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measures, if anyrecommended by the Environmental Protection Agency. § 104.10 Conference procedure.

(a) Persons making statements need not be sworn or make affirmation. Each party shall be given an opportunity to make a statement concerning the water quality standards for the waters covered by the conference, an opportunity after all parties have been heard to make a further statement which may include comments on or rebuttal of other parties' views, and an opportunity to make recommendation for water quality standards in either his first or subsequent statement.

(b) When necessary, in order to prevent undue prolongation of the conference, the Chairman may limit the number of times any party may make a statement and may direct that further statements be made in writing.

(c) The Chairman shall exclude ir. relevant, immaterial or unduly repetitious material. $ 104.11 Record of proceedings.

(a) Statements given and other procedures of a formal conference shall be reported verbatim. A transcript of such report shall be a part of the record and the sole official transcript of the proceedings.

(b) All statements, charts, tabulations and other data shall be received in the record. If a party to a proceeding under this section objects to the admissibility of such material, the objection shall be noted and the Chairman shall have a right to rule thereon.

(c) When the statement refers to a statute, or a report or document, the Chairman shall, after satisfying himself of the identification of such statute, report or document, determine whether the same shall be produced at the conference and physically be made part of the record or shall be incorporated in the record by reference.

(d) The Chairman may take official notice of statutes of States and of duly promulgated regulations of any Federal or State agency.

(e) The Chairman shall submit to the Administrator the verbatim transcript including all charts, tabulations, and similar data which are part of the conference record.

§ 104.12 Preparation, publication, and

promulgation of water quality stand. ards; effective date; petition for

public hearing. (a) Subsequent to submission of the conference transcript and record, the Administrator shall prepare regulations setting forth water quality standards for interstate waters or portions thereof which were covered by the conference. Such regulations shall be published as part of a notice of proposed rule making in the FEDERAL REGISTER.

(b) After publication of such regulations and notice of proposed rule making, Interested persons may submit written data, views, or arguments in triplicate in regard to the regulations setting forth water quality standards to the Administrator, Environmental Protection Agency, Washington, D.C. 20460. All relevant material received not later than 90 days after such publication will be considered.

(c) If, within 6 months from the date the Administrator publishes such regulations, the State has not adopted water quality standards found by the Administrator to be consistent with section 10(c)(3) of the Act, or a petition for public hearing has not been filed under section 10(c) (4) of the Act and $ 104.12 (d), the Administrator shall promulgate water quality standards by publication thereof in the FEDERAL REGISTER. Such water quality standards shall be effective thirty (30) days after such publication unless a petition for public hearing has been first filed under section 10(c) (4) of the Act and $ 104.12(d).

(d) At any time prior to thirty (30) days after water quality standards have been promulgated under $ 104.12(c), the Governor of any State affected by such standards may petition the Administrator for a public hearing under section 10(c)(4) of the Act. A petition for a public hearing need not observe any fixed form, but it must be in writing directed to the Administrator and state that the petitioning Governor desires the Administrator to call a public hearing with respect to water quality standards under section 10(c)(4) of the Act, identifying the interstate waters with respect to which such hearing is to be called. 104.13 Initiation of proceedings for

water quality public hearings; ap.

pointment of Hearing Board. (a) In any case where the Administra. tor finds that the conditions precedent to the calling of a water quality public hearing under the Act exist, he will call such a hearing, and may either fix the time and place thereof, or authorize the Assistant Administrator for Media Programs or the Deputy Assistant Administrator for Water Programs to do so.

(b) Prior to the hearing, the Administrator will appoint a Hearing Board of five or more persons, as provided in the Act, and will designate one of the members as chairman. A majority of the Hearing Board shall be persons other than officers or employees of the Agency. The Administrator may revoke appointment to the Hearing Board in the event of disability of a member or for other cause, and may fill any vacancy in the membership of the Hearing Board, or in the office of Chairman. The Secretary of Commerce, the Secretary of Health, Education, and Welfare, other affected Federal departments and agencies, and each State which would be affected by such standards shall each be given an opportunity to select a member of the Hearing Board and shall further be given an opportunity to select another person to fill any vacancy resulting from the resignation or revocation of appointment of any member originally so selected. § 104.14 Organization and general pro

cedures of the Hearing Board. (a) The Chairman shall convene the Hearing Board for hearing sessions and for such other meetings as may be necessary.

(b) The Chairman shall preside at all hearing sessions and meetings of the Hearing Board. In case of the absence or incapacity of the Chairman, the Hearing Board may elect from its members an acting chairman to preside and to perform the duties of the Chairman.

(c) The hearing shall be conducted in an informal but orderly manner in accordance with this part. A quorum of the Hearing Board for the purpose of the hearing shall consist of not less than five members. Questions of procedure during a hearing shall be determined by the Chairman. Rulings of the Chairman may be appealed to the Hearing Board.

(d) The Hearing Board shall have the power to rule upon offers of proof and the admissibility of evidence, to receive relevant evidence, to examine witnesses and parties, to regulate the course of the hearing, to change the time and place of the hearing or any of its sessions upon

reasonable notice to the parties, and to hold conferences for the settlement or simplification of issues.

(e) The Deputy Assistant Administrator for Water Programs shall provide for the Hearing Board such clerical and technical assistance as may necessary.

(f) The Hearing Board shall designate an executive secretary, from personnel provided by the Deputy Assistant Administrator for Water Programs, who shall maintain and have custody of all official records and other documents pertaining to the functions of the Hearing Board, and shall perform such other duties related to its functions as the Hearing Board may prescribe.

(g) The Hearing Board may authorize the Chairman and the executive secretary on its behalf to execute, issue or serve such notices, reports, communications, and other documents relating to the functions of the Hearing Board as it may deem proper. § 104.15 Notice of hearing.

(a) The Administrator, Assistant Administrator for Media Programs, or the Deputy Assistant Administrator for Water Programs shall issue and serve notice of hearing as herein provided.

(b) The notice of hearing shall briefly describe the location and nature of the interstate waters to be covered by the hearing and the water quality regulations therefor, if any, prepared pursuant to section 10(c) (2) of the Act.

(c) The notice shall include the names of the persons constituting the Hearing Board before whom the hearing will be held and shall designate a day, a time and place therefor not earlier than thirty (30) days after the service of the notice.

(d) Notice of the hearing shall be served on representatives of Federal departments and agencies, interstate agencies, States, municipalities and industries the Administrator, Assistant Administrator for Media Programs, or the Deputy Assistant Administrator for Water Programs has reason to believe are contributing to, affected by, or have an interest in water quality standards for the waters to be covered by the hearing. $ 104.16 Service.

Notice of the hearing and other documents relating to the function of the hearing may be served by mailing a copy thereof to each person, department, or agency to be served at their residence, office or place of business as ascertained by the Administrator, Assistant Administrator for Media Programs, or the Deputy Assistant Administrator for Water Programs, as the case may be. Service by mail is complete upon mailing. § 104.17 Publication of notice.

Notice of the public hearing shall be published in the FEDERAL REGISTER at least thirty (30) days prior to the hearing. $ 104.18 Parties.

(a) The parties to a hearing shall include the persons and agencies specified in $ 104.15(d).

(b) The Deputy Assistant Administrator for Water Programs shall have all the rights of a party to the hearing.

(c) Upon application and good cause shown, the Hearing Board may permit any interested person or agency to appear before it and be admitted as a party to such extent and upon such terms as the Hearing Board shall determine proper.

(d) Any party may appear in person or by counsel.

(e) The failure of any party to file an appearance or appear at the hearing in response to the notice of hearing shall not delay the hearing and the Hearing Board may proceed, hear and receive evidence and take other appropriate action affecting such party. $ 104.19 Presentation of standards and

supporting material by the Deputy Assistant Administrator for Water

Programs. The Deputy Assistant Administrator for Water Programs shall arrange for the presentation of the regulations, if any, prepared by the Administrator and setting forth the standards of water quality for the waters covered by the hearing, and such other material as he deems relevant to the issues in the hearing. $ 104.20 Hearing procedure.

(a) Each witness shall, before testifying, be sworn or make affirmation.

(b) When necessary, in order to prevent undue prolongation of the hearing, the Hearing Board may limit the number of times any witness may testify, the repetitious examination or cross-examination of witnesses or the amount of corroborative or cumulative testimony.

(c) The Hearing Board shall exclude irrelevant, immaterial or unduly repetitious evidence.

(d) Every party shall have the right to present evidence and cross-examine witnesses. & 104.21 Record of proceedings.

(a) Testimony given and other proceedings had at a hearing shall be reported verbatim. A transcript of such report shall be a part of the record and the sole official transcript of the proceedings.

(b) All written statements, charts, tabulations, and similar data offered in evidence at the hearing shall, upon a showing satisfactory to the Hearing Board of their authenticity, relevancy. and materiality, be received in evidence and shall constitute a part of the record.

(c) Where the testimony of a witness refers to a statute, or a report or document, the Hearing Board shall, after satisfying itself of the identification of such statute, report or document, determine whether the same shall be produced at the hearing and physically be made a part of the record or shall be incorporated in the record by reference.

(d) The Hearing Board may take offcial notice of statutes of the United States or of any State and of duly promulgated regulations of any Federal or State agency.

(e) The Hearing Board may take offcial notice of a material fact not appearing in the evidence in the record, but any party, prior to the conclusion of the hearing, shall be afforded an opportunity to show the contrary. § 104.22 Oral argument.

Oral argument may be permitted in the discretion of the Hearing Board, and shall be reported as part of the record unless otherwise ordered by the Hearing Board. $ 104.23 Final findings and recommen.

dations. (a) The Hearing Board shall make its final findings, conclusions, and recommendations, if any, based on the evidence presented at the hearing, and submit the same to the Administrator.

(b) Upon submission of such findings, conclusions, and recommendations, the Hearing Board shall be terminated and all records pertaining to its functions transferred to the custody of the Deputy Assistant Administrator for Water Programs,

(c) A copy of the findings, conclusions, and recommendations, if any, of the Hearing Board shall be served on all parties to the hearing by the Administrator and the Administrator shall cause their publication in the FEDERAL REGISTER. $ 104.24 Notification of alleged viola

tors of water quality standards. The Administrator shall notify those persons responsible for the discharge of matter into interstate waters or portions thereof which is not in compliance with the water quality standards established under section 10 of the Act (whether the matter causing or contributing to such violation is discharged directly into such waters or reaches such waters after discharge into tributaries of such waters) and other interested parties of the alleged violation of such standards. In all such notices, the Administrator shall designate a time when and place where any person receiving such notice may appear before and participate in an informal hearing before the Administrator, his designee, or such Board as he may appoint relative to the alleged violation of standards so that, if possible, there can be voluntary agreement reached as to appropriate remedial action.

& 106.1 Applicability.

The provisions of this part apply to proceedings under section 10 of the Federal Water Pollution Control Act (70 Stat. 504; 33 U.S.C. 1160.) § 106.2 Definitions.

As used in this part:

(a) “Act" means the Federal Water Pollution Control Act, 70 Stat. 498, 33 U.S.C. 1151, et seq.

(b) “Board" means the board appointed by the Administrator pursuant to section 10 of the Act (33 U.S.C. 1160).

(c) “Agency" means the Environ. mental Protection Agency.

(d) “Pollution” means any pollution declared to be subject to abatement by section 10 of the Act (33 U.S.C. 1160).

(e) "Administrator" means the Administrator of the Environmental Protection Agency.

(f) "Assistant Administrator for Enforcement" means the Assistant Administrator for Enforcement in the Environmental Protection Agency.

(g) The definitions of terms contained in section 10 of the Act (33 U.S.C. 1160) shall be applicable to such terms as used in this part unless the context otherwise requires. (36 FR 22483, Nov. 25, 1971, as amended at 37 FR 2433, Feb. 1, 1972) § 106.3 Initiation of proceedings for

public hearings; appointment of

Board. (a) In any case where the Administrator finds that the conditions precedent to the calling of a public hearing under the Act exist, he will call such a hearing, and may either fix the time and place thereof, or authorize the Assistant Administrator for Enforcement to do so.

(b) Prior to the hearing, the Administrator will appoint a hearing board of five or more persons, as provided in the act, and will designate one of the members as chairman. A majority of the Board shall be persons other than officers or employees of the Agency, The Administrator may revoke appointment to the Board in the event of disability of a member, and may fill any vacancy in the membership of the Board, or in the office of chairman. (36 FR 22483, Nov. 25, 1972, as amended at 37 FR 2433, Feb. 1, 1972)

PART 106_PUBLIC HEARINGS UNDER

THE FEDERAL WATER POLLUTION

CONTROL ACT Sec. 106.1 Applicability. 106.2 Definitions. 106.3 Initiation of proceedings for public

hearings; appointment of Board. 106.4 Organization and general procedures

of the Board. 106.5 Notice of hearing. 106.6 Service. 106.7 Publication of notice. 106.8 Parties. 106.9 Presentation of evidence by the En

vironmental Protection Agency. 106.10 Hearing procedure. 106.11 Records of proceedings. 106.12 Oral argument, 106.13 Final findings and recommendations.

AUTHORITY: The provisions of this part 106 issued under sec. 10, 70 Stat. 505, 606; 33 U.S.C. 1160.

SOURCE: The provisions of this part 106 appear at 36 F.R. 22483, Nov. 25, 1971, unless otherwise noted.

§ 106.4 Organization and general pro- any matter causing or contributing to cedures of the Board.

the pollution, and briefly describe the (a) The chairman shall convene the

nature of the discharge or discharges

and the Board for hearing sessions and for such

interstate waters affected other meetings as may be necessary.

thereby. The notice shall include the (b) The chairman shall preside at all

names of the persons constituting the hearing sessions and meetings of the

Board before whom the hearing will be Board. In case of the absence or in

held upon a day and at a time and place capacity of the chairman, the Board may

specified not earlier than three (3) weeks elect from its members an acting chair

after the service of the notice. man to preside and perform the duties

(c) Notice of hearing shall be served of the chairman.

on the following: (c) The hearing shall be conducted in

(1) Each person named in the notice an informal but orderly manner in ac

as discharging any matter causing or cordance with this part. A quorum of

contributing to pollution; and the water the Board for the purpose of the hearing

pollution control agency or interstate shall consist of not less than five mem

agency to whom formal notification of bers. Questions of procedure during a

such pollution has previously been given hearing shall be determined by the

in accordance with the Act. chairman. Rulings of the chairman

(2) The water pollution control may be appealed to the Board.

agency or the interstate agency of the (d) The Board shall have the power

State or States, other than that in which to rule upon offers of proof and the ad

the discharge originates, claiming to be missibility of evidence, to receive rele

adversely affected by such pollution. vant evidence, to examine witnesses, to

[36 FR 22483, Nov. 25, 1972, as amended at regulate the course of the hearing, to

37 FR 2433, Feb. 1, 1972] change the time and place of the hear- $ 106.6 Service. ing or any of its sessions upon reasonable

Notice of hearing, findings, conclunotice to the parties, and to hold conferences for the settlement or simplifica

sions and recommendations of the Board, tion of issues.

and any other documents relating to the (e) The Assistant Administrator for

functions of the Board, may be served by Enforcement shall provide for the Board

mailing a copy thereof addressed to each such clerical and technical assistance as

person or agency to be served at their may be necessary.

respective residences, offices or place of (f) The Board shall designate an exec

business as ascertained by the Assistant utive secretary, from personnel provided

Administrator for Enforcement or the by the Assistant Administrator for En- Board, as the case may be. forcement, who shall maintain and have 137 FR 2433, Feb. 1, 1972) custody of all official records and other

§ 106.7 Publication of notice. documents pertaining to the functions of the Board, and shall perform such Notice of the public hearing shall be other duties related to its functions as published in the FEDERAL REGISTER at the Board may prescribe.

least three (3) weeks prior to the (g) The Board may authorize the

hearing. chairman and the executive secretary on its behalf to execute, issue or serve such

§ 106.8 Parties. notices, reports, communications, and (a) The parties to a hearing shall inother documents relating to the func- clude the persons and agencies specified tions of the Board as It may deem proper. in § 106.5(c). (36 FR 22483, Nov. 25, 1972, as amended at (b) The Assistant Administrator for 37 FR 2433, Feb. 1, 1972)

Enforcement shall have all the rights of § 106.5 Notice of hearing.

a party to the hearing.

(c) Upon application and good cause (a) The Assistant Administrator for Enforcement shall issue and serve notice

shown, the Board may permit any interof hearing as herein provided and, if the

ested person or agency to appear before time and place of the hearing have not

it and be admitted as a party to such been fixed by the Administrator, shall fix

extent and upon such terms as the Board such time and place.

shall determine proper. (b) The notice of hearing shall iden- (d) Any party may appear in person tify the person or persons discharging or by counsel.

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