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SUBDIVISION I: ANNUAL PUBLICATION OF SIGNIFICANT NONCOMPLIANCE
At least annually, the POTW Director shall publish in a newspaper of general circulation that provides meaningful public notice within the jurisdiction(s) served by the POTW, a list of those industrial users which were found to be in significant noncompliance, also referred to as reportable noncompliance, in 15A NCAC 2H.0903(b)(10), with applicable pretreatment standards and requirements, during the previous 12 months.
(Ord. passed 5-17-94; Am. Ord. passed 10-20-09)
SUBDIVISION J: ADJUDICATORY HEARINGS
(A) Initial adjudicatory hearing. An applicant whose permit is denied, granted subject to conditions he deems unacceptable, a permittee/user assessed a civil penalty under § 15-186, or one issued an administrative order under § 15-185 shall have the right to an adjudicatory hearing before the POTW Director or other hearing officer appointed by the POTW Director upon making written demand, identifying the specific issues to be contested, to the POTW Director within 30 days following receipt of the significant industrial permit, notice of permit denial, civil penalty assessment, or administrative order. Unless such written demand is made within the time specified herein, the action shall be final and binding and further appeal is barred. For modified permits, only those parts of the permit being modified may be adjudicated. The hearing officer shall make a final decision on the contested permit, penalty, or order within 45 days of the receipt of the written demand for a hearing. The POTW Director shall transmit a copy of the hearing officer's decision by registered or certified mail as described in division (C) below. The terms and conditions of a permit under appeal shall be as follows:
(1) New permits. Upon appeal, including judicial review in the General Courts of Justice, of the terms or conditions of a newly issued permit, the terms and conditions of the entire permit are stayed and the permit is not in effect until either the conclusion of judicial review or until the parties reach a mutual resolution.
(2) Renewed permits. Upon appeal, including judicial review in the General Courts of Justice, of the terms or conditions of a renewed permit, the terms and conditions of the existing permit remain in effect until either the conclusion of judicial review or until the parties reach a mutual resolution.
(3) Terminated permits. Upon appeal, including judicial review in the General Courts of Justice, of a terminated permit, no permit is in effect until either the conclusion of judicial review or until the parties reach a mutual resolution.
(B) Final appeal hearing. Any decision of a hearing officer made as a result of an adjudicatory hearing held under division (1) above may be appealed, to the City Council upon filing a written demand within ten days of receipt of notice of the decision. Hearings held under this division shall be conducted in accordance with local hearing procedures. Failure to make written demand within the time specified herein shall bar further appeal. The City Council shall make a final decision on the appeal within 90 days from receipt of the demand filed under division (A) above and shall transmit a written copy of its decision by registered or certified mail as described in division (C) below. The decision is a final decision for the purposes of seeking judicial review.
(C) Official record. When a final decision is issued under division (B) above, the City Council shall prepare an official record of the case that includes:
(1) All notices, motions, and other like pleadings;
(2) A copy of all documentary evidence introduced;
(3) A certified transcript of all testimony taken, if testimony is transcribed. If testimony is taken and not transcribed, then a narrative summary of any testimony taken; and
(4) A copy of the final decision of City Council.
(D) Judicial review. Any person against whom a final order or decision of the City Council is entered, pursuant to the hearing conducted under division (B) above, may seek judicial review of the order or decision by filing a written request for review by the Superior Court of Rockingham County within 30 days after receipt of notice by registered or certified mail of the order or decision, but not thereafter, with the Superior Court of Rockingham County along with a copy to the city. Within 30 days after receipt of the copy of the written request for review by the Court, the City Council shall transmit to the reviewing court the original or a certified copy of the official record.
(Ord. passed 11-20-12)
SUBDIVISION K: AFFIRMATIVE DEFENSES TO DISCHARGE VIOLATIONS
(A) An upset shall constitute an affirmative defense to an action brought for noncompliance with categorical pretreatment standards if the requirements of paragraph (B), below, are met.
(B) A user who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs, or other relevant evidence that:
(1) An upset occurred and the user can identify the cause(s) of the upset;
(2) The facility was at the time being operated in a prudent and workman like manner and in compliance with applicable operation and maintenance procedures; and
(3) The user has submitted the following information to the POTW Director within 24 hours of becoming aware of the upset, if this information is provided orally, a written submission must be provided within five days:
(a) A description of the indirect discharge and cause of noncompliance;
(b) The period of noncompliance, including exact dates and times or, if not corrected, the anticipated time the noncompliance is expected to continue; and
(c) Steps being taken and/or planned to reduce, eliminate, and prevent recurrence of the noncompliance.
(C) In any enforcement proceeding, the user seeking to establish the occurrence of an upset shall have the burden of proof.
(D) Users will have the opportunity for a judicial determination on any claim of upset only in an enforcement action brought for noncompliance with categorical pretreatment standards.
(E) Users shall control production of all discharges to the extent necessary to maintain compliance with categorical pretreatment standards upon reduction, loss, or failure of its treatment facility until the facility is restored or an alternative method of treatment is provided. This requirement applies in the situation where, among other things, the primary source of power of the treatment facility is reduced, lost, or fails.
(Ord. passed 5-17-94; Am. Ord. passed 11-20-12)
A user shall have an affirmative defense to an enforcement action brought against it for noncompliance with the general prohibitions in § 15-126(A) of this division or the specific prohibitions in § 15-126(B)(9) through (23) of this division if it can prove that it did not know, or have reason to know, that its discharge, alone or in conjunction with discharges from other sources, would cause pass through or interference and that either:
(A) A local limit exists for each pollutant discharged and the user was in compliance with each limit directly prior to, and during, the pass through or interference; or
(B) No local limit exists, but the discharge did not change substantially in nature or constituents from the user's prior discharge when the city was regularly in compliance with its NPDES permit, and in the case of interference, was in compliance with applicable sludge use or disposal requirements.
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