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(iii) Identify any other persons whom ments of $ 125.34(c). If any request the requester represents;

meets such requirements and sets forth (iv) Include an agreement by the re- material issues relevant to the quesquester, and any person represented by tion whether a permit should be issued, the requester, to be subject to examina- and what conditions to such permit tion and cross-examination, and in the would be required to carry out the case of a corporation, to make any em- provisions of the Act, the matter shall ployee available for examination and be assigned promptly for hearing: cross-examination at his own expense, Provided, That if the Regional Adminupon the request of the presiding officer, istrator holds a public hearing under on his own motion or on the motion of $ 125.34(b), no request for an adjudicaany party.

tory hearing shall be timely until after (3) In addition to the information re- the conclusion of such public hearing. quired under $ 125.34(c) (2), any request The Regional Administrator shall treat for an adjudicatory hearing shall state all other requests for a hearing as rewith particularity the reasons for the quests to be a party, and shall grant any request, and the issues proposed to be such request meeting the requirements considered at the hearing.

of $ 125.34 (c) (2) and (c) (4). The hear(4) In addition to the information re- ing shall be held in the State in which quired under $ 125.34(c) (2), any request the discharge or proposed discharge shall to be a party shall state the position of occur, or at such other accessible location the requestor on the issues to be con- as is appropriate. The Regional Adminsidered at the hearing.

istrator shall issue public notice of such (d) Filing and service.-(1) All docu- hearing in the manner specified in ments or papers required or authorized $ 125.32. The hearing shall take place to be filed, shall be filed with the regional not less than 30 days after the issuance hearing clerk, except as otherwise herein of public notice of such hearing. provided. Except for requests for an ad- (g) Additional parties.-The Regional judicatory hearing or request to be a Administrator shall review all requests party, at the same time that a party files to be a party submitted pursuant to documents or papers with the clerk, it § 125.34(c). He shall grant any request shall serve upon all other parties copies meeting the requirements of that secthereof, with a certificate of service on tion. Following the expiration of the time each document or paper, including those provided by $ 125.34(c) for the submisfiled with the regional hearing clerk. sion of requests to be a party, any perFiling shall be deemed timely if received son may file a motion for leave to interby the regional hearing clerk within the vene in an adjudicatory hearing. A time allowed by this section.

motion must set forth the grounds for (2) In addition to copies served on all the proposed intervention and the posiother parties, each party shall file with tion and interest of the movant in the the regional hearing clerk an original proceeding. A motion for leave to interand two copies of all papers filed in con- vene in a hearing must ordinarily be filed nection with an adjudicatory hearing. prior to the commencement of the first

(e) Time.--In computing any period prehearing conference. Any motion filed of time prescribed or allowed by the reg- after that time must contain, in addition ulations in this part, except as otherwise to the information set forth in $ 125.34 provided, the day of the act or event (c), a statement of good cause for the from which the designated period of time failure to file the motion prior to the begins to run shall not be included. Sat- commencement of the first prehearing urdays, Sundays, and holidays, shall be conference and shall be granted only included in computing the time allowed upon a finding (1) that extraordinary for the filing of any document or paper, circumstances justify the granting of the except that when such time expires on a motion, and (2) that the intervenor shall Saturday, Sunday, or legal holiday, such be bound by agreements, arrangements period shall be extended to include the and other matters previously made in the next following business day.

proceeding. (f) Notice of hearing.-Within 5 days (h) Consolidation.--The Regional Adfollowing the expiration of the time al- ministrator, in his discretion, may conlowed by $ 125.34(c) (1) for submitting a solidate two or more proceedings to be request for an adjudicatory hearing the held under this section whenever it apRegional Administrator shall determine pears that this will expedite or simplify whether such request meets the require- consideration of the issues. Consolidation

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shall not affect the right of any party (v) Consider the procedure to be folto raise issues that could have been lowed at the hearing; and raised if consolidation had not occurred. (vi) Consider any other matter that At the conclusion of proceedings under may expedite the hearing or aid in the this section, the Regional Administrator disposition of the matter. shall issue one decision.

(2) The results of any conference shall (i) Representation.-Parties may be be summarized in writing by the presidrepresented by counsel or other duly ing officer and made part of the record. qualified representative.

(1) Exchange of witness lists and doc(j) Duties and authorities of presiding uments.-At a prehearing conference or officer.-Presiding officers at adjudica- within some reasonable time set by the tory hearings shall have the duty to presiding officer at a prehearing conferconduct fair and impartial hearings, to ence, each party shall make available to take all necessary action to avoid delay the other parties the names of the expert in the disposition of proceedings, and to and other witnesses he expects to call, maintain order. They shall have all together with a brief narrative summary powers necessary to that end, including of their expected testimony. Copies of the following:

all documents and exhibits which he ex(1) To administer oaths and affirma- pects to introduce into evidence shall be tions;

marked for identification as ordered by (2) To rule upon offers of proof and the presiding oficer. Thereafter, witreceive relevant evidence;

nesses, documents, or exhibits may be (3) To regulate the course of the hear- added and narrative summaries of exings and the conduct of the parties and pected testimony amended only upon their counsel therein;

motion by a party. (4) To hold prehearing conferences in (m) Evidence.-(1) The presiding accordance with $ 125.34(k);

officer shall admit all relevant and mate(5) To consider and rule upon all pro- rial evidence, except evidence that is cedural and other motions appropriate unduly repetitious. Relevant and matein such proceedings;

rial evidence may be received at any (6) To take any action authorized by hearing even though inadmissible under these regulations or in conformance with the rules of evidence applicable to judilaw.

cial proceedings. The weight to be given (k) Prehearing conference.-(1) In evidence shall be determined by its reliathe discretion of the presiding officer, a bility and probative value. Parties shall prehearing conference or conferences have the right to cross-examine a witmay be held prior to any adjudicatory ness who appears at an adjudicatory hearing. All parties will be given rea- hearing to the extent that such crosssonable notice of time and location of examination is necessary for a full and any such conference. In the discretion true disclosure of the facts. In multiparty of the presiding officer, persons other proceedings the presiding officer may than parties may attend. At the confer- limit cross-examination to one party on ence, the presiding officer may:

each side if it appears that the cross(i) Obtain stipulations and admis- examination by one party will adequatesions, and identify disputed issues of fact ly protect parties similarly situated. and law;

Other parties may, however, engage in (ii) Set a hearing schedule which in- cross-examination upon alleging that cludes definite or tentative times for as their cross-examination will go into many of the following as are deemed matters not already covered by previous necessary by the presiding officer:

cross-examination. (A) Oral and written statements;

(2) When a party will not be preju(B) Submission of written direct testi- diced thereby, the presiding officer may mony as required or authorized by the order all or part of the evidence to be presiding officer;

submitted in written form. (C) Oral direct and cross-examination (3) Rulings of the presiding officer on where necessary;

the admissibility of evidence, the propri(D) Oral argument, if appropriate. ety of cross-examination, and other

(iii) Identify matters of which official procedural matters, shall be final and notice may be taken;

shall appear in the record. (iv) Consider limitation of the num- (4) Interlocutory appeals may not be ber of expert and other witnesses;




(5) Parties shall be automatically pre- issues to be considered on review. Any sumed to have taken exception to an party may file briefs and reply briefs in adverse ruling.

accordance with paragraph (p) (3) and (n) Record.—Adjudicatory hearings (4) of this section, limited to those issues shall be stenographically reported and identified by the Administrator. transcribed, and the original transcript (3) The appeal shall be in the form of shall be a part of the record and the sole a brief, filed within 30 days after notice official transcript. Copies of the tran- of the decision of the Regional Adminscript shall be available from the En- istrator or, where the Administrator revironmental Protection Agency. Any views a decision of the Regional party may within 10 days following the Administrator on his own motion, within completion of the hearing submit pro- 30 days after the Administrator forwards posed findings and conclusions.

the statement of issues under paragraph (0) Decision.-(1) Within 20 days after (p) (2) of this section. The brief shall completion of an adjudicatory hearing, contain, in the order indicated, the the presiding officer shall certify the rec- following: ord, together with any proposed findings (i) A subject index of the matter in and conclusions submitted by the parties, the brief, with page references, and a to the Regional Administrator for deci- table of cases, textbooks, statutes, and sion. Within 15 days following certifica- other material cited, with page refertion of the record, the Regional Adminis- ences thereto; trator

responsible employee (ii) A concise statement of the case; designated by the Regional Administra- (iii) A specification of the questions tor shall issue a tentative or recom- intended to be urged, including any obmended decision. Any party may, within jections to rulings of the presiding offi10 days following the issuance of the cer, to the validity of facts officially notentative or recommended decision, sub- ticed, or to any matter in the decision of mit exceptions to that decision, including the Regional Administrator. written evidence relating to any facts (iv) The argument presenting clearly officially noticed by the Regional Admin- the points of fact and law relied upon istrator or the responsible employee in in support of the position taken on each the tentative or recommended decision. question, with specific references to the Within 30 days following the issuance of record and to statutory or other material the tentative or recommended decision, relied upon; and, the Regional Administrator shall issue (v) A proposed decision for the Ada decision, and promptly notify the par- ministrator's consideration in lieu of the ties and the Administrator thereof. Such decision of the Regional Administrator. decision shall become the final decision (4) Within 10 days after the expiraof the Agency unless within 30 days after tion of time for filing briefs under parits issuance any party shall have ap- agraph (p) (3) of this section, any party pealed the decision to the Administrator, may file a reply brief to any brief or or the Administrator, on his own motion, briefs submitted by any other party. Such shall have stayed the effectiveness of the reply briefs shall follow the format predecision of the Regional Administrator scribed in paragraph (p) (3) of this secpending review.

tion, except that the proposed decision (2) The decision of the Regional Ad- of the Administrator may be omitted. ministrator shall include a statement of (q) Decision upon appeal.-(1) Upon findings and conclusions, and a decision, appeal from an initial decision, the Adincluding the reasons and basis therefore, ministrator shall consider such parts of on all issues of fact, law, or discretion the record as are cited or as may be presented by the proposed findings and necessary to resolve the issues presented conclusions of the parties.

and may, in his discretion, exercise any (p) Appeal or review of decision of Re- of the powers specified in § 125.34(j). gional Administrator.-(1) Any party (2) In rendering his decision, the Adshall have the right to appeal to the Ad- ministrator shall adopt, modify, or set ministrator from a decision of the Re- aside the findings, conclusions, and decigional Administrator following an ad- sion contained in the decision of the judicatory hearing.

Regional Administrator, and shall in(2) Where the Administrator, on his clude in his decision a statement of the own motion, reviews a decision of the reasons or basis for his action. Regional Administrator, he shall provide (3) In those cases where the Adminto all parties a written statement of those istrator believes that he requires further

information or additional views of the parties as to the form and content of the decision to be rendered, the Administrator, in his discretion, may withhold final action pending the receipt of such additional information or views. The Administrator may, in his discretion, allow oral argument on appeal or review of a decision of the Regional Administrator.

(4) The decision of the Administrator on appeal shall become effective as specified by him therein or 20 days after the date of the decision, whichever first occurs; however, the Administrator may in his discretion stay the operation of his decision pending judicial review. Notice of the Administrator's decision on appeal shall be given to all parties. $ 125.35 Public access to information.

(a) Certifications issued pursuant to section 401 of the Act, the comments of all governmental agencies on a permit application, draft permits prepared pursuant to $ 125.31, and all information and data provided by an applicant or a permittee identifying the nature and frequency of a discharge shall be available to the public without restriction. All other information (other than effluent data) which may be submitted by an applicant in connection with a permit application or which may be furnished by a permittee in connection with required periodic reports shall also be available to the public unless the applicant or permittee specifically identifies and is able to demonstrate to the satisfaction of the Regional Administrator or his authorized representative that the disclosure of such information or a particular part thereof to the general public would divulge methods or processes entitled to protection as trade secrets.

(b) Where the applicant or permittee is able to demonstrate to the satisfaction of the Regional Administrator or his authorized representative that the disclosure of the information or a particular part thereof (other than effluent data) would result in methods or processes entitled to protection as trade secrets being divulged, the Regional Administrator shall treat the information or the particular part (other than effluent data) as confidential in accordance with the purposes of section 1905 of title 18 of the United States Code and not release it to any unauthorized person: Provided, however, That if access to such information is subsequently requested by any person,

the procedures specified in section 2 of title 40 of the Code of Federal Regulations will be complied with. Such information may be disclosed to other officers, employees, or authorized representatives of the United States concerned with carrying out the Act or when relevant in any proceeding under the Act.

(c) Where the applicant or permittee is unable to demonstrate to the satisfaction of the Regional Administrator or his authorized representative that the disclosure of the information or a particular part thereof (other than effiuent data) would result in methods or processes entitled to protection as trade secrets being divulged, the Regional Administrator shall notify the applicant or permittee of his decision. He shall also notify the applicant or permittee that failure to request within 10 days a General Counsel's determination shall result in the information in question being released to the public. Where within the 10-day period the applicant or permittee requests a General Counsel's determination, the Regional Administrator shall request advice from the office of General Counsel stating the reasons that he believes that the information will not result in methods or processes entitled to protection as trade secrets being divulged. A copy of the Regional Administrator's request shall be transmitted simultaneously to the applicant or permittee. The General Counsel shall determine whether the information in question would if revealed divulge methods or processes entitled to protection as trade secrets. In making such determination, the General Counsel shall consider any additional information received by the Office of General Counsel within 30 days of receipt of the request from the Regional Administrator. If the General Counsel determines that the information being considered would not if revealed divulge methods or processes entitled to protection as trade secrets, he shall so advise the Regional Administrator and shall notify the permittee or applicant claiming trade secrecy of such determination by certified mail. No sooner than 30 days following the mailing of such notice, the Regional Administrator shall make available to the public upon request the information determined not to constitute methods or processes entitled to protection as trade secrets.

(d) Notwithstanding paragraphs (a) and (b) of this section, the Administra

tor may withhold any information from the public when the release of such information would violate statutes or Executive orders or regulations issued pursuant thereto, concerned with the national security.

Subpart E-Miscellaneous $ 125.41 Objections to permit by an

other State. (a) Whenever following receipt of the certification described in $ 125.15 the Regional Administrator determines that a discharge may affect the quality of the waters of any State other than the State that made the certification, the Regional Administrator shall, within 30 days of such certification, notify such other State and the applicant of his determination and shall transmit to such other State a copy of the fact sheet described in § 125.33 and upon request, a copy of the application and a copy of the draft permit prepared pursuant to $ 125.31. If such other State determines, within 60 days from the date notice was received from the Regional Administrator, that the discharge will affect the quality of its waters so as to violate any water quality requirement in such State, such other State shall within such 60day period notify the Regional Administrator in writing of its objection to the issuance of a permit and request a public hearing on the objection. Upon receipt of such request, the Regional Administrator shall hold a hearing in conformity with $ 125.34 herein. Based upon the record, a permit shall issue, provided that if the imposition of conditions can not assure compliance with the applicable water quality requirements of all of the affected States, the permit shall be denied.

(b) Each affected State shall be afforded an opportunity to submit written recommendations to the Regional Administrator which the Regional Administrator may incorporate into the permits if issued. Should the Regional Administrator fail to incorporate any written recommendations thus received, he shall provide to the affected State or States a written explanation of his reasons for failing to accept any of the written recommendations.

(c) Where an interstate agency has authority over waters that may be affected by the issuance of a permit, it shall be afforded the rights of a State pursuant to paragraphs (a) and (b) of this section.

8 125.42 Other legal action.

(a) Section 402(a) (4) of the Act provides that “permits issued under this title shall (also] be deemed to be permits issued under section 13 of the Act of March 3, 1899," (the Refuse Act.) Discharges without a permit or in violation of permit terms and conditions may result in the institution of proceedings under the Refuse Act.

(b) Except as provided in section 402(k) of the Act, the mere filing of an application for a permit to discharge into waters covered by the NPDES will not preclude legal action in appropriate cases for violation of the Act and section 13 of the Act of March 3, 1899 (the Refuse Act). The institution of either a civil or criminal action by the United States may not preclude the acceptance or continued processing of a permit application. & 125.43 Environmental impact state

ments. Section 511(c)(1) of the Act provides that with the exception of permits for new sources as defined in section 306, no action of the Administrator taken pursuant to the Act (concerning permits) shall be deemed a major Federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969. § 125.44 Final decision of the Regional

Administrator. (a) Where no request for a public hearing or an adjudicatory hearing has been granted, no less than 30 days after the date of public notice of a permit application required by $ 125.32 the Regional Administrator shall, after consideration of (1) the tentative determinations and draft permit prepared pursuant to $ 125.31; (2) any comments, objections, and recommendations received from the applicant, involved Federal, State, local and foreign government agencies, and the public; and (3) the requirements and policies expressed in the Act and these regulations; make determinations with respect to each permit.

(b) Where the determination of the Regional Administrator pursuant to paragraph (a) of this section with respect to any permit is substantially unchanged from the tentative determinations and draft permit prepared pursuant to § 125.31, the Regional Administrator shall issue or deny the permit as appropriate, and such action shall be the final

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