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 procedures 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 be 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,

(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 official 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 violators 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 Environmental 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]

§ 106.4 Organization and general procedures of the Board.

(a) The chairman shall convene the 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 Board. In case of the absence or incapacity of the chairman, the Board may elect from its members an acting chairman to preside and 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 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 Board.

(d) The Board shall have the power to rule upon offers of proof and the admissibility of evidence, to receive relevant evidence, to examine witnesses, 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 Assistant Administrator for Enforcement shall provide for the Board such clerical and technical assistance as may be necessary.

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

(g) The 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 Board as it may deem proper. [36 FR 22483, Nov. 25, 1972, as amended at 37 FR 2433, Feb. 1, 1972]

§ 106.5 Notice of hearing.

(a) The Assistant Administrator for Enforcement shall issue and serve notice of hearing as herein provided and, if the time and place of the hearing have not been fixed by the Administrator, shall fix such time and place.

(b) The notice of hearing shall identify the person or persons discharging

any matter causing or contributing to the pollution, and briefly describe the nature of the discharge or discharges and the interstate waters affected thereby. The notice shall include the names of the persons constituting the Board before whom the hearing will be held upon a day and at a time and place specified not earlier than three (3) weeks after the service of the notice.

(c) Notice of hearing shall be served on the following:

(1) Each person named in the notice as discharging any matter causing or contributing to pollution; and the water pollution control agency or interstate agency to whom formal notification of such pollution has previously been given in accordance with the Act.

(2) The water pollution control agency or the interstate agency of the State or States, other than that in which the discharge originates, claiming to be adversely affected by such pollution.

[36 FR 22483, Nov. 25, 1972, as amended at 37 FR 2433, Feb. 1, 1972]

Notice of hearing, findings, conclusions and recommendations of the Board, and any other documents relating to the functions of the Board, may be served by mailing a copy thereof addressed to each person or agency to be served at their respective residences, offices or place of business as ascertained by the Assistant Administrator for Enforcement or the Board, as the case may be.

[37 FR 2433, Feb. 1, 1972]

§ 106.7 Publication of notice.

Notice of the public hearing shall be published in the FEDERAL REGISTER at least three (3) weeks prior to the hearing.

(a) The parties to a hearing shall include the persons and agencies specified in § 106.5(c).

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

(c) Upon application and good cause shown, the 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 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 Board may proceed, hear and receive evidence and take other appropriate action affecting such party.

[36 FR 22483, Nov. 25, 1971, as amended at 37 FR 2433, Feb. 1, 1972]

§ 106.9 Presentation of evidence by the Deputy Assistant Administrator for Water Programs.

The Deputy Assistant Administrator for Water Programs shall arrange for the presentation of evidence concerning the pollution, the person or persons discharging any matter causing or contributing to the pollution and remedial measures, if any, recommended by him. [37 FR 2434, Feb. 1, 1972]

§ 106.10 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 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 Board shall exclude irrelevant, immaterial or unduly repetitious evidence.

(d) Every party shall have the right to present evidence and cross-examine witnesses.

§ 106.11

Record of proceedings.

(a) Testimony given and other pro. ceedings 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 is evidence at the hearing shall, upon a showing satisfactory to the 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 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 Board may take official notice of statutes of the United States or of any State and of duly promulgated regulations of any Federal agency.

(e) The Board may take official 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.

§ 106.12 Oral argument.

Oral argument may be permitted in the discretion of the Board, and shall be reported as part of the record unless otherwise ordered by the Board.

§ 106.13 Final findings and recommendations.

(a) The 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 Board shall be terminated and all records pertaining to its functions transferred to the custody of the Assistant Administrator for Enforcement.

(c) A copy of the findings, conclusions, and recommendations, if any, of the Board shall be served on all parties to the hearing by the Administrator.

[36 FR 22483, Nov. 25, 1971, as amended at 37 FR 2433, Feb. 1, 1972]