PART 223-CONTENTS OF PERMITS; REVISION, REVOCATION OR LIMITATION OF OCEAN DUMPING PERMITS UNDER SECTION 104(d) OF THE ACT

Subpart A-Contents of Ocean Dumping Permits Issued Under Section 102 of the Act

Sec.

223.1 Contents of special, interim, emergency, general and research permits; posting requirements.

Subpart B-Procedures for Revision, Revocation or Limitation of Ocean Dumping Permits Under Section 104(d) of the Act

223.2 Scope of these rules.

223.3 Preliminary determination; notice. 223.4 Request for, scheduling and conduct of public hearing; determination.

223.5 Request for, scheduling and conduct of adjudicatory hearing; determination. AUTHORITY: Secs. 102, 104, 107, 108, Marine Protection Research, and Sanctuaries Act of 1972, as amended (33 U.S.C. 1412, 1414, 1417, 1418)

SOURCE: 42 FR 60702, Nov. 28, 1977, unless otherwise noted.

Subpart A-Contents of Ocean Dumping Permits Issued Under Section 102 of the Act

§223.1 Contents of special, interim, emergency, general and research permits; posting requirements.

(a) All special, interim, emergency and research permits shall be displayed on the vessel engaged in dumping and shall include the following:

(1) Name of permittee;

(2) Means of conveyance and methods and procedures for release of the materials to be dumped;

(3) The port through or from which such material will be transported for dumping;

(4) A description of relevant physical and chemical properties of the materials to be dumped;

(5) The quantity of the material to be dumped expressed in tons;

(6) The disposal site;

(7) The times at which the permitted dumping may occur and the effective date and expiration date of the permit;

(8) Special provisions which, after consultation with the Coast Guard, are deemed necessary for monitoring or surveillance of the transportation or dumping;

(9) Such monitoring relevant to the assessment of the impact of permitted dumping activities on the marine environment at the disposal site as the Administrator or Regional Administrator, as the case may be, determine to be necessary or appropriate; and

(10) Any other terms and conditions determined by the Administrator, or Regional Administrator, as the case may be, to be necessary or appropriate, including, without limitation, release procedures and requirements for the continued investigation or development of alternatives to ocean dumping.

(b) General permits shall contain such terms and conditions as the Administrator deems necessary or appropriate.

(c) Interim permits shall, in addition to the information required or permitted to be included in the permit pursuant to paragraph (a) of this section, include terms and conditions which satisfy the requirements of §§ 220.3(d) and 227.8.

Subpart B-Procedures for Revision, Revocation or Limitation of Ocean Dumping Permits Under Section 104(d) of the Act

§ 223.2 Scope of these rules.

(a) These rules of practice shall govern all proceedings under section 104(d) of the Marine Protection, Research, and Sanctuaries Act of 1972, as amended (33 U.S.C. 1414(d)), to revise, revoke or limit the terms and conditions of any permit issued pursuant to section 102 of the Act. Section 104(d) provides that "the Administrator *** may limit or deny the issuance of permits, or he may alter or revoke partially or entirely the terms of permits issued by him under this title, for the transportation for dumping, or for the dumping, or both of specified materials or classes of materials, where he finds that such materials cannot be dumped consistently with the criteria and other fac

tors required to be applied in evaluating the permit application."

(b) In the absence of specific provisions in these rules, and where appropriate, questions arising at any stage of the proceedings shall be resolved at the discretion of the Presiding Officer, the Regional Administrator, or the Administrator, as appropriate.

§ 223.3 Preliminary determination; notice.

(a) General. Any general, special, emergency, interim or research permit issued pursuant to section 102 of the Act shall be subject to revision, revocation or limitation, in whole or in part, as the result of a determination by the Administrator or Regional Administrator that:

(1) The cumulative impact of the permittee's dumping activities or the aggregate impact of all dumping activities at the dump site designated in the permit should be categorized as Impact Category I, as defined in §228.10(c)(1) of this subchapter; or

(2) There has been a change in circumstances relating to the management of the disposal site designated in the permit; or

(3) The dumping authorized by the permit would violate applicable water quality standards; or

(4) The dumping authorized by the permit can no longer be carried out consistent with the criteria set forth in parts 227 and 228.

(b) Preliminary determination. Whenever any person authorized by the Administrator or Regional Administrator to (1) periodically review permits pursuant to section 104(d) of the Act or (2) otherwise assess the need for revision, revocation or limitation of a permit makes any of the determinations listed in paragraph (a) of this section with respect to a permit issued pursuant to section 102 of the Act, and additionally determines that revision, revocation or limitation of such permit is warranted, the Administrator or Regional Administrator, as the case may be, shall provide notification of such proposed revision, revocation or limitation to the permittee named in the permit, if any, the public, and any cognizant Federal/ State agencies pursuant to paragraph (c) of this section.

(c) Form of notification. Notice of any proposed revision, revocation or limitation of a permit shall be sent to the permittee by certified mail, return receipt requested, and shall be published and otherwise disseminated in the manner described in §222.3 (b) through (h).

(d) Contents of notice. The notice of any proposed revision, revocation or limitation of a permit issued pursuant to paragraph (b) of this section shall include, in addition to any other materials, the following:

(1) A brief description of the contents of the permit, as set forth in § 223.1; (2) A description of the proposed revision, revocation, or limitation;

(3) A statement of the reason for such proposed revision, revocation, or limitation; and

(4) A statement that within thirty (30) days of the date of dissemination of the notice, any person may request a public hearing on the proposed revision, revocation or limitation.

§ 223.4 Request for, scheduling and conduct of public hearing; determination.

(a) Request for hearing. Within thirty (30) days of the date of the dissemination of any notice required by §223.2(b), any person may request the Administrator or Regional Administrator, as appropriate, to hold a public hearing on the proposed revision, revocation or limitation by submitting a written request containing the following:

(1) Identification of the person requesting the hearing and his interest in the proceeding;

(2) A statement of any objections to the proposed revision, revocation or limitation or to any facts or reasons identified as supporting such revision, revocation or limitation; and

(3) A statement of the issues which such person proposes to raise for consideration at such hearing.

(b) Grant or denial of hearing; notification. Whenever (1) a written request satisfying the requirements of paragraph (a) of this section has been received, and the Administrator or Regional Administrator, as appropriate, determines that such request presents genuine issues, or (2) the Administrator or Regional Administrator, as

the case may be, determines in his discretion that a public hearing is necessary or appropriate, the Administrator or Regional Administrator, as the case may be, will set a time and place for a public hearing in accordance with paragraph (c) of this section and will give notice of such hearing by publication

in accordance with

§ 223.3(c). In the event the Administrator or the Regional Administrator, as the case may be, determines that a request filed pursuant to paragraph (a) of this section does not comply with the requirements of paragraph (a) or that such request does not present genuine issues, he shall advise, in writing, the person requesting the hearing of his determination.

(c) Time and place of hearing. Any hearing authorized pursuant to this Section by the Administrator or Regional Administrator, as the case may be, shall be held in the city in which the Environmental Protection Agency Regional Office which issued the permit is located, whenever practicable, and shall be set for the earliest practicable date, but in no event less than thirty (30) days after the receipt of an appropriate request for a hearing or a determination by the Administrator or the Regional Administrator, as the case may be, to hold such a hearing without such a request.

(d) Presiding Officer. Any hearing convened pursuant to this part shall be conducted by a Presiding Officer, who shall be either a Regional Judicial Officer or a person having the qualifications of the members of the Environmental Appeals Board (described in 40 CFR 1.25(e)) if assigned by the Administrator or the qualifications of a Regional Judicial Officer if assigned by the Regional Administrator, as appropriate. Such person shall be an attorney who is a permanent or temporary employee of the Agency, who is not employed by the Region's or Headquarter's Water Programs Division, Surveillance and Analysis Division, or Enforcement Division, and who has had no connection with the preparation or presentation of evidence for any hearing in which he participates as Judicial Officer.

(e) Conduct of the public hearing. The Presiding Officer shall be responsible

for the expeditious conduct of the hearing. The hearing shall be an informal public hearing, not an adversary proceeding, and shall be conducted so as to allow the presentation of public comments. When the Presiding Officer determines that it is necessary or appropriate, he shall cause a suitable record, which may include a verbatim transcript, of the proceedings to be made. Any person may appear at a public hearing convened pursuant to this section whether or not he requested the hearing, and may be represented by counsel or any other authorized representative. The Presiding Officer is authorized to set forth reasonable restrictions on the nature or amount of documentary material or testimony presented at a public hearing, giving due regard to the relevancy of any such information, and to the avoidance of undue repetitiveness of information presented.

(f) Recommendations of Presiding Officer. Within 30 days following the adjournment of a public hearing convened pursuant to this section or within such additional period as the Administrator or the Regional Administrator, as the case may be, may grant to the Presiding Officer for good cause shown, and after full consideration of the comments received at the hearing, the Presiding Officer will prepare and forward to the Administrator or to the Regional Administrator, as the case may be, written recommendations relating to the revision, revocation or limitation of the permit and the record of the hearing, if any. Such recommendations shall contain a brief statement of the basis therefor, including a description of evidence relied upon (1) to support any finding made pursuant to §223.3(a); (2) to justify any proposed revision, revocation or limitation of the permit; and (3) to justify any proposed revision, revocation or limitation which differs from that set forth in the notice issued pursuant to §223.3(b). Copies of the Presiding Officer's recommendations shall be provided to any interested person on request, without charge. Copies of the record will be provided in accordance with 40 CFR part 2.

(g) Determination of the Administrator or Regional Administrator. Upon receipt of the Presiding Officer's recommenda

tions or, where no hearing has been held, upon termination of the thirty (30)-day period for requesting a hearing provided in paragraph (a) of this section, the Administrator or the Regional Administrator, as the case may be, shall make a determination with respect to the modification, revocation or suspension of the permit. Such determination shall include a description of the permit revision, revocation or limitation, the basis therefor, and the effective date. A copy of such determination shall be mailed to the permittee and each person who registered his attendance at the hearing by providing his name and mailing address.

[42 FR 60702, Nov. 28, 1977, as amended at 57 FR 5346, Feb. 13, 1992]

§ 223.5 Request for, scheduling and conduct of adjudicatory hearing; determination.

Within ten (10) days following the receipt of the Administrator's or Regional Administrator's determination issued pursuant to §223.4(g), any person who participated in the public hearing held pursuant to §223.4 may request that an adjudicatory hearing be held for the purpose of reviewing such determination or any part thereof. Such request shall be submitted and disposed of, and any adjudicatory hearing convened shall be conducted in accordance with the procedures set forth in §§ 222.10 (a), (b), (d), and (e) and 222.11.

istrator, Regional Administrator, the Commandant of the U.S. Coast Guard, or their respective designees:

(a) The physical and chemical characteristics of the material dumped pursuant to the permit;

(b) The precise times and locations of dumping;

(c) Any other information required as a condition of a permit by the Administrator or the Regional Administrator, as the case may be.

[42 FR 2474, Jan. 11, 1977]

$224.2 Reports.

(a) Periodic reports. Information required to be recorded pursuant to §224.1 shall be reported to the Administrator or the Regional Administrator, as the case may be, for the periods indicated within 30 days of the expiration of such periods:

(1) For each six-month period, if any, following the effective date of the permit;

(2) For any other period of less than six months ending on the expiration date of the permit; and

(3) As otherwise required in the conditions of the permit.

(b) Reports of emergency dumping. If material is dumped without a permit pursuant to paragraph (c)(4) of §220.1, the owner or operator of the vessel or aircraft from which such dumping occurs shall as soon as feasible inform the Administrator, Regional Administrator, or the nearest Coast Guard district of the incident by radio, telephone, or telegraph and shall within 10 days file a written report with the Administrator or Regional Administrator containing the information required under § 224.1 and a complete description of the circumstances under which the dumping occurred. Such description shall explain how human life at sea was in danger and how the emergency dumping reduced that danger. If the material dumped included containers, the vessel owner or operator shall immediately request the U.S. Coast Guard to publish in the local Notice to Mariners the dumping location, the type of containers, and whether the contents are toxic or explosive. Notification shall also be given to the Food and Drug Administration, Shellfish

Sanitation Branch, Washington, DC 20204, as soon as possible.

[42 FR 2474, Jan. 11, 1977]

PART 225-CORPS OF ENGINEERS DREDGED MATERIAL PERMITS

Sec.

225.1 General.

225.2 Review of Dredged Material Permits. 225.3 Procedure for invoking economic impact.

225.4 Waiver by Administrator.

AUTHORITY: 33 U.S.C. 1412 and 1418.

SOURCE: 42 FR 2475, Jan. 11, 1977, unless otherwise noted.

§225.1 General.

Applications and authorizations for Dredged Material Permits under section 103 of the Act for the transportation of dredged material for the purpose of dumping it in ocean waters will be evaluated by the U.S. Army Corps of Engineers in accordance with the criteria set forth in part 227 and processed in accordance with 33 CFR 209.120 with special attention to §209.120(g)(17) and 33 CFR 209.145.

§225.2 Review of Dredged Material Permits.

(a) The District Engineer shall send a copy of the public notice to the appropriate Regional Administrator, and set forth in writing all of the following information:

(1) The location of the proposed disposal site and its physical boundaries;

(2) A statement as to whether the site has been designated for use by the Administrator pursuant to section 102(c) of the Act;

(3) If the proposed disposal site has not been designated by the Administrator, a statement of the basis for the proposed determination why no previously designated site is feasible and a description of the characteristics of the proposed disposal site necessary for its designation pursuant to part 228 of this subchapter H;

(4) The known historical uses of the proposed disposal site;

(5) Existence and documented effects of other authorized dumpings that have been made in the dumping area (e.g.,

heavy metal background reading and organic carbon content);

(6) An estimate of the length of time during which disposal will continue at the proposed site;

(7) Characteristics and composition of the dredged material; and

(8) A statement concerning a preliminary determination of the need for and/ or availability of an environmental impact statement.

(b) The Regional Administrator will within 15 days of the date the public notice and other information required to be submitted by paragraph (a) of §225.2 are received by him, review the information submitted and request from the District Engineer any additional information he deems necessary or appropriate to evaluate the proposed dumping.

(c) Using the information submitted by the District Engineer, and any other information available to him, the Regional Administrator will within 15 days after receipt of all requested information, make an independent evaluation of the proposed dumping in accordance with the criteria and respond to the District Engineer pursuant to paragraph (d) or (e) of this section. The Regional Administrator may request an extension of this 15 day period to 30 days from the District Engineer.

(d) When the Regional Administrator determines that the proposed dumping will comply with the criteria, he will so inform the District Engineer in writing.

(e) When the Regional Administrator determines that the proposed dumping will not comply with the criteria he shall so inform the District Engineer in writing. In such cases, no Dredged Material Permit for such dumping shall be issued unless and until the provisions of §225.3 are followed and the Administrator grants a waiver of the criteria pursuant to §225.4.

$ 225.3 Procedure for invoking economic impact.

(a) When a District Engineer's determination to issue a Dredged Material Permit for the dumping of dredged material into ocean waters has been rejected by a Regional Administrator upon application of the Criteria, the District Engineer may determine