N.M. Admin. Code § 20.1.3.18

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

Section 20.1.3.18 - VARIANCE HEARING

A. Initiation of variance hearing:

(1) Variance hearing shall be initiated by the filing of a variance petition. A copy of the petition shall be served on the department.

(2) Contents: A variance petition shall comply with Subsection A of 20.6.2.1210 NMAC or Subsection F of 20.6.2.4103 NMAC, as applicable.

(3) Response of the department: The department shall review each variance petition and, within 60 days after receipt of the petition, file a recommendation with the commission to grant, grant with conditions, or deny the variance request. The recommendation shall include reasons and a copy shall be served on the petitioner by certified mail and on any other party.

B. Hearing requirement: If the department recommends granting the variance request, or any part of the variance request, with or without conditions, the commission shall hold a hearing on those requests recommended for approval. If the department recommends denial of all or part of the variance request, the commission shall only hold a hearing on the variances recommended for denial if the petitioner files a request for hearing within 15 days after receipt of the department's recommendation. If a timely request for hearing is not filed, the recommended denial shall become a final action of the commission and shall not be subject to review.

C. Scheduling the hearing:

(1) Timing of hearing: If a hearing on a variance petition is required, the hearing shall be held within 90 days after the later of the filing of a department recommendation to grant a variance or the filing of a request for hearing by the petitioner, as applicable. The 90 day deadline may be waived upon the filing of a stipulated or unopposed motion prior to the expiration of the deadline.

(2) Scheduling order and public notice: If a hearing on a variance petition is required, a scheduling order shall be issued as provided in Subsection B of 20.1.3.16 NMAC, and public notice shall be given as provided in Subsection C of 20.1.3.16 NMAC.

D. Participation by the general public: Any person who has not timely filed either an entry of appearance or a statement of intent to present evidence may present a general non-technical statement as follows:

(1) Any member of the general public may testify at the hearing. Any testimony provided will be subject to cross-examination. No prior notification is required to present general non-technical statements in support of or in opposition to the petition. Any such member may also offer exhibits in connection with his testimony, so long as the exhibit is non-technical in nature and not unduly repetitious of the testimony.

(2) A member of the general public who wishes to submit a written statement for the record, in lieu of providing oral testimony at the hearing, shall file the written statement prior to or at the hearing.

E. Transcription of hearing: The petitioner shall, at its own expense, have the hearing stenographically recorded and transcribed by a certified court reporter unless, after a showing of substantial financial hardship, the hearing officer orders the department to hire a certified court reporter. The petitioner shall, no later than 30 days prior to the hearing date, file with the hearing clerk a certification that the petitioner has hired a certified court reporter and will deliver 16 copies of the hearing transcript to the hearing clerk or a request that the department hire a certified court reporter.

F. Additional procedures: Procedures for statements of intent to present technical evidence, for discovery and for the burden of persuasion in variance hearings shall follow the procedures for abatement plan hearings, Subsection E to Subsection H of 20.1.3.17 NMAC.

N.M. Admin. Code § 20.1.3.18

20.1.3.18 NMAC - Rp, 20 NMAC 1.3.III 300-303, 10/15/2010