New Mexico Administrative Code
Title 20 - ENVIRONMENTAL PROTECTION
Chapter 1 - ENVIRONMENTAL PROTECTION GENERAL
Part 3 - ADJUDICATORY PROCEDURES - WATER QUALITY CONTROL COMMISSION
Section 20.1.3.16 - PERMIT REVIEW

Universal Citation: 20 NM Admin Code 20.1.3.16

Current through Register Vol. 35, No. 18, September 24, 2024

A. Initiation and conduct of permit review: A permit review shall be initiated by the filing of a permit review petition under Paragraph (1) of Subsection A of 20.1.3.16 NMAC.

(1) Timing and contents: A permit review petition shall:
(a) be filed with the commission within 30 days from the date notice is received of the permitting action;

(b) identify the petitioner, and state that the petitioner has standing under NMSA 1978 Section 74-6-5(O) or 20.6.2.3112 NMAC to file the petition;

(c) identify the permitting action to be reviewed;

(d) specify the portions of the permitting action to which petitioner objects;

(e) include a statement of the issues to be raised and the relief sought;

(f) have a copy of the permitting action attached;

(g) be signed under oath or affirmation and attest to the truth of the information contained therein; and

(h) be filed with the commission and a copy served on the department, the applicant or permittee, if the petitioner is not the applicant or permittee, and on any person who submitted evidence, data, views or arguments in the proceeding before the constituent agency.

(2) Filing of administrative record by the department: The department shall within 15 days after receipt of the petition:
(a) file with the commission the administrative record of the permitting action which is the subject of the petition, including the transcript or audio recording of any public hearing held on the application or draft permit and the action taken; the department shall serve only the index to the record on other parties; the parties may stipulate that only specific portions of the record be filed with the commission; and

(b) deliver to the hearing clerk a list of all persons who have expressed in writing an interest in the facility or the permitting action that is the subject of the petition or who registered with the hearing clerk as a participant at a public hearing on the permitting action.

(3) Remand to the department. A party may request the commission to remand the matter to the department. A request for remand must be filed simultaneously with the permit review petition. If a party shows to the satisfaction of the commission that there was no reasonable opportunity to submit comment or evidence on an issue being challenged, the commission shall order that additional comment or evidence be taken by the department. Based on the additional evidence, the department may revise the decision and shall promptly file with the commission the additional evidence received and the action taken.

(4) Briefing by the parties.
(a) Within 25 days of the department filing the administrative record or 25 days of the department filing additional evidence received and the action taken after a remand, whichever is applicable, the petitioner and any parties in support of the petitioner shall file opening briefs which shall contain a summary of the proceedings before the department and an argument with respect to each issue presented by the petitioner. The opening brief may include proposed findings of fact and conclusions of law. All statements of fact shall contain citations to the administrative record before the department. The opening brief shall not exceed 30 pages.

(b) Within 25 days of the petitioner filing an opening brief, the department and any parties in support of the department shall file answer briefs. The answer brief shall conform to the requirements of the opening brief, except that a summary of proceedings shall not be included unless deemed necessary by the party filing an answer brief.

(c) Within 10 days of the department filing an answer brief, the petitioner and any parties in support of the petitioner may file reply briefs.

(5) The failure to file a timely permit review petition shall be grounds for dismissal of the appeal.

B. Scheduling the permit review:

(1) Review date: The permit review shall be scheduled to begin no later than 90 days after the date a permit review petition is received or 90 days after the date the department files the additional evidence received and action taken after a remand, whichever is applicable, unless a stipulated or unopposed motion is filed requesting that the 90 day deadline be waived. The motion must be filed prior to the expiration of the 90 day deadline.

(2) Scheduling order: Unless the 90 day deadline has been waived, the hearing officer shall, no later than 30 days prior to the deadline, issue an order setting the date, time and location of the review by the commission, which the hearing clerk shall send to the parties by certified mail. The order shall provide information on whether the commission will hear oral argument from the parties. The order may include other procedural matters. The parties may, jointly or singly, submit to the hearing officer, prior to the issuance of the scheduling order, requests regarding the date and location of the review and other procedural matters, including the assignment of a non-commissioner hearing officer. The hearing officer may consult with the commission on procedural matters at a commission meeting.

C. Public notice of permit review.

(1) Content: The hearing clerk shall, upon direction from the commission or hearing officer, prepare a notice of review setting forth the permit for which the review is sought, the date, time, and location of the permit review, the name and address of the petitioner and where the permit and petition may be viewed.

(2) Distribution: The hearing clerk shall:
(a) no later than 30 days prior to the review date, send copies, with requests for publication, to at least one newspaper of general circulation in the state, and to at least one additional newspaper published or distributed at least weekly in the county where the facility is located; and

(b) mail a copy to each party and to each person who has expressed in writing to the department or the commission an interest in the facility or permitting action that is the subject of the petition.

(3) Certification: After the notice of permit review has been distributed in accordance with this section, the hearing clerk shall file an affidavit certifying how and when notice was given with a copy of the notice of permit review and any affidavits of publication attached.

D. Location of permit review: Unless otherwise ordered by the commission or hearing officer, the review shall be in Santa Fe.

E. Postponement of permit review: No request for postponement of a review or hearing shall be granted except upon consent of all parties or for good cause shown.

F. Conduct of permit review.

(1) Argument before the commission: The commission may, upon request of a party or its own initiative, allow oral argument prior to its deliberations. If oral argument is allowed, the commission shall specify the time and place for such oral argument after giving due consideration to the convenience of the parties and the need for expeditious resolution of the proceeding. No new evidence will be admitted during oral argument.

(2) The hearing clerk shall audio record any oral argument before the commission. Any party may, at its own expense, have the oral argument stenographically recorded by a certified court reporter. Any party may, at its own expense, have the audio recording or stenographic recording transcribed by a certified court reporter.

(3) Decision: The commission shall consider and weigh only the evidence contained in the record before the department and the recommended decision of the hearing officer, if any, and shall not be bound by the factual findings or legal conclusions of the department. The commission shall sustain, modify or reverse the action of the department based on a review of the evidence, the arguments of the parties and recommendations of the hearing officer. The commission shall set forth in the final order the reasons for its actions.

G. Judicial review: Judicial review of the final order shall be as provided by law. The filing of an appeal does not stay the final order, unless otherwise ordered by the commission or a court.

H. Preparation of record proper: The hearing clerk shall prepare the record proper for any appeal, which shall include a transcript of any oral argument before the commission. The appellant shall make satisfactory arrangements for payment of preparation of the record proper with the hearing clerk, including copying costs and transcription costs. If any oral argument was stenographically recorded by a certified court reporter, the appellant shall have a transcription made at its own expense. If any oral argument was not stenographically recorded by a certified court reporter, the appellant shall have the hearing clerk's audio recording of the oral argument transcribed by a certified court reporter certifying the accuracy of the transcription.

Disclaimer: These regulations may not be the most recent version. New Mexico may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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