflect changing conditions, research results and new technology. The
degree of detail described in particular projects may vary depending
upon the status of their development.
Sec. 401.3 Other agencies.
Projects of the federal agencies affecting the water resources of
the Basin, subject to the limitations in Section 1.4 of the Compact,
shall be governed by Section 11.1 of the Compact. Projects of the
signatory states, their political subdivisions and public corporations
affecting the water resources of the Basin, shall be governed by the
provisions of Section 11.2 of the Compact.
Sec. 401.4 Project applications and proposed revisions and changes.
(a) Applications for inclusion of new public projects and the
deletion or alteration of previously included public projects may be
submitted by signatory parties and agencies or political subdivisions
thereof. Owners or sponsors of privately owned projects may submit
applications for the inclusion of new private projects and the deletion
or alteration of previously included private projects in which the
applicant has an interest. The Commission may also receive and consider
proposals for changes and additions to the Comprehensive Plan which may
be submitted by any agency of the signatory parties, or any interested
person, organization, or group. Any application or proposal shall be
submitted in such form as may be required by the Executive Director to
facilitate consideration by the Commission.
(b) Applications for projects shall include at least the following
information:
(1) Purpose or purposes, including quantitative measures of
physical benefit anticipated from the proposal;
(2) The location, physical features and total area required.
(3) Forecast of the cost or effect on the utilization of water
resources;
(4) Relation to other parts of the existing Comprehensive Plan;
(5) A discussion of conformance with Commission policies included
in the Comprehensive Plan; and
(6) A discussion of the alternatives considered.
Sec. 401.5 Review of applications.
Following staff study, examination, and review of each project
application, the Commission shall hold a public hearing upon notice
thereon as provided in paragraph 14.4(b) of the Compact and may take
such action on a project application as it finds to be appropriate.
Sec. 401.6 Proposed revisions and changes.
Proposals for changes and additions to the Comprehensive Plan
submitted by any agency of the signatory parties or any interested
person, organization or group shall identify the specific revision or
change recommended. In order to permit adequate Commission
consideration of any proposal, the Executive Director may require such
additional information as may be needed. Review or consideration of
such proposals shall be based upon the recommendation of the Executive
Director and the further direction of the Commission.
Sec. 401.7 Further action.
The Commission will review the Comprehensive Plan in its entirety
at least once every six years from the date of the initial adoption of
the Comprehensive Plan (March 28, 1962). Such review may include
consideration of proposals submitted by the signatory parties, agencies
or political subdivision thereof or other interested parties. The
amendments, additions, and deletions adopted by the Commission will be
compiled and the Plan as so revised shall be made available for public
inspection.
Sec. 401.8 Public Projects under Article 11 of the Compact.
(a) After a project of any federal, state or local agency has been
included in the Comprehensive Plan, no further action will be required
by the Commission or by the agency to satisfy the requirements of
Article 11 of the Compact, except as the Comprehensive Plan may be
amended or revised pursuant to the Compact and this part. Any project
which is changed substantially from the project as described in the
Comprehensive Plan will be deemed to be a new and different project for
the purposes of Article 11 of the Compact. Whenever a change is made
the sponsor shall advise the Executive Director who will determine
whether the change is deemed substantial within the meaning of this
part.
(b) Any public project not having a substantial effect on the water
resources of the Basin, as defined in subpart C of this part, may
proceed without reference to Article 11 of the Compact.
Sec. 401.9 Custody and availability.
The Comprehensive Plan shall be and remain in the custody of the
Executive Director. The Plan, including all maps, charts, description
and supporting data shall be and remain a public record open to
examination during the regular business hours of the Commission, under
such safeguards as the Executive Director may determine to be necessary
to preserve and protect the Plan against loss, damage or destruction.
Copies of the Comprehensive Plan or any part or parts thereof shall be
made available by the Executive Director for public sale at a price
covering the cost of production and distribution.
4. Subpart C--Project Review Under Section 3.8 of the Compact is
revised to read as follows:
Subpart C--Project Review Under Section 3.8 of the Compact
Sec.
401.31 Scope.
401.32 Concept of 3.8.
401.33 Administrative agreements.
401.34 Submission of project required.
401.35 Classification of projects for review under Section 3.8 of
the Compact.
401.36 Water supply projects--Conservation requirements.
401.37 Sequence of approval.
401.38 Form of referral by State or Federal agency.
401.39 Form of submission of projects not requiring prior approval
by State or Federal agencies.
401.40 Informal conferences and emergencies.
401.41 Limitation of approval.
Sec. 401.31 Scope.
This subpart shall govern the submission and review of projects
under Section 3.8 of the Delaware River Basin Compact.
Sec. 401.32 Concept of 3.8.
Section 3.8 is intended to protect and preserve the integrity of
the Comprehensive Plan. This section of the Compact provides:
``No project having a substantial effect on the water resources
of the basin shall hereafter be undertaken by any person,
corporation or governmental authority unless it shall have been
first submitted to and approved by the Commission, subject to the
provisions of Sections 3.3 and 3.5. The Commission shall approve a
project whenever it finds and determines that such project would not
substantially impair or conflict with the Comprehensive Plan and may
modify and approve as modified, or may disapprove any such project
whenever it finds and determines that the project would
substantially impair or conflict with such Plan. The Commission
shall provide by regulation for the procedure of submission,
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review and consideration of projects, and for its determinations
pursuant to this section. Any determination of the Commission
hereunder shall be subject to judicial review in any court of
competent jurisdiction.''
Sec. 401.33 Administrative agreements.
The Executive Director is authorized and directed to enter into
cooperative Administrative Agreements with federal and state regulatory
agencies concerned with the review of projects under federal or state
law as follows:
(a) To facilitate the submission and review of applications and the
determinations required under Section 3.8 of the Compact;
(b) To avoid unnecessary duplication of staff functions and
hearings required by law; and
(c) For such other and different purposes as he may deem feasible
and advantageous for the administration of the Compact or any other
law.
Sec. 401.34 Submission of project required.
Any project which may have a substantial effect on the water
resources of the Basin, except as provided in paragraph (d) of this
section, shall be submitted to the Commission for a determination as to
whether the project impairs or conflicts with the Comprehensive Plan,
as follows:
(a) Where the project is subject to review by a state or federal
agency which has entered into an Administrative Agreement with the
Commission, such project will be referred to the Commission in
accordance with the terms of the Administrative Agreement, and
appropriate instructions will be prepared and issued by the Executive
Director for guidance of project sponsors and applicants.
(b) Where no other state or federal agency has jurisdiction to
review and approve a project, or no Administrative Agreement is in
force, the project sponsor shall apply directly to the Commission.
(c) Any project proposal, which may have a substantial effect on
the water resources of the Basin, may be received and reviewed by the
staff informally in conference with the project sponsor during the
preliminary planning phase to assist the sponsor to develop the project
in accordance with the Commission's requirements.
(d) Whenever a project sponsored by one of the signatory parties,
or by any agency, political subdivision or public corporation thereof,
has been included in the Water Resources Program in the ``A List''
classification, the project, to the extent of such inclusion and as
described in the Program, shall be deemed approved for the purposes of
Section 3.8 of the Compact.
(e) Whenever a project is subject to review and approval by the
Commission under this section, there shall be no substantial
construction activity thereon, including related preparation of land,
unless and until the project has been approved by the Commission;
provided, however, that this prohibition shall not apply to the
drilling of wells for purposes of obtaining geohydrologic data, nor to
in-plant control and pretreatment facilities for pollution abatement.
Sec. 401.35 Classification of projects for review under Section 3.8 of
the Compact.
(a) Except as the Executive Director may specially direct by notice
to the project owner or sponsor, or as a state or federal agency may
refer under paragraph (c) of this section, a project in any of the
following classifications will be deemed not to have a substantial
effect on the water resources of the Basin and is not required to be
submitted under Section 3.8 of the Compact:
(1) The construction of new impoundments or the enlargement or
removal of existing impoundments, for whatever purpose, when the
storage capacity is less than 100 million gallons;
(2) A withdrawal from ground water for any purpose when the daily
average gross withdrawal during any 30 consecutive day period does not
exceed 100,000 gallons;
(3) A withdrawal from impoundments or running streams for any
purpose when the daily average gross withdrawal during any 30
consecutive day period does not exceed 100,000 gallons;
(4) The construction of new domestic sewage treatment facilities or
alteration or addition to existing domestic sewage treatment facilities
when the design capacity of such facilities is less than a daily
average rate of 10,000 gallons per day in the drainage area to
Outstanding Basin Waters and Significant Resource Waters or less than
50,000 gallons per day elsewhere in the Basin; and all local sewage
collector systems and improvements discharging into authorized trunk
sewage systems;
(5) The construction of new facilities or alteration or addition to
existing facilities for the direct discharge to surface or ground
waters of industrial wastewater having design capacity of less than
10,000 gallons per day in the drainage area to Outstanding Basin Waters
and Significant Resource Waters or less than 50,000 gallons per day
elsewhere in the Basin; except where such wastewater contains toxic
concentrations of waste materials;
(6) A change in land cover on major ground water infiltration areas
when the amount of land that would be altered is less than three square
miles;
(7) Deepening, widening, cleaning or dredging existing stream beds
or relocating any channel, and the placement of fill or construction of
dikes, on streams within the Basin except the Delaware River and tidal
portions of tributaries thereto, and streams draining more than one
state;
(8) Periodic maintenance dredging;
(9) Encroachments on streams within the Basin caused by:
(i) Floating docks and anchorages and buoys and navigational aids;
(ii) Temporary construction such as causeways, cofferdams and
falsework required to facilitate construction on permanent structures;
(10) Bridges and highways unless they would pass in or across an
existing or proposed reservoir or recreation project area as designated
in the Comprehensive Plan;
(11) Liquid petroleum products pipelines and appurtenances designed
to operate under pressures less than 150 psi; local electric
distribution lines and appurtenances; local communication lines and
appurtenances; local natural and manufactured gas distribution lines
and appurtenances; local water distribution lines and appurtenances;
and local sanitary sewer mains, unless such lines would involve
significant disturbance of ground cover affecting water resources;
(12) Electric transmission or bulk power system lines and
appurtenances; major trunk communication lines and appurtenances;
natural and manufactured gas transmission lines and appurtenances;
major water transmission lines and appurtenances; unless they would
pass in, on, under or across an existing or proposed reservoir or
recreation project area as designated in the Comprehensive Plan; unless
such lines would involve significant disturbance of ground cover
affecting water resources;
(13) Liquid petroleum products pipelines and appurtenances designed
to operate under pressures of more than 150 psi, unless they would pass
in, on, under or across an existing or proposed reservoir or recreation
project area as designated in the Comprehensive Plan, or in, on, under
or across any stream within the Basin; unless such lines would involve
significant disturbance of ground cover affecting water resources;
(14) Landfill projects, unless no state-level review and permit
system is in effect; broad regional consequences are
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anticipated; or the standards or criteria used in state level review
are not adequate to protect the water of the Basin for the purposes
prescribed in the Comprehensive Plan;
(15) Draining, filling or otherwise altering marshes or wetlands
when the area affected is less than 25 acres; provided; however, that
areas less than 25 acres shall be subject to Commission review and
action;
(i) Where neither a state nor a federal level review and permit
system is in effect, and the Executive Director determines that a
project is of major regional or interstate significance requiring
action by the Commission, or
(ii) When a Commissioner or the Executive Director determines that
the final action of a state or federal permitting agency may not
adequately reflect the Commission's policy as to wetlands of the Basin.
In the case of a project affecting less than 25 acres for which there
has been issued a state or federal permit, a determination to undertake
review and action by the Commission shall be made no later than 30 days
following notification of the Commission of such permit action. The
Executive Director, with the approval of the Chairman, may at any time
within the 30-day period inform any permit holder, signatory party or
other interested party that the Commission will decline to undertake
review and action concerning any such project;
(16) The diversion or transfer of water from the Delaware River
Basin (exportation) whenever the design capacity is less than a daily
average rate of 100,000 gallons;
(17) The diversion or transfer of water into the Delaware River
Basin (importation) whenever the design capacity is less than a daily
average rate of 100,000 gallons except when the imported water is
wastewater;
(18) The diversion or transfer of wastewater into the Delaware
River Basin (importation) whenever the design capacity is less than a
daily average rate of 50,000 gallons; and
(19) Temporary or short term projects determined to have non-
substantial impact on the water resources of the Basin by the Executive
Director.
(b) All other projects which have or may have a substantial effect
on the water resources of the Basin shall be submitted to the
Commission in accordance with this part for determination as to whether
the project impairs or conflicts with the Comprehensive Plan. Among
these are projects involving the following (except as provided in
paragraph (a) of this section):
(1) Impoundment of water;
(2) Withdrawal of ground water;
(3) Withdrawal of water from impoundment or streams;
(4) Diversion of water into or out of the Basin;
(5) Deepening or widening of existing stream beds, channels,
anchorages, harbors or tuning basins, or the construction of new or
enlarged channels, anchorages, harbors or turning basins, or the
dredging of the bed of any stream or lake and disposal of the dredged
spoil, when the nature or location of the project would affect the
quantity or quality of ground or surface waters, or fish and wildlife
habitat;
(6) Discharge of pollutants into surface or ground waters of the
Basin;
(7) Facilities designed to intercept and transport sewage to a
common point of discharge; and pipelines and electric power and
communication lines;
(8) Facilities for the direct discharge to surface or ground waters
of industrial wastewater;
(9) Projects that substantially encroach upon the stream or upon
the 100-year flood plain of the Delaware River or its tributaries;
(10) Change in land cover on major ground water infiltration areas;
(11) Hydroelectric power projects, including pumped storage
projects;
(12) Projects or facilities of Federal, state and local agencies
such as highways, buildings and other public works and improvements,
affecting the water and related land resources of the Basin;
(13) Draining, filling or otherwise altering marshes or wetlands;
(14) Regional wastewater treatment plans developed pursuant to the
Federal Water Pollution Control Act;
(15) Landfills and solid waste disposal facilities affecting the
water resources of the Basin;
(16) State and local standards of flood plain regulation;
(17) Electric generating or cogenerating facilities designed to
consumptively use in excess of 100,000 gallons per day of water during
any 30-day period; and
(18) Any other project that the Executive Director may specify
direct by notice to the project sponsor or land owner as having a
potential substantial water quality impact on waters classified as
Special Protection Waters.
(c) Whenever a state or federal agency determines that a project
falling within an excluded classification (as defined in paragraph (a)
of this section) may have a substantial effect on the water resources
of the Basin, such project may be referred by the state of federal
agency to the Commission for action under this part.
(d) Except as otherwise provided by Sec. 401.39 the sponsor shall
submit an application for review and approval of a project included
under paragraph (b) of this section through the appropriate agency of a
signatory party. Such agency will transmit the application or a summary
thereof to the Executor, pursuant to Administrative Agreement, together
with available supporting materials filed in accordance with the
practice of the agency of the signatory party.
Sec. 401.36 Water supply projects--Conservation requirements.
Maximum feasible efficiency in the use of water is required on the
part of water users throughout the Basin. Effective September 1, 1981
applications under Section 3.8 of the Compact for new water withdrawals
subject to review by the Commission shall include and describe water-
conserving practices and technology designed to minimize the use of
water by municipal, industrial and agricultural users, as provided in
this section.
(a) Applications for approval of new withdrawal from surface or
ground water sources submitted by a municipality, public authority or
private water works corporation whose total average withdrawals exceed
one million gallons per day shall include or be in reference to a
program prepared by the applicant consisting of the following elements:
(1) Periodic monitoring of water distribution and use, and
establishment of a systematic leak detection and control program;
(2) Use of the best practicable water-conserving devices and
procedures by all classes of users in new construction or
installations, and provision of information to all classes of existing
users concerning the availability of water-conserving devices and
procedures; and
(3) A contingency plan including use priorities and emergency
conservation measures to be instituted in the event of a drought or
other water shortage condition. Contingency plans of public authorities
or private water works corporations shall be prepared in cooperation
with, and made available to, all municipalities in the area affected by
the contingency plan, and shall be coordinated with any applicable
statewide water shortage contingency plans.
(b) Programs prepared pursuant to paragraph (a) of this section
shall be subject to any applicable limitations of public utility
regulations of the
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signatory party in which the project is located.
(c) Applications for approval of new industrial or commercial water
withdrawals from surface or ground water in excess of an average of one
million gallons per day shall contain
(1) A report of the water-conserving procedures and technology
considered by the applicant, and the extent to which they will be
applied in the development of the project; and
(2) A contingency plan including emergency conservation measures to
be instituted in the event of a drought or other water shortage. The
report and contingency plan shall estimate the impact of the water
conservation measures upon consumptive and non-consumptive water use by
the applicant.
(d) Applications for approval of new agricultural irrigation water
withdrawals from surface or ground water sources in excess of one
million gallons per day shall include a statement of the operating
procedure or equipment to be used by the applicant to achieve the most
efficient method of application of water and to avoid waste.
(e) Reports, programs and contingency plans required under this
section shall be submitted by the applicant as part of the permit
application to the state agency having jurisdiction over the project,
or directly to the Commission in those cases where the project is not
subject to the jurisdiction of a state agency. State agencies having
jurisdiction over a project that is subject to the provisions of this
section shall determine the adequacy and completeness of the
applicant's compliance with these requirements and shall advise the
Commission of their findings and conclusions.
Sec. 401.37 Sequence of approval.
A project will be considered by the Commission under Section 3.8 of
the Compact either before or after any other state or federal review,
in accordance with the provisions of the Administrative Agreement
applicable to such project.
Sec. 401.38 Form of referral by State or Federal agency.
Upon approval by any State or Federal agency of any project
reviewable by the Commission under this part, if the project has not
prior thereto been reviewed and approved by the Commission, such agency
shall refer the project for review under Section 3.8 of the Compact in
such form and manner as shall be provided by Administrative Agreement.
(a) The Commission will rely on the appropriate agency in each
state to review and regulate the potability of all public water
supplies. Applications before the Commission should address the impact
of the withdrawal, use and disposal of water on the water resources of
the Basin.
(b) The Commission will rely on signatory party reviews as much as
possible and generally the Commission will not review the performance
standards of individual components of treatment processes but will
require compliance with all policies in the Comprehensive Plan
including all applicable Water Quality Standards.
Sec. 401.39 Form of submission of projects not requiring prior
approval by State or Federal agencies.
Where a project does not require approval by any other State or
Federal agency, or where such approval is required but an
Administrative Agreement is not in force, the project shall be
submitted directly to the Commission for review and determination of
compatibility with the Comprehensive Plan, in such form of application,
with such supporting documentation, as the Executive Director may
reasonably require for the administration of the provisions of the
Compact. These shall include without limitation thereto:
(a) Exhibits to accompany application. The application shall be
accompanied by the following exhibits:
(1) Abstract of proceedings authorizing project, where applicable;
(2) General map showing specific location and dimension of a
structural project, or specific language of a standard or policy in the
case of a non-structural proposal;
(3) Section of the United States Geological Survey topographic map
showing the territory and watershed affected;
(4) Maps, drawings, specifications and profiles of any proposed
structures, or a description of the specific effects of a non-
structural project;
(5) Written report of the applicant's engineer showing the proposed
plan of operation of a structural project;
(6) Map of any lands to be acquired or occupied;
(7) Estimate of the cost of completing the proposed project, and
sufficient data to indicate a workable financial plan under which the
project will be carried out; and
(8) Analyses and conclusions of regional water supply and
wastewater investigations.
(b) Letter of transmittal. The application shall be accompanied by
a letter of transmittal in which the applicant shall include a list of
all enclosures, the names and addresses to which communications may be
directed to the applicant, and the names and addresses of the
applicant's engineer and counsel, if any.
(c) Unless otherwise ordered by the Commission, two copies of the
application and accompanying papers shall be filed. If any application
is contested, the Commission may require additional copies of the
application and all accompanying papers to be furnished by the
applicant. In such cases, certified copies of photographic prints or
reproduction may be used.
Sec. 401.40 Informal conferences and emergencies.
(a) Whenever the Executive Director shall deem necessary, or upon
request of the applicant, an informal conference may be scheduled to
explain, supplement or review an application.
(b) In the event of an emergency requiring immediate action to
protect the public interest or to avoid substantial and irreparable
injury to any private person or property, and the circumstances do not
permit a review, hearing and determination in the regular course of the
regulations in this part, the Executive Director with the approval of
the chairman of the Commission may issue an emergency certificate
authorizing an applicant to take such action as the Executive Director
may deem necessary and proper in the circumstances, pending review,
hearing and determination by the Commission as otherwise required in
this part.
Sec. 401.41 Limitation of approval.
(a) Approval by the Commission under this part shall expire three
years from the date of Commission action unless prior thereto the
sponsor has expended substantial funds (in relation to the cost of the
project) in reliance upon such approval. An approval may be extended or
renewed by the Commission upon application.
(b) Any application that remains dormant (no proof of active
pursuit of approvals) for a period of three years from date of receipt,
shall be automatically terminated. Any renewed activity following that
date will require submission of a new application.
Subpart D--[Removed and Reserved.]
5. Subpart D is removed and reserved.
6. Subpart E is revised to read as follows:
Subpart E--Review in Water Quality Cases
Sec.
401.71 Scope.
401.72 Notice and request for hearing.
401.73 Form of request.
401.74 Form and contents of report.
[[Page 64159]]
401.75 Protection of trade secrets; Confidential information.
401.76 Failure to furnish report.
401.77 Informal conference.
401.78 Consolidation of hearings.
Sec. 401.71 Scope.
This subpart shall apply to the review, hearing and decision of
objections and issues arising as a result of administrative actions and
decisions taken or rendered by the Executive Director under the Compact
and the regulations in this chapter. Any hearings shall be conducted
pursuant to the provisions of subpart F of this part.
Sec. 401.72 Notice and request for hearing.
The Executive Director shall serve notice of an action or decision
by him under the Compact and the regulations in this chapter by
personal service or certified mail, return receipt requested. The
affected discharger shall be entitled (and the notice of action or
decision shall so state) to show cause at a Commission hearing why such
action or decision should not take effect. A request for such a hearing
shall be filed with the Secretary of the Commission not more than 30
days after service of the Executive Director's determination. Failure
to file such a request within the time limit shall be deemed to be an
acceptance of the Executive Director's determination and a waiver of
any further hearing.
Sec. 401.73 Form of request.
(a) A request for a hearing may be informal but shall indicate the
name of the individual and the address to which an acknowledgment may
be directed. It may be stated in such detail as the objector may elect.
The request shall be deemed filed only upon receipt by the Commission.
(b) When the Executive Director determines that the request for a
hearing is insufficient to identify the nature and scope of the
objection, or that one or more issues may be resolved, reduced or
identified by such action, he may require the objector to prepare and
submit to the Commission, within such reasonable time (not less than 30
days) as he may specify, a technical report of the facts relating to
the objection prior to the scheduling of the hearing. The report shall
be required by notice in writing served upon the objector by certified
mail, return receipt requested, addressed to the person or entity
filing the request for hearing at the place indicated in the request.
Sec. 401.74 Form and contents of report.
(a) Generally. A request for a report under this subpart may
require such information and the answers to such questions as may be
reasonably pertinent to the subject of the action or determination
under consideration.
(b) Waste loading. In cases involving objections to an allocation
of the assimilative capacity of a stream, wasteload allocation for a
point source, or load allocation for a new point source, the report
shall be signed and verified by a technically qualified person having
personal knowledge of the facts stated therein, and shall include such
of the following items as the Executive Director may require:
(1) A specification with particularity of the ground or grounds for
the objection; and failure to specify a ground for objection prior to
the hearing shall foreclose the objector from thereafter asserting such
a ground at the hearing;
(2) A description of industrial processing and waste treatment
operational characteristics and outfall configuration in such detail as
to permit an evaluation of the character, kind and quantity of the
discharges, both treated and untreated, including the physical,
chemical and biological properties of any liquid, gaseous, solid,
radioactive, or other substance composing the discharge in whole or in
part;
(3) The thermal characteristics of the discharges and the level of
heat in flow;
(4) Information in sufficient detail to permit evaluation in depth
of any in-plant control or recovery process for which credit is
claimed;
(5) The chemical and toxicological characteristics including the
processes and/or indirect discharges which may be the source of the
chemicals or toxicity;
(6) An analysis of all the parameters that may have an effect on
the strength of the waste or impinge upon the water quality criteria
set forth in the Compact and the regulations in this chapter, including
a determination of the rate of biochemical oxygen demand and the
projection of a first-stage carbonaceous oxygen demand;
(7) Measurements of the waste as closely as possible to the
processes where the wastes are produced, with the sample composited
either continually or at frequent intervals (one-half hour or, where
permitted by the Executive Director, one hour periods), so as to
represent adequately the strength and volume of waste that is
discharged; and
(8) Such other and additional specific technical data as the
Executive Director may reasonably consider necessary and useful for the
proper determination of a wasteload allocation.
Sec. 401.75 Protection of trade secrets; Confidential information.
No person shall be required in such report to divulge trade secrets
or secret processes. All information disclosed to any Commissioner,
agent or employee of the Commission in any report required by this part
shall be confidential for the purposes of Section 1905 of Title 18 of
the United States Code which provides:
Whoever, being an officer or employee of the United States or of
any department or agency thereof, publishes, divulges, discloses, or
makes known in any manner or to any extent not authorized by law any
information coming to him in the course of his employment or
official duties or by reason of any examination or investigation
made by, or return, report or record made to or filed with, such
department or agency or officer or employee thereof, which
information concerns or relates to the trade secrets, processes,
operations, style of work, or apparatus, or to the identity,
confidential statistical data, amount or source of any income,
profits, losses, or expenditures of any person, firm, partnership,
corporation or association; or permits any income return or copy
thereof to be seen or examined by any persons except as provided by
law; shall be fined not more than $1,000 or imprisoned not more than
one year, or both; and shall be removed from office or employment.
June 25, 1948, C.645, 62 Stat. 791.
Sec. 401.76 Failure to furnish report.
The Executive Director may, upon five days' notice to the objector
dismiss the request for a hearing as to any objector who fails to file
a complete report within such time as shall be prescribed in the
Director's notice.
Sec. 401.77 Informal conference.
Whenever the Executive Director deems it appropriate, he may cause
an informal conference to be scheduled between an objector and such
member of the Commission staff as he may designate. The purpose of such
a conference shall be to resolve or narrow the ground or grounds of the
objections.
Sec. 401.78 Consolidation of hearings.
Following such informal conferences as may be held, to the extent
that the same or similar grounds for objections are raised by one or
more objectors, the Executive Director may in his discretion and with
the consent of the objectors, cause a consolidated hearing to be
scheduled at which two or more objectors asserting that ground may be
heard.
7. Subpart F is revised to read as follows:
Subpart F--Administrative and Other Hearings
Sec.
401.81 Hearings generally.
401.82 Authorization to conduct hearings.
[[Page 64160]]
401.83 Hearing Officer.
401.84 Hearing procedure.
401.85 Staff and other expert testimony.
401.86 Record of proceedings.
401.87 Assessment of costs; Appeals.
401.88 Findings, report and Commission review.
401.89 Action by the Commission.
401.90 Appeals from final Commission action; Time for appeals.
Sec. 401.81 Hearings generally.
(a) Scope of subpart. This subpart shall apply to contested cases
required to be held under subparts C and E of this part, to the conduct
of other administrative hearings involving contested cases and to
proceedings which Commission regulation or the Commission directs be
conducted pursuant to this subpart.
(b) Definition of contested case. ``Contested case'' means a
proceeding in which the legal rights, duties, obligations, privileges,
benefits or other legal relations of specific parties are involved.
Such a proceeding may involve personnel matters, project applications
and docket decisions but shall not extend to the review of any proposed
or adopted rule or regulation of the Commission.
(c) Requests for hearings. Any person seeking a hearing to review
the action or decision of the Commission or the Executive Director may
request a hearing pursuant to the provisions of this subpart provided
such a request is received by the Commission within thirty (30) days of
the action or decision which is the subject of the requested hearing.
Requests shall be submitted in writing to the Secretary of the
Commission and shall identify the specific action or decision for which
a hearing is requested, the date of the action or decision, the
interest of the person requesting the hearing in the subject matter of
the proposed hearing and a summary statement setting forth the basis
for objecting to or seeking review of the action or decision. Any
request filed more than thirty days after an action or decision will be
deemed untimely and such request for a hearing shall be considered
denied unless the Commission by unanimous vote otherwise directs.
Receipt of requests for hearings, pursuant to this subpart, whether
timely filed or not, shall be submitted by the Secretary to the
Commissioners for their information.
(d) Optional joint hearings. Whenever designated by a department,
agency or instrumentality of a signatory party, and within any
limitations prescribed by the designation, a Hearing Officer designated
pursuant to this subpart may also serve as a Hearing Officer, examiner
or agent pursuant to such additional designation and may conduct joint
hearings for the Commission and for such other department, agency or
instrumentality. Pursuant to the additional designation, a Hearing
Officer shall cause to be filed with the department, agency or
instrumentality making the designation, a certified copy of the
transcript of the evidence taken before him and, if requested, of his
findings and recommendations. Neither the Hearing Officer nor the
Delaware River Basin Commission shall have or exercise any power or
duty as a result of such additional designation to decide the merits of
any matter arising under the separate laws of a signatory party (other
than the Delaware River Basin Compact).
(e) Schedule. The Executive Director shall cause the schedule for
each hearing to be listed in advance upon a ``hearing docket'' which
shall be posted in public view at the office of the Commission.
(f) Notice of hearing. Notice of any hearing to be conducted
pursuant to this subpart shall comply with the provisions of Section
14.4(b) of the Compact relating to public notice unless otherwise
directed by the Commission.
Sec. 401.82 Authorization to conduct hearings.
(a) Written requests for hearings. Upon receipt of a written
request for a hearing pursuant to this subpart, the Executive Director
shall review the record available with regard to the action or decision
for which a hearing is requested. Thereafter, the Executive Director
shall present the request for a hearing to the Commission for its
consideration. The Commission shall grant a request for a hearing
pursuant to this subpart if it determines that an adequate record with
regard to the action or decision ins not available, the contested case
involves a determination by the Executive Director or staff which
requires further action by the Commissioner that the Commission has
found that an administrative hearing is necessary or desirable. If the
Commission denies any request for a hearing in a contested case, the
party seeking such a hearing shall be limited to such remedies as may
be provided by the Compact or other applicable law or court rule.
(b) Commission directed hearings. This subpart shall be applicable
to any proceeding which Commission regulation or the Commission directs
be conducted in accordance with the provisions, of this subpart.
Sec. 401.83 Hearing Officer.
(a) Generally. Hearings shall be conducted by one or more members
of the Commission, by the Executive Director, or by such other Hearing
Officer as the Chairman may designate, except as provided in paragraph
(b) of this section.
(b) Wasteload allocation cases. In cases involving the allocation
of the assimilative capacity of a stream:
(1) The Executive Director shall appoint a hearing board of at
least two persons. One of them shall be nominated by the water
pollution control agency of the state in which the discharge
originates, and he shall be chairman. The board shall have and exercise
the powers and duties of a Hearing Officer;
(2) A quorum of the board for purposes of the hearing shall consist
of two members; and
(3) Questions of practice or procedure during the hearing shall be
determined by the Chairman.
Sec. 401.84 Hearing procedure.
(a) Participation in the hearing. In any hearing, the person
requesting the hearing shall be deemed an interested party and shall be
entitled to participate fully in the hearing procedure. In addition,
any person whose legal rights may be affected by the decision rendered
in a contested case shall be deemed an interested party. Interested
parties shall have the right to be represented by counsel, to present
evidence and to examine and cross-examine witnesses. In addition to
interested parties, any persons having information concerning a
contested case or desiring to present comments concerning the subject
matter of the Hearing for inclusion in the record may submit a written
statement to the Commission. Any interested party may request the right
to examine or cross-examine any person who submits a written statement.
In the absence of a request for examination of such person, all written
statements submitted shall be included within the record and such
statements may be relied upon to the extent determined by the Hearing
Officer or the Commission.
(b) Powers of the Hearing Officer. The Hearing Officer shall:
(1) Rule upon offers of proof and the admissibility of evidence,
regulate the course of the hearings, hold conferences for the
settlement or simplification of procedures or issues, and shall
schedule submission of documents, briefs and the time for the hearing.
(2) Cause each witness to be sworn or to make affirmation.
[[Page 64161]]
(3) Limit the number of times any witness may testify, limit
repetitious examination or cross-examination of witnesses or the extent
to which corroborative or cumulative testimony shall be accepted.
(4) Exclude irrelevant, immaterial or unduly repetitious evidence,
but the interested parties shall not be bound by technical rules of
evidence and all relevant evidence of reasonably probative value may be
received.
(5) Require briefs and oral arguments to the extent determined
necessary which shall be included as part of the record unless
otherwise ordered by the Hearing Officer.
Sec. 401.85 Staff and other expert testimony.
(a) Presentation on behalf of the Commission. The Executive
Director shall arrange for the presentation of testimony by the
Commission's technical staff and other experts, as he may deem
necessary or desirable, to incorporate in the record or support the
administrative action, determination or decision which is the subject
of the hearing.
(b) Expert witnesses. An interested party may submit in writing to
the Hearing Officer the report and proposed testimony of an expert
witness. No expert report or proposed testimony, however, shall be
included in the record if the expert is not available for examination
unless the report and proposed testimony shall have been provided to
the Commission and all interested parties prior to the hearing and the
Commission and interested parties have waived the right of cross-
examination.
(c) The Executive Director may designate for inclusion in the
record those records of the Commission which the Executive Director
deems relevant to a decision in a contested case or to provide an
understanding of applicable Commission policies, regulations or other
requirements relating to the issues in the contested case. The
designation of such Commission documents shall be provided to all
interested parties prior to the hearing.
Sec. 401.86 Record of proceedings.
A record of the proceedings and evidence at each hearing shall be
made by a qualified stenographer designated by the Executive Director.
Where demanded by the applicant, objector, or any other person who is a
party to these proceedings, or where deemed necessary by the Hearing
Officer, the testimony shall be transcribed. In those instances where a
transcript of proceedings is made, two copies shall be delivered to the
Commission. The applicant, objector, or other persons who desire copies
shall obtain them from the stenographer at such price as may be agreed
upon by the stenographer and the person desiring the transcript.
Sec. 401.87 Assessment of costs; Appeals.
(a) Whenever a hearing is conducted under this subpart, the costs
thereof, as defined in this subpart, shall be assessed by the Hearing
Officer to the party requesting the hearing unless apportioned between
the interested parties where cost sharing is deemed fair and equitable
by the Hearing Officer. For the purposes of this section costs include
all incremental costs incurred by the Commission, including, but not
limited to, hearing examiner and expert consultants reasonably
necessary in the matter, stenographic record, rental of a hearing room
and other related expenses.
(b) Upon scheduling of a matter for hearing, the Secretary shall
furnish to the applicant and/or interested parties a reasonable
estimate of the costs to be incurred under this section. The applicant
and/or interested parties may be required to furnish security for such
costs either by cash deposit or by a surety bond of a corporate surety
authorized to do business in a signatory state.
(c) An appeal of the assessment of costs may be submitted in
writing to the Commission within ten (10) days of the assessment. A
copy of the appeal shall be filed with the Secretary and served on all
interested parties. The filing of said appeal shall not stay the
Hearing.
Sec. 401.88 Findings, report and Commission review.
(a) The Hearing Officer shall prepare a report of his findings and
recommendations. In the case of an objection to a waste load
allocation, the Hearing Officer shall make specific findings of a
recommended allocation which may increase, reduce or confirm the
Executive Director's determination. The report shall be served by
personal service or certified mail (return receipt requested) upon each
party to the hearing or its counsel unless all parties have waived
service of the report. The applicant and any objector may file
objections to the report within 20 days after the service upon him of a
copy of the report. A brief shall be filed together with any
objections. The report of the Hearing Officer together with objections
and briefs shall be promptly submitted to the Commission. The
Commission may require or permit oral argument upon such submission
prior to its decision.
(b) The Executive Director, in addition to any submission to the
Hearing Officer, may also submit to the Commission staff comments upon,
or a response to, the Hearing Officer's findings and report and, where
appropriate, a draft docket or other recommended Commission action.
Interested parties shall be served with a copy of such submission and
may have not less than ten (10) days to respond before action by the
Commission.
Sec. 401.89 Action by the Commission.
(a) The Commission will act upon the findings and recommendations
of the Hearing Officer pursuant to law.
(b) Commission Counsel shall assist the Commission with its review
of the hearing record and the preparation of a Commission decision to
the extent directed to do so by the Chairman.
(c) The determination of the Commission will be in writing and
shall be filed together with any transcript of the hearing, report of
the Hearing Officer, objections thereto, and all plans, maps, exhibits
and other papers, records or documents relating to the hearing. All
such records, papers and documents may be examined by any person at the
office of the Commission, and shall not be removed therefrom except
temporarily upon the written order of the Secretary after the filing of
a receipt therefor in form prescribed by the Secretary. Copies of any
such records and papers may be made in the office of the Commission by
any person, subject to such reasonable safeguards for the protection of
the records as the Executive Director may require.
Sec. 401.90 Appeals from final Commission action; Time for appeals.
Any party participating in a hearing conducted pursuant to the
provisions of this subpart may appeal any final Commission action. To
be timely, such an appeal must be filed with an appropriate federal
court, as provided in Article 15.1(p) of the Commission's Compact,
within forty-five (45) days of final Commission action.
Dated: November 21, 1997.
Susan M. Weisman,
Secretary.
[FR Doc. 97-31486 Filed 12-3-97; 8:45 am]
BILLING CODE 6360-01-M
