(A) Enforcement management strategy. The town’s Director shall enforce the provisions of this chapter in accordance with the current enforcement management strategy, which shall be reviewed and updated at least annually by the town’s Director. Remedies described in this section shall be available to the Director at any time during enforcement proceedings, including before and after adjudicatory hearings. Procedures for an adjudicatory hearing are contained in the enforcement management strategy. The town’s Director may appoint one or more hearing examiners for an adjudicatory hearing. The hearing examiner may be an employee of the town or acting on behalf of the town pursuant to a special appointment for the purposes of acting as a hearing examiner. The hearing examiner shall not have any connection with the preparation or presentation of evidence for the hearing for which he or she is hearing examiner.
(B) Notification of violation.
(1) Whenever the town’s Director finds that any person has violated or is violating this chapter, a permit or any prohibition, limitation or requirements contained in the chapter or permit, the town’s Director may serve upon the person written or verbal notice stating the nature of the violation. A written notice shall be served when the town’s Director requires a response to the notice of violation. When required in the notice and within 30 days from the date of the notice, a plan for the satisfactory correction thereof shall be submitted to the town’s Directors. Submission of this plan does not relieve the person of liability for any violations occurring before or after receipt of the notice of violation.
(2) The town’s Director shall annually publish in the largest local daily newspaper a list of the users which were in significant noncompliance. Significant noncompliance is a violation which represents a chronic or technical review criteria in 40 C.F.R. § 403.8; which involves a failure to comply with compliance schedule milestones contained in permits, consent agreements or administrative orders; which involves a failure to accurately report noncompliance; which the town’s Director believes has caused interference; which has caused imminent endangerment to human health or welfare or to the environment; which involves a failure to comply with the reporting requirements in discharge permits, this chapter, or applicable regulations; which resulted in the town exercising its emergency authority; or which the town’s Director determines adversely affects the operation of the pretreatment program. The notification shall also summarize any enforcement actions taken against the user during the same 12 months. All records relating to compliance with pretreatment standards shall be made available to officials of the DEM and EPA.
(C) Consent agreements. The town’s Director are hereby empowered to enter into consent agreements, assurances of voluntary compliance, or other similar documents establishing an agreement with the person responsible for the violation. The agreements shall include specific action to be taken by the person to correct the violation within a time period also specified by the agreements. Consent agreements shall have the same force and effect as an administrative order issued pursuant to § 52.103(E).
(D) Show cause hearing. The town’s Director may order any user who causes or is responsible for an unauthorized discharge or other violations to show cause why a proposed enforcement action should not be taken. A notice shall be served on the user specifying the time and place for the hearing, the proposed enforcement action, and the reasons for the action, and a request that the user show cause why this proposed enforcement action should not be taken. The notice of the hearing shall be served personally or by registered or certified mail (return receipt requested) at least ten days before the hearing. Service may be made on any agent or officer of the user. At any hearing held pursuant to this chapter, testimony taken shall be under oath and recorded stenographically. The transcript, so recorded, shall be made available to any member of the public or any party of the hearing upon payment of the usual charges thereof. After the town’s Director has reviewed the evidence, he or she may issue an order to the user directing that, following a specified time period, permission to discharge be revoked unless adequate facilities, devices or other related appurtenances shall have been installed and are properly operated. Further orders and directives as are necessary and appropriate may be issued. The Director may appoint a hearing examiner to conduct the hearing and make the determination, and the determination shall be delivered to the Director and user.
(E) Administrative orders. When the town’s Director finds that a user has violated or is violating the prohibitions or limitations of this chapter, or those contained in any permit issued hereunder, the town’s Director may issue an order to cease and desist, and direct those persons in violation to:
(1) Comply forthwith;
(2) Comply in accordance with a compliance time schedule set forth in the order; or
(3) Take appropriate remedial or preventive action in the event of a continuing or threatened violation.
(F) Emergency suspensions. The town may suspend or revoke a user’s permission to discharge when the action is necessary in order to stop an actual or threatened discharge which presents or may present an imminent or substantial endangerment to the health or welfare of persons or the environment, or causes interference. Any user notified of revocation of permission to discharge shall immediately stop or eliminate its discharge. A hearing shall be held within 15 days of the notice of revocation to determine whether the suspension may be lifted or the user’s permit terminated. The user shall submit a detailed written statement describing the causes of the violations and the measures taken to prevent any future violations to the town’s Director prior to the date of the hearing. In the event of a failure of the person to comply voluntarily with the order, the town’s Director shall take the steps as deemed necessary including immediate severance of the sewer connection. The Director may reinstate the permission to discharge upon proof of the elimination of the violations.
(G) Termination of permit.
(1) Any user who violates the conditions of this chapter, or applicable state and federal regulations, is subject to having his or her permission to discharge revoked. The town’s Director may revoke a permit for the following reasons:
(a) Failure to factually report the wastewater constituents and characteristics of his or her discharge;
(b) Failure to report significant changes in operations, or wastewater constituents and characteristics;
(c) Refusal of reasonable access to the user’s premises for the purpose of inspection and monitoring;
(d) Violation of conditions of a permit or this chapter;
(e) Tampering with or deliberately altering monitoring equipment;
(f) Changes in POTW NPDES permit, receiving stream water quality standards, POTW treatment plant process, sludge disposal practices or requirements or other modifications of a similar nature that impact the town’s ability to accept industrial wastewater;
(g) For causes necessitating an emergency suspension;
(h) Failure to show cause; or
(i) Nonpayment of water or sewer user charges.
(2) A user whose permission to discharge has been revoked may apply for new permission to discharge and shall pay all delinquent fees, charges, penalties and other sums as may be due to the town.
(H) Judicial remedies. If any person discharges wastewater contrary to the provisions of this chapter or any order or permit issued hereunder, or otherwise violates provisions of this chapter or any order or permit issued hereunder, the Director, through the town’s attorney, may commence an action for appropriate legal or equitable relief in the appropriate general court of justice.
(I) Injunctive relief. Whenever a person is in violation of the provisions of this chapter or any order or permit issued hereunder, the town’s Director through the town’s attorney, may petition the court for the issuance of a preliminary or permanent injunction, or both as may be appropriate, which restrains or compels the activities in question. If the town chooses to correct the violation itself, the cost of the correction may be added to the next scheduled service charge payable by the person causing the violation. The town shall have remedies for the collection of the costs as it has for the collection of other user charges.
(J) Criminal violations.
(1) Any person who willfully or negligently violates any provision of this chapter, or any orders, rules, regulations or permits issued hereunder shall be, upon conviction, guilty of a misdemeanor, punishable by a fine or imprisonment as allowed by applicable state statutes. No person shall maliciously, willfully or negligently break, damage, destroy, uncover, deface or tamper with any structure, appurtenances or equipment winch is a part of the wastewater disposal system. Any person violating this provision shall be subject to immediate arrest, and upon conviction, guilty of a misdemeanor, punishable by an appropriate fine or imprisonment, or both. In addition, the person shall be liable to reimburse the town for any damages resulting from the violations.
(2) Any person who knowingly makes any false statements, representations or certifications in any application, record, report, plan or other document submitted or required to be maintained pursuant to this chapter, or permit, or who falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required under this chapter, shall, upon conviction, be punished by a fine as allowed by applicable state statute.
(K) Performance bonds. The town may refuse to reissue a permit to any user which has failed to comply with the provisions of this chapter or any order or previous permit issued hereunder unless the user first files with it a satisfactory bond, payable to the town, in a sum not to exceed a value determined by the town’s Director to be necessary to achieve consistent compliance.
(L) Discontinuance of water or sewer service. At the town’s Directors’ request, the town shall have the right to discontinue water or sewer service to the property of a user of the service in the event of nonpayment of sewer charges; provided that no discontinuation shall be made until the user shall have been given notice of his or her right to be heard in person or by counsel on the question of discontinuation before the town or any person designated by the town after not less than five-days’ written notice specifying the basis of the discontinuation. Any user whose permit has been terminated or who has failed to pay the user charge or any other charge imposed by the town shall be subject to termination of service by disconnection of the property from the sewer service. The town shall have the right of entry in and upon the premises and the right of ingress and egress to determine the location of the service line or to dig it up or to uncover it for the purpose of disconnecting the service line from the property, or sealing, or plugging the line, or any collection line, upon the notice as provided under the town’s regulations.
(M) Damages. If a public sewer becomes obstructed or damaged because of any substances improperly discharged into it, the person responsible for the discharge shall be billed and shall pay for the expenses incurred by the town in cleaning out, repairing, or rebuilding the sewer as well as damages incurred by the town arising from claims of private property owners which are caused by the obstruction or damage.
(N) Compliance responsibility. The town’s Superintendent shall be responsible for implementing the pretreatment program and for sampling and analyses required in wastewater discharge permits to be performed by the town. Analyses shall be performed by a qualified laboratory. The Superintendent shall inform the town’s Directors of any violations of discharge limitations. The Superintendent shall be responsible for assuring that industrial users comply with reporting requirements, and for enforcement actions. The Superintendent shall be responsible for all administrative actions such as the submission of reports, industrial inspections, periodic survey update and issuing permits.
(O) Enforcement management strategy generally.
(1) The enforcement mechanisms for limitations and requirements is outlined in this chapter. The town’s Directors are empowered to enforce permit and regulation provisions. It shall be reviewed annually by the Director to determine the effectiveness and reasonableness for various situations requiring enforcement.
(2) Once a violation is identified, the town’s Directors shall be advised of the nature of the violation. The Superintendent may authorize demand monitoring in the event the violation is of a discharge limitation or which resulted in an upset or violation of water quality standards. The Superintendent shall notify the industry of all violations and the additional enforcement actions, if any, the Superintendent intends to take regarding the violation. All notifications shall be to the designated industrial contract.
(3) If the violation is caused by a discharge that is of immediate danger to public health, or has resulted in observed damage to the wastewater system or receiving stream, then the notice shall be sent immediately and shall include a requirement to immediately cease the discharge. A hearing shall be held within 15 days of the notice of suspension or revocation of permission to discharge. The town’s Director may consider termination of service depending on the response and the circumstances or if the user does not provide evidence that similar events will not occur in the future. Ordinarily, this evidence should include actual or proposed modifications to manufacturing processes, spill prevention plan, pretreatment facilities or other practices that contributed to the violation.
(4) For other violations, the notice of violation (NOV) shall be a letter sent or phone call to the authorized representative of the user within 15 days after the violation is noted. A response from the industrial user (IU) may be required, within 30 days, that explains the cause of the violation and a schedule for when the violation will be corrected. If the Superintendent does not receive a response or receives an inadequate response to a notice of violation for which a response was required, a notice of significant noncompliance shall then be issued.
(5) A notice of significant noncompliance shall be sent by mail within ten days of determination of its need. A notice of significant noncompliance shall also be sent to the industrial user in the event of reporting and other violations as indicated in this chapter. The town’s Director may also impose a penalty. A response shall be required within 15 days explaining the cause of and how the industrial user intends to correct the situation. If compliance can be achieved in less than 90 days, the Superintendent may require the industrial user to propose and submit a 90-day schedule of compliance. If the industrial user indicates that corrective action will take longer than 90 days, the Superintendent shall (unless an administrative order is issued) require the industrial user to request a consent agreement. (The Superintendent may issue an administrative order (AO) with or following the first notice of significant noncompliance.) If the Superintendent does not receive a response to this notice, the industrial user shall be issued a second notice of significant noncompliance.
(6) A second notice of significant noncompliance shall be sent by certified mail within ten days of the required response date to the first notice. This notice shall include a penalty, in an amount as set by the Board from time to time. Response to the second notice shall be required within 15 days. If no response is received, then the Superintendent shall impose penalties in an amount as set by the Board from time to time for each day the violation continues and no response is received to the second notice of significant noncompliance. If a response is not received, then penalties shall commence ten days following the date of the second notice of significant noncompliance. The only acceptable response from the industrial user shall be payment of the penalty and a request for a consent agreement.
(7) The industrial user shall request a consent agreement if required by the Superintendent, if it cannot achieve compliance in 90 days, or in response to a second notice of significant noncompliance. Once the request for a consent agreement is made, the Superintendent shall set up a meeting with the industrial user and negotiate an enforceable compliance schedule. The Superintendent shall sign the agreements.
(8) If an industrial user fails to return to compliance after being issued a consent agreement, or fails to respond to a second notice of significant noncompliance, the Superintendent shall issue a notice to comply and impose a penalty in an amount as set by the Board from time to time on the noncompliant or non-responsive industry. This notice to comply shall be sent by certified mail within 15 days of determining that conditions of the consent agreement have not been met, or within 15 days after the second notice of significant noncompliance has been issued and no response has been received.
(9) An administrative order shall be issued to industrial users that respond to a notice to comply. The administrative order may contain an enforceable schedule of compliance, which may be negotiated with the industrial user. An administrative order may be issued after the first or second notices of significant noncompliance. An administrative order may also be issued following show cause hearings, when the industry can demonstrate cause, to implement a new compliance schedule. The response time for issuing an administrative order may vary because of the development of a compliance schedule, but the administrative order process shall begin immediately following the industrial user’s response to a notice to comply or the demonstration of cause in a show cause hearing.
(10) If an industrial user fails to respond to a notice to comply, or fails to achieve compliance with a consent agreement or an administrative order, the Superintendent may issue a notice to show cause. Procedures for show cause hearings are delineated in the chapter and shall be applied in the cases. The town’s Director may conduct the show cause hearing.
(11) The town’s Director has the options of assessing penalties or terminating water or sewer service in instances where an industrial user fails to respond to a notice to comply, fails to comply with a consent agreement or an administrative order, or fails to demonstrate cause at a show cause hearing. A decision to terminate service is a serious one, but the town’s Director should make it known to the industrial user the willingness to take this step if less radical attempts to achieve the aims of the pretreatment program are not successful.
(12) Judicial remedies are outlined in this chapter. These procedures are generally reserved for a non-responsive industrial user, or in situations where the industrial user has willfully submitted false information or committed other acts of a criminal nature. As with termination of service, it should be clear that judicial action is always available and may be implemented as indicated in this chapter.
(P) Adjudicatory hearings.
(1) For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
ADJUDICATORY HEARING. A hearing that is held pursuant to this section for a contested case. ADJUDICATORY HEARINGS are trial-type proceedings where there is to be a determination made in a contested case pursuant to the powers of the town. The procedures contained herein shall be used for any adjudicatory hearing pursuant to any statutory or regulatory power of the town. The procedures contained herein are not applicable to other hearings which do not conform to the definition of ADJUDICATORY HEARINGS.
CONTESTED CASE. An adjudicatory hearing as part of a final decision of the town pursuant to the town’s licensing power in which rights, duties or privileges of a party are required by a law or regulation to be determined after an opportunity for hearing.
LICENSE. The whole or part of any permit, certificate, approval, registration, charter or similar form of permission required by law including franchises, but it does not include a license required solely for revenue purposes. LICENSING shall mean the process respecting the grant, denial, renewal, revocation, suspension, annulment, withdrawal or amendment of a license.
PARTY. Each person named or admitted as a party or properly seeking and entitled as a right to be admitted as a party.
VIOLATION. Any violation of the regulations of the town or their permits or law, regulation or any court or administrative order which the town is required to enforce.
(2) Requests for an adjudicatory hearing shall be served on the town within 15 days following any final administrative decision by the town on an application, permit, certificate or other licensing matter or on a violation which is a contested case as defined above. Requests for adjudicatory hearings shall include the name of the requestor, his or her interest and the names of parties which he or she represents, the reasons for the request, the major issues which are proposed to be contested at the hearing, and a statement of agreement by the requestor to be subject to examination and cross-examination and to make any employee or consultant of the requestor or other person represented by the requestor available for examination and cross-examination at the expense of the requestor. The town’s Director may grant or deny a request for an adjudicatory hearing on the basis of a consideration of whether the person making the request has standing to seek a determination under the definition of contested case and other pertinent definitions under this chapter.
(3) An initial pleading as used herein shall refer to any paper or document by which an adjudicatory hearing may be commenced. The papers or documents shall include, but not be limited to, applications, petitions, charges, complaints and appeals, rule to show cause notices, and public hearing notices which comply with the following provisions. Every initial pleading shall, at a minimum, contain the following:
(a) A title which indicates the nature of the proceeding and the parties involved therein;
(b) The complete name and address of the party filing the pleadings and if applicable, the organization or interest whom he or she represents;
(c) The legal authority and the jurisdictional basis for the hearing;
(d) A clear and concise statement of the issues upon which the pleading is maintained and identification of the particular regulation, standard, guideline or provision of law which is the subject of the hearing; if the party is unable to state the matters in detail at the time of the initial pleading or other notice is served, the initial pleading or other notice may be limited to a simple statement of the issues involved. Thereafter, upon application, a more definite and detailed statement shall be furnished to all parties;
(e) A prayer setting forth the relief sought;
(f) If the party filing the pleading is represented by counsel, the name and address of the attorney;
(g) An agreement by the requestor to be subject to examination and cross-examination and to make any employee or consultant of the requestor available for examination and cross-examination at the expense of the requestor or the person upon the request of the hearing examiner, on his or her own motion, or on the motion of any party.
(4) Any party, including the town, may serve on the hearing examiner, if one has been appointed, or on the town, if a hearing examiner has not yet been appointed, an answer to the initial pleading within ten days after service of the document to which the answer is directed unless additional time is required pursuant to provisions of this section. Allegations contained in the initial pleading which are not specifically admitted by the party filing an answer are deemed denied. The answer shall contain, but not be limited to, the following:
(a) A clear and concise statement identifying the party filing the answer and the matter to which the answer relates; and
(b) A clear and concise statement of all matters upon which the party filing the answer relies.
(5) There shall be no replies other than an answer.
(6) Leave to file amendments to any pleading may be allowed or denied; provided, however, leave to amend shall be freely given when justice requires it.
(7) A party desiring to withdraw a pleading filed with the town or the hearing examiner shall file a motion for withdrawal. If any party has an objection thereto, he or she shall, within ten days after the receipt of the motion, serve a statement on the hearing examiner setting forth the reasons for his or her objection and serve a copy of the same on each party. In the absence of objections or a request for a hearing, a motion of withdrawal shall, within ten days after filing thereof, be deemed allowed. The hearing examiner shall then file an order of dismissal, with or without prejudice, to the party requesting the withdrawal within the sole discretion of the hearing examiner. WITH PREJUDICE shall mean that the party receiving the dismissal shall not enter the proceedings as a party, but can be called as a witness.
(8) Where a party makes a reasonable showing that he or she cannot frame an answer to the initial pleading based upon the allegations as they appear in the initial pleading, he or she may, at any time prior to the time within which the answer must be filed, move for a more definite statement of the allegations. The motion shall identify the defects complained of or the details desired. The hearing examiner may grant or deny the motions as justice requires and a more definite statement shall be served within ten calendar days of being notified that a more definite statement is required.
(9) Service by the town of complaints, orders, decisions, pleadings, motions, processes and other documents shall be by personal delivery or by first-class mail. Service on the town, or hearing examiner shall be by filing two copies of the paper with the Town of Grimesland, P.O. Box 147, 113 Pitt Street, Grimesland, N.C. 27837, and Greenville Utilities Commission, P.O. Box 1847, Martin Luther King, Jr. Blvd., Greenville, N.C. 27835. All papers, including but not limited to applications, notices, pleadings, petitions, motions, briefs, memoranda and other documents, filed by any party with the town and/or the hearing examiner shall be served by personal delivery or by first-class mail upon all parties to the proceedings. A certificate of service shall accompany all papers when filed by any party, including the town, and shall be filed within ten days after service is made.
(10) The hearing examiner may, on motion, at any time during the course of any proceeding, permit the substitutions of parties as justice or convenience may require.
(11) In the discretion of the hearing examiner, any person not a party may be permitted to intervene in any action or proceeding. A person or party desiring to intervene shall file a motion which shall state therein the grounds for intervention. Any request for intervention may be granted if that request or motion meets the requirements previously outlined. A motion for leave to intervene or a request for intervention in a hearing shall be filed prior to the commencement of the hearing or any pre-hearing conferences which may be conducted prior to the hearing. Any motion filed after that time shall contain, in addition to the information required above, a statement of good cause for the failure to file the motion prior to the commencement of the proceedings, and shall be granted only upon a finding that extraordinary circumstances justify the granting of the motion; and that the intervener shall be bound by all agreements, arrangements and other matters previously made in the proceedings.
(12) The hearing examiner shall observe the rules of evidence observed by the court with the exception that hearsay evidence may be admissible provided that it is deemed necessary to ascertain facts not reasonably susceptible of proof without the evidence and the hearsay evidence is properly identified as such and is given appropriate consideration in reaching a determination, and shall observe rules of privilege recognized by law. The hearing examiner shall make rulings of admissibility, which shall be noted on the record. Irrelevant, immaterial or unduly repetitious evidence shall be excluded. All testimony shall be taken under oath and all parties shall have the right to cross-examination of the witnesses. The hearing examiner shall exclude hearsay evidence when the testimony would violate fundamental fairness.
(13) Official notice may be taken of such matters as might be judicially noticed by the courts, and in addition, notice may be taken of general, technical or scientific facts within the party’s specialized knowledge; provided, that any party shall on timely request be afforded an opportunity to contest by oral argument the matters of which official notice is to be taken.
(14) Formal exceptions to rulings on evidence and procedures are unnecessary. It is sufficient that a party, at a time that a ruling of the hearing examiner is made or sought, makes known to the hearing examiner the action which he or she desires taken or his or her objections to actions, and his or her grounds for objection.
(15) The hearing examiner and all other parties, through the hearing examiner, shall have the right to issue subpoenas requiring the attendance and testimony of witnesses and the production of any documents in question in the proceeding; provided, however, that where the issuance of such a subpoena is resisted or contested, the hearing examiner shall rule on the availability of the subpoena in that particular case.
(16) A party may file a motion for the production or view of any object which relates to the subject matter of any proceeding then pending before the hearing examiner. The motion shall be granted where justice requires.
(17) Any time during the course of the proceeding, the hearing examiner may order that testimony of a witness be taken by deposition. Application to take testimony by deposition shall be made by motion directed to the hearing examiner. The motion shall set forth the reasons for desiring the deposition, the time when, the place where, and the name and address of each witness, and the subject matter concerning which each witness is expected to testify. The hearing examiner shall allow the motion only upon a showing that circumstances are such that witness to be deposed cannot appear before the hearing examiner without substantial hardship being caused. If the hardship is financial in nature, any party may agree to reimburse the witness for expenses, including loss of wages incurred by appearing; and in such cases, the motion to allow taking of a deposition shall therefore be denied. Motions for the taking of depositions shall not be allowed if the depositions result in any undue burden to another party or in any undue delay of the proceeding. If the motion is allowed, the hearing examiner shall give at least five days’ notice of the taking of the depositions to all parties. Depositions shall be taken orally before a person having power to administer oaths. Each witness testifying upon deposition shall be duly sworn, and the adverse party shall have the right to cross-examine. Objections to questions shall be in short form, stating the grounds of objections relied upon. The questions asked, the answers thereto, and all objections shall be reduced to writing, and certified by the officer before whom the deposition is taken. The officer shall forward the deposition to the hearing examiner. Subject to appropriate rulings on evidence, the testimony taken as deposition shall be included in the record of the hearing as if the testimony contained therein had been given by the witness in the presence of the hearing examiner. After notice is served for taking a deposition, upon motion, made prior to the date set for the taking by any party or by the person to be examined, the hearing examiner may, for good cause shown, order that the deposition shall not be taken; that certain matters shall not be inquired into; or that the scope of the examination shall be limited to certain matters. The hearing examiner may make any other order necessary to protect the party or witness from harassment or oppression.
(18) The parties may by stipulation in writing file with the hearing examiner at any stage of the proceeding, or orally made at that hearing, agree upon any pertinent facts in the proceedings. Contested cases may be resolved by informal disposition through means of stipulation, agreed settlement, consent agreement (with or without a financial penalty) or default.
(19) The hearing examiner, after all preliminary matters have been disposed of, shall notify all parties and interveners of the precise time, date and place of the scheduled hearing. This notification shall be served at least no less than ten days prior to the hearing on all parties and interveners, and there shall be public notice in all cases where there has not been a previous public notice during the permission granting process.
(20) The hearing shall be conducted by the hearing examiner. All testimony given at the hearing shall be under oath. The moving or complaining party shall present his or her evidence or testimony first. After the evidence and testimony of the complaining or moving parties have been received, all other parties shall be allowed to present their evidence or testimony. The staff shall make its presentation last. All parties, other than the party introducing the testimony, shall be allowed to cross-examine any witness immediately after his or her testimony has been received and there shall be opportunity for all parties to reply. All parties, counsel, witnesses and other persons present at a hearing shall conduct themselves in a manner consistent with the standards of decorum commonly observed in the courts of this state. Where the decorum is not observed, the hearing examiner may take action as he or she finds appropriate. The hearing examiner may cross-examine any witness and may make requests of any party with regard to the submission of additional information, records, exhibits, or photographs.
(21) All proceedings in a pending case shall be recorded by sound or be officially reported by a stenographer appointed for that purpose. The oral proceedings or party thereof shall be transcribed upon request of any party. If there is no such request, the oral proceedings may be presented to the town in summary form to accompany the determination of the hearing examiner.
(22) A party shall have the right before the close of the hearing to argue orally, but the hearing examiner may impose reasonable limitations upon the length of the argument. The hearing examiner may in his or her discretion permit additional oral argument at any time after the close of the hearing and before the determination is made, provided all parties are given reasonable opportunity to be heard.
(23) Briefs may be filed by a party or any interested persons before, during or after the course of a hearing, if served within ten days of the last day of hearing, either on their own volition or upon request of the hearing examiner. Except where requested by the hearing examiner, failure to file a brief shall in no way prejudice the rights of any party. There shall be no right to file reply briefs; however, reply briefs may be authorized by the hearing examiner in extraordinary circumstances. Parties shall be allowed the opportunity to present to the hearing examiner proposed findings of facts and conclusions of law and proposed exceptions to allegations or testimony of another party or rulings of the hearing examiner.
(24) Any party may, at any time prior to the rendering of a determination by the hearing examiner, move that the hearing be reopened for the purpose of receiving new evidence. In addition, the hearing examiner may, at any time prior to rendering his or her determination, reopen the hearing on his or her own motion. In the case of the reopening of the hearing, the parties shall be notified and the hearing shall not be convened less than ten days after service of the notice.
(25) On the basis of the evidence presented, the hearing examiner may issue the determination as an initial decision or may refer the record to the town without a written recommendation. If an initial decision is prepared it shall consist of a written statement to the town recommending affirmation, modification or denial of the administrative decision involved. The hearing examiner shall deliver by certified mail to the parties a copy of the transcript or summary of the record and the initial decision, including findings of fact and conclusions of law as well as the reasons for the recommendation in the matter.
(26) After a determination is made by the hearing examiner, any party may apply to the town for a review of the determination of the hearing examiner prior to a final decision in the matter by the town. However, application must be submitted in writing within 15 days of receipt of the determination stating specifically the grounds of objection to the determination.
(a) The town may on its own motion take up the review of the determination of the hearing examiner at a regularly scheduled meeting.
(b) On the basis of the completed record of proceedings and testimony and evidence presented before the hearing examiner, the determination shall be affirmed, modified or set aside by the town in a final decision on the matter.
(c) Briefs may be submitted to the town by all parties but are not required unless specifically requested by the town.
(d) All briefs shall be submitted to the town at least 15 days prior to the scheduled meeting with ten separate copies.
(e) Briefs shall state specifically the grounds for affirmation, modification, or denial of the determination of the hearing examiner.
(f) Reply briefs shall be filed five days before the town meeting.
(g) Oral arguments shall be limited in duration to not more than one hour from each party in the hearing, including intervening parties.
(h) A full and complete record shall be kept of all proceedings and reported and transcribed by the town. A copy of the transcript may be requested by any interested party, who shall pay the costs of preparing the transcript.
(i) The town may require a reopening of the adjudicatory hearing before the hearing examiner for the taking of additional testimony upon all issues or a particular issue prior to its final decision on the determination of the hearing examiner.
(j) The town may make a decision upon the record presented by the hearing examiner alone, or the town may consider additional evidence during its consideration of the determination of the hearing examiner provided that there is proper opportunity for rebuttal by a party which is affected adversely by the additional evidence.
(k) When the time prescribed in these rules expires on Sunday or legal holiday, the time shall extend to, and include the next succeeding day that is not a Sunday or legal holiday.
(l) The town or the hearing examiner may grant reasonable extensions of time to meet the filing deadlines specified therein.
(m) Any party aggrieved by a final decision of the town may appeal the decision to the general court of justice in the county in which the town is located.
(Ord. passed 5-9-2000) Penalty, see § 52.999