TITLE 20 ENVIRONMENTAL
PROTECTION
CHAPTER 11 ALBUQUERQUE-BERNALILLO
COUNTY AIR QUALITY CONTROL BOARD
PART 82 RULEMAKING
PROCEDURES -- AIR QUALITY CONTROL BOARD
20.11.82.1 ISSUING AGENCY: Albuquerque-Bernalillo
County Air Quality Control Board, c/o Environmental Health Department. P.O. Box 1293, Albuquerque, New Mexico 87103. Telephone: (505) 768-2601.
[20.11.82.1 NMAC - N,
8/11/08]
20.11.82.2 SCOPE: 20.11.82
NMAC governs the procedures in all rulemaking hearings before the board, except
to the extent that 20.11.82 NMAC is inconsistent with specific procedures in
governing law. In cases in which
20.11.82 NMAC is inconsistent with any rulemaking procedures specified in
governing law, the procedures in governing law shall apply, rather than the
procedures in 20.11.82 NMAC. A
rulemaking hearing includes a hearing regarding a proposal to adopt, amend or
repeal a board rule, regulation or standard.
[20.11.82.2 NMAC -
N, 8/11/08]
20.11.82.3 STATUTORY AUTHORITY: 20.11.82
NMAC is adopted pursuant to the authority provided in the New Mexico Air
Quality Control Act, NMSA 1978 Sections 74-2-4, 74-2-5; the Joint Air Quality
Control Board Ordinance, Bernalillo County Ordinance No. 94-5, Sections 4 and
5; and the Joint Air Quality Control Board Ordinance, Revised Ordinances of
Albuquerque 1994, Sections 9-5-1-4 and 9-5-1-5.
[20.11.82.3 NMAC
- N, 8/11/08]
20.11.82.4 DURATION: Permanent.
[20.11.82.4 NMAC -
N, 8/11/08]
20.11.82.5 EFFECTIVE DATE: August
11, 2008, unless a later date is cited at the end of a section.
[20.11.82.5 NMAC -
N, 8/11/08]
20.11.82.6 OBJECTIVE: The
purposes of 20.11.82 NMAC are to:
A. standardize the procedures used in rulemaking proceedings before the
board;
B. encourage participation in the hearings conducted by the board for the
promulgation of regulations;
C. make possible the effective presentation of the evidence and points of
view of parties and members of the general public; and
D. assure that board hearings are conducted in a fair and equitable
manner.
[20.11.82.6 NMAC -
N, 8/11/08]
20.11.82.7 DEFINITIONS: As
used in 20.11.82 NMAC:
A. “Act” means the Air Quality Control Act, Chapter
74, Article 2 NMSA 1978, and its later amendments and successor provisions.
B. “Board” means Albuquerque-Bernalillo county air
quality control board or its successor board pursuant to the act.
C. “Days” means consecutive days except as otherwise
specifically provided.
D. “Department” means the city of Albuquerque environmental
health department or its successor agency.
E. “Document” means any paper, exhibit, pleading, motion,
response, memorandum, decision, order or other written or tangible item that is
filed in a proceeding pursuant to 20.11.82 NMAC, or brought to or before the
board for its consideration, but does not include a cover letter accompanying a
document transmitted for filing.
F. “Environmental justice”
means the fair treatment of all residents (in the City of Albuquerque and
Bernalillo County), including communities of color and low income communities,
and their meaningful involvement in the development, implementation and
enforcement of environmental laws, regulations and policies regardless of race,
color, ethnicity, religion, income or education level.
G. “Exhibit” means any document or tangible item submitted for inclusion in the
hearing record.
H. “Ex parte contact” means oral or other communication
with a board member or a board hearing officer regarding the merits of a
pending rulemaking procedure 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 has been filed pursuant to 20.11.82 NMAC;
(3) the communication is made without all other
parties being present or receiving the same communication that was received by
the board member or the 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 pending rulemaking proceeding.
I. “General public” means any person attending a rulemaking
hearing who has not submitted a notice of intent to present technical testimony
or filed an entry of appearance pursuant to 20.11.82.20 NMAC or 20.11.82.21
NMAC.
J. “Governing law” means the statute, including any applicable
case law, which authorizes and governs the decision regarding the proposed
regulatory change.
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 designated by the
board to conduct a hearing pursuant to 20.11.82 NMAC.
M. “Hearing record” means:
(1) the transcript of proceedings; and
(2) the record proper.
N. “Party” means the petitioner, any person filing a
notice of intent to present technical testimony, and any person filing an entry
of appearance pursuant to 20.11.82.20 NMAC or 20.11.82.21 NMAC.
O. “Non-technical
testimony” means testimony that is not scientific, engineering, economic or
other specialized testimony. A person
who provides only non-technical testimony or a non-technical exhibit is not
required to file an NOI or entry of appearance pursuant to 20.11.82.20 NMAC or
20.11.82.21 NMAC.
P. “Participant”
means any person who participates in a rulemaking proceeding before the board.
Q. “Person” means an individual or any entity, including
federal, state and local governmental entities, however organized.
R. “Petitioner” means the person who petitioned the board
for the regulatory change that is the subject of the hearing.
S. “Record proper” or “record”
means all documents related to the hearing, including documents received or
generated by the board before 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 meeting thereafter at which the proposed regulatory change was
discussed;
(3) the notice of hearing;
(4) proof 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 stenographic transcription or audio
tape of the hearing and the stenographic transcription or audio tapes or
appropriate extract of the audio tapes of the meeting at which the board
deliberated on the adoption of the proposed regulatory change; and
(10) the board’s decision and the reasons
therefore.
T. “Regulation” means a rule, regulation or standard
promulgated by the board that affects one or more persons, in addition to 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.
U. “Regulatory change” means the adoption, amendment or repeal of a
regulation.
V. “Service” means personally delivering a copy of a
document, exhibit or pleading to a party required by 20.11.82 NMAC to be served;
mailing it to that person; or, if that person has agreed in writing, sending it
by facsimile or electronic transmission. 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 the prescribed period. The three-day extension does not apply to any
deadline imposed by the act. Service by
facsimile or electronic transmission is accomplished when the transmission of
the document is complete. The person who
receives the facsimile or electronic transmission shall promptly provide
written confirmation of receipt if requested by the hearing officer, the board
or a party.
W. “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.
X. “Transcript of proceedings” means the verbatim record, audio tape or
stenographic transcription of the proceedings, testimony and argument in the
matter, together with all exhibits offered at the hearing, whether or not
admitted into evidence, and includes the record of any motion hearings or
pre-hearing conferences.
[20.11.82.7 NMAC -
N, 8/11/08]
20.11.82.8 VARIANCES: The
variance procedures provided by 20.11.7 NMAC shall not apply to 20.11.82 NMAC.
[20.11.82.8 NMAC - N, 8/11/08]
20.11.82.9 SEVERABILITY: If
for any reason any section, subsection, sentence, phrase, clause, wording or
application of 20.11.82 NMAC is held to be unconstitutional or otherwise
invalid by any court or the United States environmental protection agency, the
decision shall not affect the validity or application of remaining portions of
20.11.82 NMAC.
[20.11.82.9 NMAC -
N, 8/11/08]
20.11.82.10 DOCUMENTS: Documents
incorporated and cited in 20.11.82 NMAC may be viewed at the Albuquerque
environmental health department, 400 Marquette NW, Room 3023, Albuquerque, NM 87102.
[20.11.82.10 NMAC - N, 8/11/08]
20.11.82.11 POWERS AND DUTIES OF BOARD AND HEARING
OFFICER:
A. Board: The board shall exercise all powers and
duties authorized by 20.11.82 NMAC and not otherwise delegated to the hearing
officer or the hearing clerk.
B. Hearing officer: The
board shall designate a hearing officer for each hearing. The hearing officer shall
exercise all powers and duties delegated or otherwise authorized by 20.11.82
NMAC. 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 20.11.82 NMAC, including:
(1) conducting hearings pursuant to 20.11.82
NMAC;
(2) taking, admitting or excluding evidence,
examining witnesses and allowing post-hearing submissions;
(3) making 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 hearing clerk;
(6) establishing the deadlines for filing
documents with the hearing clerk; and
(7) requesting the prevailing party to submit
a proposed statement of reasons in support of the board’s decision.
C. Notice of hearing officer assignment: If a hearing officer other than a board
member is assigned as a hearing officer, the hearing clerk shall notify the
parties of the name and address of the hearing officer. At the same time, the hearing clerk also
shall forward to the hearing officer copies of all documents related to the
petition that have been filed to date.
[20.11.82.11 NMAC -
N, 8/11/08]
20.11.82.12 LIBERAL CONSTRUCTION:
20.11.82 NMAC shall be liberally construed to carry out its objectives.
[20.11.82.12 NMAC -
N, 8/11/08]
20.11.82.13 GENERAL PROVISIONS -
COMPUTATION OF TIME:
A. Computation of time: In
computing any period of time prescribed or allowed by 20.11.82 NMAC, 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 city of Albuquerque
holiday, in which event the time shall be extended until the end of the next
day that is not a Saturday, Sunday or legal city of Albuquerque holiday. Whenever a party must act within a prescribed
period after service upon a party, and service is by mail, three days shall be
added to the prescribed period. The
three-day extension does not apply to any deadline imposed by the act.
B. Extension of time: For
good cause shown, and after consideration of prejudice to other parties, the
board or hearing officer may grant an extension of time for filing any document
upon timely motion of a party to the proceeding.
[20.11.82.13 NMAC -
N, 8/11/08]
20.11.82.14 GENERAL PROVISIONS -
RECUSAL:
A. No
board member shall participate in any action in which his or her impartiality
or 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 the recusal on the record.
In making a decision to recuse him or herself, the board member may rely
upon any relevant authority.
B. A
board member or a hearing officer shall not perform any function authorized by
20.11.82 NMAC regarding any matter in which a board member or a hearing
officer:
(1) has a personal bias
or prejudice concerning a party;
(2) is related to a
party within the third degree of relationship;
(3) is an officer, director or trustee of a
party or interested participant in the proceeding; or
(4) has a financial interest in the proceeding
or has any other conflict of interest.
[20.11.82.14 NMAC -
N, 8/11/08]
20.11.82.15 GENERAL PROVISIONS -
EX PARTE COMMUNICATION: At no time after a proceeding is initiated by
filing a petition pursuant to 20.11.82.18 NMAC and before the conclusion of a
proceeding initiated pursuant to 20.11.82 NMAC shall the department, or any
other party, interested participant or their representatives communicate ex
parte, orally or in writing, with any board member or the hearing officer,
regarding the merits of the proceeding.
[20.11.82.15 NMAC -
N, 8/11/08]
20.11.82.16 DOCUMENT REQUIREMENTS - FILING AND
SERVICE OF DOCUMENTS:
A. The filing of any document as required by 20.11.82 NMAC shall be
accomplished by delivering the document to the hearing clerk.
B. Any person filing any document shall:
(1) provide the hearing clerk with the
original and nine copies of the document, unless the document is an exhibit, in
which case 20.11.82.27 NMAC shall apply;
(2) deliver a copy to the board attorney;
(3) serve a copy thereof on the petitioner, if
the document is a notice of intent to present technical testimony filed by any
person other than the petitioner; and
(4) file with the hearing clerk at least 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 rulemaking hearing, the motion shall also be
served at the same time on the hearing officer and the board attorney. Motions and responses shall be filed only by
parties to a hearing and shall comply with 20.11.82.16 NMAC.
C. Whenever 20.11.82 NMAC requires service of a document, service on all
other parties shall be made by delivering a copy to the person to be served by
mailing it, or, if that person has agreed in writing, by sending it by
facsimile or by electronic transmission to that person. An 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 20.11.82 NMAC. Service shall also be made upon the board’s
attorney. 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 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 the prescribed period. The three-day
extension does not apply to any deadline imposed by the act. Service by facsimile or electronic
transmission is accomplished when the transmission of the document is
completed. The person who received the
facsimile or electronic transmission shall promptly provide written
confirmation of receipt if requested by the hearing officer, the board or a party.
D. The petitioner and any person who has filed a timely notice of intent
to present technical testimony pursuant to 20.11.82.20 NMAC may inspect all
documents that have been filed in a proceeding in which he or she is involved
as a participant. The inspection shall
be permitted as provided by the Inspection of Public Records Act, NMSA 1978,
Sections 14-2-1 through 14-2-12.
Whenever any document is filed in a proceeding subject to 20.11.82 NMAC,
the hearing clerk shall notify by email the petitioner and all persons who have
filed a timely notice of intent to present technical testimony. A person who does not provide an email
address shall instead be notified by mail.
E. All documents filed pursuant to 20.11.82 NMAC shall be made available
for inspection upon request as provided by the Inspection of Public Records
Act, NMSA 1978, Sections 14-2-1 through 14-2-12.
F. The hearing clerk shall provide copies of all documents to each board
member at least five days before a hearing or meeting at which the board will
consider the documents. With regard to
documents filed in conjunction with any rulemaking hearing, the hearing officer
may make an exception to this requirement.
G. 20.11.82.20 NMAC and 20.11.82.27 NMAC also provide requirements
regarding hearing exhibits.
[20.11.82.16 NMAC -
N, 8/11/08]
20.11.82.17 EXAMINATION OF DOCUMENTS FILED:
A. Examination allowed: Subject to the provisions of
law restricting the public disclosure of confidential information, during
normal business hours any person may inspect and request a copy of any document
filed in any rulemaking proceeding before the board. The documents shall be made available by the
hearing clerk as required by the Inspection of Public Records Act, NMSA 1978,
Sections 14-2-1 through 14-2-12, and
may be viewed at the Albuquerque environmental health department, 400 Marquette
NW, Room 3023, Albuquerque, NM 87102.
B. Cost of duplication: The
cost of duplicating documents shall be borne by the person seeking copies of
the documents.
[20.11.82.17 NMAC -
N, 8/11/08]
20.11.82.18 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 proposed regulatory change. The petition shall cite the relevant statutes
that authorize the board to adopt the proposed regulatory change, and shall
estimate the time that will be needed to conduct the rulemaking hearing, if at
all possible. A copy of the entire rule,
including any 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 legislative-edit format, with strike-outs and
underlines as appropriate, and shall include individual line numbers. The hearing clerk shall return to the
petitioner any document that does not meet the requirements of 20.11.82.18 NMAC,
along with a copy of 20.11.82 NMAC and a check-list of required items. The petitioner will be asked to resubmit the
petition as required by 20.11.82.18 NMAC.
C. At a public meeting occurring no later than 60 days after receipt of
the petition, the board shall determine whether or not to hold a public hearing
on the proposal. Any person may respond
to the petition either in writing before the public meeting or in person at the
public meeting.
D. If the board decides to hold a public hearing on the petition, the
board may issue orders specifying procedures for conduct of the hearing, in
addition to the requirements established in 20.11.82 NMAC, 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.
The orders may include requirements for giving additional public notice,
holding pre-hearing conferences, filing direct testimony in writing before the
hearing, or limiting testimony or cross-examination.
[20.11.82.18 NMAC - N,
8/11/08]
20.11.82.19 NOTICE OF HEARINGS:
A. Unless
otherwise allowed by governing law and specified by the board, the board,
through the hearing clerk, shall give public notice of the hearing at least 30
days before the hearing unless the board requires a longer public notice
period. Public notice shall include at a
minimum:
(1) a single publication in the newspaper with
the largest general circulation in Bernalillo county;
(2) publication in the New Mexico Register;
(3) if technically feasible at the time,
publication by electronic media; and
(4) 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 notice
shall be addressed to hearing clerk and shall designate the areas of board
activity that are of interest.
C. Public notice of the hearing shall state:
(1) the subject, including a description of
the proposed regulatory change, date, 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 obtain
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 or
at a separate board meeting.
[20.11.82.19 NMAC -
N, 8/11/08]
20.11.82.20 TECHNICAL TESTIMONY; NOTICE OF INTENT
(NOI):
A. No later than 15 days before the hearing, any person, including the petitioner, who intends to present
technical testimony at the hearing shall file a notice of intent to present
technical testimony. The notice shall:
(1)
identify the person for whom the witness or witnesses 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) summarize or include a copy of the direct
testimony of each technical witness
and state the anticipated duration of the testimony of that witness;
(4) include the text of any recommended
modifications to the proposed regulatory change; and
(5) 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 person filing an NOI shall serve the notice pursuant to 20.11.82.16
NMAC.
C. The hearing officer may enforce the provisions of 20.11.82.20 NMAC by
taking whatever action the hearing officer deems appropriate, including exclusion
of the technical testimony of any witness for whom a notice of intent was not
timely filed. If the testimony is
admitted, the hearing officer may keep the record open after the hearing to
allow responses to the testimony.
[20.11.82.20 NMAC -
N, 8/11/08]
20.11.82.21 ENTRY OF APPEARANCE: Any
person who is or may be affected by the proposed regulatory change may file an
entry of appearance and shall be a party.
The entry of appearance shall be filed no later than 15 days before the
date of the hearing on the petition.
[20.11.82.21 NMAC -
N, 8/11/08]
20.11.82.22 PARTICIPATION BY GENERAL PUBLIC:
A. Any member of the general public may testify at the hearing. Notification before the hearing is not
required in order to present non-technical testimony at the hearing. A person providing non-technical testimony
also may offer non-technical exhibits in connection with the testimony
provided, if the exhibit is not unduly repetitious of the testimony provided. The board requests but does not require
members of the general public to provide the hearing clerk with an original and
nine copies of every non-technical exhibit before or at the hearing.
B. A member of the general public who wishes to submit a non-technical
written statement for the record instead of providing oral testimony at the
hearing shall file the written statement before the hearing or submit it at the
hearing.
[20.11.82.22 NMAC -
N, 8/11/08]
20.11.82.23 LOCATION OF HEARING:
Unless otherwise provided by governing law, the board shall hold
rulemaking hearings and meetings in public facilities within Bernalillo county with
public seating available.
[20.11.82.23 NMAC -
N, 8/11/08]
20.11.82.24 PARTICIPATION AT A BOARD MEETING BY
CONFERENCE TELEPHONE OR OTHER SIMILAR DEVICE: A member of the board may participate in a
meeting of the board by means of a conference telephone or other similar
communications equipment when a medical or emergency situation exists that
makes it extremely difficult or impossible for the member to attend the meeting
in person, provided that each member participating by conference telephone or
other device 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
are able to hear any member of the board who speaks at the meeting. A request to be present and vote by telephone
or other similar device shall be made by the member to the chair or acting
chair of the board by the member. A
board member who wishes to participate in a meeting in this manner must receive
permission from the chair or acting chair of the board sufficiently in advance
of the meeting so the hearing clerk can arrange for an adequate telephone
hookup. The chair or acting chair shall
determine whether a qualifying medical or emergency situation exists. A board member’s participation by such means
shall constitute presence in person at the meeting. This provision shall not be used to allow a
member to constitute a quorum of the board, and may only be used for the
purposes of:
A. choosing a hearing officer;
B. authorizing the hearing clerk to secure a hearing officer for a hearing
or hearings;
C. scheduling or rescheduling a meeting or hearing; and
D. voting on the limited issues listed in Subsections A, B, and C of
20.11.82.24 NMAC.
[20.11.82.24 NMAC -
N, 8/11/08]
20.11.82.25 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 in a manner that provides
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 to testify 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 20.11.82.29 NMAC. If the
record is kept open, the hearing officer shall determine and announce the
subject or subjects regarding which submittals will be allowed and the deadline
for filing the submittals.
[20.11.82.25 NMAC -
N, 8/11/08]
20.11.82.26 TESTIMONY AND CROSS-EXAMINATION:
A. All testimony shall be taken under oath or affirmation, which may be
accomplished as a group or individually.
B. The hearing officer shall admit all 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 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.
[20.11.82.26 NMAC -
N, 8/11/08]
20.11.82.27 TECHNICAL EXHIBITS:
A. The deadlines for filing technical exhibits are established by
20.11.82.20 NMAC.
B. Any person offering a technical exhibit shall provide the hearing clerk
with an original and 15 copies for the board, the hearing officer, the board
attorney, and persons attending the hearing.
C. 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,
the person shall identify each exhibit with an index tab or by other
appropriate means.
D. 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.
[20.11.82.27 NMAC -
N, 8/11/08]
20.11.82.28 TRANSCRIPT OF PROCEEDINGS: The
hearing clerk shall arrange for a court reporter to make a verbatim
transcription of the hearing unless the board requires another method of
recording. The petitioner shall pay the
cost of the court reporter and the original transcription. The petitioner shall also pay the cost of a
copy of a transcription for each board member, the hearing officer and the
board attorney if required by the hearing officer or the board.
[20.11.82.28 NMAC -
N, 8/11/08]
20.11.82.29 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.
[20.11.82.29 NMAC -
N, 8/11/08]
20.11.82.30 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 hearing clerk within the time
specified by the board. The hearing clerk
shall promptly notify each participant that the hearing officer’s report has
been filed and shall provide a copy of the report upon request as required by
20.11.82.17 NMAC.
[20.11.82.30 NMAC -
N, 8/11/08]
20.11.82.31 DELIBERATION
AND DECISION:
A. As provided in the act at NMSA 74-2-5.E, in making
its regulations, the board shall give weight it deems appropriate to all facts
and circumstances, including:
(1) character and degree of injury to or
interference with health, welfare, visibility and property;
(2) the public interest, including the social
and economic value of the sources and subjects of air contaminants with due
consideration for environmental justice principles; and
(3) technical practicability and economic
reasonableness of reducing or eliminating air contaminants from the sources
involved and previous experience
with equipment and methods available to control the air contaminants involved.
B. 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 at the end of the hearing or at a board meeting
after the hearing.
C. If the board does not reach a decision at the conclusion of the
hearing, then, following receipt of the transcript, the hearing clerk shall
promptly furnish a copy of the transcript to each board member who did not
attend the hearing and, if necessary, to other board members, board attorney
and the hearing officer. Exhibits that
were provided to persons at the time of the hearing need not be supplied again.
D. The board shall reach its decision on the proposed regulatory change
within 60 days after the later of the close of the record or the date the
hearing officer’s report is filed, if a quorum of the board is available.
E. During the course of its deliberations, if the board determines that
additional testimony or documentary evidence is necessary for a proper decision
on the proposed regulatory change, then, consistent with the requirements of
due process, the board may reopen the hearing for necessary additional evidence
only. The board or hearing officer may
require additional notice as appropriate.
F. The board shall issue its decision on the proposed regulatory change in
a suitable format, which shall include its reasons for the action taken.
G. 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.
[20.11.82.31 NMAC -
N, 8/11/08]
20.11.82.32 NOTICE OF BOARD ACTION: The
hearing clerk shall provide notice of the board’s action to each of the
participants and to all other persons who have made a legible written request
to the board for notification of the action taken.
[20.11.82.32 NMAC -
N, 8/11/08]
20.11.82.33 APPEALS AND STAYS - APPEAL OF
REGULATIONS:
A. Appeal of any regulatory change by the board shall be taken in
accordance with NMSA 74-2-9.
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 NMSA 74-2-9, the filing of an appeal shall
not act as a stay of the regulatory change being appealed.
[20.11.82.33 NMAC -
N, 8/11/08]
20.11.82.34 STAY OF BOARD REGULATIONS:
A. Any person who is or may be affected by a regulatory change 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 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 20.11.82.16 NMAC, and shall also 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 exists for granting a stay, the board
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 to the public interest will
result.
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.
[20.11.82.34 NMAC -
N, 8/11/08]
HISTORY OF
20.11.82 NMAC: