Current through Register Vol. 35, No. 24, December 23, 2024
A. Within 30 days after the applicant or
permittee is notified of the final decision of the director concerning the
application for a permit, revision or renewal thereof, application for
transfer, sale, or assignment of rights, or concerning an application for coal
exploration, or pursuant to Paragraph (2) of Subsection E of
19.8.13.1301 NMAC a decision
regarding a permit modification, the applicant, permittee or any person with an
interest which is or may be adversely affected may request a hearing on the
reasons for the final decision in accordance with this section. Such request
shall be in writing and state with reasonable specificity the reasons for the
request and objections to the director's decision.
B. The director shall commence the hearing
within 30 days of such request. This hearing shall be of record, adjudicatory
in nature, and no person who presided at an informal conference under
19.8.11.1103 NMAC shall either
preside at the hearing or participate in the decision following the hearing, or
in any administrative appeal therefrom.
(1)
The director may, under such conditions as he may prescribe, grant such
temporary relief as he deems appropriate, pending final determination of the
proceeding, if:
(a) all parties to the
proceeding have been notified and given an opportunity to be heard on a request
for temporary relief;
(b) the
person requesting that relief shows that there is substantial likelihood that
he will prevail on the merits of the final determination of the
proceeding;
(c) the relief is not
to affect adversely the public health or safety, or cause significant, imminent
environmental harm to land, air, or water resources; and
(d) the relief sought is not the issuance of
a permit where a permit has been denied, in whole or in part, by the
director.
(2) For the
purpose of such hearing, the director may administer oaths and affirmation,
subpoena witnesses, written or printed materials, compel attendance of
witnesses or production of those materials, compel discovery, and take
evidence, including, but not limited to, site inspections of the land to be
affected and other surface coal mining and reclamation operations carried on by
the applicant in the general vicinity of the proposed operations.
(a) A verbatim record of each public hearing
required by this section shall be made, and a transcript made available on the
motion of any party or by order of the director.
(b) Ex parte contacts between representatives
of the parties before the director and the director shall be
prohibited.
(3) Within
the time period specified by section
69-25A-29 NMSA 1978 of the act
after the close of the record, the director shall issue and furnish the
applicant, and each person who participated in the hearing, with the written
findings of fact, conclusions of law, and order of the director with respect to
the appeal.
(4) The burden of
proof at such hearings shall be on the party seeking to reverse the decision of
the director.
