SUBCHAPTER D-WATER PROGRAMS PARTS 100-103 (RESERVED] PART 104—PUBLIC HEARINGS ON EFFLUENT STANDARDS FOR TOXIC POLLUTANTS Sec. 104.1 Applicability. 104.2 Definitions. 104.3 Notice of hearing; objection; public comment. 104.4 Statement of basis and purpose. 104.5 Docket and record. 104.6 Designation of Presiding Officer. 104.7 Powers of Presiding Officer. 104.8 Prehearing Conferences. 104.9 Admission of Evidence. 104.10 Hearing Procedures. 104.11 Briefs and Findings of Fact. 104.12 Certification of Record. 104.13 Interlocutory and Post-hearing Review of Rulings of the Presiding Offi cer; Motions. 104.14 Tentative and Final Decision by The Administrator. 1.04.15 Promulgation of Standards. 104.16 Filing and time. AUTHORITY: Sections 501 and 307(a) of the Federal Water Pollution Control Act, as amended (33 U.S.C. Section 1251 et seq., Pub. L. 92-500, 86 Stat. 816). SOURCE: 41 FR 17902, Apr. 29, 1976, unless otherwise noted. (c) "Agency" means the mental Protection Agency. (d) “Hearing Clerk” means ing Clerk, U.S. Environment tion Agency, 401 M Street S ington, D.C. 20460. (e) "Party" means the En tal Protection Agency as t. nent of an effluent standard ards, and any person who fi jection pursuant to 8 104.3 he (f) "Person" means an i corporation, partnership, as state, municipality or other subdivision of a state, or any body. (g) "Effluent standard" n effluent standard or limitati may include a prohibition o charge, established or propc established for any toxic under section 307(a) of the A (h) “Presiding Officer” n Chief Administrative Law Ju Agency or a person designat Chief Administrative Law Ju the Administrator to preside ing under this part, in accord 8 104.6 hereof. 8 104.1 Applicability. This Part shall be applicable to hearings required by statute to be held in connection with the establishment of toxic pollutant effluent standards under section 307(a) of the Act. 3 104.2 Definitions. As used in this part, the term: (a) “Act” means the Federal Water Pollution Control Act, as amended, 33 U.S.C. section 1251 et seq., Pub. L. 92500, 86 Stat. 816. (b) “Administrator" means the Administrator of the Environmental Protection Agency, or any employee of the Agency to whom the Administrator may by order delegate his authori. ty to carry out his functions under section 307(a) of the Act, or any person who shall by operation of law be authorized to carry out such functions. $ 104.3 Notice of hearing; object comment. (a) Notice of Hearing. Whe Administrator publishes any effluent standard, he shall neously publish a notice of hearing to be held within th following the date of publ the proposed standard. An who has any objection to a standard may file with th clerk a concise statement of objection. No person may p in the hearing on the prop pollutant effluent standar the hearing clerk has receiv 25 days of the publication notice of the proposed sta statement of objection as scribed. In exceptional circı and for good cause shown t ing officer may allow an ob be filed after the filing dea scribed in the preceding which good cause must inc 30-101-79--2 minimum lack of actual notice on the part of the objector or any representative of such objector of the proposed standards despite his exercise of due diligence, so long as such later filing will not cause undue delay in the proceedings or prejudice to any of the parties. (b) Objections. Any objection to a proposed standard which is filed pursuant to subsection (a) hereof shall meet the following requirements: (!) It shall be filed in triplicate with the hearing clerk within the time prescribed in paragraph (a) of this section; (2) It shall state concisely and with particularity each portion of the proposed standard to which objection is taken; to the greatest extent feasible it shall state the basis for such objection; (3) To the greatest extent feasible it shall (i) state specifically the objector's proposed modification to any such standard proposed by the Agency to which objection is taken, (ii) set forth the reasons why such modification is sought, and (iii) identify and describe the scientific or other basis for such proposed modification, including reference to any pertinent scientific data or authority in support thereof. Any objection which fails to comply with the foregoing provisions shall not be accepted for filing. The presiding officer shall promptly notify any person whose objection is not accepted for any of the reasons set forth in this section, stating the reasons therefor. (c) Data In Support Of Objection Or Modification. In the event that the time prescribed for filing objections pursuant to paragraphs (a) and (b) of this section is insufficient to permit an objecting party to fully set forth with such objection the basis therefor together with the information and data specified in paragraph (b) (3) of this section, he may so state at the time of the filing of such objection, and file a rnore complete statement of such basis, information, and data (hereinafter referred to as “supplemental data") within the time prescribed by this paragraph (c). The supplemental data herein described shall be filed not later than 40 days following publication of the proposed effluent standards. (d) Public Comment. The notice required under paragraph (a) of this section shall also provide for the submission to the Agency of written comments on the proposed rulemaking by interested persons not filing objections pursuant to this section as hereinabove described, and hence not participating in the hearing as parties. The notice shall fix a time deadline for the submission of such comments which shall be not later than the date set for commencement of the hearing. Such comments shall be received in evi. dence at the coinmencement of the hearing. The Administrator in making any decision based upon the record shall take into account the unavailabi. lity of cross-examination in determining the weight to be accorded such comments. (e) Promulgation In Absence Of Objection. If no objection is filed pursuant to this section, then the Administrator shall promulgate the final standards on the basis of the ncy's statement of basis and purpose and any public comments received pursuant to paragraph (d) of this section. a $ 104.4 Statement of basis and purpose. Whenever the Administrator publishes a proposed effluent standard, the notice thereof published in the FEDERAL REGISTER shall include statement of the basis and purpose of the standard or a summary thereof. This statement shall include: (a) The purpose of the proposed standard; (b) An explanation of how the proposed standard was derived; (c) Scientific and technical data and studies supporting the proposed standard or references thereto if the materi. als are published or otherwise readily available; and (d) Such other information as may be reasonably required to set forth fully the basis of the standard. Where the notice of the proposed rulemaking summarizes the full statement of basis and purpose, or incorporates documents by reference, the documents thus summarized or incorporat ed by reference shall thereupon be made available by the Agency for inspection and copying by any interested person. § 104.5 Docket and record. Whenever the Administrator publishes a notice of hearing under this Part, the hearing clerk shall promptly establish a docket for the hearing. The docket shall include all written objections filed by any party, any public comments received pursuant to § 104.3(d), a verbatim transcript of the hearing, the statement of basis and purpose required by § 104.4, and any supporting documents referred to therein, and other documents of exhibits that may be received in evidence or marked for identification by or at the direction of the presiding officer, or filed by any party in connection with the hearing. Copies of documents in the docket shall be available to any person upon payment to the Agency of such charges as the Agency may prescribe to cover the costs of duplication. The materials contained in the docket shall constitute the record. § 104.6 Designation of Presiding Officer. The Chief Administrative Law Judge of the Agency may preside personally at any hearing under this Part, or he may designate another Administrative Law Judge as presiding officer for the hearing. In the event of the unavailability of any such Administrative Law Judge, the Administrator may designate a presiding officer. No person who has any personal pecuniary interest in the outcome of a proceeding under this Part, or who has participated in the development or enforcement of any standard or proposed standard at issue in a proceeding hereunder, shall serve as presiding officer in such proceeding. § 104.7 Powers of Presiding Officer. The presiding officer shall have the duty to conduct a fair hearing within the time constraints imposed by section 307(a) of the Act. He shall take all necessary action to avoid delay and to maintain order. He shall have all powers necessary to these ends, including but not limited to the power to: (a) Rule upon motions and requests; (b) Change the time and place of the hearing, and adjourn the hearing from time to time or from place to place; (c) Examine and cross-examine witnesses; (d) Admit or exclude evidence; and (e) Require any part or all of the evidence to be submitted in writing and by a certain date. § 104.8 Prehearing Conferences. Prehearing conferences are encouraged for the purposes of simplification of issues, identification and scheduling of evidence and witnesses, the establishment of an orderly framework for the proceedings, the expediting of the hearing, and such other purposes of a similar nature as may be appropriate. (a) The presiding officer on his own motion may, and at the request of any party made within 20 days of the proposal of standards hereunder shall, direct all parties to appear at a specified time and place for an initial hearing session in the nature of a prehearing conference. Matters taken up at the conference may include, without limitation: (1) Consideration and simplification of any issues of law or fact; (2) Identification, advance submission, marking for identification, consideration of any objections to admission, and admission of documentary evidence; (3) Possible stipulations of fact; (4) The identification of each witness expected to be called by each party, and the nature and substance of his expected testimony; (5) Scheduling of witnesses where practicable, and limitation of the number of witnesses where appropriate in order to avoid delay or repetition; (6) If desirable, the segregation of the hearing into separate segments for different provisions of the proposed effluent standards and the establishment of separate service lists; (7) Encouragement of objecting parties to agree upon and designate lead counsel for objectors with common interests so as to avoid repetitious questioning of witnesses. (b) The presiding officer may, fol. containing immaterial or irrelevan lowing a prehearing conference, issue matter, such immaterial or irrelevan an order setting forth the agreements matter may be excluded. reached by the parties or representa- (e) Whenever written testimony or a tives, the schedule of witnesses, and a document or object is excluded from statement of issues for the hearing. In evidence by the presiding officer, it addition such order may direct the shall at the request of the proponent parties to file and serve copies of docu- be marked for identification. Where ments or materials, file and serve lists oral testimony is permitted by the preof witnesses which may include a siding officer, but the presiding officer short summary of the expected testi- excludes particular oral testimony, the mony of each and, in the case of an party offering such testimony may expert witness, his curriculum vitae, make a brief offer of proof. and may contain such other directions (f) Any relevant and material docuas may be appropriate to facilitate the mentary evidence, including but not proceedings. limited to affidavits, published arti cles, and official documents, regardless $ 104.9 Admission of Evidence. of the availability of the affiant or (a) Where the presiding officer has author for cross-examination, may be directed identification of witnesses admitted in evidence, subject to the and production of documentation evi. provisions of subsections (a), (c), and dence by a certain date, the presiding (d) of this section. The availability or officer may exclude any such evidence, nonavailability of cross-examination or refuse to allow any witness to tes- shall be considered as affecting the tify, when the witness was not identi- weight to be accorded such evidence in fied or the document was not served any decision based upon the record. by the time set by the presiding offi- (g) Official notice may be taken by cer. Any such direction with respect to the presiding officer or the Adminisa party's case in chief shall not pre- trator of any matter which could be clude the use of such evidence or testi- judicially noticed in the United States mony on rebuttal or response, or upon District Courts, and of other facts a showing satisfactory to the presiding within the specialized knowledge and officer that good cause existed for fail- experience of the Agency. Opposing ure to serve testimony or a document parties shall be given adequate opporor identify a witness by the time re- tunity to show the contrary. quired. The presiding officer may require direct testimony to be in writing $ 104.10 Hearing Procedures. under oath and served by a certain (a) Following the admission in evidate, and may exclude testimony not dence of the materials described in so served. § 104.9(b), the Agency shall have the (5) At the first prehearing confer- right at the commencement of the ence, or at another time before the be hearing to supplement that evidence ginning of the taking of oral testimo- or to introduce additional relevant eviny to be set by the presiding officer, dence. Thereafter the evidence of each the statement of basis and purpose, to- objector shall be presented in support gether with any publications or refer- of its objection and any proposed ence materials cited therein, except modification. The Agency staff shall where excluded by stipulation, shall then be given an opportunity to rebut be received in evidence. or respond to the objectors' presenta(c) The presiding officer may ex- tion, including at its option the introclude evidence which is immaterial, ir- duction of evidence which tends to relevant, unduly repetitious or cumu- support a standard or standards other lative, or would involve undue delay, than as set forth in the Agency's own or which, if hearsay, is not of the sort initially proposed standards. In the upon which responsible persons are ac- event that evidence which tends to customed to rely. support such other standard or stand(d) If relevant and material evidence ards is offered and received in evi. is contained in a report or document dence, then the objectors may thereaf ter rebut or respond to any such new evidence. (b) The burden of proof as to any modification of any standard proposed by the Agency shall be upon the party who advocates such modification to show that the proposed modification is justified based upon a preponderance of the evidence. (c) Where necessary in order to prevent undue prolongation of the hearing, or to comply with time limitations set forth in the Act, the presiding officer may limit the number of witnesses who may testify, and the scope and extent of cross-examination. (d) A verbatim transcript of the hearing shall be maintained and shall constitute a part of the record. (e) If a party objects to the admission or rejection of any evidence or to any other ruling of the presiding officer during the hearing, he shall state briefly the grounds of such objection. With respect to any ruling on evidence, it shall not be necessary for any party to claim an exception in order to preserve any right of subsequent review. (f) Any party may at any time withdraw his objection to a proposed effluent standard. § 104.11 Briefs and Findings of Fact. At the conclusion of the hearing, the presiding officer shall set a schedule for the submission by the parties of briefs and proposed findings of fact and conclusions. In establishing the aforesaid time schedule, the presiding officer shall consider the time constraints placed upon the parties and the Administrator by the statutory deadlines. § 104.12 Certification of Record. As soon as possible after the hearing, the presiding officer shall transmit to the hearing clerk the transcript of the testimony and exhibits introduced in the hearing. The presiding officer shall attach to the original transcript his certificate stating that, to the best of his knowledge and belief, the transcript is a true transcript of the testimony given at the hearing except in such particulars as he shall specify, and that the exhibits transmitted are all the exhibits as introduced at the hearing with such exceptions as he shall specify. § 104.13 Interlocutory and Post-hearing Review of Rulings of the Presiding Officer; Motions. (a) The presiding officer may certify a ruling for interlocutory review by the Administrator where a party so requests and the presiding officer concludes that (1) the ruling from which review is sought involves an important question as to which there is substantial ground for difference of opinion, and (2) either (i) a subsequent reversal of his ruling would be likely to result in substantial delay or expense if left to the conclusion of the proceedings, or (ii) a ruling on the question by the Administrator would be of material assistance in expediting the hearing. The certificate shall be in writing and shall specify the material relevant to the ruling certified. If the Administrator determines that interlocutory review is not warranted, he may decline to consider the ruling which has been certified. (b) Where the presiding officer declines to certify a ruling the party who had requested certification may apply to the Administrator for interlocutory review, or the Administrator may on his own motion direct that any matter be submitted to him for review, subject to the standards for review set forth in paragraph (a) of this section. An application for review shall be in writing and shall briefly state the grounds relied on. If the Administrator takes no action with respect to such application for interlocutory review within 15 days of its filing, such application shall be deemed to have been denied. (c) Unless otherwise ordered by the presiding officer or the Administrator, the hearing shall continue pending consideration by the Administrator of any ruling or request for interlocutory review. (d) Unless otherwise ordered by the presiding officer or the Administrator, briefs in response to any application for interlocutory review may be filed by any party within five days of the filing of the application for review. |