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At least annually, the 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. of 10-1-1996, § 9; Amend. of 3-3-2008(3); Ord. of 3-4-2013)
Hearings: Johnston County may conduct hearings in accordance with its regular hearing procedure.
(a) Initial Adjudicatory Hearing. An applicant whose permit is denied, or is granted subject to conditions he deems unacceptable, a permittee/user assessed a civil penalty under section 24-242 or one issued an administrative order under section 24-241 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 Director within 30 days following receipt of the significant industrial user permit, 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 Director shall transmit a copy of the hearing officer's decision by registered or certified mail as described in paragraph (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 paragraph (a) above may be appealed to the Johnston County Board of Commissioners upon filing a written demand within 10 days of receipt of notice of the decision. Hearings held under this Subdivision shall be conducted in accordance with local hearing procedures. Failure to make written demand within the time specified herein shall bar further appeal. The Johnston County Board of Commissioners shall make a final decision on the appeal within 90 days from receipt of the demand filed under paragraph (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 paragraph (b) above, the Johnston County Board of Commissioners 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.
(4) A copy of the final decision of the Johnston County Board of Commissioners.
(d) Judicial Review. Any person against whom a final order or decision of the Johnston County Board of Commissioners is entered, pursuant to the hearing conducted under paragraph (b) above, may seek judicial review of the order or decision by filing a written request for review by the Superior Court of Johnston County within 30 days after receipt of notice by registered or certified mail of the order or decision, but not thereafter, along with a copy to Johnston County. Within 30 days after receipt of the copy of the written request for review by the court, the County Manager shall transmit to the reviewing court the original or a certified copy of the official record.
(Ord. of 3-4-2013)
(a) Upset.
(1) An upset shall constitute an affirmative defense to an action brought for noncompliance with categorical pretreatment standards if the requirements of subsection (a)(2) of this section are met.
(2) A user who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs, or other relevant evidence that:
a. An upset occurred and the user can identify the cause of the upset;
b. The facility was at the time being operated in a prudent and workmanlike manner and in compliance with applicable operation and maintenance procedures; and
c. The user has submitted the following information to the director within 24 hours of becoming aware of the upset. If this information is provided orally, a written submission must be provided within five (5) days:
1. A description of the indirect discharge and cause of noncompliance;
2. The period of noncompliance, including exact dates and times or, if not corrected, the anticipated time the noncompliance is expected to continue; and
3. Steps being taken and/or planned to reduce, eliminate, and prevent recurrence of the noncompliance.
(3) In any enforcement proceeding, the user seeking to establish the occurrence of an upset shall have the burden of proof.
(4) 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.
(5) 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.
(b) Prohibited discharge standards defense. A user shall have an affirmative defense to an enforcement action brought against it for noncompliance with the general prohibitions in section 24-121(a) or the specific prohibitions in section 24-121(b)(2), (3), (5)—(7) and (9)—(23) 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:
(1) 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
(2) No local limit exists, but the discharge did not change substantially in nature or constituents from the user's prior discharge when the county was regularly in compliance with its NPDES permit, and in the case of interference, was in compliance with applicable sludge use or disposal requirements.
Pursuant to 40 CFR 403.5(a)(2), the affirmative defense outlined in this subsection cannot apply to the specific prohibitions in section 24-121(b)(1), (4) and (8).
(c) Bypass.
(1) A user may allow any bypass to occur which does not cause pretreatment standards or requirements to be violated, but only if it also is for essential maintenance to ensure efficient operation. These bypasses are not subject to the provisions of subsections (c)(2) and (3) of this section.
(2)a. If a user knows in advance of the need for a bypass, it shall submit prior notice to the director, at least ten days before the date of the bypass, if possible.
b. A user shall submit oral notice to the director of an unanticipated bypass that exceeds applicable pretreatment standards within 24 hours from the time it becomes aware of the bypass. A written submission shall also be provided within five days of the time the user becomes aware of the bypass. The written submission shall contain a description of the bypass and its cause; the duration of the bypass, including exact dates and times, and, if the bypass has not been corrected, the anticipated time it is expected to continue; and steps taken or planned to reduce, eliminate, and prevent reoccurrence of the bypass. The director may waive the written report on a case-by-case basis if the oral report has been received within 24 hours.
(3)a. Bypass is prohibited, and the director may take an enforcement action against a user for a bypass, unless:
1. Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;
2. There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate backup equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass which occurred during normal periods of equipment downtime or preventive maintenance; and
3. The user submitted notices as required under subsection (c)(2) of this section.
b. The director may approve an anticipated bypass, after considering its adverse effects, if the director determines that it will meet the three conditions listed in subsection (c)(3)a. of this section.
(Ord. of 10-1-1996, § 10; Ord. of 3-4-2013)
If any provision, paragraph, word, section or article of this ordinance is invalidated by any court of competent jurisdiction, the remaining provisions, paragraphs, words, sections, and chapters shall not be affected and shall continue in full force and effect.
(Amend. of 3-3-2008(3); Ord. of 3-4-2013)