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(5) The construction of new facilities or alteration or addition to existing facilities for the direct discharge to surface or ground waters of industrial waste water having design capacity of less than 50,000 gallons per day, except where such waste water 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, coffer-dams 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 shown 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.

(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 shown in the Comprehensive Plan.

(13) Liquid petroleum products pipelines and appurtenances designed to opprate 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

shown in the Comprehensive Plan, or in, on, under or across any stream within the basin.

(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 these regulations for determination as to whether the project will have a substantial effect on the water resources of the basin and, if so, 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 turning 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 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 ior the direct discharge to surface or ground waters of industrial waste water.

(9) Stream encroachments.

(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.

(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 or federal agency to the Commission for action under the rules in this part.

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§ 401.36 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. § 401.37 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. § 401.38 Form of submission of proj.

ects 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.

(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) Number of copies. Unless otherwise ordered by the Commission, two copies of the application and accompanying papers shall be filed. If an 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 or photographic prints or reproductions may be used. § 401.39 Preliminary action; informal

conference; 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 these regulations, 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. 8 401.40 Hearings.

(a) The Executive Director may, and whenever any substantial objection is filed pursuant to this section shall, cause a hearing to be scheduled upon an application received under $ 401.38. He may, and at the request of the applicant shall, cause a hearing to be scheduled as to any application referred under § 401.37. Notice of the intention of the Commission to act upon an application received pursuant to § 401.38, or upon a request for a hearing with regard to an application received pursuant to § 401.37, shall be published by the Executive Director in one or more newspapers of

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general circulation in the area affected, Subpart D-Review in Water Quality at least once a week for two successive

Cases weeks, which publications shall not be less than seven nor more than twenty

SOURCE: The provisions of this Subpart D one days prior to the date on which ac

appear at 33 F.R. 15336, Oct. 16, 1968, unless

otherwise noted. tion is proposed to be taken. Such notice shall direct any person objecting to the § 401.51 Scope. application to file his objection with the

This subpart shall apply to the review, Commission not later than two days be

hearing and decision of objections and fore the scheduled date of action. If

issues arising as a result of administrathe Executive Director determines that

tive actions and decisions taken or renany filed objection is substantial, he

dered under the Basin Regulations. shall defer consideration by the Commission, furnish a copy of each such ob- § 401.52 Notice and request for hearing. jection to the applicant, and schedule a

The Executive Director shall serve hearing on the application to be held

notice of an action or decision by him not less than ten nor more than thirty

under the Basin Regulations by personal days after the last day for filing objec

service or certified mail, return receipt tions. Notice of the hearing shall be

requested. The affected discharger shall served forthwith by certified mail upon

be entitled (and the notice of action or the applicant and each person filing a decision shall so state) to show cause at substantial objection. Proof of such

a Commission hearing why such action or publication and of service of notice shall

decision should not take effect. A rebe filed with the Commission on or be

quest for such a hearing shall be filed fore the date for which the hearing is with the Secretary of the Commission scheduled.

not more than 20 days after service of (b) The application and supporting the Executive Director's determination. documents, maps and data, as filed or Failure to file such a request within the amended shall be open to inspection by

time limited shall be deemed to be an any interested person prior to the

acceptance of the Executive Director's

determination and a waiver of any furhearing.

ther hearing. § 401.41 Objections.

& 401.53 Form of request. Every objection filed pursuant to $ 401.40 shall be in writing and shall

A request for a hearing may be in

formal but shall indicate the name of the particularly specify the ground thereof.

individual and the address to which an Amendments to the objections may be

acknowledgment may be directed. It may permitted by the Commission. All ob

be stated in such detail as the objector jections and supporting documents shall

may elect. The request shall be deemed be filed in duplicate in such form as the filed only upon receipt by the CommisExecutive Director may prescribe. No sion. person may be heard in opposition to an

§ 401.54 Report. application except on objections so filed. Such objections shall be heard and de

Whenever the Executive Director determined under the procedure prescribed

termines that the request for a hearing is

insufficient to identify the nature and by Subpart E (Hearings) of this part.

scope of the objection, or that one or (33 F.R. 15336, Oct. 16, 1968]

more issues may be resolved, reduced or § 401.42 Limitation of approval.

identified by such action, he may require Approval by the Commission under

the objector to prepare and submit to

the Commission, within such reasonable this part shall expire three years from

time (not less than 20 days) as he may the date of Commission action unless

specify, a technical report of the facts prior thereto the sponsor has expended

relating to the objection prior to the substantial funds (in relation to the cost

scheduling of the hearing. The report of the project) in reliance upon such ap- shall be required by notice in writing proval. An approval may be extended served upon the objector by certified or renewed by the Commission upon ap- mail, return receipt requested, addressed plication.

to the person or entity filing the request [29 F.R. 3568, Mar. 20, 1964. Redesignated, for hearing at the place indicated in the 33 F.R. 15338, Oct. 16, 1968]

request.

$ 401.55 Form and contents of report.

(a) Generally. A request for a report under this article 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, 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 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) 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 Basin Regulations, including a determination of the rate of biochemical oxygen demand and the projection of a first-stage carbonaceous oxygen demand;

(6) 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, 1 hour periods), so as to represent adequately the strength and volume of the waste that is discharged;

(7) Such other and additional specific technical data as the Executive Director may reasonably consider necessary and useful for the proper determination of a waste load allocation.

$ 401.56 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 the rules in this subpart 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 oficial 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 1 year, or both; and shall be removed from office or employment. June 25, 1948, C. 624, 62 Stat. 791. § 401.57 Failure to furnish report.

The Executive Director may, upon 5 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. § 401.58 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. § 401.59 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.

Subpart E-Conduct of Hearings

SOURCE: The provisions of this Subpart E appear at 33 F.R. 15337, Oct. 16, 1968, unless otherwise noted. & 401.61 Hearings generally.

(a) Scope of subpart. This subpart shall apply to hearings required for the purposes of Subparts C and D of this part and, to the extent applicable, to the conduct of administrative hearings for which no other provision is made by statute or regulation.

(b) Timely request. Any person aggrieved by any action or decision of the Executive Director taken under and Basin Regulation shall be entitled upon timely filing of a request therefor, to a hearing in accordance with these regulations.

(c) 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 serve as a hearing officer, examiner or agent pursuant to such additional designation. The hearing officer 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).

(d) 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. § 401.62 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) Waste load 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.

(3) Questions of practice or procedure during the hearing shall be determined by the chairman. § 401.63 Hearing procedure.

(a) The hearing officer shall have the power to rule upon offers of proof and the admissibility of evidence, to regulate the course of the hearings, and to hold conferences for the settlement or simplification of issues.

(b) The hearing officer shall cause each witness to be sworn or to make affirmation.

(C) Any party to a hearing shall have the right to present evidence and to examine and cross-examine witnesses.

(d) When necessary, in order to prevent undue prolongation of the hearing, the hearing officer may limit the number of times any witness may testify, the repetitious examination or cross-examination of witnesses, or the extent of cor. roborative or cumulative testimony.

(e) The hearing officer shall exclude irrelevant, immaterial, or unduly repetitious evidence, but the parties shall not be bound by technical rules of evidence, and all relevant evidence of reasonably probative value may be received.

(f) Any person entitled to be heard may appear and be heard in person or be represented by an attorney at law or, if the applicant is a corporation, by its corporate officer, an authorized employee, or by an attorney at law.

(g) Briefs and oral argument may be required by the hearing officer and shall be permitted upon request made prior to the close of the hearing by any party. They shall be part of the record unless otherwise ordered by the hearing officer. § 401.64 Staff and other expert testi

mony. (a) The Executive Director shall arrange for the presentation of testimony by the Commision's technical staff and

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