64154 Federal Register / Vol. 62, No. 233 / Thursday, December 4, 1997 / Rules and Regulations

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.

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:

§ 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.

§ 401.1 Scope.

This subpart shall govern the

submission, consideration, and

inclusion of projects into the

Comprehensive Plan.

§ 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 longrange 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
Federal Register / Vol. 62, No. 233 / Thursday, December 4, 1997 / Rules and Regulations 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 401.31 Scope.

This subpart shall govern the

submission and review of projects under

Section 3.8 of the Delaware River Basin

Compact.

§ 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,
64156 Federal Register / Vol. 62, No. 233 / Thursday, December 4, 1997 / Rules and Regulations

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.’’

§ 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.

§ 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.

§ 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 statelevel review and permit system is in

effect; broad regional consequences are
Federal Register / Vol. 62, No. 233 / Thursday, December 4, 1997 / Rules and Regulations 64157

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

§ 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.

§ 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 waterconserving 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 waterconserving 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 nonconsumptive 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.

§ 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.

§ 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.

§ 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 nonstructural 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.

§ 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.

§ 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.
Federal Register / Vol. 62, No. 233 / Thursday, December 4, 1997 / Rules and Regulations 64159

401.75 Protection of trade secrets;

Confidential information.

401.76 Failure to furnish report.

401.77 Informal conference.

401.78 Consolidation of hearings.

§ 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.

§ 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.

§ 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.

§ 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 inplant 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.

§ 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.

§ 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.

§ 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.

§ 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.
64160 Federal Register / Vol. 62, No. 233 / Thursday, December 4, 1997 / Rules and Regulations

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.

§ 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.

§ 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.

§ 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.

§ 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 crossexamine 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 crossexamine 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.
Federal Register / Vol. 62, No. 233 / Thursday, December 4, 1997 / Rules and Regulations 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.

§ 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 crossexamination.

(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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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

RAILROAD RETIREMENT BOARD

20 CFR Part 255

RIN 3220–AA44

Recovery of Overpayments

AGENCY: Railroad Retirement Board.