N.M. Admin. Code § 20.1.3.10

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

Section 20.1.3.10 - POWERS AND DUTIES OF THE COMMISSION AND HEARING OFFICER

A. Commission: The commission shall exercise all powers and duties as prescribed under the act, the regulations and this part, and not otherwise delegated to a staff member, the hearing officer or the hearing clerk.

(1) The commission may issue procedural orders that, based on the nature of the proceeding, either impose additional procedural duties, such as expanded public notice, or simplify the procedures provided in this part, such as foregoing post-hearing submittals or holding the hearing before the full commission. In no event may the commission eliminate any procedural requirements of the act.

(2) The appointment of a hearing officer does not preclude the commissioners from attending or participating in the proceeding.

B. Hearing officer: With respect to abatement plan hearings, variance hearings, and compliance order hearings, the commission may appoint one or more hearing officers to perform the functions described in Paragraph (2) of this subsection. With respect to permit reviews, the commission may appoint a hearing officer to review the record and the arguments of the parties and to recommend a decision to the commission. From the date the petition or request for compliance order hearing is received by the commission, the chair of the commission shall serve as hearing officer until such time as another hearing officer is appointed.

(1) Qualifications: Hearing officer may be an independent contractor or a commissioner, shall be knowledgeable of the laws of the state and of administrative hearing procedures, and shall not be:

(a) an employee of the department, except for the commissioners themselves or their designees, or unless employed by the department as a hearing officer;

(b) a person who has a personal bias or prejudice concerning a party or a party's lawyer or consultant, or has personal knowledge of disputed facts concerning the proceeding, or is related to a party within the third degree of relationship, or has a financial interest in the proceeding; or

(c) a person who has performed prosecutorial or investigative functions in connection with the compliance order or permitting action at issue in the hearing.

(2) Functions: The hearing officer shall exercise all powers and duties prescribed or delegated by the commission under the act or this part . 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 this part including, but not limited to:

(a) conduct permit reviews or hearings under this part;

(b) rule upon motions and procedural requests that do not seek final resolution of the proceeding and issue all necessary orders;

(c) issue subpoenas, as authorized by the act, for the attendance and testimony of witnesses and the production of documentary evidence as provided for in this part;

(d) administer oaths and affirmations, examine witnesses, and admit or exclude evidence;

(e) require parties to attend conferences for the settlement or simplification of issues, or the expedition of proceedings; and

(f) impose sanctions, subject to review by the commission, on parties who cause undue delay and fail to cooperate in the proceeding.

C. Notice of hearing officer assignment: If a hearing officer other than a commissioner is assigned, the hearing clerk shall notify the parties of the name and address of the hearing officer. The hearing clerk shall also, at that time, forward to the hearing officer copies of all documents filed to date.

N.M. Admin. Code § 20.1.3.10

20.1.3.10 NMAC - Rp, 20 NMAC 1.3.I.109, 10/15/2010