N.M. Code R. § 20.11.81.14

Current through Register Vol. 35, No. 12, June 25, 2024

Section 20.11.81.14 - PREHEARING PROCEDURES

A. Initiation of petition hearing; filing and content of petition: A petition for a hearing on the merits shall be initiated by filing a petition as required by Paragraph (1) of Subsection G of 20.11.81.12 NMAC. The petitioner shall:

(1) sign the petition under oath or affirmation and attest to the truth of the information contained therein; and

(2) file the original and nine copies of the petition with the board and serve a copy of the petition on the department.

B. Petition requirements and contents-fee:

(1) Filing fee. At the time the petition is filed, the petitioner shall pay the board hearing fee required by 20.11.2 NMAC.

(2) Timing and contents: A petition shall:

(a) be filed with the board within 30 consecutive days from the date notice is given of the permitting action taken by the department, and regarding which the petition objects;

(b) state the petitioner's name, address, telephone number, and if available, facsimile number, cellular telephone number and other contact information;

(c) either state in what manner the petitioner participated in the permitting action that was pending before the department and how the petitioner is adversely affected by the permitting action taken by the department, or cite a board regulation other than 20.11.81 NMAC that authorizes the petitioner to request a hearing on the merits pursuant to 20.11.81 NMAC, and state how, under the other regulation, the petitioner qualifies for a hearing on the merits conducted pursuant to 20.11.81 NMAC;

(d) if a permitting action is being challenged, identify the specific permitting action appealed from, specify the portions of the permitting action to which petitioner objects, and state the factual and legal basis of petitioner's objections to the permitting action taken by the department;

(e) state the remedy petitioner is seeking, the legal basis for the remedy, and how granting the remedy is within the air quality jurisdiction of the board; and

(f) attach a copy of the permitting action or other action regarding which petitioner is filing a petition.

C. Hearing delay and waiver: A petitioner may waive petitioner's right to a have the hearing begin by the deadline established by the act or applicable regulation in order to negotiate with the department or for other good reason as determined by either the hearing officer or the board, as appropriate for the stage of the proceeding. The petitioner's waiver must be filed seven days (whether for a 30-day hearing procedure or for a 60-day hearing procedure) before expiration of the deadline for beginning the hearing. The waiver will stay all deadlines established in 20.11.81 NMAC for up to an additional 30 days (whether for a 30-day hearing procedure or for a 60-day hearing procedure), as determined by the hearing officer or the board, as appropriate for the stage of the proceeding. The stay of deadlines may be extended for an additional period for good reason as determined by the hearing officer or the board, as appropriate for the stage of the proceeding.

D. Response of department: Within 15 days (for a 30-day hearing procedure) or 30 days (for a 60-day hearing procedure) after receipt of a petition filed pursuant to 20.11.81 NMAC, if a permitting action is being challenged, the department shall perform the following actions.

(1) The department shall file with the hearing clerk the administrative record of the permitting action that is the subject of the petition. Before the department files the administrative record, the parties may stipulate in writing to the portions of the record that the department will file with the board. The department shall serve only the index of the record on the other parties.

(2) The department shall deliver to the hearing clerk a list of all persons who, within the preceding 12 months, have expressed in writing to the department an interest in the facility or the permitting action that is the subject of the petition or who participated in a public information meeting or hearing on the permitting action and who have provided a legible written name and current mailing address at the public information meeting or hearing.

(3) The department shall file an answer to the petition, responding to each objection in the petition.

E. Notice of docketing:

(1) Docketing Notice: As soon as practicable after receipt of a petition, the hearing clerk shall issue and serve upon the parties and each board member a notice of docketing, which shall include the caption required by Paragraph (1) of Subsection G of 20.11.81.12 NMAC, the docket number of the case, and the date the petition was received by the hearing clerk. A copy of 20.11.81 NMAC shall be included with the notice of docketing sent to the petitioner.

(2) Untimeliness: The hearing clerk shall docket every petition, without regard to whether it appears to be timely. However, the board or any party may move to dismiss an untimely petition.

F. Scheduling the hearing on the merits:

(1) Hearing date: The hearing officer shall schedule the hearing on the merits to begin no later than the deadline required by the act or applicable regulation, unless a waiver is filed by the petitioner and a stay of deadlines is granted pursuant to Subsection C of 20.11.81.14 NMAC. The waiver must be filed with the board, and served as required by 20.11.81 NMAC before the expiration of the deadline for beginning the hearing on the merits.

(2) Scheduling order: Unless the deadline for beginning the hearing on the merits has been waived and a stay of deadlines is granted, no later than 20 days (for a 30-day hearing procedure) or 30 days (for a 60-day hearing procedure) before the hearing begins, the hearing officer shall issue a scheduling order setting the date, time and location of the hearing. The scheduling order may include other procedural matters. Jointly or singly, and before the hearing officer issues the scheduling order, the parties may submit to the hearing officer, at least five days (for a 30-day hearing procedure) or 10 days (for 60-day hearing procedure) before the deadline for issuing the scheduling order, a request regarding the date and location of the hearing and other procedural matters, such as the assignment of a non-board-member hearing officer. At a board meeting, the hearing officer may consult with the board regarding procedural matters.

G. Public notice of hearing:

(1) Publication: Upon direction from the board or hearing officer, the hearing clerk shall prepare a notice of hearing setting forth the date, time and location of the hearing, a brief description of the petition, and information on the requirements for entry of appearance and for submitting a statement of intent to present evidence, and

(a) no later than 10 days (for a 30-day hearing procedure) or 15 days (for a 60-day hearing procedure) before the hearing date, send a copy of the notice of hearing, with a request for publication, to at least one newspaper of general circulation that is distributed at least weekly in Bernalillo county;

(b) no later than 10 days (for a 30-day hearing procedure) or 15 days (for a 60-day hearing procedure) before the hearing date, mail a copy of the notice of hearing to each party, to each interested participant who has filed an entry of appearance, and to each person who within the previous 12 months has expressed in writing to the department or the board an interest in the facility or permitting action that is the subject of the petition; and

(c) immediately upon receipt of an entry of appearance that is received after the initial mailing, mail a copy of the notice of hearing to each additional interested participant.

(2) Certification: After the notice of hearing has been distributed as required by Subsection G of 20.11.81.14 NMAC, the hearing clerk shall file with the record proper an affidavit certifying how and when notice was given and shall attach to the affidavit a copy of the notice of hearing and affidavits of publication.

H. Statement of intent to present technical evidence:

(1) Requirement to file: No later than 10 days (for a 30-day hearing procedure) or 15 days (for 60-day hearing procedure) days before the hearing, any person who wishes to present technical evidence at the hearing shall file with the hearing clerk and serve on all parties a statement of intent to present technical evidence.

(2) The statement of intent to present technical evidence shall include:

(a) the name of the person filing the statement;

(b) a statement clarifying whether the person filing the statement supports or opposes the petition at issue;

(c) the name of each witness;

(d) an estimate of the length of the direct testimony of each witness;

(e) a summary or outline of the anticipated direct testimony of each witness;

(f) a list of exhibits, if any, to be offered into evidence at the hearing on the merits; and

(g) a copy of each exhibit to be offered into evidence at the hearing on the merits.

I. Participation by persons other than parties:

(1) Interested participants; entry of appearance: No later than seven days (for a 30-day hearing procedure) or 10 days (for a 60-day hearing procedure) before the beginning of the hearing on the merits, any person who wishes to be treated as an interested participant and to cross-examine witnesses at the hearing shall file an entry of appearance with the hearing clerk and serve the entry of appearance upon all parties. For purposes of Paragraph (1) of Subsection I of 20.11.81.14 NMAC, a statement of intent to present technical evidence filed pursuant to Subsection H of 20.11.81.14 NMAC shall be considered an entry of appearance if the person has not previously filed a separate entry of appearance. The entry of appearance shall identify the person wishing to be treated as an interested participant, provide the address of the person wishing to be treated as an interested participant, and list each individual who may appear on behalf of that person.

(2) Participation by the general public; General non-technical statement: Any person who has not timely filed either an entry of appearance as an interested participant pursuant to Subsection I of 20.11.81.14 NMAC or a statement of intent to present technical evidence pursuant to Subsection H of 20.11.81.14 NMAC, may present a general non-technical statement by meeting the following conditions.

(a) Any member of the general public may testify at the hearing. No prior notification is required to present general non-technical statements in support of or in opposition to the petition. A member of the general public also may offer exhibits related to his testimony, as long as the exhibit is non-technical in nature and does not unduly repeat other testimony.

(b) 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 with the hearing clerk before the hearing begins. If a member of the general public who testified or submitted a written statement wants to receive written notice of the decision of the board, then, at the hearing at which the member of the general public testified or submitted the written statement, the member of the general public must provide the hearing clerk with a legible written name and current mailing address.

J. Pre-hearing discovery: Discovery shall be guided by the provisions of the New Mexico rules of civil procedure in effect at the time of the hearing. Formal discovery is not a right, and, therefore, is discouraged and shall only be allowed by order of the hearing officer if the following conditions exist.

(1) Grounds for discovery: Formal discovery shall only be authorized if the hearing officer determines:

(a) the type of discovery sought will not unreasonably delay the proceeding and is not unreasonably burdensome or unreasonably expensive; and

(b) the information to be obtained is relevant and is not otherwise reasonably obtainable, or may be lost, or may become unavailable.

(2) Order for discovery: Upon motion for discovery by a party and determination by the hearing officer that the motion should be granted, the hearing officer shall issue an order for the taking of discovery. The order shall include all terms and conditions imposed by the hearing officer.

N.M. Code R. § 20.11.81.14

20.11.81.14 NMAC - N, 12/16/06