N.M. Admin. Code § 19.8.12.1200

Current through Register Vol. 36, No. 1, January 14, 2025

Section 19.8.12.1200 - ADMINISTRATIVE REVIEW BY THE DIRECTOR

A. Within 30 days after the applicant or permittee is notified of the final decision of the director concerning the application for a permit, revision or renewal thereof, application for transfer, sale, or assignment of rights, or concerning an application for coal exploration, or pursuant to Paragraph (2) of Subsection E of 19.8.13.1301 NMAC a decision regarding a permit modification, the applicant, permittee or any person with an interest which is or may be adversely affected may request a hearing on the reasons for the final decision in accordance with this section. Such request shall be in writing and state with reasonable specificity the reasons for the request and objections to the director's decision.

B. The director shall commence the hearing within 30 days of such request. This hearing shall be of record, adjudicatory in nature, and no person who presided at an informal conference under 19.8.11.1103 NMAC shall either preside at the hearing or participate in the decision following the hearing, or in any administrative appeal therefrom.

(1) The director may, under such conditions as he may prescribe, grant such temporary relief as he deems appropriate, pending final determination of the proceeding, if:

(a) all parties to the proceeding have been notified and given an opportunity to be heard on a request for temporary relief;

(b) the person requesting that relief shows that there is substantial likelihood that he will prevail on the merits of the final determination of the proceeding;

(c) the relief is not to affect adversely the public health or safety, or cause significant, imminent environmental harm to land, air, or water resources; and

(d) the relief sought is not the issuance of a permit where a permit has been denied, in whole or in part, by the director.

(2) For the purpose of such hearing, the director may administer oaths and affirmation, subpoena witnesses, written or printed materials, compel attendance of witnesses or production of those materials, compel discovery, and take evidence, including, but not limited to, site inspections of the land to be affected and other surface coal mining and reclamation operations carried on by the applicant in the general vicinity of the proposed operations.

(a) A verbatim record of each public hearing required by this section shall be made, and a transcript made available on the motion of any party or by order of the director.

(b) Ex parte contacts between representatives of the parties before the director and the director shall be prohibited.

(3) Within the time period specified by section 69-25A-29 NMSA 1978 of the act after the close of the record, the director shall issue and furnish the applicant, and each person who participated in the hearing, with the written findings of fact, conclusions of law, and order of the director with respect to the appeal.

(4) The burden of proof at such hearings shall be on the party seeking to reverse the decision of the director.

N.M. Admin. Code § 19.8.12.1200

11-29-97; 19.8.12.1200 NMAC - Rn, 19 NMAC 8.2.12.1200, 9-29-2000; A, 7-30-2004