N.M. Admin. Code § 20.1.5.100

Current through Register Vol. 35, No. 21, November 5, 2024

Section 20.1.5.100 - GENERAL [PROVISIONS]

A. Applicability of Rules of Civil Procedure: In the absence of a specific provision in this Part governing an action, the New Mexico Rules of Civil Procedure, SCRA 1986, 1-001 to 1-102 and the New Mexico Rules of Evidence, SCRA 1986, 11-101 to 11-1102 may apply as necessary in the discretion of the Secretary or Hearing Officer. The reference to the Rules of Civil Procedure or the Rules of Evidence shall not be construed to extend or otherwise modify the authority and jurisdiction of the Secretary under any statute.

B. Liberal Construction: This Part shall be liberally construed to carry out its purpose.

C. Severability: If any Part or application of this Part is held invalid, the remainder of the Part, or its application to other persons or situations, shall not be affected.

D. Replacement of Prior Rules: This Part replaces the Rules Governing Appeals From Compliance Orders Under the Hazardous Waste Act and the Solid Waste Act, HED 90-10 (EID), filed October 16, 1990. Any reference in this Title to these Rules shall be construed as a reference to this Part.

E. Savings Clause: Replacement of the Rules Governing Appeals From Compliance Orders Under the Hazardous Waste Act and the Solid Waste Act, HED 90-10 (EID), filed October 16, 1990, does not affect pending litigation, nor any Compliance Orders or Compliance Determinations issued prior to the effective date of this Part.

F. Powers and Duties of the Secretary, Hearing Officer:

(1) Secretary: The Secretary shall exercise all powers and duties as prescribed under the Act and this Part, and not otherwise delegated to a staff member, the Hearing Officer, or the Hearing Clerk.

(2) Hearing Officer: The Secretary may appoint one or more Hearing Officers to perform the functions described in Paragraph 2 of this Subsection [Subparagraph (b) of this Subsection].

(a) Qualifications: If an independent Hearing Officer is required by the Act, then the Hearing Officer may be an independent contractor or a State employee who is employed in the capacity as a Hearing Officer. The Hearing Officer shall not be anyone who has performed prosecutorial or investigative functions in connection with the matter at issue in the proceeding.

(b) Functions: The Hearing Officer shall exercise all powers and duties prescribed or delegated by the Secretary under the Act or this Part. The Hearing Officer shall conduct a fair and impartial proceeding, assure that the facts are fully elicited, and avoid delay. The Hearing Officer shall have authority to take all measures necessary for the maintenance of order and for the efficient, fair and impartial adjudication of issues arising in proceedings governed by this Part, which includes, but is not limited to authority to:

(i) conduct hearings under this Part;

(ii) rule upon motions, procedural requests, offers of proof, and issue all necessary orders;

(iii) issue subpoenas, as authorized by the Act, for the attendance and testimony of witnesses and the production of documentary evidence as provided for in Subpart III [20.1.5.300 NMAC];

(iv) administer oaths and affirmations, examine witnesses and admit or exclude evidence;

(v) require parties to attend conferences for the settlement or simplification of the issues, or the expedition of the proceedings; and

(vi) impose sanctions, subject to review by the Secretary, on parties who cause undue delay or fail to cooperate in the proceeding.

(3) Secretary or Hearing Officer; Disqualification or Withdrawal:

(a) Neither the Secretary nor any Hearing Officer may perform functions provided for in this Part regarding any matter in which the Secretary or the Hearing Officer:

(i) has a personal bias or prejudice concerning a party or personal knowledge of facts or information concerning the proceeding;

(ii) has a financial interest in the proceeding;

(iii) is related to a party; or

(iv) is an officer, director or trustee of a party to the proceeding.

(b) The Secretary shall not be disqualified solely because of having been briefed on the matter prior to issuance of the Compliance Order or having authorized further investigation of the matter prior to issuance of the Compliance Order.

(c) Any party, by motion and for cause listed in Section 112.C.1, [Subparagraph (a) of Paragraph (3) of this Subsection] may request the disqualification of the Secretary or the Hearing Officer within ten (10) days after the matter has been docketed or the Hearing Officer designated, or if a new Secretary is appointed, within ten (10) days after the Secretary takes office.

(d) Any motion seeking disqualification of the Hearing Officer or the Secretary shall be ruled upon by the Secretary. Upon disqualification of the Secretary, the Deputy Secretary shall assume the duties of the Secretary. In the event that the Deputy Secretary is also subject to disqualification, a division director other than the Complainant shall assume the duties of the Secretary.

G. Computation and Extension of Time:

(1) Computation of Time: In computing any period of time prescribed or allowed by this Part, except as otherwise specifically provided, the day of the event from which the designated period begins to run shall not be included. The last day of the computed period shall be included, unless it is a Saturday, Sunday, or legal state holiday, then the time is extended until the next day which is not a Saturday, Sunday, or legal state holiday. Whenever a party must act within a prescribed period after service upon him and service is by mail, three (3) days is added to the prescribed period. The three days extension does not apply to any deadline mandated otherwise under the Act.

(2) Extensions of Time : The Secretary or Hearing Officer may grant an extension of time to file a document or continuance of a hearing upon timely motion of a party to the proceeding, for good cause shown, and after consideration of prejudice to other parties and undue delay to the proceedings.

H. Ex Parte Discussions: At no time shall any party to a proceeding under this Part discuss ex parte with the Secretary or the Hearing Officer the merits of the proceeding.

I. Filing, Service, and Form of Documents:

(1) Filing of Documents:

(a) Except as otherwise provided, the original of all documents served in the proceeding shall be filed with the Hearing Clerk.

(b) Except as otherwise provided, a party filing documents shall serve copies thereof upon all other parties. A certificate of service, as shown in Section 118, [Subsection L. of this Section] shall accompany each filed document.

(2) Service of Documents: Except as otherwise provided, all documents may be served personally, by express mail, by telefax or by first class mail.

(3) Form of Documents:

(a) Unless otherwise ordered by the Hearing Officer, all documents, except exhibits, shall be on 8 1/2 x 11-inch white paper, and where appropriate, the first page of every document shall contain a heading and caption as illustrated in Section 118 [Subsection L. of this Section]. Any field citation may be on a pre-printed, multi-copy form.

(b) The original of each document, except exhibits, shall be signed by the party or the party's counsel or other representative, and shall include address and telephone number. The signature constitutes a certificate that the signer has read the document; that to the best of the signer's knowledge, information, and belief, there is good ground to support it; and that, except for motions for extension of time, it is not interposed for delay.

(c) Any notice or service required under this Part shall be deemed adequate if made to the most recent address provided by the person upon whom service is made.

J. Filing and Service of Documents Issued by Secretary or Hearing Officer: All documents issued by the Hearing Officer shall be filed with the Hearing Clerk. The Hearing Clerk shall promptly serve copies of the document upon all parties.

K. Examination of Documents Filed:

(1) Examination Allowed: Subject to the provisions of law restricting the public disclosure of confidential information, any person may, during normal business hours, inspect and copy any document filed in any proceeding. Such documents shall be made available by the Hearing Clerk, as appropriate.

(2) Cost of Duplication: Unless waived by the Department, the cost of duplicating documents filed in any proceeding shall be borne by the person seeking copies of such documents.

L. Sample Document:

STATE OF NEW MEXICO

SECRETARY OF ENVIRONMENT

NAME OF COMPLAINANT,

Complainant,

No.

v.

NAME OF RESPONDENT,

Respondent.

TITLE OF DOCUMENT

Signature__________________________

NAME

ADDRESS & TELEPHONE NUMBER

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing [name of document] was [hand-delivered/express mailed/faxed/mailed first class] on the following [party/counsel] of record [date]:

[names and addresses of persons upon whom service is made.]

Signature__________________________

Name of signer

N.M. Admin. Code § 20.1.5.100

11/15/90, 11/30/95; 20.1.5.100 NMAC - Rn, 20 NMAC 1.5.I.106 through 110, and 20 NMAC 1.5.I.112 through 118, Recompiled 11/27/01