Current through Register Vol. 35, No. 18, September 24, 2024
A.
Applicability of rules of civil procedure and rules of evidence: In the absence
of a specific provision in 20.11.81 NMAC governing an action, the board and the
board's hearing officer may look to the New Mexico Rules of Civil Procedure,
NMRA 1-001 et seq., and the New Mexico Rules of Evidence, NMRA 11-101 et seq.,
for guidance. No provision of the rules of civil procedure shall be construed
to extend or otherwise modify the authority and jurisdiction of the
board.
B. Board and hearing officer
powers and duties-qualification, disqualification, recusal, withdrawal:
(1) Board: The board shall exercise all
powers and duties authorized and required by the act, 20.11.81 NMAC and any
other board regulation if the powers and duties are not otherwise delegated by
20.11.81 NMAC to a board staff member, a hearing officer or the hearing clerk.
The board or a hearing officer appointed or authorized by the board may specify
procedures in addition to, or that vary from the procedures provided in
20.11.81 NMAC in order to expedite the efficient resolution of the action or to
avoid obvious injustice, if the procedures do not conflict with the act or the
regulations, or prejudice the rights of any party.
(2) Hearing officer: The board may appoint a
hearing officer or authorize the hearing clerk to secure one or more hearing
officers to perform the functions described in Paragraph (2) of Subsection B of
20.11.81.12 NMAC. From the date a proceeding is initiated pursuant to 20.11.81
NMAC, the chair or acting chair of the board shall serve as hearing officer
until another hearing officer is appointed or authorized by the board and is
secured by the hearing clerk. The appointment of a hearing officer shall not
prevent any board member from attending or participating in any proceeding.
(a) Qualifications: A hearing officer may be
an independent contractor, board counsel or a member of the board and shall not
be:
(i) an employee of the department, unless
employed by the department as a hearing officer; or
(ii) a person who is disqualified as a result
of a condition described in Subparagraph (a) of Paragraph (3) of Subsection B
of 20.11.81.12 NMAC.
(b)
Functions: The hearing officer shall exercise all powers and duties required by
or delegated under the act and 20.11.81 NMAC. 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 20.11.81
NMAC, including, but not limited to:
(i)
conducting hearings pursuant to 20.11.81 NMAC;
(ii) ruling upon motions and procedural
requests that do not seek final resolution of the proceeding, and issuing all
necessary orders;
(iii) issuing
subpoenas, as authorized by law, for the attendance and testimony of witnesses
and the production of documentary evidence;
(iv) administering oaths and affirmations,
examining witnesses, and admitting or excluding evidence;
(v) requiring parties to attend conferences
for the settlement or simplification of issues, or the expedition of
proceedings;
(vi) imposing
sanctions, subject to review and approval by the board, on parties and
interested participants who cause undue delay and fail to cooperate with the
board; and
(vii) filing with the
hearing clerk all original documents received or generated by the hearing
officer.
(c) Notice of
hearing officer assignment: If a hearing officer other than a board member is
assigned as a hearing officer, the hearing clerk shall notify the parties of
the name and address of the hearing officer. At the same time, the hearing
clerk also shall forward to the hearing officer copies of all documents related
to the petition that have been filed to date.
(3) Board member and hearing officer
disqualification-recusal-withdrawal:
(a) A
board member or a hearing officer shall not perform any function authorized by
20.11.81 NMAC regarding any matter in which a board member or a hearing
officer:
(i) has a personal bias or prejudice
concerning a party or the outcome of a proceeding;
(ii) has personal knowledge of disputed facts
concerning the proceeding;
(iii) is
related to a party within the third degree of relationship;
(iv) is an officer, director or trustee of a
party or interested participant in the proceeding;
(v) has a financial interest in the
proceeding or facility that is the subject of the proceeding or has any other
conflict of interest; or
(vi) has
performed prosecutorial or investigative functions in connection with a
permitting action at issue in the proceeding.
(b) In making its decision regarding whether
a board member or hearing officer should be disqualified or recuse himself or
herself, the board and hearing officer may rely on applicable legal
authority
(c) Disqualification,
recusal and withdrawal:
(i) Any party, for a
cause included in Subparagraph (a) of Paragraph (3) of Subsection B of
20.11.81.12 NMAC, may file a motion requesting the disqualification of a board
member at any time before the final order is filed, or requesting the
disqualification of a hearing officer at any time prior to the completion of
the evidentiary hearing.
(ii) If a
motion is filed pursuant to Paragraph (3) of Subsection B of 20.11.81.12 NMAC,
and the motion asks that a board member be disqualified, then, within five days
after the hearing officer and the challenged board member receive the motion,
the challenged board member may respond to the motion in writing. Within 10
days after the hearing officer and the challenged board member receive the
motion regarding the challenged board member, the hearing officer shall file a
recommended decision. The board shall vote on the motion. However, the vote of
the board shall not include the vote of the challenged board member. If the
vote of the majority of a quorum of the board, not including the vote of the
challenged board member, determines that the challenged board member is
disqualified, the disqualified board member will not participate in the
proceeding thereafter.
(iii) If a
motion is filed pursuant to Paragraph (3) of Subsection B of 20.11.81.12 NMAC,
and the motion asks that a hearing officer be disqualified, then, within 10
days after the hearing officer receives the motion, the hearing officer may
respond to the motion in writing. The board shall vote on the motion. If the
vote of the majority vote of a quorum of the board members determines that the
challenged hearing officer is disqualified, the disqualified hearing officer
will not participate in the proceeding thereafter, and the board may appoint,
or authorize the hearing clerk to secure a replacement hearing
officer.
(iv) A board member may
recuse himself or herself from a hearing, and a hearing officer may withdraw as
hearing officer, by filing written notice with the hearing clerk or by making a
statement on the record at a hearing or meeting of the board. In making a
decision regarding whether to recuse or withdraw, a board member or a hearing
officer may rely on applicable legal
authority.
C. Recording of hearings: All hearings on the
merits shall be recorded by a court reporter unless otherwise directed by the
board. If a hearing will be tape recorded but a party prefers to have the
hearing recorded by a court reporter in another manner, then, before the
hearing, the party requesting the alternate method of reporting shall pay the
court reporter for the services or make satisfactory payment arrangements with
the court reporter. If a hearing is recorded by a court reporter, the recording
of the court reporter approved by the board or the hearing officer, or arranged
by the hearing clerk will be the sole official recording of the hearing. If a
transcription is made by the court reporter, then the person who requested the
transcription shall pay the court reporter. Payment for the transcription shall
include payment for delivery of the original transcription to the hearing
clerk. The hearing clerk shall make the transcription part of the record
proper, which is a public record except as otherwise provided by law.
D. Participation by conference, telephone or
other similar device: A member of the board may participate in a meeting of the
board by means of a conference telephone or other similar communications
equipment when a medical or emergency situation exists that makes it extremely
difficult or impossible for the member to attend the meeting in person,
provided that each member participating by conference telephone or other device
can be identified when speaking, all participants are able to hear each other
at the same time, and members of the public attending the meeting are able to
hear any member of the board who speaks at the meeting. A request to be present
and vote by telephone or other similar device must be made by the member to the
chair or acting chair of the board by the member. A board member who wishes to
participate in a meeting in this manner must receive permission from the chair
or acting chair of the board sufficiently in advance of the meeting so the
hearing clerk can arrange for an adequate telephone hookup. The chair or acting
chair shall determine whether a qualifying medical or emergency situation
exists. A board member's participation by such means shall constitute presence
in person at the meeting. This provision may be used only to allow a member to
constitute a quorum for the purposes of choosing a hearing officer for a
hearing or hearings; scheduling or rescheduling a meeting or hearing; and
voting on those limited issues.
E.
Ex parte contact: At no time before a petition is expected to be filed pursuant
to 20.11.81 NMAC, and at no time between the filing of a petition and the final
decision of the board or withdrawal of the petition or related permit action
shall any person other than the hearing officer or hearing clerk have ex parte
contact with a board member or the hearing officer regarding the merits of the
expected or pending petition or related proceeding. This prohibition does not
apply to a hearing officer's consideration of, and decision regarding a motion
filed pursuant to 20.11.81 NMAC.
F.
Computation and extension of time:
(1)
Computation of time: In computing any period of time prescribed or allowed by
20.11.81 NMAC, 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 city of Albuquerque or Bernalillo county holiday, in which event, the
time shall be extended until the end of the next day which is not a Saturday,
Sunday, or legal city of Albuquerque or Bernalillo county holiday. Whenever a
party must act within a prescribed period after service upon that party, and
service is by mail, three days shall be added to the prescribed period. The
three-day extension does not apply to a deadline established by the act.
Whenever a party must act within a prescribed period after service upon that
party, and service is by facsimile or electronic transmission, no days shall be
added to the prescribed period.
(2)
Extension of time: Upon timely motion of a party to the proceeding, for good
cause shown, and after consideration of prejudice to other parties, the hearing
officer or the board, as appropriate for the stage of the proceeding at the
time, may grant an extension of time for filing any document. No extension
shall be granted regarding a deadline established by the act or an applicable
regulation, except the petitioner may waive the deadline for holding the
hearing by the deadline established by the act or an applicable
regulation.
G.
Documents; filing, service, form and examination:
(1) Filing of documents: Except as otherwise
provided, a party filing a document shall file the original and nine copies
with the hearing clerk and shall serve a copy thereof upon the hearing officer,
the board's legal counsel, and all other parties. If the hearing officer is
also a board member, the party shall serve the document upon the board chair.
All documents shall be filed at least five days (for a 30-day hearing
procedure) or seven days (for a 60-day hearing procedure) before the hearing at
which the hearing officer or the board will consider the matter. A certificate
of service with the following heading or "caption", completed appropriately,
shall accompany each filed document.
STATE OF NEW MEXICO
ALBUQUERQUE-BERNALILLO COUNTY
AIR QUALITY CONTROL BOARD
IN THE MATTER OF THE PETITION FOR
A HEARING ON THE MERITS REGARDING
AIR QUALITY PERMIT NO. ___
[Name of Petitioner:] _______________, Petitioner
(2) Service of documents: Except as otherwise
provided, all documents may be served personally, by facsimile or by express or
first class mail. Delivery receipts shall be kept as proofs of service, and
shall be produced immediately upon the request of the hearing officer, the
board or an opposing party.
(3)
Form of documents: Unless otherwise provided by order of the hearing officer or
the board, all documents, except exhibits, shall be prepared on 8 1/2 x 11-inch
white paper, printed double-sided if feasible, and, where appropriate, the
first page of every document shall contain the caption or heading required by
Paragraph (1) of Subsection G of 20.11.81.12 NMAC.
(4) Documents issued by board or hearing
officer: All documents issued by the board or hearing officer shall be filed
with the hearing clerk. The hearing clerk shall promptly serve copies of the
documents upon all parties and interested participants.
(5) Examination of documents filed-cost:
(a) Examination allowed: Subject to the
provisions of law restricting the public disclosure of confidential or other
exempt or protected information, during normal business hours any person may
inspect and copy any document filed in any proceeding filed pursuant to
20.11.81 NMAC. Inspection shall be allowed consistent with the requirements of
the Inspection of Public Records Act, NMSA 1978, Sections
14-2-1
through
14-2-12,
and may be limited as provided by the Air Quality Control Act, NMSA 1978,
Sections
74-2-1
through
74-2-17.
The hearing clerk shall make the appropriate documents available for inspection
and copying.
(b) Cost of
duplication: The cost of duplicating documents or tapes filed in any proceeding
shall be borne by the person seeking the copies. If the requested documents are
available in an electronic format, the department will provide a copy by
electronic transmission without charge, or the documents will be copied onto a
CD, DVD, or other electronic media, if provided by the requester, without
charge.
H.
Motions:
(1) General: All motions, except
those made orally during a hearing, shall be in writing, specify the grounds
for the motion, and state the relief sought. Each written motion shall be
accompanied by an affidavit, certificate or other evidence relied upon, and
shall be filed and served as required by Paragraphs (1) and (2) of Subsection G
of 20.11.81.12 NMAC.
(2) Unopposed
motions: An unopposed motion shall state that the concurrence or agreement of
all other parties was obtained. The party that filed the motion shall submit to
the hearing officer for review a proposed order that has been approved by all
parties.
(3) Opposed motions: Any
opposed motion shall state either that concurrence or agreement of all other
parties was sought and denied, or why concurrence was not sought. A memorandum
brief in support of an opposed motion may be filed with the motion.
(4) Response to motions: Any party upon whom
an opposed motion is served shall have 10 days (for a 30-day hearing procedure)
or 15 days (for a 60-day hearing procedure) after service of the motion to file
a response. Any other party who fails 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
submit, but is not required to submit a reply to any response within five days
(for a 30-day hearing procedure), or 10 days (for a 60-day hearing procedure)
after service of the response.
(6)
Decision regarding motions: All motions may be decided by the hearing officer,
in the hearing officer's sole discretion, without a hearing. Within five days
(for a 30-day hearing procedure) or 10 days (for a 60-day hearing procedure)
after being served with a copy of the motion, a party upon whom service has
been made may file a written request asking that a hearing be held. However,
the hearing officer shall refer all motions that would effectively dispose of
the petition to the board for a decision.
(7) The hearing officer may refer any motion
to the board for decision. A procedural motion may be ruled upon before the
expiration of the time for response. Any response regarding the procedural
motion received after the decision is made shall be treated as a request for
reconsideration of the ruling.
