N.M. Admin. Code § 20.1.4.100

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

Section 20.1.4.100 - GENERAL PROVISIONS

A. Applicability of Rules of Civil Procedure and Evidence: The New Mexico Rules of Civil Procedure, SCRA 1986, 1-001 to 1-102 and the New Mexico Rules of Evidence, SCRA 1986, 11-101 to 11-1102 shall not apply to proceedings under this Part. At the discretion of the Hearing Officer, the rules may be used for guidance and shall not be construed to limit, extend, or otherwise modify the authority and jurisdiction of the Secretary under any Act.

B. Liberal Construction: This Part shall be liberally construed to carry out its purpose and the purposes of the statute or statutes and regulations pursuant to which the proceeding at issue is conducted. This part shall also be liberally construed to facilitate participation by members of the public, including those who are not represented by counsel.

C. Severability: If any section or application of this Part is held invalid, the remainder of this Part or any other application shall not be affected.

D. Savings Clause:

(1) Limitation of Applicability: This Part does not apply to pending proceedings for which a Notice of Hearing has been published as provided in Section 202 of 20 NMAC 1.4 [Paragraph C. of Section 200 of 20.1.4 NMAC] filed October 31, 1995, does not affect any permit issued prior to the effective date of this Part until the permittee applies for a modification or renewal of the permit, and does not affect any license or variance issued prior to the effective date of this Part. Any amendment to this Part shall not apply to a proceeding pending on the effective date of the amendment.

(2) References In Other Rules: Any reference in any other rule to NMED 91-1, or to 20 NMAC 1.4 as filed October 31, 1995 and amended May 17, 1996, or to any provision thereof shall be construed as a reference to this Part, or to the corresponding provision thereof.

E. Powers and Duties of the Secretary and Hearing Officer:

(1) Secretary: The Secretary 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. The Secretary may specify procedures in addition to or that vary from those provided in this Part in order to expedite the efficient resolution of the action or to avoid obvious injustice, so long as such procedures do not conflict with the Act or the Regulations or prejudice the rights of any party.

(2) Hearing Officer: The Secretary may appoint one or more Hearing Officers to perform the functions described in this Section. The Hearing Officer shall exercise all powers and duties prescribed or delegated under the Act, the Regulations, 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 which includes, but is not limited to, authority to:

(a) conduct hearings under this Part;

(b) rule upon motions, procedural requests, and offers of proof;

(c) issue all necessary orders, except final orders issued by the Secretary under this Part;

(d) issue subpoenas, as authorized under the Solid Waste Act and Section 205.D [Paragraph 4, Subsection E., of 20.1.4.200 NMAC];

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

(f) require parties to attend conferences for the settlement or simplification of the issues, or the expedition of the proceedings.

(3) Secretary and Hearing Officer; Qualifications; disqualification:

(a) Qualifications: The Secretary or the Hearing Officer shall not perform any function provided for in this Part regarding any matter in which the Secretary or the Hearing Officer:

(i) has a personal bias or prejudice concerning a party, the Application or Petition, involved in the proceeding;

(ii) has a financial interest in the proceeding or facility that is the subject of the proceeding;

(iii) is related to a party to the proceeding; or

(iv) is an officer, director or trustee of a party to the proceeding.

(v) The Secretary shall not be disqualified solely because of having been briefed on the matter prior to initiation of a proceeding under this Part.

(b) Disqualification:

(i) Any party, by motion and for cause listed in Section 112.C.1 [Item (i), Subparagraph (a), Paragraph (3), Subsection E. of 20.1.4.100 NMAC], may request the disqualification of the Hearing Officer at any time prior to the hearing, or of the Secretary at any time prior to filing of the Final Order.

(ii) The Hearing Officer shall file a recommended decision on a motion under this Section within five (5) days. The Secretary shall file an order on a motion under this Section within five (5) days of the filing of the recommended decision. If the Secretary grants the motion, the order shall designate the person who shall assume the duties of the Secretary or Hearing Officer.

F. Computation and Extension of Time:

(1) Computation: In computing any period of time prescribed or allowed by this Part, by any applicable statute, or by order of the Hearing Officer or Secretary, 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 state holiday, in which event the time is extended until the end of the next day which is not a Saturday, Sunday, or legal state holiday. Whenever a party must act within a prescribed period after service upon him and service is by mail, three (3) days is added to the prescribed period. The three days extension does not apply to any deadline mandated under the Act.3

(2) Extensions of Time: The Secretary or Hearing Officer may grant an extension of time to file a document or may continue a hearing upon timely motion of a party to the proceeding, for good cause shown, and after consideration of prejudice to other parties and undue delay to the proceeding.

G. Ex Parte Discussions: At no time shall any person discuss the merits of the proceeding ex parte with the Secretary or the Hearing Officer. "Ex parte" means any written or oral communication relating to the merits of the proceedings, between the Secretary or Hearing Officer and any person, including communications between Department staff directly involved in the proceeding and the Secretary or Hearing Officer. Ex parte does not include communications between any party or person and department staff. This prohibition shall begin to apply on the date the Secretary or Division makes a completeness or hearing determination and shall terminate on the date of the final order.

H. Filing Service, and Form of Documents:

(1) Filing of Documents: Except as otherwise provided, the original of a document to be filed in the proceeding shall be filed with the Hearing Clerk.

(a) A telefax copy of a document may be filed in lieu of the origional by telefaxing the document directly to the Hearing Clerk, provided:

(i) the document is preceded by a cover sheet addressed to the Hearing Clerk and indicating: the sender's name, address, telephone number, and telefax number; the case name and number; and the number of pages transmitted;

(ii) the document is no more than ten (10) pages in length excluding the telefax cover sheet; and

(iii) the sender does not request return of a conformed copy of the document; or

(b) for documents greater than 10 pages in length, telefaxing the document to a person other than the Department who files the document for the sender.

(c) A hand-delivered or mailed document, including a document telefaxed to a consenting agent who files the document for the sender, shall be deemed filed on the day the document is received by the Hearing Clerk, provided the document is received before the close of business on a working day. A document telefaxed directly to the Hearing Clerk shall be deemed filed upon completion of successful transmission of the document, provided successful transmission is completed before the close of business on a working day. The close of business on a working day shall be 5:00 p.m. or such earlier time when the Department's main offices are officially closed before 5:00 p.m. A working day shall not include a Saturday, Sunday, or state or federal holiday. A document received after close of business or on a non-working day shall be deemed filed on the next business day.

(d) A party filing a document by telefax shall retain the original of the document throughout the pendency of the proceeding. Any party shall have the right to inspect the original of the document.

(2) Service of Documents:

(a) Except as otherwise provided, a person filing a document shall serve a copy thereof upon all parties.

(b) Any service required under this Part shall be deemed adequate if the document is:

(i) hand-delivered or mailed first class or express to the most recent address provided by the person upon whom service is made; or

(ii) telefaxed to the most recent telefax number that:

(1) appears on a document filed in the proceeding by the person upon whom service is made; or

(2) has been provided to the person making service by the person upon whom service is made, with that person's consent to be served by telefax.

(c) A certificate of service, conforming substantially to Section 116.B, [Paragraph I. Of this Section] shall accompany a filed document.

(d) A person serving a document by telefax, upon request of the person upon whom service is made, shall provide to that person a hand-delivered or mailed copy of the document.

(3) Form of Documents: Unless otherwise ordered by the Hearing Officer, all documents, except exhibits, shall be on 8 1/2 x 11-inch white paper, and the first page of every document shall conform substantially to Section 116.A [Paragraph I. Of 20.1.4.100 NMAC].

(4) Documents Issued by Secretary or Hearing Officer: All documents issued by the Secretary or Hearing Officer shall be filed with the Hearing Clerk. The Hearing Clerk shall promptly serve copies of the document upon all parties.

(5) Examination of Hearing Record:

(a) Examination Allowed: Subject to the provisions of law restricting the public disclosure of confidential information, any person may, during normal business hours, inspect and copy the Hearing Record or any part thereof.

(b) Cost of Duplication: Unless waived by the Department, the cost of duplicating the Hearing Record or any part thereof shall be borne by the person seeking duplication.

I. Sample Forms:

(1) Preferred Format For Documents:

STATE OF NEW MEXICO

BEFORE THE SECRETARY OF ENVIRONMENT

IN THE MATTER OF THE [APPLICATION/PETITION]

OF [NAME OF APPLICANT/PETITIONER]

FOR A [TYPE OF PERMIT/LICENSE/VARIANCE] FOR

[NAME OR DESCRIPTION OF FACILITY] No.

TITLE OF DOCUMENT

Text of document.

Signature

NAME

ADDRESS

TELEPHONE NUMBER

(2) Preferred Format For Certificates of Service:

I hereby certify that on [month/day/year] a copy of [name of document] was [hand-delivered/mailed express or first class/faxed] to:

[names and addresses of persons upon whom service is made]

Signature

NAME

N.M. Admin. Code § 20.1.4.100

12/1/97; 20.1.4.100 NMAC - Rn, 20 NMAC 1.4.I.108 through 116, Recompiled 11/27/01