N.M. Code R. § 20.11.81.7

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

Section 20.11.81.7 - DEFINITIONS

In addition to the definitions in 20.11.81 NMAC, the definitions in 20.11.1 NMAC apply unless there is a conflict between definitions, in which case the definition in 20.11.81 NMAC shall govern.

A. "30-day hearing procedure" means that the regulation that authorizes or requires the board to hold a hearing on the merits pursuant to 20.11.81 NMAC also requires the board to hold the hearing on the merits within 30 days of the timely filing of the petition for hearing.

B. "60-day hearing procedure" means that the regulation that authorizes or requires the board to hold a hearing on the merits pursuant to 20.11.81 NMAC also requires the board to hold the hearing on the merits within 60 days of the timely filing of the petition for hearing.

C. "Act" means the Air Quality Control Act, Chapter 74, Article 2 NMSA 1978, and its subsequent amendments and successor provisions.

D. "Applicant" means a person who has applied for or has been issued an air quality permit by the department, unless a different procedure is required by another board regulation.

E. "Board" means the Albuquerque-Bernalillo county air quality control board or its successor agency under the act.

F. "Days" means consecutive days except as otherwise specifically provided.

G. "Department" means the city of Albuquerque environmental health department, or the department's successor agency.

H. "Docket" means, when used as a noun, the list compiled by the hearing clerk, and includes all documents filed by or with the hearing clerk from the beginning to the end of the procedure authorized by 20.11.81 NMAC, but does not include the administrative record or the law of the case and, when used as a verb, also means the act of assigning an individual number to a newly-opened case or filing a document in and listing the document on the docket.

I. "Document" means any pleading, motion, response, memorandum, decision, order or other written material or tangible item that is filed or brought to or before the board for its consideration in a proceeding pursuant to 20.11.81 NMAC, but does not include the cover letter that accompanies a document transmitted for filing.

J. "Ex parte contact" means oral or other communication with a board member or a board hearing officer regarding the merits of an expected or pending petition or related proceeding if:

(1) the communication is made by a person who is not a board member, hearing clerk or hearing officer;

(2) the person communicating knows or has reason to know a petition will be or has been filed pursuant to 20.11.81 NMAC;

(3) the communication is made without all other parties being present or receiving the same communication received by the board member or board hearing officer; and

(4) the communication is intended to affect, or reasonably may be expected to affect the board member's or the hearing officer's opinion regarding the merits of the expected or pending petition or related proceeding.

K. "Hearing clerk" means the department employee designated by the director to provide staff support to the board, and is the person designated by the board to maintain the official record of the proceeding.

L. "Hearing officer" means the person who is appointed or otherwise authorized by the board to conduct a proceeding pursuant to 20.11.81 NMAC.

M. "Interested participant" means any person, other than a party, who files an entry of appearance in accordance with Paragraphs (1) and (2) of Subsection I of 20.11.81.14 NMAC.

N. "Party" means the petitioner, the applicant if the applicant is not the petitioner, the department, and any other person granted intervenor status by the hearing officer or board following a motion.

O. "Petition" means a petition filed pursuant to Subsection H of 74-2-7 NMSA 1978 and 20.11.81 NMAC.

P. "Petitioner" means a person who files a timely petition pursuant to Subsection H of NMSA 74-2-7 and 20.11.81 NMAC.

Q. "Record proper" or "record" means all documents filed by or with the hearing clerk during the proceeding authorized by 20.11.81 NMAC, and includes:

(1) the administrative record of the permitting action filed by the department;

(2) the verbatim record of the hearing (transcript or tapes, as applicable) and all exhibits offered into evidence at the hearing, whether or not admitted; and

(3) minutes or a summary of minutes, or the decision or order resulting from a hearing or board meeting at which the board deliberated or acted on any procedural or substantive issue in the proceeding.

R. "Regulations" means the rules promulgated by the board, as authorized by the act.

S. "Service" means delivering to a person that 20.11.81 NMAC requires to be served a copy of a document, exhibit or pleading by personally delivering it to that person, mailing it to that person, or, if that person agrees, by sending it by facsimile or electronic transmission to that person. If a person is represented by an attorney, service shall be made on the attorney. Service by mail is complete upon mailing the document unless service is made by mail to a party who must act within a prescribed period after being served, in which case three days shall be added to prescribed period. Service by facsimile or electronic transmission is accomplished when the transmission of the document is completed or upon acknowledgement by the recipient.

T. "Technical evidence" means scientific, engineering, economic or other specialized testimony, but does not include legal argument, general comments, or statements of policy or position concerning matters at issue in the hearing.

N.M. Code R. § 20.11.81.7

20.11.81.7 NMAC - N, 12/16/06