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 NMAC 1.1.I.100, 08/27/06]
20.1.1.2 STATUTORY AUTHORITY: This part is adopted pursuant to Sections 50-9-12, 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 NMAC 1.1.I.101, 08/27/06]
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 NMAC 1.1.I.102, 08/27/06]
20.1.1.4 DURATION: Permanent.
[20.1.1.4 NMAC - Rp, 20 NMAC 1.1.I.103, 08/27/06]
20.1.1.5 EFFECTIVE DATE: August 27, 2006, unless a later date is cited at the end of a section.
[20.1.1.5 NMAC - Rp, 20 NMAC 1.1.I.104, 08/27/06]
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 the 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 NMAC 1.1.I.105, 08/27/06]
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. “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) notices of intent to present technical testimony;
(6) statements for the public record;
(7) the hearing officer’s report, if any;
(8) post-hearing submissions, if allowed;
(9) the audio tapes (or an appropriate extract of the tapes) of the meeting(s) at which the board deliberated on the adoption of the proposed regulatory change; and
(10) the board’s decision and the reasons therefore.
O. “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;
P. “regulatory change” means the adoption, amendment or repeal of a regulation;
Q. “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 accomplished when the transmission of the document is completed and upon acknowledgement by designated recipient;
R. “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
S. “transcript of proceedings” means the verbatim record (audio tape 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 NMAC 1.1.I.106, 08/27/06]
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 impartial 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 NMAC 1.1.I.107, 08/27/06]
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.I.108, 08/27/06]
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 NMAC 1.1.I.109, 08/27/06]
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 - N, 08/27/06]
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, NMSA 1978, Sections 10-16-1 through 10-16-18, the Financial Disclosures Act, NMSA 1978, Sections 10-16A-1 through 10-16A-8, or any other relevant authority.
[20.1.1.111 NMAC - N, 08/27/06]
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 - N, 08/27/06]
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 (9) copies of the document;
(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 fifteen (15) 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 accomplished when the transmission of the document is completed and acknowledged by designated recipient.
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, NMSA 1978, Sections 14-2-1 through 14-2-12. The board administrator shall notify by email the petitioner and all persons who have filed a timely notice of intent to present technical testimony 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 for inspection upon request and shall, to the extent possible, be made available on the department’s website.
F. The board administrator shall provide copies of all documents to each board member at least seven 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 NMAC 1.1.II.200, 08/27/06]
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.
B. Cost of duplication: The cost of duplicating documents shall be borne by the person seeking copies of such documents.
[20.1.1.201 NMAC - Rp, 20 NMAC 1.1.II.201, 08/27/06]
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 his petition in the form required by these rules.
C. The board shall determine, at a public meeting occurring at least fifteen (15) days and no later than sixty (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 NMAC 1.1.III.300, 08/27/06]
20.1.1.301 NOTICE OF HEARINGS:
A. Unless otherwise allowed by governing law and specified by the board, the board shall give public notice of the hearing at least sixty (60) days prior to the hearing. Public notice 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 board shall make reasonable efforts to give notice to persons who have made a written request to the board for advance notice of regulatory change hearings. Requests for such notice shall be addressed to the board administrator, and shall designate those areas of board activity which are of interest.
C. Public notice of the hearing shall state:
(1) the subject, including a description of the proposed regulatory change, time and place of the hearing;
(2) the statutes, regulations and procedural rules governing the conduct of the hearing;
(3) the manner in which persons may present their views or evidence to the board;
(4) the location where persons may secure copies of the proposed regulatory change; and
(5) 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 NMAC 1.1.III.301, 08/27/06]
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 fifteen (15) days prior to the hearing, file a notice of intent to present technical testimony. 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) summarize or include a copy of the direct testimony of each technical witness and state the anticipated duration of the testimony of that witness;
(5) include the text of any recommended modifications to the proposed regulatory change; and
(6) list and describe, or 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 he 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.
[20.1.1.302 NMAC - Rp, 20 NMAC 1.1.III.302, 08/27/06]
20.1.1.303 ENTRY OF APPEARANCE: Any person who is or may be affected by the proposed regulatory change may file an entry of appearance as a party. The entry of appearance shall be filed no later than fifteen (15) days before the date of the hearing on the petition.
[20.1.1.303 NMAC - N, 08/27/06]
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 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.
[20.1.1.304 NMAC - Rp, 20 NMAC 1.1.III.303, 08/27/06]
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 NMAC 1.1.III.304, 08/27/06]
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 NMAC 1.1.III.305, 08/27/06]
20.1.1.307 - 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 person 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 NMAC 1.1.IV.400, 08/27/06]
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 NMAC 1.1.IV.401, 08/27/06]
20.1.1.402 EXHIBITS:
A. Any person offering an exhibit shall provide at least an original and twenty (20) copies for the board and for persons attending the hearing.
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 NMAC 1.1.IV.402, 08/27/06]
20.1.1.403 TRANSCRIPT OF PROCEEDINGS: Unless specified by the board, 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.
[20.1.1. 403 NMAC - Rp, 20 NMAC 1.1.IV.403, 08/27/06]
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 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 NMAC 1.1.IV.404, 08/27/06]
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, explain the testimony and make a recommendation for board action, and shall be filed with the board administrator within the time specified by the board. The board administrator shall promptly notify each participant that the hearing officer’s report has been filed and shall provide a copy of the report upon request.
[20.1.1. 405 NMAC - Rp, 20 NMAC 1.1.IV.405, 08/27/06]
20.1.1.406 DELIBERATION AND DECISION:
A. If a quorum of the board attended at 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 sixty (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.
[20.1.1.406 NMAC - Rp, 20 NMAC 1.1.IV.406, 08/27/06]
20.1.1.407 NOTICE OF BOARD ACTION: The board administrator shall provide notice of the board’s action to each of the participants, and to all other persons who have made a written request to the board for notification of the action taken.
[20.1.1.407 NMAC - Rp, 20 NMAC 1.1.IV.407, 08/27/06]
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 participant.
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 NMAC 1.1.V.500, 08/27/06]
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 at least fifteen (15) 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 participants in the rulemaking proceeding.
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 (2/3) 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 sixty (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 NMAC 1.1.V.501, 08/27/06]
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.
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.