N.M. Admin. Code § 20.1.5.400

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

Section 20.1.5.400 - HEARING PROCEDURES

A. Evidence:

(1) General: The Hearing Officer shall admit all relevant evidence, unless the Hearing Officer determines that the evidence is irrelevant, immaterial, unduly repetitious or otherwise unreliable or of little probative value. Evidence relating to settlement that would be excluded in the courts under SCRA 1986, 11-408 is not admissible.

(2) Examination of Witnesses: Witnesses shall be examined orally, under oath or affirmation, except as otherwise provided in this Part or by the Hearing Officer. Parties shall have the right to cross-examine a witness. The Hearing Officer may limit cross-examination that is unduly repetitious, harassing or beyond the scope of the witness' direct testimony.

(3) Exhibits: All exhibits offered in evidence shall be marked with a designation identifying the person by whom the exhibit is offered, and numbered serially in the sequence in which offered. Large charts and diagrams, models, and other bulky exhibits are discouraged. Exhibits should be limited to 8 1/2 by 11 inches or be capable of being folded to that size, unless otherwise necessary for adequate presentation of evidence.

(4) Official Notice: Official notice may be taken of any matter that may be judicially noticed in the New Mexico courts. In a ULA Hearing, parties shall be given adequate opportunity to show that such facts are erroneously noticed.

B. Objections and Offers of Proof:

(1) Objection: Any objection concerning the conduct of the hearing may be stated orally or in writing during the hearing. The party raising the objection must supply a short statement of its grounds. The ruling by the Hearing Officer on any objection and the reasons given for it shall be part of the record.

(2) Offer of Proof: Whenever evidence is excluded from the record, the party offering the evidence may make an offer of proof, which shall be included in the record. The offer of proof for excluded oral testimony shall consist of a brief statement describing the nature of the evidence excluded and what such evidence would have proved. The offer of proof for excluded documents or exhibits shall consist of the insertion in the record of the documents or exhibits excluded. Where the Secretary decides that the ruling of the Hearing Officer in excluding the evidence was both erroneous and prejudicial, the hearing may be reopened to permit the taking of such evidence.

C. Burden of Persuasion:

(1) Compliance Order: The Complainant has the burden of going forward with the evidence and of proving by a preponderance of the evidence the facts relied upon to show the violation occurred and that the proposed civil penalty is appropriate. Following the establishment of a prima facie case, the Respondent shall have the burden of going forward with any adverse evidence or defense to the allegations.

(2) Compliance Determination: The Complainant has the burden of proving cost eligibility and substantial compliance with the Act and Corrective Action Fund Payment and Reimbursement Regulations.

(3) Preponderance of Evidence: Each matter of controversy shall be determined by the Hearing Officer upon a preponderance of the evidence.

N.M. Admin. Code § 20.1.5.400

11/15/90, 11/30/95; 20.1.5.400 NMAC - Rn, 20 NMAC 1.5.IV.400 through 402, Recompiled 11/27/01