N.M. Admin. Code § 20.1.5.200

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

Section 20.1.5.200 - PREHEARING PROCEDURES

A. Initiation of Process:

(1) Filing of Request: The appeal process governed by this Part shall be initiated by the filing of a Request for Hearing and served on the Department and any other party.

(2) Request for Hearing: The Request for Hearing shall include an Answer. The Answer shall:

(a) clearly and directly admit or deny each of the factual assertions contained in the Compliance Order/Determination; but where the Respondent/Complainant has no knowledge of a particular factual assertion and so states, the assertion may be denied on that basis. Any allegation of the Compliance Order/Determination not specifically denied shall be deemed admitted;

(b) indicate any affirmative defenses upon which the Respondent/Complainant intends to rely. Any affirmative defense not asserted in the Request for Hearing, except a defense asserting lack of subject matter jurisdiction, shall be deemed waived;

(c) be signed under oath or affirmation that the information contained therein is to the best of the signer's knowledge believed to be true and correct; and

(d) have a copy of the Compliance Order/Determination attached.

B. Notice of Docketing; Notice of Hearing Officer Assignment:

(1) Notice of Docketing; Notice of Hearing Officer Assignment: The Hearing Clerk shall, as soon as practicable after receipt of a Request for Hearing, issue a Notice of Docketing containing the caption and docket number of the case, the date upon which the Request for Hearing was received by the Hearing Clerk, and the name of the Hearing Officer, if one has been designated. If a Hearing Officer has not been designated, the parties shall be notified of the name and address of the Hearing Officer as soon as one is assigned. A copy of this Part shall be included with a Notice of Docketing sent to the Respondent/Complainant.

(2) Untimeliness: The Hearing Clerk shall docket any Request for Hearing, without regard to whether it appears to be timely; but any party may move to dismiss an untimely Request for Hearing.

C. Scheduling the Hearing:

(1) Compliance Determinations: The hearing for Compliance Determinations shall be scheduled to begin no later than ninety (90) days after the date the Request for Hearing was received, unless a stipulated or unopposed motion is filed requesting that the ninety day deadline be waived. The motion to waive must be filed prior to the expiration of the ninety day deadline.

(2) Tire Recycling Act Compliance Order: Within five days of receipt of a Request for Hearing, a public hearing shall be scheduled to begin at least fifteen days and not more than twenty days after the date the notice of hearing is mailed to the Respondent.

(3) Notice of Hearing: The Hearing Clerk shall in consultation with the Hearing Officer, but no later than thirty (30) days prior to the hearing date, issue and serve upon the parties a Notice of Hearing setting forth the date, time, and location of the hearing.

(4) Postponement of Hearing: No request for postponement of a hearing shall be granted except upon consent of all parties or for good cause shown.

(5) Location of the Hearing: Unless otherwise ordered by the Secretary, the hearing shall be in Santa Fe.

D. Motions:

(1) General: All motions, except those made orally during a hearing, shall be in writing, specify the grounds for the motion, state the relief sought and state whether it is opposed or unopposed. Each motion may be accompanied by an affidavit, certificate, or other evidence relied upon and shall be served as provided by Section 115 [Subsection I. of 20.1.5.100 NMAC].

(2) Unopposed Motions: An unopposed motion shall state that concurrence of all other parties was obtained. The moving party shall submit a proposed order approved by all parties for the Hearing Officer's review.

(3) Opposed Motions: Any opposed motion shall state either that concurrence was sought and denied, or why concurrence was not sought. A memorandum brief in support of such motion may be filed with the motion.

(4) Response to Motions: Any party upon whom an opposed motion is served shall have fifteen (15) days after service of the motion to file a response. A non-moving party failing to file a timely response shall be deemed to have waived any objection to the granting of the motion.

(5) Reply to Response: The moving party may, but is not required to, submit a reply to any response within ten (10) days after service of the response.

(6) Decision: All motions shall be decided by the Hearing Officer without a hearing, unless otherwise ordered by the Hearing Officer sua sponte or upon written request of any party.

N.M. Admin. Code § 20.1.5.200

11/15/90, 11/30/95; 20.1.5.200 NMAC - Rn, 20 NMAC 1.5.II 200 through 203, Recompiled 11/27/01