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(e) The failure of any party to file an (d) The Board may take official notice appearance or appear at the hearing in of statutes of the United States or of response to the notice of hearing shall any State and of duly promulgated regunot delay the hearing and the Board may lations of any Federal agency. proceed, hear and receive evidence and (e) The Board may take oficial notice take other appropriate action affecting of a material fact not appearing in the such party.
evidence in the record, but any party, (36 FR 22483, Nov. 25, 1971, as amended at prior to the conclusion of the hearing, 37 FR 2433, Feb. 1, 1972]
shall be afforded an opportunity to show
the contrary. § 106.9 Presentation of evidence by the
Deputy Assistant Administrator for & 106.12 Oral argument.
Oral argument may be permitted in The Deputy Assistant Administrator the discretion of the Board, and shall be for Water Programs shall arrange for reported as part of the record unless the presentation of evidence concerning otherwise ordered by the Board. the pollution, the person or persons dis
8 106.13 Final findings and recommencharging any matter causing or contrib
dations. uting to the pollution and remedial measures, if any, recommended by him. (a) The Board shall make its final (37 FR 2434, Feb. 1, 1972]
findings, conclusions and recommenda
tions, if any, based on the evidence pre§ 106.10 Hearing procedure.
sented at the hearing, and submit the (a) Each witness shall, before testify- same to the Administrator. ing, be sworn or make affirmation.
(b) Upon submission of such findings, (b) When necessary, in order to pre- conclusions and recommendations, the vent undue prolongation of the hearing, Board shall be terminated and all records the Board may limit the number of times
pertaining to its functions transferred to any witness may testify, the repetitious the custody of the Assistant Administraexamination or cross-examination of tor for Enforcement. witnesses or the amount of corroborative
(c) A copy of the findings, conclusions, or cumulative testimony.
and recommendations, if any, of the (c) The Board shall exclude irrele.
Board shall be served on all parties to vant, immaterial or unduly repetitious
the hearing by the Administrator. evidence.
(36 FR 22483, Nov. 25, 1971, as amended at (d) Every party shall have the right
37 FR 2433, Feb. 1, 1972) to present evidence and cross-examine witnesses.
PART 107-FILING OF REPORTS WITH 8 106.11 Record of proceedings.
THE ADMINISTRATOR BY PERSONS (a) Testimony given and other pro. WHOSE ALLEGED ACTIVITIES REceedings had at a hearing shall be re
SULT IN DISCHARGES CAUSING OR ported verbatim. A transcript of such report shall be a part of the record and CONTRIBUTING TO WATER POLLUthe sole official transcript of the TION proceedings.
Sec. (b) All written statements, charts
107.1 Applicability. tabulations and similar data offered is
107.2 Definitions. evidence at the hearing shall, upon a 107.3 Initiation of request for report. showing satisfactory to the Board of their
107.4 Service. authenticity, relevancy and materiality, 107.5 Report; form and content, time for be received in evidence and shall consti.
submission. tute a part of the record.
107.6 Protection of trade secrets; confiden. (c) Where the testimony of a witness
tial information. refers to a statute, or a report or docu
107.7 Penalties. ment, the Board shall, after satisfying AUTHORITY: The provisions of this part itself of the identification of such stat- 107 Issued under sec. 10(k) as amended, 80 ute, report or document, determine Stat. 1250; sec. 22(a), as amended, 75 Stat. whether the same shall be produced at
204; 33 U.S.C. 1160(k), 1172(a). the hearing and physically be made a SOURCE: The provisions of this Part 107 part of the record or shall be incorpo- appear at 36 F.R. 22484, Nov. 25, 1971, unless rated in the record by reference.
$ 107.1 Applicability.
$ 107.4 Servicc. The provisions of this part apply to The written request for or requirement reports requested or required by the Ad- of such report may be served by mailing ministrator to be filed with him by any à copy thereof to the person whose alperson whose alleged activities result in leged activities result in discharges discharges causing or contributing to causing or contributing to the polluwater pollution. The Administrator is tion of waters subject to the conauthorized to request such reports to be ference or to the public hearing, or filed at the request of a majority of the in the case of a corporation, partnership, conferees in any conference and to re- association, State, municipality, other quire such reports in connection with any political subdivision of a State, upon an hearing called under section 10 of the authorized representative thereof at his Federal Water Pollution Control Act, as residence, office or place of business as amended. (80 Stat. 1250; 33 U.S.C. 1160 ascertained by the Administrator. (f) (2), (3), and (4), and (k))
§ 107.5 Report; form and content, time 8 107.2 Definitions.
for submission. (a) "Act" means the Federal Water (a) No particular form for such rePollution Control Act, as amended (33 porting will be required unless specified U.S.C. 1151 et seq.).
within the written request for or require(b) "Agency" means the Environ- ment of such report. mental Protection Agency.
(b) Such report shall detail, based on (c) “Administrator” means the Ad- existing data, and covering such period ministrator of the Environmental Pro- as the Administrator may direct, all pertection Agency.
tinent and useful information as to the (d) The definitions of terms contained character, kind and quantity of the disin sections 10 and 23 of the act shall be charges, treated, or untreated, alleged to applicable to such terms as used in this be causing or contributing to the pollupart unless the context otherwise tion of the waters. The reported data requires.
shall identify the causes and sources of
the alleged pollutional discharges and 8 107.3 Initiation of request for report. shall include but not be limited to ap
(a) The Administrator at the request plicable information as to the physical, of a majority of the conferees in any chemical, or biological properties of any conference may request, or in connection liquid, gaseous, solid, radioactive, or with any public hearing called under sec- other substance composing the distion 10 of the Federal Water Pollution
charges in whole or in part. Thermal Control Act, as amended, may require
characteristics of the discharges and the any person whose alleged activities result level of heat in flow shall be included in in discharges causing or contributing to the reported data. Where available in water pollution of the subject waters of existing data, twenty-four (24) hour such conference or public hearing to file
daily average quantities of discharges, in with him a report as to the character,
whole and of separate individual comkind and quantity of such discharges and
ponent substances shall be stated either the use of facilities or other means to
in units of pounds per day or, as measurprevent or reduce such discharges by
able in concentration, in milligrams per the person filing such report.
liter. Peak hourly discharge quantities, (b) When the Administrator finds
in whole, in combination, or of separate that the conditions precedent to the re
Individual component substances, which questing or requiring of such report or
exceed such twenty-four (24) hour daily reports have been met he may request or
average by twenty (20) percent or more
shall be noted. require in writing the submission to him
(c) Facilities or other means used to of such report in the time, form and content as herein provided.
prevent or reduce such discharges shall
be reported and described in suficient (c) The request for or requirement of
detail, including pertinent plans and such report shall be served on any per
specifications, to permit a technical son whose alleged activities result in dis
judgment of the present and future efcharges causing or contributing to the fectiveness of such facilities or other pollution of waters in the matter of which means, together with any specific data the conference or the public hearing has the Administrator may reasonably conbeen called.
sider necessary and useful. Plans for
future improvement of existing facilities or imprisoned not more than 1 year, or both; or other means or for the installation of
and shall be removed from ofice or employnew facilities or other means may be in
ment. June 25, 1948, c. (345, 62 Stat. 791. cluded, together with a projected time- § 107.7 Penalties. table for their planning and installation,
(a) If any person fails to file a report at the option of the respondent.
required by the Administrator in con(d) Five (5) copies of the report shall
nection with any public hearing within be furnished. It shall be directed to the
the time set for the filing of such report Administrator, be dated, clearly identify
and such failure shall continue for thirty the subject matter of the report, bear the
(30) days after written notice of such name, address and telephone number of
default given by the Administrator to the reporting person and shall be signed
such persons by registered or certified by such person, or in the case of a cor
mail at his last known address, such perporation, municipality or other political
son shall forfeit to the United States the subdivision, by a duly authorized officer
sum of $100 for each and every day of thereof. The report shall be clearly typed,
continued default following immediately printed, or duplicated and shall be se
upon the expiration of the thirtieth curely stapled or otherwise fastened.
(30th) day after the Administrator has Each page shall be numbered and in
given written notice; such forfeiture to proper sequence. Any exhibits shall be
be paid into the Treasury of the United included in or securely attached to the
(b) If any person, having agreed to (e) Such reports shall be filled with the
submit a report to any conference, falls Administrator within such time as spe
to file a report requested by the Admincified in his written request or require
istrator in response to a request of a ment which shall not be less than thirty
majority of the conferees in such con(30) days from the date of the request or
ference within the time set for the filing requirement unless the Administrator
of such report and such failure shall confinds that an emergency exists requiring
tinue for thirty (30) days after written the report to be furnished in a shorter
notice of such default given by the Adtime, or unless an extension for good ministrator to such person by registered cause shown is requested of and granted or certified mail at his last known adby the Administrator in writing.
dress, the Administrator shall forthwith
report such failure to the conferees. $ 107.6 Protection of trade secrets; confidential information.
(c) A majority of the conferees of
said conference may order such person No person shall be required in such
to be subject to a forfeiture of $100 for report to divulge trade secrets or secret
each and every day of continued default processes and all information reported following immediately upon the expirashall be considered confidential for the tion of the thirtieth (30th) day after purposes of section 1905 of title 18 of
the Administrator has given written nothe United States Code which provides: tice; such forfeiture to be paid into the
Whoever, being an officer or employee of Treasury of the United States. the United States or of any department or (d) Such forfeitures, without demand agency thereof, publishes, divulges, discloses, or further notice, may be recovered in or makes known in any manner or to any a civil suit in the name of the United extent not authorized by law any informa- States brought in the district in which tion coming to him in the course of his
such person has his principal office or employment or official duties or by reason
in which he does business. of any examination or investigation made
(e) The Administrator may, by, or return, report or record made to or
upon filed with, such department or agency or
timely application therefor, remit or officer or employee thereof, which informa- mitigate any forfeiture and he shall have tion concerns or relates to the trade secrets, authority to determine the facts upon processes, operations, style of work, or ap- all such applications. paratus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any
PART 109--CRITERIA FOR STATE, person, firm, partnership, corporation, or LOCAL AND REGIONAL OIL REassociation; or permits any income return
MOVAL CONTINGENCY PLANS or copy thereof of any book containing any abstract or particulars thereof to be seen or Sec. examined by any persons except as provided 109.1 Applicability. by law; shall be fined not more than $1.000. 109.2 Definitions.
ity and magnitude to warrant disaster 109.3 Purpose and scope.
assistance by the Federal Government to 109.4 Relationship to Federal response
supplement the efforts and available reactions. 109.5 Development and implementation cri
sources of States and local governments teria for State, local and regional oil
and relief organizations in alleviating the removal contingency plans.
damage, loss, hardship, or suffering 109.6 Coordination.
(e) “United States" means the States, AUTHORITY: The provisions of this Part 109
the District of Columbia, the Commonissued under sec. 11 (1) (1) (B), 84 Stat. 96, 33 U.S.C. 1161 (1) (1) (B).
wealth of Puerto Rico, the Canal Zone,
Guam, American Samoa, the Virgin IsSOURCE: The provisions of this Part 109 appear at 36 F.R. 22485, Nov. 25, 1971, unless
lands, and the Trust Territory of the otherwise noted.
(f) “Federal Act” means the Federal $ 109.1 Applicability.
Water Pollution Control Act, as amended, The criteria in this part are provided
33 U.S.C. 1151, et seq. to assist State, local and regional agen- $ 109.3 Purpose and scope. cies in the development of oil removal
The guidelines in this part establish contingency plans for the inland naviga
minimum criteria for the development ble waters of the United States and all
and implementation of State, local, and areas other than the high seas, coastal
regional contingency plans by State and and contiguous zone waters, coastal and
local governments in consultation with Great Lakes ports and harbors and such
private interests to insure timely, effiother areas as may be agreed upon be
cient, coordinated and effective action to tween the Environmental Protection
minimize damage resulting from oil disAgency and the Department of Transpor
charges. Such plans will be directed totation accordance with section
ward the protection of the public health 11(j) (1) (B) of the Federal Act, Execu
or welfare of the United States, includtive Order No. 11548 dated July 20, 1970
ing, but not limited to, fish, shellfish, (35 F.R. 11677) and section 306.2 of the
wildlife, and public and private property, National Oil and Hazardous Materials
shorelines, and beaches. The developPollution Contingency Plan (35 F.R.
ment and implementation of such plans 8511).
shall be consistent with the National Oil $ 109.2 Definitions.
and Hazardous Materials Pollution ConAs used in these guidelines, the follow
tingency Plan, State, local and regional ing terms shall have the meaning indi
oil removal contingency plans shall pro
vide for the coordination of the total cated below: (a) “Oll” means oil of any kind or in
response to an oil discharge so that conany form, including, but not limited to,
tingency organizations established therepetroleum, fuel oil, sludge, oil refuse, and under can function independently, in oil mixed with wastes other than dredged conjunction with each other, or in conspoil.
junction with the National and Regional (b) "Discharge” includes, but is not Response Teams established by the Nalimited to, any spilling, leaking, pumping, tional Oil and Hazardous Materials pouring, emitting, emptying, or dumping. Pollution Contingency Plan.
(c) "Remove" or "removal" refers to the removal of the oil from the water
$ 109.4 Relationship to Federal and shorelines or the taking of such other
sponse actions. actions as may be necessary to minimize
The National Oil and Hazardous Mate. or mitigate damage to the public health rials Pollution Contingency Plan provides or welfare, including, but not limited to, that the Federal on-scene commander fish, shellfish, wildlife, and public and shall investigate all reported spills. If private property, shorelines, and beaches. such investigation shows that appropri
(d) “Major disaster" means any hurri- ate action is being taken by either the cane, tornado, storm, flood, high water, discharger or non-Federal entities, the wind-driven water, tidal wave, earth- Federal on-scene commander shall moniquake, drought, fire, or other catastrophe tor and provide advice or assistance, as in any part of the United States which, required. If appropriate containment or in the determination of the President, is cleanup action is not being taken by the or threatens to become of sufficient sever- discharger or non-Federal entities, the
Federal on-scene commander will take (2) An estimate of the equipment, macontrol of the response activity in accord- terials and supplies which would be ance with section 11(c) (1) of the Fed- required to remove the maximum oil diseral Act.
charge to be anticipated. § 109.5 Development and implementa
(3) Development of agreements and tion criteria for State, local and re
arrangements in advance of an oil disgional oil removal contingency plans.
charge for the acquisition of equipment,
materials and supplies to be used in reCriteria for the development and im
sponding to such a discharge. plementation of State, local and regional
(d) Provisions for well defined and oil removal contingency plans are:
specific actions to be taken after dis(a) Definition of the authorities, re
covery and notification of an oil dissponsibilities and duties of all persons,
charge including: organizations or agencies which are to
(1) Specification of an oil discharge be involved or could be involved in planning or directing oil removal opera
response operating team consisting of
trained, prepared and available operattions, with particular care to clearly
ing personnel. define the authorities, responsibilities and
(2) Predesignation of a properly qualiduties of State and local governmental
fied oil discharge response coordinator agencies to avoid unnecessary duplication
who is charged with the responsibility of contingency planning activities and to
and delegated commensurate authority minimize the potential for conflict and
for directing and coordinating response confusion that could be generated in an
operations and who knows how to request emergency situation as a result of such
assistance from Federal authorities duplications. (b) Establishment of notification pro
operating under existing national and
regional contingency plans. cedures for the purpose of early detection and timely notification of an oil
(3) A preplanned location for an oil
discharge response operations center and discharge including:
a reliable communications system for (1) The identification of critical water
directing the coordinated overall reuse areas to facilitate the reporting of and response to oil discharges.
sponse operations. (2) A current list of names, telephone
(4) Provisions for varying degrees of numbers and addresses of the responsible
response effort depending on the severity
of the oil discharge. persons and alternates on call to receive notification of an oil discharge as well
(5) Specification of the order of as the names, telephone numbers and priority in which the various water uses addresses of the organizations and agen- are to be protected where more than one cies to be notified when an oil discharge water use may be adversely affected as is discovered.
a result of an oil discharge and where (3) Provisions for access to a reliable
response operations may not be adequate communications system for timely noti
to protect all uses. fication of an oil discharge and incor- (e) Specific and well defined proceporation in the communications system
dures to facilitate recovery of damages of the capability for interconnection with
and enforcement measures as provided the communciations systems established
for by State and local statutes and under related oil removal contingency
ordinances. plans, particularly State and National plans.
§ 109.6 Coordination. (4) An established, prearranged pro
For the purposes of coordination, the cedure for requesting assistance during a major disaster or when the situation
contingency plans of State and local govexceeds the response capability of the
ernments should be developed and impleState, local or regional authority.
mented in consultation with private (c) Provisions to assure that full re- interests. A copy of any oil removal consource capability is known and can be tingency plan developed by State and committed during an oil discharge situa- local governments should be forwarded tion including:
to the Council on Environmental Quality (1) The identification and inventory upon request to facilitate the coordinaof applicable equipment, materials and tion of these contingency plans with the supplies which are available locally and National Oil and Hazardous Materials regionally.
Pollution Contingency Plan.