Current through Register Vol. 35, No. 18, September 24, 2024
A.
Initiation of abatement plan hearing: An appeal hearing shall be initiated by
the filing of an abatement plan petition under Paragraph (1) of Subsection A of
20.1.3.17 NMAC.
(1) Timing and contents: an
abatement plan petition shall:
(a) be filed
with the commission within 30 days from the date notice is received of the
abatement plan action;
(b) identify
the petitioner, and state that the petitioner has standing under 20.6.2.4114
NMAC to file the petition;
(c)
identify the abatement plan action being appealed, specify the portions of the
abatement plan action to which petitioner objects and generally state the
objections;
(d) have a copy of the
abatement plan action attached;
(e)
be signed under oath or affirmation and attest to the truth of the information
contained therein; and
(f) be filed
with the commission and a copy served on the department.
(2) Response of the department: If an
abatement plan petition is filed under Paragraph (1) of Subsection A of
20.1.3.17 NMAC, the department shall within 30 days after receipt of the
petition:
(a) file with the commission the
administrative record of the abatement plan action which is the subject of the
petition, including the transcript or audio recording of any public hearing
held. The department shall serve only the index to the record on other parties.
The parties may stipulate that only the relevant portions of the record be
filed with the commission;
(b)
deliver to the hearing clerk a list of all persons who have expressed in
writing an interest in the facility or the abatement plan action that is the
subject of the petition or who participated in a public hearing on the
abatement plan action; and
(c) file
an answer to the petition clearly and directly responding to each of the
objections in the petition;
(d) the
failure to file a timely abatement plan petition shall be grounds for dismissal
of the appeal.
B. Scheduling the hearing.
(1) Hearing date: The hearing shall be
scheduled to begin no later than 90 days after the date an abatement plan
petition is received 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 ninety day deadline.
(2) Scheduling order: Unless the 90 day
hearing deadline has been waived, the hearing officer shall, no later than 45
days prior to the hearing deadline, issue an order setting the date, time and
location of the hearing. 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 hearing and other procedural matters, such as 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 hearing.
(1) Content: The hearing clerk shall, upon
direction from the commission or hearing officer, prepare a notice of hearing
setting forth the date, time, and location of the hearing, a brief description
of the petition, and information on the requirements for entry of appearance
and the statement of intent to present evidence.
(2) Distribution: The hearing clerk shall:
(a) no later than 30 days prior to the
hearing 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;
(b) mail a
copy to each interested participant who has previously filed an entry of
appearance, and to each person who has expressed in writing to the department
or the commission an interest in the facility or abatement plan action that is
the subject of the petition; and
(c) immediately upon receipt of an entry of
appearance that is received after the initial mailing, mail a copy to such
interested participant.
(3) Certification: After the notice of
hearing 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 hearing and any affidavits of publication attached.
D. Transcription of hearing: The
petitioner shall, at its own expense, have the hearing stenographically
recorded and transcribed by a certified court reporter unless, after a showing
of substantial financial hardship, the hearing officer orders the department to
hire a certified court reporter. The petitioner shall, no later than 30 days
prior to the hearing date, file with the hearing clerk a certification that the
petitioner has hired a certified court reporter and will deliver 16 copies of
the hearing transcript to the hearing clerk or a request that the department
hire a certified court reporter.
E.
Statement of intent to present technical evidence.
(1) Requirement to file: Any person who
wishes to present technical evidence at the hearing shall, no later than 10
days prior to the hearing, file a statement of intent.
(2) Content: The statement of intent to
present technical evidence shall include:
(a)
the name of the person filing the statement;
(b) indication of whether the person filing
the statement supports or opposes the petition at issue;
(c) the name of each witness;
(d) an estimate of the length of the direct
testimony of each witness;
(e) a
list of exhibits, if any, to be offered into evidence at the hearing;
and
(f) a summary or outline of the
anticipated direct testimony of each witness.
F. Participation by the general public: Any
person who has not timely filed either an entry of appearance or a statement of
intent to present evidence may present a general non-technical statement as
follows:
(1) Any member of the general public
may testify at the hearing. Any testimony provided will be subject to
cross-examination. No prior notification is required to present general
non-technical statements in support of or in opposition to the petition. Any
such member may also offer exhibits in connection with his testimony, so long
as the exhibit is non-technical in nature and not unduly repetitious of the
testimony.
(2) A member of the
general public who wishes to submit a written statement for the record, in lieu
of providing oral testimony at the hearing, shall file the written statement
prior to or at the hearing.
G. Discovery:
(1) Grounds for discovery: Discovery shall
only be permitted upon a determination by the hearing officer that:
(a) the type of discovery sought will not
unreasonably delay the proceeding, and is neither unreasonably burdensome nor
unreasonably expensive; and
(b) the
information to be obtained is relevant and is not otherwise reasonably
obtainable, may be lost, or may become unavailable.
(2) Order for discovery: Upon motion for
discovery by a party and determination by the hearing officer that such motion
should be granted, the hearing officer shall issue an order for the taking of
such discovery together with the conditions and terms thereof.
H. Hearing: Burden of persuasion:
at the hearing, the petitioner has the burden of going forward with the
evidence and of proving by a preponderance of the evidence the facts relied
upon to justify the relief sought in the petition. Following the establishment
of a prima facie case by the petitioner, any person opposed to the relief
sought in the petition has the burden of going forward with any adverse
evidence and showing why the relief should not be granted.
