shall not affect the right of any party to raise issues that could have been raised if consolidation had not occurred. At the conclusion of proceedings under this section, the Regional Administrator shall issue one decision.

(i) Representation.-Parties may be represented by counsel or other duly qualified representative.

(j) Duties and authorities of presiding officer.-Presiding officers at adjudicatory hearings shall have the duty to conduct fair and impartial hearings, to take all necessary action to avoid delay in the disposition of proceedings, and to maintain order. They shall have all powers necessary to that end, including the following:

(1) To administer oaths and affirmations;

(2) To rule upon offers of proof and receive relevant evidence;

(3) To regulate the course of the hearings and the conduct of the parties and their counsel therein;

(4) To hold prehearing conferences in accordance with § 125.34(k);

(5) To consider and rule upon all procedural and other motions appropriate in such proceedings;

(6) To take any action authorized by these regulations or in conformance with law.

In

(k) Prehearing conference.-(1) the discretion of the presiding officer, a prehearing conference or conferences may be held prior to any adjudicatory hearing. All parties will be given reasonable notice of time and location of any such conference. In the discretion of the presiding officer, persons other than parties may attend. At the conference, the presiding officer may:

(i) Obtain stipulations and admissions, and identify disputed issues of fact and law;

(ii) Set a hearing schedule which includes definite or tentative times for as many of the following as are deemed necessary by the presiding officer:

(A) Oral and written statements; (B) Submission of written direct testimony as required or authorized by the presiding officer;

(C) Oral direct and cross-examination where necessary;

(D) Oral argument, if appropriate. (iii) Identify matters of which official notice may be taken;

(iv) Consider limitation of the number of expert and other witnesses;

(v) Consider the procedure to be followed at the hearing; and

(vi) Consider any other matter that may expedite the hearing or aid in the disposition of the matter.

(2) The results of any conference shall be summarized in writing by the presiding officer and made part of the record.

(1) Exchange of witness lists and documents. At a prehearing conference or within some reasonable time set by the presiding officer at a prehearing conference, each party shall make available to the other parties the names of the expert and other witnesses he expects to call, together with a brief narrative summary of their expected testimony. Copies of all documents and exhibits which he expects to introduce into evidence shall be marked for identification as ordered by the presiding officer. Thereafter, witnesses, documents, or exhibits may be added and narrative summaries of expected testimony amended only upon motion by a party.

(m) Evidence.—(1) The presiding officer shall admit all relevant and material evidence, except evidence that is unduly repetitious. Relevant and material evidence may be received at any hearing even though inadmissible under the rules of evidence applicable to judicial proceedings. The weight to be given evidence shall be determined by its reliability and probative value. Parties shall have the right to cross-examine a witness who appears at an adjudicatory hearing to the extent that such crossexamination is necessary for a full and true disclosure of the facts. In multiparty proceedings the presiding officer may limit cross-examination to one party on each side if it appears that the crossexamination by one party will adequately protect parties similarly situated. Other parties may, however, engage in cross-examination upon alleging that their cross-examination will go into matters not already covered by previous cross-examination.

(2) When a party will not be prejudiced thereby, the presiding officer may order all or part of the evidence to be submitted in written form.

(3) Rulings of the presiding officer on the admissibility of evidence, the propriety of cross-examination, and other procedural matters, shall be final and shall appear in the record.

(4) Interlocutory appeals may not be

taken.

(5) Parties shall be automatically presumed to have taken exception to an adverse ruling.

(n) Record.—Adjudicatory hearings shall be stenographically reported and transcribed, and the original transcript shall be a part of the record and the sole official transcript. Copies of the transcript shall be available from the Environmental Protection Agency. Any party may within 10 days following the completion of the hearing submit proposed findings and conclusions.

(0) Decision.—(1) Within 20 days after completion of an adjudicatory hearing, the presiding officer shall certify the record, together with any proposed findings and conclusions submitted by the parties, to the Regional Administrator for decision. Within 15 days following certification of the record, the Regional Administrator or a responsible employee designated by the Regional Administrator shall issue a tentative or recommended decision. Any party may, within 10 days following the issuance of the tentative or recommended decision, submit exceptions to that decision, including written evidence relating to any facts officially noticed by the Regional Administrator or the responsible employee in the tentative or recommended decision. Within 30 days following the issuance of the tentative or recommended decision, the Regional Administrator shall issue a decision, and promptly notify the parties and the Administrator thereof. Such decision shall become the final decision of the Agency unless within 30 days after its issuance any party shall have appealed the decision to the Administrator, or the Administrator, on his own motion, shall have stayed the effectiveness of the decision of the Regional Administrator pending review.

(2) The decision of the Regional Administrator shall include a statement of findings and conclusions, and a decision, including the reasons and basis therefore, on all issues of fact, law, or discretion presented by the proposed findings and conclusions of the parties.

(p) Appeal or review of decision of Regional Administrator.—(1) Any party shall have the right to appeal to the Administrator from a decision of the Regional Administrator following an adjudicatory hearing.

(2) Where the Administrator, on his own motion, reviews a decision of the Regional Administrator, he shall provide to all parties a written statement of those

issues to be considered on review. Any party may file briefs and reply briefs in accordance with paragraph (p) (3) and (4) of this section, limited to those issues identified by the Administrator.

(3) The appeal shall be in the form of a brief, filed within 30 days after notice of the decision of the Regional Administrator or, where the Administrator reviews a decision of the Regional Administrator on his own motion, within 30 days after the Administrator forwards the statement of issues under paragraph (p) (2) of this section. The brief shall contain, in the order indicated, the following:

(1) A subject index of the matter in the brief, with page references, and a table of cases, textbooks, statutes, and other material cited, with page references thereto;

(ii) A concise statement of the case; (iii) A specification of the questions intended to be urged, including any objections to rulings of the presiding officer, to the validity of facts officially noticed, or to any matter in the decision of the Regional Administrator.

(iv) The argument presenting clearly the points of fact and law relied upon in support of the position taken on each question, with specific references to the record and to statutory or other material relied upon; and,

(v) A proposed decision for the Administrator's consideration in lieu of the decision of the Regional Administrator. (4) Within 10 days after the expiration of time for filing briefs under paragraph (p) (3) of this section, any party may file a reply brief to any brief or briefs submitted by any other party. Such reply briefs shall follow the format prescribed in paragraph (p) (3) of this section, except that the proposed decision of the Administrator may be omitted.

(q) Decision upon appeal.-(1) Upon appeal from an initial decision, the Administrator shall consider such parts of the record as are cited or as may be necessary to resolve the issues presented and may, in his discretion, exercise any of the powers specified in § 125.34(j).

(2) In rendering his decision, the Administrator shall adopt, modify, or set aside the findings, conclusions, and decision contained in the decision of the Regional Administrator, and shall include in his decision a statement of the reasons or basis for his action.

(3) In those cases where the Administrator 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 permit i tee 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 effluent 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 another 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.

(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.

the

(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 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

action of the Environmental Protection Agency.

(c) Where the determinations of the Regional Administrator pursuant to paragraph (a) of this section with respect to any permit are substantially changed from the tentative determinations and draft permit prepared pursuant to § 125.31, the Regional Administrator shall forward his revised determinations to the applicant, and shall give public notice of such revised determinations in the manner specified in § 125.32. If within 30 days following the date of such notice, no request for an adjudicatory hearing meeting the requirements of § 125.34 (c) and subsection (d) of this section has been received, the determinations of the Regional Administrator shall become final and he shall issue or deny the permit as appropriate and such action shall be the final action of the Environmental Protection Agency: Provided, The Regional Administrator may decide to hold a public hearing pursuant to § 125.34 (b).

(d) A request for an adjudicatory hearing under this section will only be granted when such request meets all the requirements of § 125.34 (c) and such request pertains to the substantial changes proposed with respect to such permit by the Regional Administrator.

(e) When a hearing in held pursuant to § 125.34, final actions of the Environmental Protection Agency will be made pursuant to that section.

Subpart F-Relationship of Process to Permit and Construction Grant Programs

130.60 Relationship of continuing planning process with State participation in National Pollutant Discharge Elimination System.

130.61 Relationship of continuing planning process with construction grants.

AUTHORITY: Secs. 303 and 501, 86 Stat. 816; 33 U.S.C. 1314 (1972).

SOURCE: 38 FR 8035, Mar. 27, 1973, unless otherwise noted.

Subpart A-Scope and Purpose;
Definitions

§ 130.1 Scope and purpose.

(a) This part establishes regulations specifying procedural and other elements which must be present in a State continuing planning process to obtain approval of the Administrator pursuant to section 303 (e) of the Federal Water Pollution Control Act, as amended, 86 Stat. 816, 33 U.S.C. 1314. This part provides that each State must achieve compliance with the requirements of this regulation not later than June 30, 1975, and includes specification of levels of compliance which shall be achieved prior to that date.

(b) The purpose of the continuing planning process is: To provide the States the water quality assessment and program management information necessary to make centralized coordinated water quality management decisions; to provide the strategic guidance for developing the State program submittal under