[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

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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