New Mexico Administrative Code
Title 20 - ENVIRONMENTAL PROTECTION
Chapter 1 - ENVIRONMENTAL PROTECTION GENERAL
Part 4 - PERMIT PROCEDURES - ENVIRONMENT DEPARTMENT
Section 20.1.4.400 - HEARING PROCEDURES

(1) Burden of Persuasion: The Applicant or Petitioner has the burden of proof that a permit, license, or variance should be issued and not denied. This burden does not shift. The Division has the burden of proof for a challenged condition of a permit or license which the Department has proposed. Any person who contends that a permit condition is inadequate, improper, or invalid, or who proposes to include a permit condition shall have the burden of going forward to present an affirmative case on the challenged condition.

(2) Order of Testimony: Unless otherwise agreed to by the parties or ordered by the Hearing Officer, testimony shall be presented in the following order:

(3) Standard for Decision: The Hearing Officer shall determine each matter in controversy by a preponderance of the evidence.

(1) General: Except as otherwise provided in this subsection, the Hearing Officer shall admit all relevant evidence that is not unduly prejudicial or repetitious, or otherwise unreliable or of little probative value.

(2) Examination of Witnesses: All persons shall have an opportunity to examine witnesses at the hearing in the order set forth under Section 401.B[Subparagraph (2) of this Section]. Witnesses shall be examined orally, under oath or affirmation, except as otherwise provided in this Part or by the Hearing Officer. The Hearing Officer may limit cross-examination to avoid harassment, intimidation, needless expenditure of time, or undue repetition. Technical information, including but not limited to data, studies, and tangible materials, shall not be offered or introduced during the examination of witnesses unless the technical information is in the Hearing Record, and was filed on or before the deadline for a Statement of Intent to Present Technical Testimony. Nothing in this Section shall be construed to limit the right of a party to offer or introduce technical information for impeachment or rebuttal.

(3) Exhibits: Each exhibit offered in evidence shall be marked with a designation identifying the person by whom the exhibit is offered, and shall be numbered serially in the sequence in which offered. A series of exhibits illustrative of the same subject, such as a series of photographs or diagrams showing different aspects of the same activity, may be numbered with the same number and sequential letters (e.g., 1a, 1b, etc.). The Record Proper and any part thereof shall be evidence, and shall not be offered as exhibits at the hearing, but persons may use copies in the course of testimony. Unless otherwise ordered by the Hearing Officer:

(4) Official Notice: The Hearing Officer may take official notice of any matter that may be judicially noticed in the courts of New Mexico.

(1) Objection: A party may make any objection concerning the conduct of the hearing which may be stated orally or in writing during the hearing. The party raising the objection shall supply a short statement of its grounds. The objection, the short statement of its grounds, and the ruling by the Hearing Officer shall be included in the written transcript or recorded tape of the proceeding.

(2) Offer of Proof: Whenever evidence is excluded, the person offering the evidence may make an offer of proof, which shall be included in the written transcript or recorded tape of the proceeding.

(3) Prejudicial Error: Where the Secretary decides that the ruling of the Hearing Officer in excluding the evidence was erroneous and prejudicial, the Secretary may remand the matter to the Hearing Officer for the taking of the excluded evidence, subject to examination and rebuttal, unless otherwise agreed to by the parties.