[Federal Register Volume 75, Number 190 (Friday, October 1, 2010)]
[Rules and Regulations]
[Pages 60617-60622]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-24643]
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SUSQUEHANNA RIVER BASIN COMMISSION
18 CFR Parts 806 and 808
Review and Approval of Projects
AGENCY: Susquehanna River Basin Commission.
ACTION: Final rule.
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SUMMARY: This document contains final rules that amend the project
review regulations of the Susquehanna River Basin Commission
(Commission) to include subsidiary allocations for public water supply
systems under the scope of withdrawals requiring review and approval;
improve notice procedures for all project applications; clarify
requirements for grandfathered projects increasing their withdrawals
from an existing source or initiating a new withdrawal; refine the
provisions governing transfer and re-issuance of approvals; clarify the
Executive Director's authority to grant, deny, suspend, rescind,
modify, or condition an Approval by Rule; include decisional criteria
for diversions into the basin; amend administrative appeal procedures
to broaden available remedies and streamline the appeal process; and
make other minor regulatory clarifications to the text of the
regulations.
DATES: Effective November 1, 2010.
ADDRESSES: Susquehanna River Basin Commission, 1721 N. Front Street,
Harrisburg, PA 17102-2391.
FOR FURTHER INFORMATION CONTACT: Richard A. Cairo, General Counsel,
telephone: 717-238-0423, ext. 306; fax: 717-238-2436; e-mail:
[email protected]. Also, for further information on the final rulemaking,
visit the Commission's Web site at http://www.srbc.net.
SUPPLEMENTARY INFORMATION:
Comments and Responses to Proposed Rulemaking
Notice of proposed rulemaking was published in the Federal Register
on June 25, 2010; the New York Register on July 7, 2010; the
Pennsylvania Bulletin on July 10, 2010; and the Maryland Register on
July 16, 2010. The Commission convened public hearings on July 27,
2010, in Binghamton, New York and on July 2010, in Harrisburg,
Pennsylvania. A written comment period was held open until August 10,
2010. Comments on the proposed rulemaking were received at both the
hearings and during the comment period. A summary of the comments and
the Commission's responses thereto follows.
[[Page 60618]]
Comments by Section, Part 806
Section 806.4 Projects Requiring Review and Approval
Comment: With respect to gas well development and hydrofracking
operations, there is a need for the Commission to evaluate the
cumulative impacts of water withdrawals and to require flow monitoring
at water withdrawal sites.
Response: The Commission does employ cumulative impact analysis in
its review and approval of projects. Flows are monitored at all sites
where passby flow requirements have been imposed either directly or
through the use of reference gages. Commission field inspectors verify
that users required to cease taking water at given flow levels are in
fact abiding by passby limitations. In addition, the Commission has
implemented a Remote Water Quality Monitoring Network with 30
monitoring stations in the areas where drilling in the Marcellus Shale
formation is most active.
Comment: The Commission should exercise greater regulatory
authority over drilling operations in the Marcellus Shale formation,
including assuming jurisdiction over water quality related matters.
Response: The Commission's current regulatory authority extends
only to water withdrawal and consumptive use by gas drilling
operations. As established in Section 3.2 of the Susquehanna River
Basin Compact, the Commission is directed to utilize the existing
agencies of Federal and State government who currently exercise
regulatory authority on water quality, underground injection, and on
the extraction of mineral resources. At this point, the member States
are asserting their regulatory authority and it would not be
appropriate for the Commission to interpose its authority and duplicate
the plenary authority exercised by the States in this area. If, at some
point in the future, the Commission concludes, after public hearing,
that it must assume jurisdiction in order to effectuate the terms of
the comprehensive plan or implement the terms of the Compact, it may
then do so.
Section 806.6 Transfer and Re-Issuance of Approvals
Comment: Allowing ``transfer of approvals'' under 18 CFR 806.6 is
inappropriately treating water as a ``commodity'' instead of as a
``common resource'' of the basin.
Response: Under 18 CFR 806.6, the instances where approvals may be
transferred with only administrative approval of the Executive Director
are limited. Transfers of approvals more than ten years old, those
changing the quantity or use of the water, or having pre-compact or
pre-regulation elements will require a subsequent application for
approval, thus phasing out grandfathered uses and bringing these
projects under the authority of the Commission, where the water used
can be better managed as a ``common resource'' of the basin. We would
also note that transfer of approvals is not limited to the gas drilling
industry. Other transfers occur, such as the transfer of water
withdrawal approvals from municipalities to municipal authorities,
whenever a project using the waters of the basin is sold to a new
owner.
Section 806.15 Notice of Application
Comment: Notification of property owners within one-half mile of a
withdrawal is insufficient. Notice should be provided to all property
owners in the watershed or even to all basin residents because of the
high volumes of water withdrawals for gas production and the contents
of fracking water. Also, people farther than a half mile may experience
impacts to their water, air, and soil quality.
Response: The one-half mile notification requirement for
withdrawals provides more effective notice than the current contiguous
property owner requirement that is based on proximity, not science.
Ongoing scientific evaluations indicate that a one-half mile notice
will cover the vast majority of areas affected by groundwater and
surface water withdrawals. Thus, the Commission believes this new
standard is both reasonable and appropriate. If data is collected
during the aquifer test that indicates that the influence of the
withdrawal extends beyond a half mile radius, the staff has the
discretion to direct project applicants to send notification to
property owners in these extended areas. Because newspaper notice is
also required and because the Commission publishes an advanced notice
for all withdrawal applications in the Federal Register and State
notice publications prior to taking action, other interested parties
throughout the watershed and the basin will have notice and opportunity
to comment on such applications. Similar information is also provided
to the public by the Commission through its Web-based Water Resources
Portal.
Comment: In amending its notification requirements for project
applications, the Commission is properly focusing on those persons who
are actually affected and who have a real interest in participating in
the approval process.
Response: Agreed.
Comment: The Commission's proposed rules are scientifically based
and therefore sound.
Response: Agreed.
Comment: The notice sent to landowners within one-half mile of a
groundwater withdrawal should include an opportunity for the property
owner to comment on the project application.
Response: 18 CFR 806.15(a) specifies that all notices required
under this section contain the address, electronic mail address, and
phone number of the project sponsor and the Commission, and comments
are therefore welcome from any landowner or other interested party who
wishes to do so. Also, the form of notice sent to landowners contains
information concerning the submission of comments and providing
relevant contact information.
Comment: The notice sent to property owners within one-half mile of
a groundwater withdrawal should include information on how the 72-hour
testing will be done, when it will occur, and other information
concerning the evaluation and approval of the groundwater withdrawal
project. Follow-up information should be provided to property owners
receiving notifications such as the results of water withdrawal
testing.
Response: The Commission readily understands that landowners may
have an interest in aquifer testing information at the application
stage. Under current Commission procedures, however, applicants submit
testing plans and conduct tests prior to the filing of an application
that triggers the notice requirement. At this pre-application stage,
applicants may also submit information supporting a request for a
waiver of the testing requirements, which may or may not be granted.
The Commission believes that the requirement for pre-application
submission of test information is a conservative management approach
helping to ensure that applications are supported by science. Rather
than modifying this procedure, the Commission feels that the legitimate
concerns expressed in this comment can best be addressed by providing
landowners with a right of access to the information sought.
Comment: For applications to use wastewater discharge sources, in
addition to the newspaper notice, any property owner within 1,000 feet
of the use (or some other appropriate distance compatible with other
resource agencies) should be notified by mail.
[[Page 60619]]
Response: Newspaper notices noting the use of a wastewater
discharge source will be required in every area where the water will be
used for natural gas development. The Commission believes that this
form of notice will be sufficient. Also, all approved water sources
that a natural gas developer may use on a given site are available for
viewing on line by interested landowners at the Commission's Web based
Water Resources Portal.
Section 806.24 Standards for Diversions
Comment: The meaning of the ``catch all phrase'' in the proposed
revision to 18 CFR 806.24 requiring consideration of the ``extent to
which the proposed diversion satisfies all other applicable standards
set forth in subchapter C of this part,'' is not clear. It is
recommended that this phrase be struck.
Response: While the Commission agrees that a clarification is
needed, it is important that the sponsors of diversion projects
understand that they must also abide by the Commission's general and
specific standards set forth in subchapter C of part 806 governing
withdrawals and consumptive use. The Commission has modified this
language in the final rule to add more clarity.
Comment: For projects involving a diversion of water out of the
basin, the in-basin public should be noticed and have an opportunity to
provide written comments. This notice should tell the public where the
water is being diverted and why.
Response: The proposed regulations do provide for newspaper
publication in the in-basin area, plus since the diversion will also
involve a withdrawal of some kind in the in-basin area, property owners
within one-half mile will also receive notifications in accordance with
18 CFR 806.15.
General Comments
Comment: The Commission should institute a moratorium on approval
of any unconventional gas drilling related water withdrawals until the
completion of certain studies that will assess the environmental
impacts of drilling and fracking activity.
Response: The Commission can find no evidence linking its approval
of water withdrawals and consumptive uses by gas drilling operations in
the Marcellus Shale formation with a threat of harm or of injury to the
public justifying a moratorium on all approvals. Ultimately, a
moratorium based on supposition rather than science cannot be legally
justified or defended. It is also far more appropriate for the States
and the Federal government, who exercise broader authority with respect
to water quality, underground injection and mineral extraction, and who
have such studies underway, to inform the Commission's regulatory
program as that science develops. In the interim, the Commission
continues to study and evaluate the cumulative impact of these
withdrawals and consumptive use on the water resources of the basin.
Comment: The idea of allowing water withdrawals for any other
reason than to support life is abhorrent.
Response: The Susquehanna River Basin Compact and the Commission
Comprehensive Plan do place importance upon the conservation of water
to support the living resources of the basin and the Chesapeake Bay,
and the Commission devotes a major part of its mission to protecting
those resources; however, the purposes of the Compact and the goals of
the Comprehensive Plan also include the utilization and development of
the basin's water resources to make secure and protect developments
within the States (i.e. economic development). Managing the basin's
waters to protect living resources and developments within the States
are not mutually exclusive efforts.
Comment: The Commission did not give sufficient public notice of
the public hearings on these proposed rules.
Response: The Commission followed the notice requirements of its
own regulations found at 18 CFR 808.1, publishing well in advance of
public hearings the text of the proposed rules in the Federal Register
and in the member State notice publications, and including in those
notices the date, time and place of two public hearings held in
Binghamton, NY on July 27, 2010, and Harrisburg, PA on July 29, 2010.
Written comments were also invited through August 10, 2010. The
Commission gave further notice of the proposed rulemaking contents, the
public hearings, and the comment period via its Web site and in a news
release sent to media throughout the basin. These are the same notice
procedures followed by the Commission on past proposed rulemaking
actions as well. The Commission is, nevertheless, considering ways that
it can improve notice procedures in future rulemaking actions and
welcomes this comment.
Comment: The Pennsylvania Department of Environmental Protection
(PADEP) is permitting gas drilling on lands subject to frequent
inundation, creating a danger that toxic materials or waters stored on
such land will be washed away and contaminate streams and rivers.
Response: 18 CFR 806.21 provides that the Commission may suspend
the review of any project that has not been approved by a member
jurisdiction or a political subdivision thereof. The Commission may
also modify, suspend, or revoke a previously granted approval where the
project sponsor fails to obtain or maintain the approval of member
jurisdiction or political subdivision thereof. All land uses in
Pennsylvania in flood prone designated communities are subject to the
provisions of the Pennsylvania Flood Plain Management Act and local
ordinances adopted pursuant thereto. If a project sponsor is not in
compliance with these local ordinances, they run the risk of having
their Commission approval suspended or revoked.
Comment: The Commission has been blocking participation of
landowners in the approval process for gas drilling consumptive use and
withdrawal approvals by withholding information on pending project
applications.
Response: The Commission disagrees with this comment. The
Commission has historically welcomed and encouraged public comment on
applications submitted to the Commission for its review and
consideration. It continues to improve its notice requirements, as
witnessed by the modifications being made to 18 CFR 806.15 of this
final rule, and has taken considerable steps to build its online Water
Resources Portal Web application to facilitate that end.
Comment by Section, Part 808
Section 808.2 Administrative Appeals
Comment: There is a need to improve some of the provisions of the
proposed changes to the administrative appeal provisions of 18 CFR
808.2 by removing certain unneeded language, defining a standard for
granting nunc pro tunc appeals, providing for a direct notice of
hearing to the petitioner and project sponsor, and specifying a
deadline for filing an appeal for consideration at the next regular
Commission meeting.
Response: Agreed. These changes have been made to the text of 18
CFR 808.2 in the final rulemaking document.
List of Subjects in 18 CFR Parts 806 and 808:
Administrative practice and procedure, Water resources.
0
Accordingly, for the reasons set forth in the preamble, the Susquehanna
River Basin Commission amends 18 CFR parts 806 and 808 as follows:
[[Page 60620]]
PART 806--REVIEW AND APPROVAL OF PROJECTS
Subpart C--Standards for Review and Approval
0
1. The authority citation for part 806 continues to read as follows:
Authority: Secs. 3.4, 3.5(5), 3.8, 3.10 and 15.2, Pub. L. 91-
575, 84 Stat. 1509 et seq.
0
2. In Sec. 806.4, revise paragraphs (a)(2) introductory text,
(a)(2)(iv), and (c) to read as follows:
Sec. 806.4 Projects requiring review and approval.
(a) * * *
(2) Withdrawals. Any project described below shall require an
application to be submitted in accordance with Sec. 806.13, and shall
be subject to the standards set forth in Sec. 806.23. Hydroelectric
projects, except to the extent that such projects involve a withdrawal,
shall be exempt from the requirements of this section regarding
withdrawals; provided, however, that nothing in this paragraph shall be
construed as exempting hydroelectric projects from review and approval
under any other category of project requiring review and approval as
set forth in this section, Sec. 806.5, or 18 CFR part 801. The taking
or removal of water by a public water supplier indirectly through
another public water supply system or another water user's facilities
shall constitute a withdrawal hereunder.
* * * * *
(iv) With respect to groundwater projects in existence prior to
July 13, 1978, and surface water projects in existence prior to
November 11, 1995, any project that will increase its withdrawal from
any source, or initiate a withdrawal from a new source, or combination
of sources, by a consecutive 30-day average of 100,000 gpd or more,
above that maximum consecutive 30-day amount which the project was
withdrawing prior to the said applicable date.
* * * * *
(c) Any project that did not require Commission approval prior to
January 1, 2007, and not otherwise exempt from the requirements of
paragraph (a)(1)(iv), (a)(2)(v), or (a)(3)(iv) pursuant to paragraph
(b) of this section, may be undertaken by a new project sponsor upon a
change of ownership pending action by the Commission on an application
submitted by such project sponsor requesting review and approval of the
project, provided such application is submitted to the Commission in
accordance with this part within 90 days of the date change of
ownership occurs and the project features related to the source,
withdrawal, diversion or consumptive use of water, or the nature or
quantity of water withdrawal, diversion or consumptive use associated
with the project do not change pending review of the application. For
purposes of this paragraph, changes in the quantity of water
withdrawal, diversion or consumptive use shall only relate to increases
in quantity in excess of the quantity withdrawn, diverted or
consumptively used prior to the change of ownership.
0
3. In Sec. 806.6, revise paragraphs (a), (b) introductory text,
(b)(1), (c) introductory text and (d) introductory text, and add
paragraph (e) to read as follows:
Sec. 806.6 Transfer and re-issuance of approvals.
(a) An existing Commission project approval may be transferred or
conditionally transferred to a new project sponsor upon a change of
ownership of the project, subject to the provisions of paragraphs (b),
(c) and (d) of this section, and the new project sponsor may only
operate the project in accordance with and subject to the terms and
conditions of the existing approval pending approval of the transfer,
provided the new project sponsor notifies the Commission within 90 days
from the date of the change of ownership, which notice shall be on a
form and in a manner prescribed by the Commission and under which the
new project sponsor certifies its intention to comply with all terms
and conditions of the transferred approval and assume all other
associated obligations.
(b) An existing Commission project approval for any of the
following categories of projects may be conditionally transferred,
subject to administrative approval by the Executive Director, upon a
change of ownership and the new project sponsor may only operate such
project in accordance with and subject to the terms and conditions of
the transferred approval:
(1) A project undergoing a change of ownership as a result of a
corporate reorganization where the project property is transferred to a
corporation by one or more corporations solely in exchange for stock or
securities of the transferee corporation, provided that immediately
after the exchange the transferor corporation(s) own 80 percent of the
voting stock and 80 percent of all other stock of the transferee
corporation.
* * * * *
(c) An existing Commission approval of a project that satisfies the
following conditions may be conditionally transferred and the project
sponsor may only operate such project in accordance with and subject to
the terms and conditions of the conditionally transferred approval,
pending action by the Commission on the application submitted in
accordance with paragraph (c)(3) of this section:
* * * * *
(d) An existing Commission project approval for any project not
satisfying the requirements of paragraphs (b) or (c) of this section
may be conditionally transferred and the project sponsor may only
operate such project in accordance with and subject to the terms and
conditions of the conditionally transferred approval, pending action by
the Commission on an application the project sponsor shall submit to
the Commission, provided that:
* * * * *
(e) An existing Commission project approval may be re-issued by the
Executive Director at the request of a project sponsor undergoing a
change of name, provided such change does not affect ownership or
control of the project or project sponsor. The project sponsor may only
continue to operate the project under the terms and conditions of the
existing approval pending approval of its request for re-issuance,
provided it submits its request to the Commission within 90 days from
the date of the change, which notice shall be on a form and in a manner
prescribed by the Commission, accompanied by the appropriate fee
established therefore by the Commission.
0
4. In Sec. 806.7, revise paragraph (a) to read as follows:
Sec. 806.7 Concurrent project review by member jurisdictions.
(a) The Commission recognizes that agencies of the member
jurisdictions will exercise their review and approval authority and
evaluate many proposed projects in the basin. The Commission will adopt
procedures to assure compatibility between jurisdictional review and
Commission review.
* * * * *
0
5. Revise Sec. 806.15 to read as follows:
Sec. 806.15 Notice of application.
(a) Any project sponsor submitting an application to the Commission
shall provide notice thereof to the appropriate agency of the member
State, each municipality in which the project is located, and the
county planning agency of each county in which the project is located.
The project sponsor shall also publish notice of submission of the
application at least once in a newspaper of general circulation serving
the area in
[[Page 60621]]
which the project is located. The project sponsor shall also meet any
of the notice requirements set forth in paragraphs (b) through (e) of
this section, if applicable. All notices required under this section
shall be provided or published no later than 10 days after submission
of the application to the Commission and shall contain a description of
the project, its purpose, the requested quantity of water to be
withdrawn obtained from for sources other than withdrawals or
consumptively used, and the address, electronic mail address, and phone
number of the project sponsor and the Commission. All such notices
shall be in a form and manner as prescribed by the Commission.
(b) For withdrawal applications submitted pursuant to Sec.
806.4(a)(2), the project sponsor shall also provide the notice required
under paragraph (a) of this section to each property owner listed on
the tax assessment rolls of the county in which such property is
located and identified as follows:
(1) For groundwater withdrawal applications, the owner of any
property that is located within a one-half mile radius of the proposed
withdrawal location.
(2) For surface water withdrawal applications, the owner of any
property that is riparian or littoral to the body of water from which
the proposed withdrawal will be taken and is within a one-half mile
radius of the proposed withdrawal location.
(c) For projects involving a diversion of water out of the basin,
the project sponsor shall also publish a notice of the submission of
its application at least once in a newspaper of general circulation
serving the area outside the basin where the project proposing to use
the diverted water is located. For projects involving a diversion of
water into the basin, the project sponsor shall also publish a notice
of the submission of its application at least once in a newspaper of
general circulation serving the area outside the basin where the
withdrawal of water proposed for diversion is located.
(d) For applications submitted under Sec. 806.22(f)(12)(ii) to use
a public water supply source, the newspaper notice requirement
contained in paragraph (a) of this section shall be satisfied by
publication in a newspaper of general circulation in the area served by
the public water supply.
(e) For applications submitted under Sec. 806.22(f)(12)(ii) to use
a wastewater discharge source, the newspaper notice requirement
contained in paragraph (a) of this section shall be satisfied by
publication in a newspaper of general circulation in each area within
which the water obtained from such source will be used for natural gas
development.
(f) The project sponsor shall provide the Commission with a copy of
the United States Postal Service return receipt for the notifications
to agencies of member States, municipalities and county planning
agencies required under paragraph (a) of this section. The project
sponsor shall also provide certification on a form provided by the
Commission that it has published the newspaper notice(s) required by
this section and made the landowner notifications as required under
paragraph (b) of this section, if applicable. Until these items are
provided to the Commission, processing of the application will not
proceed. The project sponsor shall maintain all proofs of notice
required hereunder for the duration of the approval related to such
notices.
0
6. In Sec. 806.22, revise paragraphs (e)(1), (e)(6), (f)(3), (f)(9),
and (f)(12) to read as follows:
Sec. 806.22 Standards for consumptive uses of water.
* * * * *
(e) * * *
(1) Except with respect to projects involving natural gas well
development subject to the provisions of paragraph (f) of this section,
any project whose sole source of water for consumptive use is a public
water supply, may be approved by the Executive Director under this
paragraph (e) in accordance with the following, unless the Executive
Director determines that the project cannot be adequately regulated
under this approval by rule:
(i) Notification of Intent: No fewer than 90 days prior to the
construction or implementation of a project or increase above a
previously approved quantity of consumptive use, the project sponsor
shall submit a Notice of Intent (NOI) on forms prescribed by the
Commission, and the applicable application fee, along with any required
attachments.
(ii) Within 10 days after submittal of an NOI under paragraph
(e)(1)(i) of this section, the project sponsor shall satisfy the notice
requirements set forth in Sec. 806.15.
* * * * *
(6) The Executive Director may grant, deny, suspend, rescind,
modify or condition an approval to operate under this approval by rule
and will notify the project sponsor of such determination, including
the quantity of consumptive use approved.
* * * * *
(f) * * *
(3) Within 10 days after submittal of an NOI under paragraph (f)(2)
of this section, the project sponsor shall satisfy the notice
requirements set forth in Sec. 806.15.
* * * * *
(9) The Executive Director may grant, deny, suspend, rescind,
modify or condition an approval to operate under this approval by rule
and will notify the project sponsor of such determination, including
the sources and quantity of consumptive use approved. The issuance of
any approval hereunder shall not be construed to waive or exempt the
project sponsor from obtaining Commission approval for any water
withdrawals or diversions subject to review pursuant to Sec. 806.4(a).
* * * * *
(12) The following additional sources of water may be utilized by a
project sponsor in conjunction with an approval by rule issued pursuant
to paragraph (f)(9) of this section:
(i) Water withdrawals or diversions approved by the Commission
pursuant to Sec. 806.4(a) and issued to persons other than the project
sponsor, provided any such source is approved for use in natural gas
well development, the project sponsor has an agreement for its use, and
at least 10 days prior to use, the project sponsor registers such
source with the Commission on a form and in a manner as prescribed by
the Commission, and provides a copy of same to the appropriate agency
of the member State. Any approval issued hereunder shall be further
subject to any approval or authorization required by the member State
to utilize such source(s). The project sponsor shall record on a daily
basis, and report quarterly on a form and in a manner prescribed by the
Commission, the quantity of water obtained from any source registered
hereunder.
(ii) Sources of water other than those subject to paragraph
(f)(12)(i) of this section, including public water supply or wastewater
discharge, provided such sources are first approved by the Executive
Director pursuant to this section. Any request to utilize such
source(s) shall be submitted on a form and in a manner as prescribed by
the Commission, shall satisfy the notice requirements set forth in
Sec. 806.15, and shall be subject to review pursuant to the standards
set forth in subpart C of this part. Any approval issued hereunder
shall be further subject to any approval or authorization required by
the member State to utilize such source(s).
0
7. In Sec. 806.24, add paragraph (c)(2), to read as follows:
[[Page 60622]]
Sec. 806.24 Standards for diversions.
* * * * *
(c) * * *
(2) In deciding whether to approve a proposed diversion into the
basin, the Commission shall also consider and the project sponsor shall
provide information related to the following factors:
(i) Any adverse effects and cumulative adverse effects the project
may have on the Susquehanna River Basin, or any portion thereof, as a
result of the introduction or potential introduction of invasive or
exotic species that may be injurious to the water resources of the
basin.
(ii) The extent to which the proposed diversion satisfies all other
applicable general and specific standards set forth in subpart C of
this part pertaining to withdrawals and consumptive use.
0
8. Revise Sec. 806.35 to read as follows:
Sec. 806.35 Fees
Project sponsors shall have an affirmative duty to pay such fees as
established by the Commission to cover its costs of administering the
regulatory program established by this part, including any
extraordinary costs associated with specific projects.
PART 808--HEARINGS AND ENFORCEMENT ACTIONS
0
10. The authority citation for part 808 continues to read as follows:
Authority: Secs. 3.4, 3.5(5), 3.8, 3.10 and 15.2, Pub. L. 91-
575, 84 Stat. 1509 et seq.
Subpart A--Conduct of Hearings
0
11. In Sec. 808.2, revise paragraphs (a), (b), (c), (d), (e), (f),
(g), and (h) to read as follows:
Sec. 808.2 Administrative appeals.
(a) A project sponsor or other person aggrieved by a final action
or decision of the Commission or Executive Director on a project
application or a records access determination made pursuant to
Commission policy may file a written appeal requesting a hearing. In
the case of a project approval or denial, such appeal shall be filed by
a project sponsor within 30 days of receipt of actual notice, and by
all others within 30 days of publication of notice of the action taken
on the project in the Federal Register. In the case of records access
determinations, such appeal shall be filed with the Commission within
30 days of receipt of actual notice of the determination. Appeals filed
later than 20 days prior to a regular Commission meeting will be
considered at a subsequent Commission meeting. Appeals shall be filed
on a form and in a manner prescribed by the Commission and the
petitioner shall have 20 days from the date of filing to amend the
appeal form.
(b) The appeal 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 appeal, and a statement setting forth the basis for objecting to or
seeking review of the action or decision.
(c) Any request not filed on or before the applicable deadline
established in paragraph (a) of this section hereof will be deemed
untimely and such request for a hearing shall be considered denied
unless the Commission, upon written request and for good cause shown,
grants leave to make such filing nunc pro tunc; the standard applicable
to what constitutes good cause shown being the standard applicable in
analogous cases under Federal law. Receipt of requests for hearings
pursuant to this section, whether timely filed or not, shall be
submitted by the Executive Director to the commissioners for their
information.
(d) Petitioners shall be limited to a single filing that shall set
forth all matters and arguments in support thereof, including any
ancillary motions or requests for relief. Issues not raised in this
single filing shall be considered waived for purposes of the instant
proceeding. Where the petitioner is appealing a final determination on
a project application and is not the project sponsor, the petitioner
shall serve a copy of the appeal upon the project sponsor within five
days of its filing.
(e) If a hearing is granted, the Commission shall serve notice
thereof upon the petitioner and project sponsor and shall publish such
notice in the Federal Register. The hearing shall not be held less than
20 days after publication of such notice. Hearings may be conducted by
one or more members of the Commission, by the Executive Director, or by
such other hearing officer as the Commission may designate.
(1) The petitioner may also request a stay of the action or
decision giving rise to the appeal pending final disposition of the
appeal, which stay may be granted or denied by the Executive Director
after consultation with the Commission chair and the member from the
affected member State. The decision of the Executive Director on the
request for stay shall not be appealable to the Commission under this
section and shall remain in full force and effect until the Commission
acts on the appeal.
(2) In addition to the contents of the request itself, the
Executive Director, in granting or denying the request for stay, will
consider the following factors:
(i) Irreparable harm to the petitioner.
(ii) The likelihood that the petitioner will prevail.
(f) The Commission shall grant the hearing request pursuant to this
section if it determines that an adequate record with regard to the
action or decision is not available, the 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
review is necessary or desirable. If the Commission denies any request
for a hearing, the party seeking such hearing shall be limited to such
remedies as may be provided by the compact or other applicable law or
court rule.
(g) If a hearing is granted, the Commission shall refer the matter
for hearing to be held in accordance with Sec. 808.3, and appoint a
hearing officer.
(h) Intervention. (1) A request for intervention may be filed with
the Commission by persons other than the petitioner within 20 days of
the publication of a notice of the granting of such hearing in the
Federal Register. The request for intervention shall state the interest
of the person filing such notice, and the specific grounds of objection
to the action or decision or other grounds for appearance. The hearing
officer(s) shall determine whether the person requesting intervention
has standing in the matter that would justify their admission as an
intervener to the proceedings in accordance with Federal case law.
(2) Interveners shall have the right to be represented by counsel,
to present evidence and to examine and cross-examine witnesses.
* * * * *
Dated: September 21, 2010.
Thomas W. Beauduy,
Deputy Director.
[FR Doc. 2010-24643 Filed 9-30-10; 8:45 am]
BILLING CODE 7040-01-P