Current through Register Vol. 35, No. 18, September 24, 2024
A.
Applicability of Rules of Civil Procedure and Evidence: The New Mexico Rules of
Civil Procedure, SCRA 1986, 1-001 to 1-102 and the New Mexico Rules of
Evidence, SCRA 1986, 11-101 to 11-1102 shall not apply to proceedings under
this Part. At the discretion of the Hearing Officer, the rules may be used for
guidance and shall not be construed to limit, extend, or otherwise modify the
authority and jurisdiction of the Secretary under any Act.
B. Liberal Construction: This Part shall be
liberally construed to carry out its purpose and the purposes of the statute or
statutes and regulations pursuant to which the proceeding at issue is
conducted. This part shall also be liberally construed to facilitate
participation by members of the public, including those who are not represented
by counsel.
C. Severability: If any
section or application of this Part is held invalid, the remainder of this Part
or any other application shall not be affected.
D. Savings Clause:
(1) Limitation of Applicability: This Part
does not apply to pending proceedings for which a Notice of Hearing has been
published as provided in Section 202 of 20 NMAC 1.4 [Paragraph C. of Section
200 of 20.1.4 NMAC] filed October 31, 1995, does not affect any permit issued
prior to the effective date of this Part until the permittee applies for a
modification or renewal of the permit, and does not affect any license or
variance issued prior to the effective date of this Part. Any amendment to this
Part shall not apply to a proceeding pending on the effective date of the
amendment.
(2) References In Other
Rules: Any reference in any other rule to NMED 91-1, or to 20 NMAC 1.4 as filed
October 31, 1995 and amended May 17, 1996, or to any provision thereof shall be
construed as a reference to this Part, or to the corresponding provision
thereof.
E. Powers and
Duties of the Secretary and Hearing Officer:
(1) Secretary: The Secretary shall exercise
all powers and duties as prescribed under the Act, the Regulations and this
Part, and not otherwise delegated to a staff member, the Hearing Officer, or
the Hearing Clerk. The Secretary may specify procedures in addition to or that
vary from those provided in this Part in order to expedite the efficient
resolution of the action or to avoid obvious injustice, so long as such
procedures do not conflict with the Act or the Regulations or prejudice the
rights of any party.
(2) Hearing
Officer: The Secretary may appoint one or more Hearing Officers to perform the
functions described in this Section. The Hearing Officer shall exercise all
powers and duties prescribed or delegated under the Act, the Regulations, or
this Part. 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 this Part which includes, but is not limited to,
authority to:
(a) conduct hearings under this
Part;
(b) rule upon motions,
procedural requests, and offers of proof;
(c) issue all necessary orders, except final
orders issued by the Secretary under this Part;
(d) issue subpoenas, as authorized under the
Solid Waste Act and Section 205.D [Paragraph 4, Subsection E., of 20.1.4.200
NMAC];
(e) administer oaths and
affirmations, examine witnesses and admit or exclude evidence; and
(f) require parties to attend conferences for
the settlement or simplification of the issues, or the expedition of the
proceedings.
(3)
Secretary and Hearing Officer; Qualifications; disqualification:
(a) Qualifications: The Secretary or the
Hearing Officer shall not perform any function provided for in this Part
regarding any matter in which the Secretary or the Hearing Officer:
(i) has a personal bias or prejudice
concerning a party, the Application or Petition, involved in the
proceeding;
(ii) has a financial
interest in the proceeding or facility that is the subject of the
proceeding;
(iii) is related to a
party to the proceeding; or
(iv) is
an officer, director or trustee of a party to the proceeding.
(v) The Secretary shall not be disqualified
solely because of having been briefed on the matter prior to initiation of a
proceeding under this Part.
(b) Disqualification:
(i) Any party, by motion and for cause listed
in Section 112.C.1 [Item (i), Subparagraph (a), Paragraph (3), Subsection E. of
20.1.4.100 NMAC], may request the disqualification of the Hearing Officer at
any time prior to the hearing, or of the Secretary at any time prior to filing
of the Final Order.
(ii) The
Hearing Officer shall file a recommended decision on a motion under this
Section within five (5) days. The Secretary shall file an order on a motion
under this Section within five (5) days of the filing of the recommended
decision. If the Secretary grants the motion, the order shall designate the
person who shall assume the duties of the Secretary or Hearing
Officer.
F. Computation and Extension of Time:
(1) Computation: In computing any period of
time prescribed or allowed by this Part, by any applicable statute, or by order
of the Hearing Officer or Secretary, 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 state holiday, in which event the time is
extended until the end of the next day which is not a Saturday, Sunday, or
legal state holiday. Whenever a party must act within a prescribed period after
service upon him and service is by mail, three (3) days is added to the
prescribed period. The three days extension does not apply to any deadline
mandated under the Act.3
(2)
Extensions of Time: The Secretary or Hearing Officer may grant an extension of
time to file a document or may continue a hearing upon timely motion of a party
to the proceeding, for good cause shown, and after consideration of prejudice
to other parties and undue delay to the proceeding.
G. Ex Parte Discussions: At no time shall any
person discuss the merits of the proceeding ex parte with the Secretary or the
Hearing Officer. "Ex parte" means any written or oral communication relating to
the merits of the proceedings, between the Secretary or Hearing Officer and any
person, including communications between Department staff directly involved in
the proceeding and the Secretary or Hearing Officer. Ex parte does not include
communications between any party or person and department staff. This
prohibition shall begin to apply on the date the Secretary or Division makes a
completeness or hearing determination and shall terminate on the date of the
final order.
H. Filing Service, and
Form of Documents:
(1) Filing of Documents:
Except as otherwise provided, the original of a document to be filed in the
proceeding shall be filed with the Hearing Clerk.
(a) A telefax copy of a document may be filed
in lieu of the origional by telefaxing the document directly to the Hearing
Clerk, provided:
(i) the document is preceded
by a cover sheet addressed to the Hearing Clerk and indicating: the sender's
name, address, telephone number, and telefax number; the case name and number;
and the number of pages transmitted;
(ii) the document is no more than ten (10)
pages in length excluding the telefax cover sheet; and
(iii) the sender does not request return of a
conformed copy of the document; or
(b) for documents greater than 10 pages in
length, telefaxing the document to a person other than the Department who files
the document for the sender.
(c) A
hand-delivered or mailed document, including a document telefaxed to a
consenting agent who files the document for the sender, shall be deemed filed
on the day the document is received by the Hearing Clerk, provided the document
is received before the close of business on a working day. A document telefaxed
directly to the Hearing Clerk shall be deemed filed upon completion of
successful transmission of the document, provided successful transmission is
completed before the close of business on a working day. The close of business
on a working day shall be 5:00 p.m. or such earlier time when the Department's
main offices are officially closed before 5:00 p.m. A working day shall not
include a Saturday, Sunday, or state or federal holiday. A document received
after close of business or on a non-working day shall be deemed filed on the
next business day.
(d) A party
filing a document by telefax shall retain the original of the document
throughout the pendency of the proceeding. Any party shall have the right to
inspect the original of the document.
(2) Service of Documents:
(a) Except as otherwise provided, a person
filing a document shall serve a copy thereof upon all parties.
(b) Any service required under this Part
shall be deemed adequate if the document is:
(i) hand-delivered or mailed first class or
express to the most recent address provided by the person upon whom service is
made; or
(ii) telefaxed to the most
recent telefax number that:
(1) appears on a
document filed in the proceeding by the person upon whom service is made;
or
(2) has been provided to the
person making service by the person upon whom service is made, with that
person's consent to be served by telefax.
(c) A certificate of service, conforming
substantially to Section 116.B, [Paragraph I. Of this Section] shall accompany
a filed document.
(d) A person
serving a document by telefax, upon request of the person upon whom service is
made, shall provide to that person a hand-delivered or mailed copy of the
document.
(3) Form of
Documents: Unless otherwise ordered by the Hearing Officer, all documents,
except exhibits, shall be on 8 1/2 x 11-inch white paper, and the first page of
every document shall conform substantially to Section 116.A [Paragraph I. Of
20.1.4.100 NMAC].
(4) Documents
Issued by Secretary or Hearing Officer: All documents issued by the Secretary
or Hearing Officer shall be filed with the Hearing Clerk. The Hearing Clerk
shall promptly serve copies of the document upon all parties.
(5) Examination of Hearing Record:
(a) Examination Allowed: Subject to the
provisions of law restricting the public disclosure of confidential
information, any person may, during normal business hours, inspect and copy the
Hearing Record or any part thereof.
(b) Cost of Duplication: Unless waived by the
Department, the cost of duplicating the Hearing Record or any part thereof
shall be borne by the person seeking duplication.
I. Sample Forms:
(1) Preferred Format For Documents:
STATE OF NEW MEXICO
BEFORE THE SECRETARY OF ENVIRONMENT
IN THE MATTER OF THE [APPLICATION/PETITION]
OF [NAME OF APPLICANT/PETITIONER]
FOR A [TYPE OF PERMIT/LICENSE/VARIANCE] FOR
[NAME OR DESCRIPTION OF FACILITY] No.
TITLE OF DOCUMENT
Text of document.
Signature
NAME
ADDRESS
TELEPHONE NUMBER
(2) Preferred Format For Certificates of
Service:
I hereby certify that on [month/day/year] a copy of [name of
document] was [hand-delivered/mailed express or first class/faxed] to:
[names and addresses of persons upon whom service is
made]
Signature
NAME
