N.M. Admin. Code § 19.8.12.1203

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

Section 19.8.12.1203 - FORMAL REVIEW OF NOTICES OF VIOLATION, CESSATION ORDERS AND SHOW CAUSE ORDERS BY THE DIRECTOR

A. Upon receipt of a notice of violation, civil penalty assessment or cessation order pursuant to 19.8.30.3000, 19.8.30.3001 or 19.8.31 NMAC, or any such notice or order's modification, vacation or termination, a permittee or any person having an interest that such order or notice does or may adversely affect may apply to the director for review of the notice or order within 30 days of the notice or order's receipt or within 30 days of its modification, vacation or termination.

B. The application for review shall be in writing, setting forth the applicant's name, address and telephone number; the applicant's interest and, if the applicant is not the operator, how the order or notice to be reviewed adversely affects it; and generally, the grounds alleged and the relief requested.

C. If the permittee or other interested party does not apply for review in writing, they waive the right to review.

D. The filing of an application for review shall not stay the order or notice, or any order or notice's modification, vacation or termination. Pending the review's completion, the applicant may file with the director a written request that the director grant temporary relief in accordance with Subsection D of Section 69-25A-29 NMSA 1978.

E. The review pursuant to Subsection A of 19.8.12.1203 NMAC shall include such investigation as the director deems appropriate and an opportunity for a hearing at the capitol (or such other place as the applicant may agree), at the applicant's request and within 30 days after receiving the request, to enable the applicant to present information relating to the order or notice's issuance, continuance, modification, vacation or termination.

F. The director or his authorized representative shall hold a hearing at the capitol (or such other place as the permittee may agree) within 30 days after actual notice to the permittee of an order to show cause's issuance pursuant to 19.8.30.3002 NMAC.

G. The director or his authorized representative shall give the operator, permittee or other interested persons written notice of the time, place and date of any hearing this rule requires at least five days prior to the hearing, except that the director or his authorized representative shall give at least 15 days notice for hearings that Subsection F of 19.8.12.1203 NMAC requires. Any times for holding a hearing may be extended by the parties' agreement.

H. All hearings this section requires shall be of record, stenographically recorded, adjudicatory in nature and conducted in accordance with 19.8.12.1200 NMAC. The inspector issuing or causing to be issued the cessation order, notice of violation or order to show cause shall not participate, directly or indirectly, in the decision making process. A party may not introduce as evidence or use to impeach a witness statements another party makes or evidence another party produces at an informal hearing or conference held pursuant to 19.8.30.3004 NMAC, or at an assessment conference held pursuant to 19.8.31.3106 NMAC.

I. The director, or his authorized representative serving as hearing officer, may hold pre-hearing conferences to facilitate stipulation of facts, delineation of the issues, order of presentation or other appropriate procedural rules and settlement.

J. The director shall issue, and serve upon the parties, a written decision and order, including his reasons and findings of fact, as follows:

(1) within 30 days (unless the director has granted temporary relief pursuant to Subsection D of Section 69-25A-29) of a hearing, and after receiving the report of such investigation conducted pursuant to Subsection B of 19.8.12.1203 NMAC, vacating, affirming, modifying or terminating the issuance, continuance, modification, vacation or termination of the order or notice; and

(2) within 60 days of the hearing held pursuant to Subsection F of 19.8.12.1203 NMAC, quashing, in whole or in relevant part, the order to show cause or suspending or revoking, in whole or relevant part, the permit.

K. The district court may review the director's decision pursuant to Subsection A of Section 69-25A-30 NMSA 1978 and 19.8.12.1202 NMAC.

L. The director may consolidate any hearing this rule requires, to the extent practicable without prejudicing the rights of the person to whom a notice, cessation order or order to show cause is directed, with any other hearing provided for by these rules.

N.M. Admin. Code § 19.8.12.1203

11-29-97; 19.8.12.1203 NMAC - Rn, 19 NMAC 8.2.12.1203, 9-29-2000; A, 4-28-2006