New Mexico Administrative Code
Title 20 - ENVIRONMENTAL PROTECTION
Chapter 1 - ENVIRONMENTAL PROTECTION GENERAL
Part 4 - PERMIT PROCEDURES - ENVIRONMENT DEPARTMENT
Section 20.1.4.200 - PREHEARING PROCEDURES

Universal Citation: 20 NM Admin Code 20.1.4.200

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

A. Initiation of Hearing:

(1) Filing of Completeness or Hearing Determination: A proceeding under this Part shall be initiated by the filing of a Completeness or Hearing Determination by the Secretary.

(2) Administrative Record to Hearing Clerk: Upon the filing of a Completeness or Hearing Determination, the Division shall, no later than the hearing, forward the Administrative Record to the Hearing Clerk. Material readily available at the Division's office, or published material which is generally available, need not be physically included in the Administrative Record, provided that the material is identified in an index to the Administrative Record filed with the Hearing Clerk. The Administrative Record is available for public review at all times.

(3) Petition: A Petition shall:
(a) specify each provision of the Solid Waste Managements Regulations from which the variance is sought;

(b) specify the length of time for which the variance is sought; and

(c) contain a recitation of all facts the Petitioner relies upon to support the Petition, including a showing that:
(i) application of the provisions from which variance is sought would result in an arbitrary and unreasonable taking of the Petitioner's property or would impose an undue economic burden upon the Petitioner's lawful business, occupation, or activity;

(ii) granting the variance will not result in any condition injurious to human health, safety, or welfare, or the environment; and

(iii) if the variance is requested for longer than one (1) year, facts showing that there are no practicable means known or available for the adequate prevention of degradation of the environment or the risk to the public health, safety, or welfare.

(4) Combined Action: Nothing in this Part shall preclude the filing of a combined Application and Petition by the same person, provided the caption and title clearly indicate that the document is to be treated as both an Application and a Petition.

(5) Division Response to Petition: The Division shall promptly review the Petition to determine whether it is complete and if not, notify the Petitioner of that fact, and of the reasons the Petition is deemed incomplete.

(6) Completeness Determination: In making a Completeness Determination, the Division shall consider whether the Applicant has addressed all the administrative requirements required by the Act and the Regulations. The Completeness Determination shall not be considered to be a determination that the Application is approvable.

B. Notice of Docketing; Identification of Secretary or Designee and hearing Officer: The Hearing Clerk shall, as soon as practicable after receipt of a Completeness or Hearing Determination, issue a Notice of Docketing. The Notice of Docketing shall contain the caption and docket number of the case, the date upon which the Completeness or Hearing Determination was received by the Hearing Clerk, the name of the Secretary or designee who will issue the Final Order, and the name of the Hearing Officer, if one has been designated. If a Hearing Officer has not been designated, the Hearing Clerk shall notify the parties of the name of the Hearing Officer as soon as one is assigned. The Hearing Clerk shall include a copy of this Part with the Notice of Docketing sent to the Applicant or Petitioner.

C. Scheduling the Hearing:

(1) Hearing Date: Unless otherwise provided by law, the Hearing Clerk shall distribute the Notice of Public Hearing as set forth in Section 203.B [Subparagraph (2) of Paragraph C of this Section] no later than sixty (60) days after the filing of a Completeness or Hearing Determination.

(2) Notice of Hearing:
(a) Content: The Department shall promptly prepare and file with the Hearing Clerk a Notice of Hearing setting forth:
(i) the date, time, and location of the hearing;

(ii) a brief description of the nature and location of the action to be considered in the Draft Permit, Application or Petition, including the name and address of the Applicant or Petitioner;

(iii) the name, address and telephone number of a person from whom further information, including a copy of the Draft Permit, Application or Petition, may be obtained;

(iv) the requirements for an Entry of Appearance, a Statement of Intent to Present Technical Testimony, and a general written or oral statement;

(v) a statement that this Part shall apply at the hearing; and

(vi) any other requirement set forth in the Act or applicable regulation.

(b) Service: Except as provided under Section 205,[Paragraph E. of this Section] the Hearing Clerk shall, no later than thirty (30) days prior to the hearing:
(i) send copies of the Notice of Hearing, with requests for publication, to at least one newspaper of general circulation in the state, and to at least one additional newspaper, if any, published or distributed at least weekly in the area where the facility is located;

(ii) mail a copy of the Notice of Hearing to each party and to each person who filed a written request for a hearing or who expressed to the Department in writing an interest in the facility that is the subject of the proceeding;

(iii) mail a copy of the Notice of Hearing to each local, state, or federal agency and Tribal government affected by the facility that is the subject of the proceeding;

(iv) immediately upon receipt of an entry of appearance received after the initial mailing, mail a copy of the Notice of Hearing to such person; and

(v) file in the Hearing Record the Affidavits of Publication from the newspapers in which the Notice of Hearing was published.

(3) Continuance of Hearing: A request to continue a hearing may be granted upon motion by a party, for good cause shown, and after consideration of prejudice to other parties and undue delay to the proceeding.

(4) Location of the Hearing: Unless otherwise provided by law, the hearing shall be in Santa Fe or at a place in the area affected by the facility which is the subject of the proceeding.

D. Motions:

(1) General: Any party may file a motion with the Hearing Clerk. All motions, except those made orally on the record during a hearing, shall be in writing, specify the grounds for the motion, state the relief or order sought and state whether it is opposed or unopposed. Each motion may be accompanied by affidavits, certificates, or other evidence relied upon, and shall be served as provided by Section 115.B [Subparagraph (2) of Paragraph H. of 20.1.4.100 NMAC].

(2) Unopposed Motions: An unopposed motion shall state that concurrence of all other parties was obtained. The moving party shall submit a proposed order approved by all parties for review by the Hearing Officer.

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

(4) Response to Motions: Any party upon whom an opposed motion is served shall have fifteen (15) days after service of the motion to file a response. A non-moving party failing 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, but is not required to, submit a reply to a non-moving party's response within ten (10) days after service of the response.

(6) Decision: Except as provided in Section 112.C.2 [XX Paragraph of 20.1.4.100 NMAC] or otherwise ordered by the Hearing Officer, all motions shall be decided by the Hearing Officer without a hearing.

E. Special Procedures for Hearings Under the Solid Waste Act:

(1) Service of Public Notice: No later than sixty (60) days after the Hearing Clerk receives a Completeness Determination, the Hearing Clerk shall provide public notice of the hearing and service in the form and manner set forth under NMSA 1978, 74-9-22.

(2) Discovery: Discovery shall only be permitted upon a determination by the Hearing Officer that:
(a) the discovery will not unreasonably delay the proceeding and is not unreasonably burdensome or expensive;

(b) the information sought is not privileged and is relevant to the subject matter of the proceeding; and

(c) the information to be obtained is not unreasonably cumulative or duplicative, or not otherwise reasonably obtainable.

(3) Order For Discovery: Upon motion for discovery by a party and determination that such motion should be granted, the Hearing Officer shall issue an order for the taking of such discovery together with any conditions and terms of the discovery.

(4) Subpoenas: The Secretary has and may delegate to the Hearing Officer the power to issue subpoenas for the attendance and testimony of witnesses and the production of relevant documentary evidence.

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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