18 C.F.R. PART 805—HEARINGS/ENFORCEMENT ACTIONS
Title 18 - Conservation of Power and Water Resources
Authority: Secs. 3.4(9), 3.5(5), 3.10, 15.2 and 15.17, Pub. L. 91–575, 84 Stat. 1509 et seq.
Source: 60 FR 31401, June 15, 1995, unless otherwise noted.
(a) A public hearing shall be conducted in the following instances: (1) Addition of projects or adoption of amendments to the comprehensive plan except as otherwise provided by Section 14.1 of the compact. (2) Rulemaking. (3) Approval of projects. (4) Hearing requested by a signatory party. (5) When in the opinion of the commission, a hearing is necessary to give adequate consideration to issues relating to public safety, protection of the environment, or other important societal factors. (6) To decide factual disputes. (7) At all other times required by the compact or commission regulations in this chapter. (b) Notice of public hearing. At least 20 days before any public hearing required by the compact, notices stating the date, time, place and purpose of the hearing including issues of interest to the commission shall be published at least once in a newspaper or newspapers of general circulation in the area affected. Occasions when public hearings are required by the compact include, but are not limited to, amendments to the comprehensive plan, drought emergency declarations, and review and approval of diversions. In all other cases, at least 10 days prior to the hearing, notice shall be posted at the office of the commission, mailed by first class mail to the parties who, to the commission's knowledge, will participate in the hearing, and mailed by first class mail to persons, organizations, news media and governmental entities who have made requests to the commission for notices of hearings or of a particular hearing. In the case of hearings held in connection with rulemaking, notices need only be forwarded to the directors of the New York Register, the Pennsylvania Bulletin, the Maryland Register, and the (c) Participants to a public hearing. (1) Hearings shall be open to the public. Participants to a public hearing shall be the project sponsor and the commission staff. Participants may also be any person or governmental entity wishing to appear at the hearing and make an oral or written statement. Statements may favor or oppose the project/proposal or may simply express a position without specifically favoring or opposing the project/proposal. Statements shall be made a part of the record of the hearing, and written statements may be received up to and including the last day on which the hearing is held, or within a reasonable time thereafter as may be specified by the presiding officer, which time shall be not less than ten days nor more than 30 days, except that a longer time may be specified if requested by a participant. (2) Participants (except the project sponsor and the commission staff) are encouraged to file with the commission at its headquarters written notice of their intention to appear at the hearing. The notice should be filed at least three days prior to the opening of the hearing. (d) Representative capacity. Participants wishing to be heard at a public hearing may appear in person or be represented by an attorney or other representative. A governmental entity may be represented by one of its officers, employees or by a designee of the governmental entity. Any person intending to appear before the commission in a representative capacity on behalf of a participant shall give the commission written notice of the nature and extent of his/her authorization to represent the person or governmental entity on whose behalf he/she intends to appear. (e) Description of project. When notice of a public hearing is issued, there shall be available for inspection at the commission offices such plans, summaries, maps, statements, orders or other supporting documents which explain, detail, amplify, or otherwise describe the project the commission is considering. Instructions on where and how the documents may be obtained will be included in the notice. (f) Presiding officer. A public hearing shall be conducted by the commission, the executive director, or any member or designee of the commission. The presiding officer shall have full authority to control the conduct of the hearing and make a record of the same. (a) Generally. The commission, upon application by any interested party or upon its own motion, may determine that, due to outstanding issues of fact, an adjudicatory hearing shall be conducted. If, for any reason, the commission determines that there are not sufficient issues of fact to schedule an adjudicatory hearing, it may still require briefs or oral argument on any issues of law. (b) Hearing procedure. (1) The presiding officer shall have the power to rule upon offers of proof and the admissibility of evidence, to regulate the course of the hearings, to hold conferences for the settlement or simplification of issues, to determine the proper parties to the hearing, to determine the scope of any discovery procedures, and to delineate the issues to be adjudicated. (2) The presiding officer shall cause each witness to be sworn or to make affirmation. (3) Any party to a hearing shall have the right to present evidence and to examine and cross-examine witnesses. (4) When necessary, in order to prevent undue prolongation of the hearing, the presiding officer may limit the number of times any witness may testify, the repetitious examination or cross-examination of witnesses, or the extent of corroborative or cumulative testimony. (5) The presiding officer shall exclude irrelevant, immaterial or unduly repetitious evidence, but the parties shall not be bound by technical rules of evidence, and all relevant evidence of reasonably probative value may be received. (6) Any party may appear and be heard in person or be represented by an attorney at law. (7) Briefs and oral argument may be required by the presiding officer and shall be permitted upon request made prior to the close of the hearing by any party. They shall be part of the record unless otherwise ordered by the presiding officer. (c) Staff and other expert testimony. The executive director shall arrange for the presentation of testimony by the commission's technical staff and other experts, as he/she 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. (d) Written testimony. If the direct testimony of an expert witness is expected to be lengthy or of a complex, technical nature, the presiding officer may order that such direct testimony be submitted to the commission in sworn, written form. Copies of said testimony shall be served upon all parties appearing at the hearing at least ten days prior to said hearing. Such written testimony, however, shall not be admitted whenever the witness is not present and available for cross-examination at the hearing unless all parties have waived the right of cross-examination. (e) Assessment of costs. (1) Whenever an adjudicatory hearing is required, the costs thereof, as herein defined, shall be assessed by the presiding officer to the project sponsor or such other party as the hearing officer deems equitable. 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 and other related expenses. (2) Upon the scheduling of a matter for adjudicatory hearing, the commission secretary shall furnish to the applicant a reasonable estimate of the costs to be incurred under this section. The applicant 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. (f) Findings and report. The presiding officer shall prepare a report of his/her findings and recommendations. 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. Any party may file objections to the report within 20 days after the service upon the party of a copy of the report. A brief shall be filed 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. (g) Action by the commission. The commission will act upon the findings and recommendations of the presiding officer pursuant to law. 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. The commission may order any two or more public hearings involving a common or related question of law or fact to be consolidated for hearing on any or all the matters at issue in such hearings. The commission may conduct public hearings in concert with any other agency of a signatory party. A verbatim transcript of the adjudicatory hearings shall be kept by the commission. Other public hearings may be electronically recorded and a transcript made only if deemed necessary by the executive director or general counsel. A certified copy of the transcript and exhibits shall be available for review during business hours at the commission's headquarters to anyone wishing to examine them. Persons wishing to obtain a copy of the transcript of any hearing shall make arrangements to obtain it directly from the recording stenographer at their expense. The sponsor and all other persons wishing to be heard should be prepared to proceed on the date of the hearing. Applications for continuances will not be granted, except when good cause is shown. This subpart shall be effective on May 11, 1995. Terms used in this subpart shall be defined as set forth in 803.3 of this chapter. This subpart shall be applicable where the commission has information indicating that a person or governmental entity (hereafter referred to as alleged violator) has violated or attempted to violate any provision of the compact or any of the commission's rules, regulations or orders. Upon direction of the commission, the executive director shall, and in all other instances, the executive director may require an alleged violator to show cause before the commission why a penalty should not be assessed in accordance with the provisions of this chapter and Section 15.17 of the compact. The notice to the alleged violator shall: (a) Set forth the date on which the alleged violator shall respond; (b) Set forth any information to be submitted or produced by the alleged violator; and (c) Specify the violation that is alleged to have occurred. (a) Written submission. In addition to the information required by the commission, any alleged violator shall be entitled to submit in writing any other information that it desires to make available to the commission before it shall act. The executive director may require documents to be certified or otherwise authenticated and statements to be verified. The commission may also receive written submissions from any other persons as to whether a violation has occurred and the adverse consequences resulting from a violation of the compact or the commission's rules, regulations and orders. (b) Presentation to the commission. On the date set in the notice, the alleged violator shall have the opportunity to supplement its written presentation before the commission by any oral statement it wishes to present and shall be prepared to respond to any questions from the commission or its staff or to the statements submitted by persons affected by the alleged violation. (a) An adjudicatory hearing (which may be in lieu of or in addition to proceedings pursuant to §§805.21 and 805.22) shall not be scheduled unless the executive director or the commission determines that a hearing is required to have an adequate record for the commission, or the commission directs that such a hearing be held. (b) If an adjudicatory hearing is scheduled, the alleged violator shall be given at least 14 days written notice of the hearing date unless waived by consent. Notice of such a hearing shall be given to the general public and the press in the manner provided in §805.1(b). (c) Except to the extent inconsistent with the provisions of this subpart, adjudicatory hearings shall be conducted in accordance with the provisions of §§805.2 through 805.6. The executive director may recommend to the commission the amount of the penalty to be imposed or the abatement and remedial actions to be required. Such a recommendation shall be in writing and shall set forth the basis for the penalty amount proposed. Based upon the record submitted to the commission, the commission shall decide whether a violation has occurred that justifies the imposition of a penalty pursuant to Section 15.17 of the compact or the requirement of abatement or remedial action. If it is found that such a violation has occurred, the commission shall determine the amount of the penalty to be paid and the nature of the abatement or remedial action to be undertaken. (a) Consideration shall be given to the following factors in deciding the amount of any penalty or any settlement: (1) Previous violation, if any, of the compact, commission regulations or orders; (2) The intent of the alleged violator; (3) The extent to which the violation caused adverse environmental consequences; (4) The costs incurred by the commission or any signatory party relating to the failure to comply with the compact, commission regulations or orders; (5) The extent to which the violator has cooperated with the commission in correcting the violation and remediating any adverse consequences or harm that has resulted therefrom; (6) The extent to which the failure to comply with the commission's compact and regulations was economically beneficial to the violator; and (7) The length of time over which the violation occurred and the amount of water used during that time period. (b) The commission retains the right to waive any penalty or reduce the amount of the penalty should it determine that, after consideration of the factors in paragraph (a) of this section, extenuating circumstances justify such action. Any penalty imposed or abatement or remedial action ordered by the commission shall be paid or completed within such time period as shall be fixed by the commission. The executive director and commission counsel are authorized to take such action as may be necessary to assure enforcement of this subpart. If a proceeding before a court becomes necessary, the action of the commission in determining a penalty amount shall constitute the penalty amount recommended by the commission to be fixed by the court pursuant to Section 15.17 of the compact. An alleged violator may request settlement of an enforcement proceeding by agreement. If the executive director determines that settlement by agreement is in the best interest of the commission, he/she may submit to the commission a proposed settlement agreement. No settlement will be considered by the commission unless the alleged violator has indicated in writing to the commission acceptance of the terms of the agreement and the intention to comply with all requirements of the settlement agreement including payment of any settlement amount or completion of any abatement or remedial action within the time period provided. If the commission determines not to approve a settlement agreement, the commission may proceed with an enforcement action in accordance with this subpart. This subpart shall be effective on May 11, 1995. Terms used in this subpart shall be defined as set forth in §803.3 of this chapter.
Title 18: Conservation of Power and Water Resources
PART 805—HEARINGS/ENFORCEMENT ACTIONS
Section Contents
§ 805.1 Public hearings.
§ 805.2 Adjudicatory hearing.
§ 805.3 Consolidation of hearing.
§ 805.4 Joint hearings.
§ 805.5 Transcript.
§ 805.6 Continuance.
§ 805.7 Effective date.
§ 805.8 Definitions.
§ 805.20 Scope of subpart.
§ 805.21 Notice to possible violators.
§ 805.22 The record for decision-making.
§ 805.23 Adjudicatory hearings/alleged violations.
§ 805.24 Assessment of a penalty/abatement or remedial action.
§ 805.25 Factors to be applied in fixing penalty amount.
§ 805.26 Enforcement of penalties/abatement or remedial orders.
§ 805.27 Settlement by agreement.
§ 805.28 Effective date.
§ 805.29 Definitions.
Subpart A—Conduct of Hearing
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§ 805.1 Public hearings.
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§ 805.2 Adjudicatory hearing.
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§ 805.3 Consolidation of hearing.
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§ 805.4 Joint hearings.
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§ 805.5 Transcript.
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§ 805.6 Continuance.
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§ 805.7 Effective date.
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§ 805.8 Definitions.
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Subpart B—Enforcement Actions and Settlements
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§ 805.20 Scope of subpart.
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§ 805.21 Notice to possible violators.
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§ 805.22 The record for decision-making.
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§ 805.23 Adjudicatory hearings/alleged violations.
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§ 805.24 Assessment of a penalty/abatement or remedial action.
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§ 805.25 Factors to be applied in fixing penalty amount.
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§ 805.26 Enforcement of penalties/abatement or remedial orders.
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§ 805.27 Settlement by agreement.
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§ 805.28 Effective date.
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§ 805.29 Definitions.
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