N.M. Admin. Code § 20.11.81.12

Current through Register Vol. 35, No. 23, December 10, 2024

Section 20.11.81.12 - GENERAL PROVISIONS

A. Applicability of rules of civil procedure and rules of evidence: In the absence of a specific provision in 20.11.81 NMAC governing an action, the board and the board's hearing officer may look to the New Mexico Rules of Civil Procedure, NMRA 1-001 et seq., and the New Mexico Rules of Evidence, NMRA 11-101 et seq., for guidance. No provision of the rules of civil procedure shall be construed to extend or otherwise modify the authority and jurisdiction of the board.

B. Board and hearing officer powers and duties-qualification, disqualification, recusal, withdrawal:

(1) Board: The board shall exercise all powers and duties authorized and required by the act, 20.11.81 NMAC and any other board regulation if the powers and duties are not otherwise delegated by 20.11.81 NMAC to a board staff member, a hearing officer or the hearing clerk. The board or a hearing officer appointed or authorized by the board may specify procedures in addition to, or that vary from the procedures provided in 20.11.81 NMAC in order to expedite the efficient resolution of the action or to avoid obvious injustice, if the procedures do not conflict with the act or the regulations, or prejudice the rights of any party.

(2) Hearing officer: The board may appoint a hearing officer or authorize the hearing clerk to secure one or more hearing officers to perform the functions described in Paragraph (2) of Subsection B of 20.11.81.12 NMAC. From the date a proceeding is initiated pursuant to 20.11.81 NMAC, the chair or acting chair of the board shall serve as hearing officer until another hearing officer is appointed or authorized by the board and is secured by the hearing clerk. The appointment of a hearing officer shall not prevent any board member from attending or participating in any proceeding.

(a) Qualifications: A hearing officer may be an independent contractor, board counsel or a member of the board and shall not be:

(i) an employee of the department, unless employed by the department as a hearing officer; or

(ii) a person who is disqualified as a result of a condition described in Subparagraph (a) of Paragraph (3) of Subsection B of 20.11.81.12 NMAC.

(b) Functions: The hearing officer shall exercise all powers and duties required by or delegated under the act and 20.11.81 NMAC. 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 20.11.81 NMAC, including, but not limited to:

(i) conducting hearings pursuant to 20.11.81 NMAC;

(ii) ruling upon motions and procedural requests that do not seek final resolution of the proceeding, and issuing all necessary orders;

(iii) issuing subpoenas, as authorized by law, for the attendance and testimony of witnesses and the production of documentary evidence;

(iv) administering oaths and affirmations, examining witnesses, and admitting or excluding evidence;

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

(vi) imposing sanctions, subject to review and approval by the board, on parties and interested participants who cause undue delay and fail to cooperate with the board; and

(vii) filing with the hearing clerk all original documents received or generated by the hearing officer.

(c) Notice of hearing officer assignment: If a hearing officer other than a board member is assigned as a hearing officer, the hearing clerk shall notify the parties of the name and address of the hearing officer. At the same time, the hearing clerk also shall forward to the hearing officer copies of all documents related to the petition that have been filed to date.

(3) Board member and hearing officer disqualification-recusal-withdrawal:

(a) A board member or a hearing officer shall not perform any function authorized by 20.11.81 NMAC regarding any matter in which a board member or a hearing officer:

(i) has a personal bias or prejudice concerning a party or the outcome of a proceeding;

(ii) has personal knowledge of disputed facts concerning the proceeding;

(iii) is related to a party within the third degree of relationship;

(iv) is an officer, director or trustee of a party or interested participant in the proceeding;

(v) has a financial interest in the proceeding or facility that is the subject of the proceeding or has any other conflict of interest; or

(vi) has performed prosecutorial or investigative functions in connection with a permitting action at issue in the proceeding.

(b) In making its decision regarding whether a board member or hearing officer should be disqualified or recuse himself or herself, the board and hearing officer may rely on applicable legal authority

(c) Disqualification, recusal and withdrawal:

(i) Any party, for a cause included in Subparagraph (a) of Paragraph (3) of Subsection B of 20.11.81.12 NMAC, may file a motion requesting the disqualification of a board member at any time before the final order is filed, or requesting the disqualification of a hearing officer at any time prior to the completion of the evidentiary hearing.

(ii) If a motion is filed pursuant to Paragraph (3) of Subsection B of 20.11.81.12 NMAC, and the motion asks that a board member be disqualified, then, within five days after the hearing officer and the challenged board member receive the motion, the challenged board member may respond to the motion in writing. Within 10 days after the hearing officer and the challenged board member receive the motion regarding the challenged board member, the hearing officer shall file a recommended decision. The board shall vote on the motion. However, the vote of the board shall not include the vote of the challenged board member. If the vote of the majority of a quorum of the board, not including the vote of the challenged board member, determines that the challenged board member is disqualified, the disqualified board member will not participate in the proceeding thereafter.

(iii) If a motion is filed pursuant to Paragraph (3) of Subsection B of 20.11.81.12 NMAC, and the motion asks that a hearing officer be disqualified, then, within 10 days after the hearing officer receives the motion, the hearing officer may respond to the motion in writing. The board shall vote on the motion. If the vote of the majority vote of a quorum of the board members determines that the challenged hearing officer is disqualified, the disqualified hearing officer will not participate in the proceeding thereafter, and the board may appoint, or authorize the hearing clerk to secure a replacement hearing officer.

(iv) A board member may recuse himself or herself from a hearing, and a hearing officer may withdraw as hearing officer, by filing written notice with the hearing clerk or by making a statement on the record at a hearing or meeting of the board. In making a decision regarding whether to recuse or withdraw, a board member or a hearing officer may rely on applicable legal authority.

C. Recording of hearings: All hearings on the merits shall be recorded by a court reporter unless otherwise directed by the board. If a hearing will be tape recorded but a party prefers to have the hearing recorded by a court reporter in another manner, then, before the hearing, the party requesting the alternate method of reporting shall pay the court reporter for the services or make satisfactory payment arrangements with the court reporter. If a hearing is recorded by a court reporter, the recording of the court reporter approved by the board or the hearing officer, or arranged by the hearing clerk will be the sole official recording of the hearing. If a transcription is made by the court reporter, then the person who requested the transcription shall pay the court reporter. Payment for the transcription shall include payment for delivery of the original transcription to the hearing clerk. The hearing clerk shall make the transcription part of the record proper, which is a public record except as otherwise provided by law.

D. Participation by conference, telephone or other similar device: A member of the board may participate in a meeting of the board by means of a conference telephone or other similar communications equipment when a medical or emergency situation exists that makes it extremely difficult or impossible for the member to attend the meeting in person, provided that each member participating by conference telephone or other device can be identified when speaking, all participants are able to hear each other at the same time, and members of the public attending the meeting are able to hear any member of the board who speaks at the meeting. A request to be present and vote by telephone or other similar device must be made by the member to the chair or acting chair of the board by the member. A board member who wishes to participate in a meeting in this manner must receive permission from the chair or acting chair of the board sufficiently in advance of the meeting so the hearing clerk can arrange for an adequate telephone hookup. The chair or acting chair shall determine whether a qualifying medical or emergency situation exists. A board member's participation by such means shall constitute presence in person at the meeting. This provision may be used only to allow a member to constitute a quorum for the purposes of choosing a hearing officer for a hearing or hearings; scheduling or rescheduling a meeting or hearing; and voting on those limited issues.

E. Ex parte contact: At no time before a petition is expected to be filed pursuant to 20.11.81 NMAC, and at no time between the filing of a petition and the final decision of the board or withdrawal of the petition or related permit action shall any person other than the hearing officer or hearing clerk have ex parte contact with a board member or the hearing officer regarding the merits of the expected or pending petition or related proceeding. This prohibition does not apply to a hearing officer's consideration of, and decision regarding a motion filed pursuant to 20.11.81 NMAC.

F. Computation and extension of time:

(1) Computation of time: In computing any period of time prescribed or allowed by 20.11.81 NMAC, 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 city of Albuquerque or Bernalillo county holiday, in which event, the time shall be extended until the end of the next day which is not a Saturday, Sunday, or legal city of Albuquerque or Bernalillo county holiday. Whenever a party must act within a prescribed period after service upon that party, and service is by mail, three days shall be added to the prescribed period. The three-day extension does not apply to a deadline established by the act. Whenever a party must act within a prescribed period after service upon that party, and service is by facsimile or electronic transmission, no days shall be added to the prescribed period.

(2) Extension of time: Upon timely motion of a party to the proceeding, for good cause shown, and after consideration of prejudice to other parties, the hearing officer or the board, as appropriate for the stage of the proceeding at the time, may grant an extension of time for filing any document. No extension shall be granted regarding a deadline established by the act or an applicable regulation, except the petitioner may waive the deadline for holding the hearing by the deadline established by the act or an applicable regulation.

G. Documents; filing, service, form and examination:

(1) Filing of documents: Except as otherwise provided, a party filing a document shall file the original and nine copies with the hearing clerk and shall serve a copy thereof upon the hearing officer, the board's legal counsel, and all other parties. If the hearing officer is also a board member, the party shall serve the document upon the board chair. All documents shall be filed at least five days (for a 30-day hearing procedure) or seven days (for a 60-day hearing procedure) before the hearing at which the hearing officer or the board will consider the matter. A certificate of service with the following heading or "caption", completed appropriately, shall accompany each filed document.

STATE OF NEW MEXICO

ALBUQUERQUE-BERNALILLO COUNTY

AIR QUALITY CONTROL BOARD

IN THE MATTER OF THE PETITION FOR

A HEARING ON THE MERITS REGARDING

AIR QUALITY PERMIT NO. ___

[Name of Petitioner:] _______________, Petitioner

(2) Service of documents: Except as otherwise provided, all documents may be served personally, by facsimile or by express or first class mail. Delivery receipts shall be kept as proofs of service, and shall be produced immediately upon the request of the hearing officer, the board or an opposing party.

(3) Form of documents: Unless otherwise provided by order of the hearing officer or the board, all documents, except exhibits, shall be prepared on 8 1/2 x 11-inch white paper, printed double-sided if feasible, and, where appropriate, the first page of every document shall contain the caption or heading required by Paragraph (1) of Subsection G of 20.11.81.12 NMAC.

(4) Documents issued by board or hearing officer: All documents issued by the board or hearing officer shall be filed with the hearing clerk. The hearing clerk shall promptly serve copies of the documents upon all parties and interested participants.

(5) Examination of documents filed-cost:

(a) Examination allowed: Subject to the provisions of law restricting the public disclosure of confidential or other exempt or protected information, during normal business hours any person may inspect and copy any document filed in any proceeding filed pursuant to 20.11.81 NMAC. Inspection shall be allowed consistent with the requirements of the Inspection of Public Records Act, NMSA 1978, Sections 14-2-1 through 14-2-12, and may be limited as provided by the Air Quality Control Act, NMSA 1978, Sections 74-2-1 through 74-2-17. The hearing clerk shall make the appropriate documents available for inspection and copying.

(b) Cost of duplication: The cost of duplicating documents or tapes filed in any proceeding shall be borne by the person seeking the copies. If the requested documents are available in an electronic format, the department will provide a copy by electronic transmission without charge, or the documents will be copied onto a CD, DVD, or other electronic media, if provided by the requester, without charge.

H. Motions:

(1) General: All motions, except those made orally during a hearing, shall be in writing, specify the grounds for the motion, and state the relief sought. Each written motion shall be accompanied by an affidavit, certificate or other evidence relied upon, and shall be filed and served as required by Paragraphs (1) and (2) of Subsection G of 20.11.81.12 NMAC.

(2) Unopposed motions: An unopposed motion shall state that the concurrence or agreement of all other parties was obtained. The party that filed the motion shall submit to the hearing officer for review a proposed order that has been approved by all parties.

(3) Opposed motions: Any opposed motion shall state either that concurrence or agreement of all other parties was sought and denied, or why concurrence was not sought. A memorandum brief in support of an opposed motion may be filed with the motion.

(4) Response to motions: Any party upon whom an opposed motion is served shall have 10 days (for a 30-day hearing procedure) or 15 days (for a 60-day hearing procedure) after service of the motion to file a response. Any other party who fails to file a timely response shall be deemed to have waived any objection to the granting of the motion.

(5) Reply to response: The moving party may submit, but is not required to submit a reply to any response within five days (for a 30-day hearing procedure), or 10 days (for a 60-day hearing procedure) after service of the response.

(6) Decision regarding motions: All motions may be decided by the hearing officer, in the hearing officer's sole discretion, without a hearing. Within five days (for a 30-day hearing procedure) or 10 days (for a 60-day hearing procedure) after being served with a copy of the motion, a party upon whom service has been made may file a written request asking that a hearing be held. However, the hearing officer shall refer all motions that would effectively dispose of the petition to the board for a decision.

(7) The hearing officer may refer any motion to the board for decision. A procedural motion may be ruled upon before the expiration of the time for response. Any response regarding the procedural motion received after the decision is made shall be treated as a request for reconsideration of the ruling.

N.M. Admin. Code § 20.11.81.12

20.11.81.12 NMAC - N, 12/16/06