N.M. Admin. Code § 20.11.80.13

Current through Register Vol. 35, No. 20, October 22, 2024

Section 20.11.80.13 - PREHEARING PROCEDURES

A. Initiation of process:

(1) Filing a request for hearing: As required by the act at Subsection C of Section 74-2-12 NMSA 1978, no later than 30 days after a compliance order is served on a respondent, the respondent shall submit a written request for a hearing to the director. If a timely request for hearing is not submitted, the compliance order shall be final. The process governed by 20.11.80 NMAC shall be initiated by the respondent filing a timely request for hearing and serving the request on the department director, the air program manager or his or her designee and every other party.

(2) Request for hearing: The request for hearing shall include an answer to the compliance order. The answer shall:

(a) in separately-numbered paragraphs that sequentially reference the numbered paragraphs in the compliance order, clearly and directly admit or deny each of the factual assertions contained in the compliance order; however, if the respondent has no knowledge of a particular factual assertion and so states, the assertion may be denied on the basis of a lack of knowledge; every allegation in the compliance order that is not specifically denied shall be deemed admitted by the respondent;

(b) indicate every affirmative defense upon which the respondent intends to rely; every affirmative defense that is not asserted in the request for hearing shall be deemed waived, except a defense asserting lack of subject matter jurisdiction;

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

(d) have a copy of the compliance order attached.

B. Notice of docketing; notice of hearing officer assignment:

(1) Notice: As soon as practical after the hearing clerk receives a request for hearing, the hearing clerk shall issue a notice of docketing that includes the caption or heading required by Subsection J of 20.11.80.12 NMAC, the 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 hearing clerk shall notify the parties of the name and address of the hearing officer as soon as one is assigned. The hearing clerk shall include a copy of 20.11.80 NMAC with the notice of docketing that is sent to the respondent.

(2) Untimeliness: The hearing clerk shall docket every request for hearing that is delivered to the hearing clerk without regard to whether it appears to be timely. Any party may move to dismiss an untimely request for hearing.

C. Scheduling the hearing:

(1) In consultation with the hearing officer, but no later than 30 days before the date of the hearing, the hearing clerk shall issue and serve upon the parties a notice of hearing setting forth the date, time and location of the hearing.

(2) After consideration of prejudice to the parties, the hearing officer shall not grant a request to postpone a hearing unless all parties consent or the hearing officer determines good cause has been shown.

(3) Location of the hearing; attendance by the public: The hearing shall be held in a public facility within Bernalillo county with seating available for members of the public, who can attend and listen, but who shall not testify unless identified as a witness by a party as required by Subsection B of 20.11.80.14 NMAC.

D. Motions:

(1) General: Except for motions made orally during a hearing, all motions shall be in writing, specify the grounds for the motion, state the relief sought and state whether the motion is opposed or unopposed. Each motion that is not made orally during a hearing shall be filed no fewer than 30 days before the hearing at which the hearing officer or director will consider the matter unless a different deadline is established by the hearing officer; shall be accompanied by an affidavit, certificate or other evidence relied upon; and shall be served as required by Paragraph (2) of Subsection G of 20.11.80.12 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 with the motion.

(3) Opposed motions: Every opposed motion shall state either that concurrence was sought and denied or why concurrence was not sought. A memorandum brief in support of an opposed motion may be filed with the motion. The moving party shall submit a proposed order for the hearing officer's review with the motion.

(4) Response to motions: Unless a different deadline is established by the hearing officer, every party upon whom an opposed motion is served shall have 15 days after service of the motion to file a response. A non-moving party who fails to file a timely response shall be deemed to have waived any objection to the granting of the motion.

(5) Reply to response: Unless a different deadline is established by the hearing officer, the moving party may submit a reply to a response within 10 days after service of the response, but is not required to submit a reply.

(6) Decision regarding motions: All motions shall be decided by the hearing officer without a hearing, unless the hearing officer decides to hold a hearing or unless a party requests a hearing and the hearing officer consents to a motion hearing.

(7) Procedural motions: The hearing officer may rule upon a procedural motion before the expiration of the time for response. A response regarding the procedural motion received after the decision is made shall be treated as a request for reconsideration of the ruling.

(8) The hearing officer may refer a motion to the director with the hearing officer's recommendation if the motion would result in a final determination of the merits or an essential element of the compliance order.

N.M. Admin. Code § 20.11.80.13

20.11.80.13 NMAC - N, 8/15/11