[27 Pa.B. 4726]

[Continued from previous Web Page]

ARTICLE 5
APPEALS OR OBJECTIONS TO DECISIONS OF THE EXECUTIVE DIRECTOR [REVIEW] IN WATER QUALITY CASES

   Section 2.5.1 Scope. This article shall apply to the review, hearing and decision of objections and issues arising as a result of administrative actions and decisions taken or rendered by the Executive Director under the Basin Regulations. Any hearings shall be conducted pursuant to the provisions of Article 6.

   2.5.2 Notice and Request for Hearing. The Executive Director shall serve notice of an action or decision by him under the Basin Regulations by personal service or certified mail, return receipt requested. The affected discharger shall be entitled (and the notice of action or decision shall so state) to show cause at a Commission hearing why such action or decision should not take effect. A request for such a hearing shall be filed with the Secretary of the Commission not more than [20]30 days after service of the Executive Director's determination. Failure to file such a request within the time limit shall be deemed to be an acceptance of the Executive Director's determination and a waiver of any further hearing.

   2.5.3 Form of Request. A request for a hearing may be informal but shall indicate the name of the individual and the address to which an acknowledgment may be directed. It may be stated in such detail as the objector may elect. The request shall be deemed filed only upon receipt by the Commission.

   [2.5.4 Report.] Whenever the Executive Director determines that the request for a hearing is insufficient to identify the nature and scope of the objection, or that one or more issues may be resolved, reduced or identified by such action, he may require the objector to prepare and submit to the Commission, within such reasonable time (not less than [20]30 days) as he may specify, a technical report of the facts relating to the objection prior to the scheduling of the hearing. The report shall be required by notice in writing served upon the objector by certified mail, return receipt requested, addressed to the person or entity filing the request for hearing at the place indicated in the request.

   2.5.[5]4 Form and Contents of Report.

   (a)  Generally. A request for a report under this article may require such information and the answers to such questions as may be reasonably pertinent to the subject of the action or determination under consideration.

   (b)  Waste Loading. In cases involving objections to an allocation of the assimilative capacity of a stream, wasteload allocation for a point source, or load allocation for a new point source, the report shall be signed and verified by a technically qualified person having personal knowledge of the facts stated therein, and shall include such of the following items as the Executive Director may require:

   (1)  A specification with particularity of the ground or grounds for the objection; and failure to specify a ground for objection prior to the hearing shall foreclose the objector from thereafter asserting such a ground at the hearing;

   (2)  A description of industrial processing and waste treatment operational characteristics and outfall configuration in such detail as to permit an evaluation of the character, kind and quantity of the discharges, both treated and untreated, including the physical, chemical and biological properties of any liquid, gaseous, solid, radioactive, or other substance composing the discharge in whole or in part;

   (3)  The thermal characteristics of the discharges and the level of heat in flow;

   (4)  Information in sufficient detail to permit evaluation in depth of any in-plant control or recovery process for which credit is claimed;

   (5)  The chemical and toxicological characteristics including the processes and/or indirect discharges which may be the source of the chemicals or toxicity;

   ([5]6)  An analysis of all the parameters that may have an effect on the strength of the waste or impinge upon the water quality criteria set forth in the Basin Regulations, including a determination of the rate of biochemical oxygen demand and the projection of a first-stage carbonaceous oxygen demand;

   ([6]7)  Measurements of the waste as closely as possible to the processes where the wastes are produced, with the sample composited either continually or at frequent intervals (one-half hour or, where permitted by the Executive Director, one hour periods), so as to represent adequately the strength and volume of waste that is discharged; and

   ([7]8)  Such other and additional specific technical data as the Executive Director may reasonably consider necessary and useful for the proper determination of a wasteload allocation.

   2.5.[6]5 Protection of Trade Secrets; Confidential Information. No person shall be required in such report to divulge trade secrets or secret processes. All information disclosed to any Commissioner, agent or employee of the Commission in any report required by these Rules shall be confidential for the purposes of Section 1905 of Title 18 of the United States Code which provides:

''Whoever, being an officer or employee of the United States or of any department or agency thereof, publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any information coming to him in the course of his employment or official duties or by reason of any examination or investigation made by, or return, report or record made to or filed with, such department or agency or officer or employee thereof, which information concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation or association; or permits any income return or copy thereof to be seen or examined by any persons except as provided by law; shall be fined not more than $1,000 or imprisoned not more than one year, or both; and shall be removed from office or employment. June 25, 1948, C.645, 62 Stat. 791.''

   2.5.[7]6 Failure to Furnish Report. The Executive Director may, upon five days' notice to the objector dismiss the request for a hearing as to any objector who fails to file a complete report within such time as shall be prescribed in the Director's notice.

   2.5.[8]7 Informal Conference. Whenever the Executive Director deems it appropriate, he may cause an informal conference to be scheduled between an objector and such member of the Commission staff as he may designate. The purpose of such a conference shall be to resolve or narrow the ground or grounds of the objections.

   2.5.[9]8 Consolidation of Hearings. Following such informal conferences as may be held, to the extent that the same or similar grounds for objections are raised by one or more objectors, the Executive Director may in his discretion and with the consent of the objectors, cause a consolidated hearing to be scheduled at which two or more objectors asserting that ground may be heard.

ARTICLE 6
[Conduct of] Administrative Hearings

   Section 2-6.1 Hearings Generally.

   (a)  Scope of Article. This article shall apply to [hearings] contested cases required [for the purposes of] to be held under Articles [-]3 and 5 of these regulations [and], to the [extent applicable, to the] conduct of other administrative hearings [for which no other provision is made by statute or regulation.] involving contested cases and to proceedings which Commission regulation or the Commission directs be conducted pursuant to this article.

   [(b)  Timely Request. Any person aggrieved by any](b)  Definition of Contested Case. ''Contested case'' means a proceeding in which the legal rights, duties, obligations, privileges, benefits or other legal relations of specific parties are involved. Such a proceeding may involve personnel matters, project applications and docket decisions but shall not extend to the review of any proposed or adopted rule or regulation of the Commission.

   (c)  Requests for Hearings. Any person seeking a hearing to review the action or decision of the [Executive Director taken under any Basin Regulation shall be entitled upon timely filing of a request therefor, to a hearing in accordance with these regulations.] The Commission or the Executive Director may request a hearing pursuant to the provisions of this article provided such a request is received by the Commission within thirty (30) days of the action or decision which is the subject of the requested hearing. Requests shall be submitted in writing to the Secretary of the Commission and shall identify the specific action or decision for which a hearing is requested, the date of the action or decision, the interest of the person requesting the hearing in the subject matter of the proposed hearing and a summary statement setting forth the basis for objecting to or seeking review of the action or decision. Any request filed more than thirty days after an action or decision will be deemed untimely and such request for a hearing shall be considered denied unless the Commission by unanimous vote otherwise directs. Receipt of requests for hearings, pursuant to this article, whether timely filed or not, shall be submitted by the Secretary to the Commissioners for their information.

   [(c)](d)  Optional Joint Hearings. Whenever designated by a department, agency or instrumentality of a signatory party, and within any limitations prescribed by the designation, a Hearing Officer designated pursuant to this article may also serve as a Hearing Officer, examiner or agent pursuant to such additional designation[. The hearing officer] and may conduct joint hearings for the Commission and for such other department, agency or instrumentality. Pursuant to the additional designation, a Hearing Officer shall cause to be filed with the department, agency or instrumentality making the designation, a certified copy of the transcript of the evidence taken before him and, if requested, of his findings and recommendations. Neither the Hearing Officer nor the Delaware River Basin Commission shall have or exercise any power or duty as a result of such additional designation to decide the merits of any matter arising under the separate laws of a signatory party (other than the Delaware River Basin Compact).

   [(d)](e)  Schedule. The Executive Director shall cause the schedule for each hearing to be listed in advance upon a 'hearing docket' which shall be posted in public view at the office of the Commission.

   (f)  Notice of Hearing. Notice of any hearing to be conducted pursuant to this article shall comply with the provisions of Section 14.4(b) of the Compact relating to public notice unless otherwise directed by the Commission.

   Section 2.6.2 Authorization to Conduct Hearings.

   (a)  Written Requests for Hearings. Upon receipt of a written request for a hearing pursuant to this article, the Executive Director shall review the record available with regard to the action or decision for which a hearing is requested. Thereafter, the Executive Director shall present the request for a hearing to the Commission for its consideration. The Commission shall grant a request for a hearing pursuant to this article if it determines that an adequate record with regard to the action or decision is not available, the contested case involves a determination by the Executive Director or staff which requires further action by the Commission or that the Commission has found that an administrative hearing is necessary or desirable. If the Commission denies any request for a hearing in a contested case, the party seeking such a hearing shall be limited to such remedies as may be provided by the Compact or other applicable law or court rule.

   (b)  Commission Directed Hearings. This article shall be applicable to any proceeding which Commission regulation or the Commission directs be conducted in accordance with the provisions hereof.

   2.6.3 [2.6.2] Hearing Officer.

   (a)  Generally. Hearings shall be conducted by one or more members of the Commission, by the Executive Director, or by such other Hearing Officer as the chairman may designate, except as provided in paragraph (b) below.

   (b)  Wasteload Allocation Cases. In cases involving the allocation of the assimilative capacity of a stream:

   (1)  The Executive Director shall appoint a hearing board of at least two persons. One of them shall be nominated by the water pollution control agency of the state in which the discharge originates, and he shall be chairman. The board shall have and exercise the powers and duties of a Hearing Officer;

   (2)  A quorum of the board for purposes of the hearing shall consist of two members; and

   (3)  Questions of practice or procedure during the hearing shall be determined by the chairman.

   [2.6.3] 2.6.4 Hearing Procedure.

   (a)  Participation in the Hearing. In any hearing, the person requesting the hearing shall be deemed an interested party and shall be entitled to participate fully in the hearing procedure. In addition, any person whose legal rights may be affected by the decision rendered in a contested case shall be deemed an interested party. Interested parties [The hearing officer shall have the power to rule upon offers of proof and the admissibility of evidence, to regulate the course of the hearings, and to hold conferences for the settlement or simplification of issues.

   (b) The hearing officer shall cause each witness to be sworn or to make affirmation.

   (c)  Any party to a hearing] shall have the right to be represented by counsel, to present evidence and to examine and cross-examine witnesses. In addition to interested parties, any persons having information concerning a contested case or desiring to present comments concerning the subject matter of the Hearing for inclusion in the record may submit a written statement to the Commission. Any interested party may request the right to examine or cross-examine any person who submits a written statement. In the absence of a request for examination of such person, all written statements submitted shall be included within the record and such statements may be relied upon to the extent determined by the Hearing Officer or the Commission.

   (b)  Powers of the Hearing Officer. The Hearing Officer shall:

   (1)  Rule upon offers of proof and the admissibility of evidence, regulate the course of the hearings, hold conferences for the settlement or simplification of procedures or issues, and shall schedule submission of documents, briefs and the time for the hearing.

   (2) Cause each witness to be sworn or to make affirmation.

   (3)  Limit [(d)  When necessary, in order to prevent undue prolongation of the hearing, the hearing officer may limit] the number of times any witness may testify, [the] limit repetitious examination or cross-examination of witnesses[,] or the extent [of] to which corroborative or cumulative testimony shall be accepted.

   (4)  Exclude

   [(e)  The hearing officer shall exclude] irrelevant, immaterial[,] or unduly repetitious evidence, but the interested parties shall not be bound by technical rules of evidence[,] and all relevant evidence of reasonably probative value may be received.

   [(f)   Any person entitled to be heard may appear and be heard in person or be represented by an attorney at law or, if the applicant is a corporation, by its corporate officer, an authorized employee, or by an attorney at law.

   (g)  Briefs and oral argument may be required by the hearing officer and shall be permitted upon request made prior to the close of the hearing by any party. They shall be](5)  Require briefs and oral arguments to the extent determined necessary which shall be included as part of the record unless otherwise ordered by the [hearing officer] Hearing Officer.

   [2.6.4] 2.6.5 Staff and Other Expert Testimony.

   (a)  Presentation on Behalf of the Commission. The Executive Director shall arrange for the presentation of testimony by the Commission's technical staff and other experts, as he may deem necessary or desirable, to incorporate in the record or support the administrative action, determination or decision which is the subject of the hearing.

   (b)  [A party to the hearing may submit the] Expert Witnesses. An interested party may submit in writing to the Hearing Officer the report and proposed testimony of an expert witness.[, to be made part of the record, whether or not the expert is present, provided that such testimony has been reduced to writing, sworn, and copies thereof distributed to all parties appearing at the hearing. Such] No expert report or proposed testimony, however, shall [not be admitted whenever] be included in the record if the expert is not [present and] available for [cross-]examination [at the hearing] unless the report and proposed testimony shall have been [made available to all parties of record at least five days] provided to the Commission and all interested parties prior to the hearing and [all] the Commission and interested parties have waived the right of cross-examination.

   (c)  The Executive Director may designate for inclusion in the record those records of the Commission which the Executive Director deems relevant to a decision in a contested case or to provide an understanding of applicable Commission policies, regulations or other requirements relating to the issues in the contested case. The designation of such Commission documents shall be provided to all interested parties prior to the hearing.

   2.6.6 [2.6.5] Record of Proceedings. A record of the proceedings and evidence at each hearing shall be made by a qualified stenographer designated by the Executive Director. Where demanded by the applicant, objector, or any other person who is a party to these proceedings, or where deemed necessary by the Hearing Officer, the testimony shall be transcribed. In those instances where a transcript of proceedings is made, two copies shall be delivered to the Commission. The applicant, objector, or other persons who desire copies shall obtain them from the stenographer at such price as may be agreed upon by the stenographer and the person desiring the transcript.

   [2.6.5.1] 2.6.7 Assessment of Costs[.]; Appeals.

   (a)  Whenever an adjudicatory hearing is required, the costs thereof, as herein defined, shall be assessed by the Hearing Officer to the Hearing applicant unless apportioned between the interested parties where cost sharing is deemed fair and equitable by the Hearing Officer. For the purposes of this section costs include all incremental costs incurred by the Commission, including, but not limited to, hearing examiner and expert consultants reasonably necessary in the matter, stenographic record, rental of [the hall] a hearing room and other related expenses.

   (b)  Upon scheduling of a matter for [adjudicatory] hearing, the Secretary shall furnish to the applicant and/or interested parties a reasonable estimate of the costs to be incurred under this section. The applicant and/or interested parties may be required to furnish security for such costs either by cash deposit or by a surety bond of a corporate surety authorized to do business in a signatory state.

   (c)  An appeal of the assessment of costs may be submitted in writing to the Commission within ten (10) days of the assessment. A copy of the appeal shall be filed with the Secretary and served on all interested parties. The filing of said appeal shall not stay the Hearing.

   [2.6.6] 2.6.8 Findings, and Report and Commission Review.

   (a)  The Hearing Officer shall prepare a report of his findings and recommendations. In the case of an objection to a waste load allocation, the hearing officer shall make specific findings of a recommended allocation [of carbonaceous oxygen demand,] which may increase, reduce or confirm the Executive Director's determination. The report shall be served by personal service or certified mail (return receipt requested) upon each party to the hearing or its counsel unless all parties have waived service of the report. The applicant and any objector may file objections to the report within 20 days after the service upon him of a copy of the report. A brief shall be filed together with any objections. The report of the Hearing Officer together with objections and briefs shall be promptly submitted to the Commission. The Commission may require or permit oral argument upon such submission prior to its decision.

   (b)  The Executive Director, in addition to any submission to the Hearing Officer, may also submit to the Commission staff comments upon, or a response to, the Hearing Officer's findings and report and, where appropriate, a draft docket or other recommended Commission action. Interested parties shall be served with a copy of such submission and may have not less than ten (10) days to respond before action by the Commission.

   [2.6.7] 2.6.9 Action by the Commission.

   (a)  The Commission will act upon the findings and recommendations of the Hearing Officer pursuant to law.

   (b)  Commission Counsel shall assist the Commission with its review of the hearing record and the preparation of a Commission decision to the extent directed to do so by the Chairman.

   (c)  The determination of the Commission will be in writing and shall be filed together with any transcript of the hearing, report of the Hearing Officer, objections thereto, and all plans, maps, exhibits and other papers, records or documents relating to the hearing. [Subject to the provisions of Section 2-4.6, all] All such records, papers and documents may be examined by any person at the office of the Commission, and shall not be removed therefrom except temporarily upon the written order of the Secretary after the filing of a receipt therefor in form prescribed by the Secretary. Copies of any such records and papers may be made in the office of the Commission by any person, subject to such reasonable safeguards for the protection of the records as the Executive Director may require.

   6.10 Appeals from Final Commission Action; Time for Appeals.

   Any party participating in a hearing conducted pursuant to the provisions of this article may appeal any final Commission action. To be timely, such an appeal must be filed with an appropriate federal court, as provided in Article 15.1(p) of the Commission's Compact, within forty-five (45) days of final Commission action.

ARTICLE 7
PENALTIES AND SETTLEMENTS IN LIEU OF PENALTIES (No change.)

ARTICLE 8
PUBLIC ACCESS TO RECORDS AND INFORMATION (No change.)

ARTICLE 9
GENERAL PROVISIONS (No change.)
[RESOLUTION NO. 80-11: SUSPENSION OF RULES RELATING TO ENVIRONMENTAL REVIEWS

   A RESOLUTION suspending the Rules of Practice and Procedure relating to environmental reviews.

   WHEREAS, the Compact of the Delaware River Basin Commission authorizes the Commission to promote and aid the coordination of the activities and programs of the signatory parties concerning water resources administration; and

   WHEREAS, the Commission, pursuant to its Compact powers adopted Resolution No. 70-23 amending its Rules of Practice and Procedure to require environmental assessments and the preparation of environmental impact statements under certain circumstances; and

   WHEREAS, by Resolutions Nos. 71-7, 73-15 and 76-20, the Commission further amended its Rules of Practice and Procedure to extend the requirements relating to environmental assessments and impact statements; and

   WHEREAS, the provisions concerning environmental assessments and the preparation and processing of environmental impact statements are now generally set forth in Article 4 of the Commission's Rules of Practice and Procedure as revised; and

   WHEREAS, for the past two budget periods the Commission has been unsuccessful in obtaining adequate financial support for the continued implementation of the environmental impact statement program from the signatory parties as is evidenced by the reports prepared and submitted to the Commission by its Executive Director; and

   WHEREAS, efforts to obtain financing from the U.S. Congress for the fiscal period 1980 did not succeed and the sum of $126,000 included by the U.S. House of Representatives for this purpose was specifically eliminated by congressional action; and

   WHEREAS, Commission efforts to obtain financial support from the U.S. Congress for fiscal period 1981 has also not succeeded; and

   WHEREAS, the signatory state members have not been provided adequate funds from their appropriations for this purpose; and

   WHEREAS, the Commission does not have available to it sufficient financial resources to permit the continuation of this program at the present time and to carry out its responsibilities mandated by the Compact; and

   WHEREAS, an appropriate agency of the executive branch of the federal government can assume the ''lead agency'' and other environmental assessment functions for significant projects within the basin involving federal loans, grants or permits; and

   WHEREAS, the Commission continues to be sensitive to, and recognizes the importance of, environmental aspects of projects which it reviews, and intends to continue to consider such issues within the procedures established by the Compact, consistent with budget and staff constraints; now therefore,

   BE IT RESOLVED by the Delaware River Basin Commission:

   1.  The Rules of Practice and Procedure are hereby suspended as follows:

   (a)  Except to the extent hereafter provided, Article 4 and the provisions of Sections 2-3.5 and 2-3.9 of the Commission's Rules of Practice and Procedure relating to environmental assessments are hereby suspended until further action of the Commission. To the extent that federal law may require the conduct of environmental assessments and the preparation of environmental impact statements, the Commission shall request appropriate agencies of the signatory parties to prepare such assessments and to make available all their findings and conclusions to the Commission. The Commission shall not act as lead agency for environmental assessments and the preparation of environmental impact statements unless funding therefor is expressly provided by Commission action or otherwise approved by the Commission.

   (b)  The provisions of Article 3 and Article 4 which would otherwise be suspended by paragraph 1 of this resolution shall remain in full force and effect in connection with the Level B Study, and the Merrill Creek and Point Pleasant projects and shall] [be applicable to the environmental assessments which are now in process and any environmental impact statements which such assessments may require or which are now being prepared. Such assessments and statements shall be completed in accordance with the Commission's Rules of Practice and Procedure concerning environmental matters.

   (c)  All reviews of projects under Section 3.8 of the Delaware River Basin Compact conducted while the suspension provided for in this resolution remains in effect shall be without reference to the requirements of the Comprehensive Plan established in Resolution No. 71-6 (Section 1.10.2 of the Water Code) except to the extent that environmental information is otherwise available from agencies of the signatory parties.

   2.  The Executive Director and Commission staff are hereby directed to review those sections of the Rules of Practice and Procedure which are hereby suspended, and to prepare proposed revisions of such sections as might permit the Commission to reinstate environmental assessments on an amended basis provided necessary financial resources are developed.]

DIRK C. HOFMAN, pro tem   
Chairman

W. BRINTON WHITALL,   
Secretary

SUSAN M. WEISMAN,   
Secretary

   Fiscal Note: 68-35. No fiscal impact; (8) recommends adoption.

Annex A

TITLE 25.  ENVIRONMENTAL PROTECTION

PART V.  DELAWARE RIVER BASIN COMMISSION

CHAPTER 901.  GENERAL PROVISIONS

§ 901.1.  Rules of practice and procedure.

   The rules of practice and procedure as set forth in 18 CFR part 401 ([1994] 1997) are hereby incorporated by reference and made part of this title.

[Pa.B. Doc. No. 97-1473. Filed for public inspection September 12, 1997, 9:00 a.m.]

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