TITLE 20 ENVIRONMENTAL
PROTECTION
CHAPTER 1 ENVIRONMENTAL
PROTECTION GENERAL
PART 1 RULEMAKING
PROCEDURES - ENVIRONMENTAL IMPROVEMENT BOARD
20.1.1.1 ISSUING AGENCY:
Environmental Improvement Board.
[20.1.1.1
NMAC - Rp, 20.1.1.1 NMAC, 04/14/2018]
20.1.1.2 STATUTORY AUTHORITY:
This part is adopted pursuant to Sections 14-4-1 to -11, 50-9-12, 74-1-5,
74-1-8, 74-1-9, 74-2-6, 74-3-5, 74-4-5 and 74-9-27 NMSA 1978.
[20.1.1.2
NMAC - Rp, 20.1.1.2 NMAC, 04/14/2018]
20.1.1.3 SCOPE:
This part governs the procedures in all rulemaking hearings before the
board, except to the extent that this part may be inconsistent with specific
procedures in governing law. In cases
where this part is inconsistent with any rulemaking procedures specified in
governing law, the procedures in governing law apply, rather than the
procedures in this part.
[20.1.1.3
NMAC - Rp, 20.1.1.3 NMAC, 04/14/2018]
20.1.1.4 DURATION:
Permanent.
[20.1.1.4
NMAC - Rp, 20.1.1.4 NMAC, 04/14/2018]
20.1.1.5 EFFECTIVE DATE:
April 14, 2018, unless a later date is cited at the end of a section.
[20.1.1.5
NMAC - Rp, 20.1.1.5 NMAC, 04/14/2018]
20.1.1.6 OBJECTIVE:
The purposes of this part are:
A. to standardize
the procedures used in rulemaking proceedings before the board;
B. to encourage public
participation in the hearings conducted by the board for the promulgation of
regulations;
C. to make possible
the effective presentation of the evidence and points of view of parties and
members of the general public; and
D. to assure that
board hearings are conducted in a fair and equitable manner.
[20.1.1.6
NMAC - Rp, 20.1.1.6 NMAC, 04/14/2018]
20.1.1.7 DEFINITIONS:
As used in this part:
A. “board
administrator” means the department employee designated by the secretary of
environment to provide staff support to the board;
B. “board” means
the environmental improvement board;
C. “department”
means the New Mexico environment department;
D. “document” means
any paper, exhibit, pleading, motion, response, memorandum, decision, order or
other written or tangible item that is filed in a proceeding under this part,
or brought to or before the board for its consideration, but does not include a
cover letter accompanying a document transmitted for filing;
E. “exhibit” means
any document or tangible item submitted for inclusion in the hearing record;
F. “general public”
includes any person attending a hearing who has not submitted a notice of
intent to present technical testimony;
G. “governing law”
means the statute, including any applicable case law, which authorizes and
governs the decision on the proposed regulatory change;
H. “hearing
officer” means the person designated by the board to conduct a hearing under
this part;
I. “hearing
record” means:
(1) the
transcript of proceedings; and
(2) the record
proper;
J. “participant”
means any person who participates in a rulemaking proceeding before the board;
K. “party” means
the petitioner; any person filing a notice of intent to present technical
testimony, and any person filing an entry of appearance;
L. “person” means
an individual or any entity, including federal, state and local governmental
entities, however organized;
M. “petitioner”
means the person who petitioned the board for the regulatory change that is the
subject of the hearing;
N. “provide to the
public” means for the board to distribute rulemaking information by:
(1) posting it
on the board’s website;
(2) posting it
on the New Mexico sunshine portal;
(3) making it
available at the department’s district, field, and regional offices;
(4) sending it
by email to persons who have made a written request for notice of announcements
addressing the subject of the rulemaking proceeding and who have provided an
email address to the board administrator;
(5) sending it
by email to persons who have participated in the rulemaking and who have
provided an email address to the board administrator;
(6) sending written notice that includes,
at a minimum, an internet and street address where the information may be found
to persons who provided a postal address; and
(7) providing it
to the New Mexico legislative council for distribution to appropriate interim
and standing legislative committees.
O. “record proper”
means all documents related to the hearing and received or generated by the
board prior to the beginning, or after the conclusion, of the hearing,
including, but not limited to:
(1) the petition
for hearing and any response thereto;
(2) the minutes
(or an appropriate extract of the minutes) of the meeting at which the petition
for hearing was considered, and of any subsequent meeting at which the proposed
regulatory change was discussed;
(3) the notice
of hearing;
(4) affidavits
of publication;
(5) a copy of
all publications in the New Mexico register relating to the proposed rule;
(6) notices of
intent to present technical testimony;
(7) all written
pleadings, including motions and responsive pleadings and orders;
(8) a copy of
any technical information that was relied upon in formulating the final rule;
(9) statements
for the public record or other relevant materials received by the agency during
the public comment period;
(10) the hearing
officer’s report, if any;
(11) a copy of the
full text of the initial proposed rule, the full text of the final adopted
rule, and the concise explanatory statement filed with the state records
administrator;
(12) post-hearing
submissions, if allowed;
(13) the audio
recordings (or an appropriate extract of the recordings) of the meeting(s) at
which the board deliberated on the adoption of the proposed regulatory change;
(14) the board’s
decision and the reasons therefore; and
(15) any
corrections made by the state records administrator pursuant to Section 14-4-3
NMSA 1978.
P. “regulation”
means any rule, regulation or standard promulgated by the board and affecting
one or more persons, besides the board and the department, except for any order
or decision issued in connection with the disposition of any case involving a
particular matter as applied to a specific set of facts;
Q. “regulatory
change” means the adoption, amendment or repeal of a regulation;
R. “service” means
personally delivering a copy of the document, exhibit or pleading to the person
required by this part to be served; mailing it to that person; or, if that
person has agreed, sending it by facsimile or electronic transmission; if a
person is represented by an attorney, service of the document shall be made on
the attorney; service by mail is complete upon mailing the document; service by
facsimile or electronic transmission is complete upon the transmission of the
document.
S. “technical
testimony” 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; and
T. “transcript of
proceedings” means the verbatim record (audio recording or stenographic) of the
proceedings, testimony and argument in the matter, together with all exhibits
proffered at the hearing, whether or not admitted into evidence, including the
record of any motion hearings or prehearing conferences.
[20.1.1.7
NMAC - Rp, 20.1.1.7 NMAC, 04/14/2018]
20.1.1.8
- 20.1.1.106 [RESERVED]
20.1.1.107 POWERS AND DUTIES OF BOARD AND
HEARING OFFICER:
A. Board: The board shall exercise all powers and
duties prescribed under this part and not otherwise delegated to the hearing
officer or the board administrator.
B. Hearing
officer: The board shall designate a
hearing officer for each hearing who shall exercise all powers and duties
prescribed or delegated under this part.
The hearing officer may be a member of the board. The hearing officer shall conduct a fair and equitable
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 consideration of issues arising in proceedings governed by
this part, including, but not limited to:
(1) conducting
hearings under this part;
(2) taking,
admitting or excluding evidence, examining witnesses and allowing post-hearing
submissions;
(3) making such
orders as may be necessary to preserve decorum and to protect the orderly
hearing process;
(4) if requested
by the board, preparing and filing a report of the hearing, with
recommendations for board action;
(5) requesting
parties to file original documents with the board administrator; and
(6) requesting a
party to submit a proposed statement of reason in support of the board’s
decision.
[20.1.1.107
NMAC - Rp, 20.1.1.107 NMAC, 04/14//2018]
20.1.1.108 LIBERAL CONSTRUCTION:
This part shall be liberally construed to carry out their purpose.
[20.1.1.108
NMAC - Rp, 20 NMAC 1.1.108, 04/14/2018]
20.1.1.109 SEVERABILITY:
If any part or application of this part is held invalid, the remainder
of this part, or their application to other persons or situations, shall not be
affected.
[20.1.1.109
NMAC - Rp, 20.1.1.109 NMAC, 04/14/2018]
20.1.1.110 GENERAL PROVISIONS - COMPUTATION OF TIME:
A. Computation of
time: In computing any period of time
prescribed or allowed by this part, 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 days is added to the prescribed period. The three-day extension does not apply to any
deadline under the act.
B. Extension of
time: The board or hearing officer may
grant an extension of time for the filing of any document upon timely motion of
a party to the proceeding, for good cause shown, and after consideration of
prejudice to other parties.
[20.1.1.110
NMAC – Rp, 20.1.1.110 NMAC, 04/14/2018]
20.1.1.111 GENERAL PROVISIONS - RECUSAL:
No board member shall participate in any
action in which his or her impartiality of fairness may reasonably be
questioned, and the member shall recuse himself or herself in any such action
by giving notice to the board and the general public by announcing this recusal
on the record. In making a decision to
recuse himself or herself, the board member may rely
upon the Governmental Conduct Act, Sections 10-16-1 through 10-16-18 NMSA 1978,
the Financial Disclosures Act, Sections 10-16A-1 through 10-16A-8 NMSA 1978, or
any other relevant authority.
[20.1.1.111
NMAC – RP, 20.1.1.111 NMAC, 04/14/2018]
20.1.1.112 GENERAL PROVISIONS - EX PARTE DISCUSSIONS: At no time after the initiation
and before the conclusion of a proceeding under this part, shall the
department, or any other party, interested participant, or their
representatives discuss ex parte the merits of the proceeding with any board
member or the hearing officer. [20.1.1.112
NMAC – Rp, 20.1.1.112 NMAC, 04/14/2018]
20.1.1.113
- 20.1.1.199 [RESERVED]
20.1.1.200 DOCUMENT REQUIREMENTS - FILING AND
SERVICE OF DOCUMENTS:
A. The filing of
any document as required by this part shall be accomplished by delivering the
document to the board administrator and the board legal counsel.
B. Any person
filing any document shall:
(1) provide the
board administrator with the original and nine copies of the document, provided
that the board administrator may waive the requirement to provide nine copies
if an electronic copy of the original is provided in a format acceptable for
distribution to the board members;
(2) if the
document is a notice of intent to present technical testimony filed by any
person other than the petitioner, serve a copy thereof on the petitioner;
(3) any document
filed pursuant to this part shall be filed with the board administrator at
least 20 days before any meeting at which the board will consider the document.
If the document is a motion seeking an
order from the hearing officer in a rules hearing, the motion must also be
served at the same time with the hearing officer and the board legal counsel.
C. Whenever this
part requires service of a document, service shall be made by delivering a copy
to the person to be served by mailing it, or, if that person has agreed, by
sending it by facsimile or by electronic transmission to that person. Agreement to be served by facsimile or
electronic transmission may be evidenced by placing the person’s facsimile
number or email address on a document filed pursuant to this part. Service shall also be made upon the board’s
legal counsel. If a person is
represented by an attorney, service of the document shall be made on the
attorney. Service by mail is complete
upon mailing the document. Service by
facsimile or electronic transmission is complete upon transmission of the
document.
D. The petitioner
and any person who has filed a timely notice of intent to present technical
testimony under this part may inspect all documents that have been filed in a
proceeding in which they are involved as participants. Such inspection shall be permitted in
accordance with the Inspection of Public Records Act, Sections 14-2-1 through
14-2-12 NMSA 1978. The board
administrator shall notify the petitioner and all persons who have filed a
timely notice of intent to present technical testimony by email whenever any
document is filed in a proceeding under this part. Any such person who does not
provide an email address shall instead be notified by mail.
E. All documents
filed under this part shall be made available to any person for inspection upon
request and shall, to the extent required by law, be made available on the
department’s website and the New Mexico sunshine portal.
F. The board
administrator shall provide copies of all documents to each board member at
least 15 days before the meeting at which the board will consider the
documents. With regard to those documents filed in conjunction with any rules
hearing, the hearing officer may make exception to this requirement.
[20.1.1.200
NMAC - Rp, 20.1.1.200 NMAC, 04/14/2018]
20.1.1.201 EXAMINATION OF DOCUMENTS FILED:
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 any document filed in any
rulemaking proceeding before the board.
Such documents shall be made available by the board administrator, as
appropriate, and shall also be made available on the New Mexico sunshine
portal. If the board administrator determines that any part of the rulemaking
record cannot be practicably displayed or is inappropriate for public display
on the New Mexico sunshine portal, the board administrator shall describe that
part of the record, shall note on the New Mexico sunshine portal that the part
of the record is not displayed, and shall provide instructions for accessing or
inspecting that part of the record.
B. Cost of
duplication: The cost of duplicating documents
shall be borne by the person seeking copies of such documents, but the board
administrator shall not charge a fee for providing the notice of proposed
rulemaking in electronic form.
[20.1.1.201
NMAC - Rp, 20.1.1.201 NMAC, 04/14/2018]
20.1.1.202
- 20.1.1.299 [RESERVED]
20.1.1.300 PREHEARING PROCEDURES - PETITION
FOR REGULATORY CHANGE:
A. Any person may
file a petition with the board to adopt, amend or repeal any regulation within
the jurisdiction of the board.
B. The petition
shall be in writing and shall include a statement of the reasons for the
regulatory change. The petition shall
cite the relevant statutes that authorize the board to adopt the proposed rules
and shall estimate the time that will be needed to conduct the rules hearing,
if at all possible. A copy of the entire
rule, including proposed regulatory change, indicating any language proposed to
be added or deleted, shall be attached to the petition. The entire rule and its proposed changes shall
be submitted to the board in redline fashion, and shall include line numbers. Any document that does not include all the
items required to be in a petition shall be returned to the petitioner along
with a copy of these rules and a check-off list of required items, and the
petitioner will be asked to resubmit the petition in the form required by these
rules.
C. The board shall
determine, at a public meeting occurring at least 15 days and no later than 60
days, after receipt of the petition, whether or not to hold a public hearing on
the proposal. Any person may respond to
the petition either in writing prior to the public meeting or in person at the
public meeting.
D. If the board
determines to hold a public hearing on the petition, it may issue such orders
specifying procedures for conduct of the hearing, in addition to those provided
by this part, as may be necessary and appropriate to fully inform the board of
the matters at issue in the hearing or control the conduct of the hearing. Such orders may include requirements for
giving additional public notice, holding pre-hearing conferences, filing direct
testimony in writing prior to the hearing, or limiting testimony or
cross-examination
[20.1.1.300
NMAC - Rp, 20.1.1.300 NMAC, 04/14/2018]
20.1.1.301 NOTICE OF HEARINGS:
A. Unless otherwise
allowed by governing law and specified by the board, the board shall provide to
the public notice of the proposed rulemaking at least 60 days prior to the
hearing. Notice of the proposed
rulemaking shall include publication in at least one newspaper of general
circulation in the state, publication in the New Mexico register, and such
other means of providing notice as the board may direct or are required by law.
B. The notice of
proposed rulemaking shall state:
(1) the subject
of the proposed rule, including a summary of the full text of the proposed rule
and a short explanation of the purpose of the proposed rule;
(2) a citation
to the specific legal authority authorizing the proposed rule and a short
explanation of the purpose of the proposed rule;
(3) a citation
to technical information, if any, that served as a basis for the proposed rule,
and information on how the full text of the technical information may be
obtained;
(4) the
statutes, regulations and procedural rules governing the conduct of the
hearing;
(5) the manner
in which persons may present their views or evidence to the board, including
the time, place, and information on participating in the public hearing;
(6) the location
where persons may secure copies of the full text of the proposed regulatory
change;
(7) an internet
link providing free access to the full text of the proposed rule; and
(8) if
applicable, that the board may make a decision on the proposed regulatory
change at the conclusion of the hearing.
[20.1.1.301
NMAC - Rp, 20.1.1.301 NMAC, 04/14/2018]
20.1.1.302 TECHNICAL TESTIMONY:
A. Any person,
including the petitioner, who intends to present technical testimony at the
hearing shall, no later than 20 days prior to the hearing, file a notice of
intent to present technical testimony with the board administrator. The notice shall:
(1) identify the
person for whom the witness(es) will testify;
(2) identify
each technical witness the person intends to present and state the
qualifications of that witness, including a description of their educational
and work background;
(3) if the
hearing will be conducted at multiple locations, indicate the location or
locations at which the witnesses will be present;
(4) include a copy of the direct
testimony of each technical witness in narrative form;
(5) include the
text of any recommended modifications to the proposed regulatory change; and
(6) list and
attach all exhibits anticipated to be offered by that person at the hearing,
including any proposed statement of reasons for adoption of rules.
B. The hearing
officer may enforce the provisions of this section through such action as the
hearing officer deems appropriate, including, but not limited to, exclusion of
the technical testimony of any witness for whom a notice of intent was not
timely filed. If such testimony is
admitted, the hearing officer may keep the record open after the hearing to
allow responses to such testimony. The
hearing officer may also require that written rebuttal testimony be submitted
prior to hearing.
[20.1.1.302
NMAC - Rp, 20.1.1.302 NMAC, 04/14/2018]
20.1.1.303 ENTRY OF APPEARANCE: Any person may file an entry of
appearance as a party. The entry of
appearance shall be filed with the board administrator no later than 20 days
before the date of the hearing on the petition. In the event of multiple entries
of appearance by those affiliated with one interest group, the hearing officer
may consolidate the entries, or divide the service list to avoid waste of
resources.
[20.1.1.303
NMAC – Rp, 20.1.1.303 NMAC, 04/14/2018]
20.1.1.304 PARTICIPATION BY GENERAL PUBLIC:
A. Any member of
the general public may testify at the hearing.
No prior notification is required to present non-technical testimony at
the hearing. Any such member may also
offer non-technical exhibits in connection with his testimony, so long as the
exhibit is not unduly repetitious of the 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
prior to the hearing or submit it at the hearing. Written comment must be mailed or delivered
to the board administrator; email comments will not be accepted. However, comments may be submitted electronically
on the board webpage.
C. If the board
changes the date of the hearing or the deadline for submitting comments as
stated in the notice of proposed rulemaking, the board shall provide to the
public notice of the change.
[20.1.1.304
NMAC - Rp, 20.1.1.304 NMAC, 04/14/2018]
20.1.1.305 LOCATION OF HEARING:
Unless otherwise provided by governing law, the board may hold hearings
on proposed regulatory changes of statewide application in Santa Fe or within
any area of the state substantially affected by the proposed regulatory change,
and shall hold hearings on proposed changes of local application within the
area affected by the proposal.
[20.1.1.305
NMAC - Rp, 20.1.1.305 NMAC, 04/14/2018]
20.1.1.306 PARTICIPATION BY CONFERENCE
TELEPHONE OR OTHER SIMILAR DEVICE:
A. A member of the
board may participate in a meeting or hearing of the board by means of a
conference telephone or other similar communications equipment, when it is
otherwise difficult or impossible for the member to attend the meeting or
hearing in person, provided that each member participating by conference
telephone can be identified when speaking, all participants are able to hear
each other at the same time and members of the public attending the meeting or
hearing are able to hear any member of the board who speaks at the meeting or
hearing. A board member’s participation
by such means shall constitute presence in person at the meeting or hearing. A board member who wishes to participate in a
rules hearing in this manner must receive permission from the hearing officer
sufficiently in advance of the rules hearing so as to permit the board
administrator to arrange for adequate telephone hookup.
B. A witness may
participate in a rules hearing of the board by means of a telephone conference
or other similar communications equipment when an emergency or circumstances
make it impossible for the witness to attend the hearing in person. A witness who wishes to participate in a rules
hearing in this manner must receive permission from the hearing officer
sufficiently in advance of the rules hearing. No witness may participate in a rules hearing
by telephone conference unless he makes a request sufficiently in advance of
the rules hearing so as to permit the board administrator to arrange for an
adequate telephone hookup. Each witness
participating by telephone must be identified when speaking, all participants
must be able to hear each other at the same time and members of the public
attending the hearing must be able to hear any witness who speaks during the
hearing.
[20.1.1.306
NMAC - Rp, 20.1.1.306 NMAC, 04/14/2018]
20.1.1.307 MOTIONS:
A. General: All motions, except those made orally during
a hearing, shall be in writing, specify the grounds for the motion and state
the relief sought. Each motion shall be
accompanied by an affidavit, certificate or other
evidence relied upon and shall be served as provided by 20.1.1.200 NMAC.
B. Unopposed
motions: An unopposed motion shall state
that the 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.
C. 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.
D. Response to
motions: Any 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 failing to
file a timely response shall be deemed to have waived any objection to the
granting of the motion.
E. Reply to
response: The moving party may, but is
not required to, submit a reply to any response within 10 days after service of
the response.
F. 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. The
hearing officer shall refer any motion that would effectively dispose of the
matter, and may refer any other motion to the board for a decision. A procedural motion may be ruled upon prior
to the expiration of the time for response; any response received thereafter
shall be treated as a request for reconsideration of the ruling. The hearing officer shall file all original
documents with the board administrator.
[20.1.1.307
NMAC - Rp, 20.1.1.307 NMAC, 04/14/2018]
20.1.1.308
- 20.1.1.399 [RESERVED]
20.1.1.400 HEARING PROCEDURES - CONDUCT OF
HEARINGS:
A. The rules of
civil procedure and the rules of evidence shall not apply.
B. The hearing
officer shall conduct the hearing so as to provide a reasonable opportunity for
all persons to be heard without making the hearing unreasonably lengthy or
cumbersome, or burdening the record with unnecessary repetition. The hearing shall proceed as follows.
(1) The hearing shall begin with an
opening statement from the hearing officer.
The statement shall identify the nature and subject matter of the
hearing and explain the procedures to be followed.
(2) The hearing officer may allow a brief
opening statement by any party who wishes to make one.
(3) Unless otherwise ordered, the
petitioner shall present its case first.
(4) The hearing officer shall establish
an order for the testimony of other participants. The order may be based upon notices of intent
to present technical testimony, sign-in sheets and the availability of
witnesses who cannot be present for the entire hearing.
(5) If the hearing continues for more
than one day, the hearing officer shall provide an opportunity each day for
testimony from members of the general public.
Members of the general public who wish to present testimony should
indicate their intent on a sign-in sheet.
(6) The hearing officer may allow a brief
closing argument by any person who wishes to make one.
(7) At the close of the hearing, the
hearing officer shall determine whether to keep the record open for written
submittals in accordance with 20.1.1.404 NMAC.
If the record is kept open, the hearing officer shall determine and announce
the subject(s) on which submittals will be allowed and the deadline for filing
the submittals.
C. If the hearing
is conducted at multiple locations, the hearing officer may require the
petitioner’s witnesses to summarize their testimony or be available for
cross-examination at each location.
Other participants are not required to testify at more than one
location, and the hearing officer may prohibit a witness from testifying at
more than one location.
[20.1.1.400
NMAC - Rp, 20.1.1.400 NMAC, 04/14/2018]
20.1.1.401 TESTIMONY AND CROSS-EXAMINATION:
A. All testimony
will be taken under oath or affirmation which may be accomplished in mass or
individually.
B. The hearing
officer shall admit any relevant evidence, unless the hearing officer
determines that the evidence is incompetent or unduly repetitious. The hearing officer shall require all oral
testimony be limited to the position of the witness in favor of or against the
proposed rule.
C. Any person who
testifies at the hearing is subject to cross-examination on the subject matter
of his or her direct testimony and matters affecting his or her
credibility. Any person attending the
hearing is entitled to conduct such cross-examination as may be required for a
full and true disclosure of matters at issue in the hearing. The hearing officer may limit
cross-examination to avoid harassment, intimidation, needless expenditure of
time or undue repetition.
[20.1.1.401
NMAC - Rp, 20.1.1.401 NMAC, 04/14/2018]
20.1.1.402 EXHIBITS:
A. Any person
offering an exhibit at hearing, other than a document filed and served before
the hearing, shall provide at least an original and nine copies for the board,
and a sufficient number of copies for every other party.
B. All exhibits
offered at the hearing shall be marked with a designation identifying the
person offering the exhibit and shall be numbered sequentially. If a person offers multiple exhibits, he shall
identify each exhibit with an index tab or by other appropriate means.
C. Large charts and
diagrams, models and other bulky exhibits are discouraged. If visual aids are used, legible copies shall
be submitted for inclusion in the record.
[20.1.1.402
NMAC - Rp, 20.1.1.402 NMAC, 04/14/2018]
20.1.1.403 TRANSCRIPT OF PROCEEDINGS:
A. Unless specified
by the board or hearing officer, a verbatim transcript shall be made of the
hearing. The cost of the original
transcript of the proceeding and of providing a copy for each board member
shall be borne by the petitioner.
B. Any person may
obtain a copy of the transcript of a proceeding. It shall be obtained directly from the court
reporter, and the cost of the transcript shall be paid directly to the source.
[20.1.1.
403 NMAC - Rp, 20.1.1.403 NMAC, 04/14/2018]
20.1.1.404 POST-HEARING SUBMISSIONS:
The hearing officer may allow the record to remain open for a reasonable
period of time following the conclusion of the hearing for written submission
of additional evidence, comments and arguments, and proposed statements of
reasons. The hearing officer’s
determination regarding post-hearing submissions shall be announced at the
conclusion of the hearing. In
considering whether the record will remain open, the hearing officer shall
consider the reasons why the material was not presented during the hearing, the
significance of the material to be submitted and the necessity for a prompt
decision.
[20.1.1.
404 NMAC - Rp, 20.1.1.404 NMAC, 04/14/2018]
20.1.1.405 HEARING OFFICER’S REPORT:
If the board directs, the hearing officer shall file a report of the
hearing. The report shall identify the
issues addressed at the hearing, identify the parties’ final proposals and the
evidence supporting those proposals, including discussion or recommendations as
requested by the board, and shall be filed with the board administrator within
the time specified by the board. The
board administrator shall promptly notify each party that the hearing officer’s
report has been filed and shall provide a copy of the report along with a
notice of any deadline set for comments on that report.
[20.1.1.405 NMAC - Rp, 20.1.1.405
NMAC, 04/14/2018]
20.1.1.406 DELIBERATION AND DECISION:
A. If a quorum of
the board attended the hearing, and if the hearing notice indicated that a
decision might be made at the conclusion of the hearing, the board may
immediately deliberate and make a decision on the proposed regulatory change.
B. If the board
does not reach a decision at the conclusion of the hearing, the board
administrator, following receipt of the transcript, will promptly furnish a
copy of the transcript to each board member that did not attend the hearing
and, if necessary, to other board members, board counsel and the hearing
officer. Exhibits provided to those
persons at the time of the hearing need not be supplied again.
C. The board shall
reach its decision on the proposed regulatory change within 60 days following
the close of the record or the date the hearing officer’s report is filed, whichever
is later.
D. If, during the
course of its deliberations, the board determines that additional testimony or
documentary evidence is necessary for a proper decision on the proposed
regulatory change, the board may, consistent with the requirements of due
process, reopen the hearing for such additional evidence only.
E. The board shall
issue its decision on the proposed regulatory change in a suitable format,
which shall include its reasons for the action taken.
F. The board’s
written decision is the official version of the board’s action, and the reasons
for that action. Other written or oral
statements by board members are not recognized as part of the board’s official
decision or reasons.
G. If the board
fails to act on a proposed rule within two years after the notice of proposed
rulemaking is published in the New Mexico register, the rulemaking is automatically
terminated unless the board acts to extend the period for an additional two
years by filing a statement of good cause for the extension in the rulemaking
record. If the board extends the
rulemaking period, it shall provide for additional public participation,
comments, and hearing prior to adopting the rule.
H. The board may terminate
a rulemaking at any time by publishing a notice of termination in the New
Mexico register. If the board terminates a rulemaking in this manner, it shall
provide to the public notice of its action.
[20.1.1.406
NMAC - Rp, 20.1.1.406 NMAC, 04/14/2018]
20.1.1.407 NOTICE OF BOARD ACTION:
A. The board
administrator shall provide to the public notice of the board’s action and a
concise explanatory statement.
B. The adopted rule
shall not take effect unless within 15 days of adoption of the rule, the board
delivers the final rule to the state records administrator, accompanied by a
concise explanatory statement that contains:
(1) the date
that the board adopted the rule;
(2) a reference
to the specific statutory or other authority authorizing the rule; and
(3) any findings
required by law for adoption of the rule.
C. Adoption of the
final rule occurs upon signature of the written decision.
D. If the state
records administrator notifies the board of having made any minor, nonsubstantive corrections in spelling, grammar, and format
in the filed rule, the board administrator shall provide to the public notice
of the correction within 30 days of receiving the state records administrator’s
record of correction.
[20.1.1.407
NMAC - Rp, 20.1.1.407 NMAC, 04/14/2018]
20.1.1.408
- 20.1.1.499 [RESERVED]
20.1.1.500 APPEALS AND STAYS - APPEAL OF
REGULATIONS:
A. Appeal of any
regulatory change by the board shall be taken in accordance with governing law.
B. The appellant
shall serve a copy of the notice of appeal on the board and on each party.
C. The appellant
shall be responsible for preparation of a sufficient number of copies of the
hearing record at the expense of appellant.
D. Unless otherwise
provided by governing law, the filing of an appeal shall not act as a stay of
the regulatory change being appealed.
[20.1.1.500
NMAC - Rp, 20.1.1.500 NMAC, 04/14/2018]
20.1.1.501 STAY OF
BOARD REGULATIONS:
A. Any person who
is or may be affected by a rule adopted by the board may file a motion with the
board seeking a stay of that rule or regulatory change. The motion shall include the reason for, and
the legal authority supporting, the granting of a stay. The movant shall file the motion with the
board administrator at least 30 days before the meeting at which the board will
consider the motion. The movant shall serve the motion for a stay as provided
by this part, and shall further serve all parties in the rulemaking
proceeding. The board chair will decide
at which meeting the stay motion will be heard.
B. Unless otherwise
provided by governing law, the board may grant a stay pending appeal of any
regulatory change promulgated by the board.
The board may only grant a stay if good cause is shown after a motion is
filed and a hearing is held.
C. In determining
whether good cause is present for the granting of a stay, the board, upon at
least a two-thirds vote of the members voting shall consider:
(1) the
likelihood that the movant will prevail on the merits of the appeal;
(2) whether the
moving party will suffer irreparable harm if a stay is not granted;
(3) whether
substantial harm will result to other interested persons; and
(4) whether harm
will ensue to the public interest.
D. If no action is
taken within 60 days after filing of the motion, the board shall be deemed to
have denied the motion for stay.
[20.1.1.501
NMAC - Rp, 20.1.1.501 NMAC, 04/14/2018]
HISTORY
OF 20.1.1 NMAC:
Pre-NMAC History: The
material in this part was derived from that previously filed with the
commission of public records, state records center and archives under:
EIB 93-1,
Rules of Procedure for Environmental Improvement Board Regulation Hearings,
filed 1/21/93.
History of Repealed Material:
20 NMAC 1.1, Rulemaking Procedures - Environmental Improvement Board
(filed 10/27/95) repealed 08/27/06.
20.1.1
NMAC, Rulemaking Procedures - Environmental Improvement Board, filed 08/27/06,
repealed 04/14/18.
Other History:
EIB 93-1,
Rules of Procedure for Environmental Improvement Board Regulation Hearings
(filed 1/21/93) was renumbered, reformatted, amended and replaced by 20 NMAC
1.1, Rulemaking Procedures - Environmental Improvement Board, effective
11/30/95.
20 NMAC
1.1, Rulemaking Procedures - Environmental Improvement Board (filed 10/27/95)
was renumbered, reformatted, and replaced by 20.1.1 NMAC, Rulemaking Procedures
- Environmental Improvement Board, effective 08/27/06.