20.1.5 NMAC

This rule was filed as 20 NMAC 1.5

TITLE = 20 &nbs= p; =20 ENVIRONMENTAL PROTECTION

CHAPTER = 1 =20 ENVIRONMENTAL PROTECTION GENERAL

PART = 5 &nbs= p; =20 ADJUDICATORY PROCEDURES =96 ENVIRONMENT = DEPARTMENT

20.1.5.1 &nbs= p; =20 ISSUING AGENCY: = Environment=20 Department.

[11/30/95; 20.1.5.1 NMAC = =96 Rn, 20=20 NMAC 1.5.I.100, Recompiled 11/27/01]

20.1.5.2 &nbs= p; =20 SCOPE: Except as = otherwise=20 specifically provided by statute or by any other rule or regulation of = the Board=20 or the Department, this Part governs administrative appeals of = compliance=20 orders, administrative orders, field citations or compliance = determinations=20 issued or administered by the Department. This Part further governs=20 administrative hearings for permit suspensions and revocations. In any=20 Department proceeding conducted under the Uniform Licensing Act, NMSA = 1978,=20 Sections 61-1-1 et seq. (ULA), the procedures in the ULA shall govern = the=20 proceeding. In the absence of a specific provision in the ULA governing = an=20 action, the Department may look to this Part for guidance.

[11/15/90, 11/30/95; 20.1.5.2 NMAC =96 Rn, 20 NMAC = 1.5.I.101,=20 Recompiled 11/27/01]

20.1.5.3 &nbs= p; =20 STATUTORY AUTHORITY: = This=20 Part is adopted under the authority of NMSA 1978, 9-7A-6, 74-2-12, 74-4-10, = 74-6B-8,=20 74-6B-13, 74-9-28.A(2), 74-9-29, 74-9-36, 74-11-10 and 74-11-11, as = amended.

[11/15/09, 11/30/95; 20.1.5.3 NMAC =96 Rn, 20 NMAC = 1.5.I.102,=20 Recompiled 11/27/01]

20.1.5.4 &nbs= p; =20 DURATION: = Permanent.

[11/30/95; 20.1.5.4 NMAC =96 Rn, 20 NMAC 1.5.I.103, = Recompiled=20 11/27/01]

20.1.5.5 &nbs= p; =20 EFFECTIVE DATE: = November 1,=20 1995.

[11/30/95; 20.1.5.5 NMAC =96 Rn, 20 NMAC 1.5.I.104, = Recompiled=20 11/27/01]

20.1.5.6 &nbs= p; =20 OBJECTIVE: The = objective of=20 this Part is to establish regulations that govern adjudicatory = proceedings of=20 the Environment Department. = This=20 Part is to ensure due process for all the parties and give an orderly = structure=20 to the proceedings.

[11/30/95; 20.1.5.6 NMAC =96 Rn, 20 NMAC 1.5.I.105, = Recompiled=20 11/27/01]

20.1.5.7 &nbs= p; =20 DEFINITIONS:

&nbs= p; =20 A. =20 GENERAL. As used in this Part:

&n= bsp; =20 (1) = "Act"=20 means, as the context requires:

&n= bsp; &nb= sp; =20 (a) the = Department of=20 Environment Act, NMSA 1978, Chapter 9, Article 7A, and its subsequent = amendments=20 and successor provisions;

&n= bsp; &nb= sp; =20 (b) = the=20 Air Quality Control Act, NMSA 1978, Chapter 74, Article 2, and its = subsequent=20 amendments and successor provisions;

&n= bsp; &nb= sp; =20 (c) = the=20 Hazardous Waste Act, NMSA 1978, Chapter 74, Article 4, and its = subsequent=20 amendments and successor provisions;

&n= bsp; &nb= sp; =20 (d) = the=20 Solid Waste Act, NMSA 1978, Chapter 74, Article 9, and its subsequent = amendments=20 and successor provisions;

&n= bsp; &nb= sp; =20 (e) = the=20 Ground Water Protection Act, NMSA 1978, Chapter 74, Article 6B, and its=20 subsequent amendments and successor provisions;

&n= bsp; =20 &n= bsp; (f) the Tire = Recycling=20 Act, NMSA 1978, Chapter 74, Article 11, and its subsequent amendments = and=20 successor provisions; or

&n= bsp; &nb= sp; =20 (g) = any=20 other statute enacted or amended by the Legislature and including = authority for=20 issuance of compliance orders or field citations by the Division or the=20 Secretary or any other adjudicatory proceedings as consistent with = law;

&n= bsp; =20 (2) =20 "Board" means the Environmental Improvement Board;

&n= bsp; =20 (3) =20 "Complainant" means the Division that issues Compliance Orders, = or the=20 party requesting a hearing on a Compliance Determination;

&n= bsp; =20 (4) =20 "Compliance Determination" means a decision by the Division = listed in the=20 Corrective Action Fund Payment and Reimbursement, 20 NMAC 5.17; [20.5.17 = NMAC]

&n= bsp; =20 (5) =20 "Compliance Order" means a written administrative order or any = field=20 citation issued by the Division;

&n= bsp; =20 (6) =20 "Department" means the New Mexico Environment Department or it = successor=20 agency under the Act;

&n= bsp; =20 (7) =20 "Division" means the appropriate Division within the Environment=20 Department;

&n= bsp; =20 (8) =20 "document" means, except as otherwise used in Subpart III, any = pleading,=20 motion, response, memorandum, decision, order, or other written material = filed=20 or served in a proceeding under this Part, but does not include a cover = letter=20 accompanying a document transmitted for filing;

&n= bsp; =20 (9) = "final=20 order" means an order issued by the Secretary that is dispositive of the = matter;

&n= bsp; =20 (10) =20 "Hearing Clerk" means the person designated by the Secretary to = maintain=20 the official record of the proceeding;

&n= bsp; =20 (11) =20 "Hearing Officer" means the person appointed by the Secretary to = conduct=20 a proceeding under this Part;

&n= bsp; =20 (12) =20 "Notice of Contemplated Action" means a notice issued by the = Secretary=20 under NMSA 1978, Section 61-1-4 of the ULA;

&n= bsp; =20 (13) =20 "party" means the Complainant, the Division, Respondent, any = person who=20 is entitled and who timely requests to be heard under the ULA, or any = person who=20 is permitted to intervene in the hearing pursuant to SCRA 1986, 1-024;

&n= bsp; =20 (14) =20 "Petition" means a Petition for revocation or suspension of a = permit;=20

&n= bsp; =20 (15) =20 "Petitioner" means the Department when the Petition is for = revocation or=20 suspension of a permit;

&n= bsp; =20 (16) =20 "Record Proper" means all documents filed by or with the Hearing = Clerk=20 during the proceeding and includes the written transcript or tape of the = hearing=20 and all exhibits offered into evidence at the hearing, whether or not=20 admitted;

&n= bsp; =20 (17) =20 "Regulations" means any rule promulgated and adopted pursuant to = the=20 Act;

&n= bsp; =20 (18) =20 "Request for Hearing" means a written appeal for review of a = decision or=20 Compliance Order issued by Division;

&n= bsp; =20 (19) =20 "Respondent" means any person to whom a Compliance Order has been = issued;=20 or the Division in the case of a Compliance Determination under the = Ground Water=20 Protection Act; and

&n= bsp; =20 (20) =20 "Secretary" means the Secretary of Environment, or any person who = assumes=20 the role of Secretary for purposes of this Part in the event of the = Secretary's=20 disqualification.

&nbs= p; =20 B. =20 Terms Used in Act or Regulations: =20 Terms defined in the Act or Regulations and not defined in this = Part are=20 used consistent with the meanings given in the Act or Regulations.

[11/15/95, 11/30/95; 20.1.5.7 NMAC =96 Rn, 20 NMAC = 1.5.I.111,=20 Recompiled 11/27/01]

20.1.5.8 to 20.1.5.99 RESERVED]

20.1.5.100 &nbs= p; =20 GENERAL [PROVISIONS]: =

A. =20 Applicability of Rules of Civil Procedure: In the absence of a specific = provision=20 in this Part governing an action, the New Mexico Rules of Civil = Procedure, SCRA=20 1986, 1-001 to 1-102 and = the New=20 Mexico Rules of Evidence, SCRA 1986, =20 11-101 to 11-1102 may apply as necessary in the discretion of the = Secretary or Hearing Officer. = The=20 reference to the Rules of Civil Procedure or the Rules of Evidence shall = not be=20 construed to extend or otherwise modify the authority and jurisdiction = of the=20 Secretary under any statute.

&nbs= p; =20 B. =20 Liberal Construction: = This=20 Part shall be liberally construed to carry out its purpose.

C. =20 Severability: If = any Part or=20 application of this Part is held invalid, the remainder of the Part, or = its=20 application to other persons or situations, shall not be affected.

D. =20 Replacement of Prior Rules: =20 This Part replaces the Rules Governing Appeals From Compliance = Orders=20 Under the Hazardous Waste Act and the Solid Waste Act, HED 90-10 (EID), = filed=20 October 16, 1990. Any reference in this Title to these Rules shall be = construed=20 as a reference to this Part.

E. &nbs= p;=20 Savings Clause: = Replacement=20 of the Rules Governing Appeals From Compliance Orders Under the = Hazardous Waste=20 Act and the Solid Waste Act, HED 90-10 (EID), filed October 16, 1990, = does not=20 affect pending litigation, nor any Compliance Orders or Compliance=20 Determinations issued prior to the effective date of this Part.

&nbs= p; =20 F. &nbs= p;=20 Powers and Duties of the Secretary, Hearing Officer:

&n= bsp; =20 (1) =20 Secretary: The = Secretary=20 shall exercise all powers and duties as prescribed under the Act and = this Part,=20 and not otherwise delegated to a staff member, the Hearing Officer, or = the=20 Hearing Clerk.

&n= bsp; =20 (2) =20 Hearing Officer: = The=20 Secretary may appoint one or more Hearing Officers to perform the = functions=20 described in Paragraph 2 of this Subsection [Subparagraph (b) of this=20 Subsection].

&n= bsp; =20 &n= bsp; (a) = Qualifications: If an independent Hearing = Officer is=20 required by the Act, then the Hearing Officer may be an independent = contractor=20 or a State employee who is employed in the capacity as a Hearing = Officer. The=20 Hearing Officer shall not be anyone who has performed prosecutorial or=20 investigative functions in connection with the matter at issue in the=20 proceeding.

&n= bsp; &nb= sp; =20 (b) =20 Functions: The = Hearing=20 Officer shall exercise all powers and duties prescribed or delegated by = the=20 Secretary under the Act or this Part. =20 The Hearing Officer shall conduct a fair and impartial = proceeding, assure=20 that the facts are fully elicited, and avoid delay. The Hearing Officer shall have = authority=20 to take all measures necessary for the maintenance of order and for the=20 efficient, fair and impartial adjudication of issues arising in = proceedings=20 governed by this Part, which includes, but is not limited to authority = to:

&n= bsp; &nb= sp; &nbs= p; =20 (i) =20 conduct hearings under this Part;

&n= bsp; &nb= sp; &nbs= p; =20 (ii) = rule=20 upon motions, procedural requests, offers of proof, and issue all = necessary=20 orders;

&n= bsp; &nb= sp; &nbs= p; =20 (iii) =20 issue subpoenas, as authorized by the Act, for the attendance and = testimony of witnesses and the production of documentary evidence as = provided=20 for in Subpart III [20.1.5.300 NMAC];

&n= bsp; &nb= sp; &nbs= p; =20 (iv) =20 administer oaths and affirmations, examine witnesses and admit or = exclude=20 evidence;

&n= bsp; &nb= sp; &nbs= p; =20 (v) =20 require parties to attend conferences for the settlement or=20 simplification of the issues, or the expedition of the proceedings; = and

&n= bsp; &nb= sp; &nbs= p; =20 (vi) =20 impose sanctions, subject to review by the Secretary, on parties = who=20 cause undue delay or fail to cooperate in the proceeding.

&n= bsp; =20 (3) =20 Secretary or Hearing Officer; Disqualification or = Withdrawal:

&n= bsp; &nb= sp; =20 (a) =20 Neither the Secretary nor any Hearing Officer may perform = functions=20 provided for in this Part regarding any matter in which the Secretary or = the=20 Hearing Officer:

&n= bsp; &nb= sp; &nbs= p; =20 (i) = has a=20 personal bias or prejudice concerning a party or personal knowledge of = facts or=20 information concerning the proceeding;

&n= bsp; &nb= sp; &nbs= p; =20 (ii) = has a=20 financial interest in the proceeding;

&n= bsp; &nb= sp; &nbs= p; =20 (iii) = is=20 related to a party; or

&n= bsp; &nb= sp; &nbs= p; =20 (iv) = is an=20 officer, director or trustee of a party to the proceeding.

&n= bsp; &nb= sp; =20 (b) = The=20 Secretary shall not be disqualified solely because of having been = briefed on the=20 matter prior to issuance of the Compliance Order or having authorized = further=20 investigation of the matter prior to issuance of the Compliance = Order.

&n= bsp; &nb= sp; =20 (c) = Any=20 party, by motion and for cause listed in Section 112.C.1, [Subparagraph = (a) of=20 Paragraph (3) of this Subsection] may request the disqualification of = the=20 Secretary or the Hearing Officer within ten (10) days after the matter = has been=20 docketed or the Hearing Officer designated, or if a new Secretary is = appointed,=20 within ten (10) days after the Secretary takes office.

&n= bsp; =20 &n= bsp;(d) Any motion = seeking=20 disqualification of the Hearing Officer or the Secretary shall be ruled = upon by=20 the Secretary. Upon=20 disqualification of the Secretary, the Deputy Secretary shall assume the = duties=20 of the Secretary. In the event that the Deputy Secretary is also subject = to=20 disqualification, a division director other than the Complainant shall = assume=20 the duties of the Secretary.

G. =20 Computation and Extension of Time: =20

&n= bsp; =20 (1) =20 Computation of Time: = In=20 computing any period of time prescribed or allowed by this Part, except = as=20 otherwise specifically provided, the day of the event from which the = designated=20 period begins to run shall not be included. The last day of the computed = period=20 shall be included, unless it is a Saturday, Sunday, or legal state = holiday, then=20 the time is extended until the next day which is not a Saturday, Sunday, = or=20 legal state holiday. Whenever a party must act within a prescribed = period after=20 service upon him and service is by mail, three (3) days is added to the=20 prescribed period. The = three days=20 extension does not apply to any deadline mandated otherwise under the = Act.

&n= bsp; =20 (2) =20 Extensions of Time : = The=20 Secretary or Hearing Officer may grant an extension of time to file a = document=20 or continuance of a hearing upon timely motion of a party to the = proceeding, for=20 good cause shown, and after consideration of prejudice to other parties = and=20 undue delay to the proceedings.

H. =20 Ex Parte Discussions: = At no=20 time shall any party to a proceeding under this Part discuss ex parte = with the=20 Secretary or the Hearing Officer the merits of the proceeding.

I. &nbs= p; =20 Filing, Service, and Form of Documents:

&n= bsp; =20 (1) = Filing=20 of Documents:

&n= bsp; &nb= sp; =20 (a) = Except=20 as otherwise provided, the original of all documents served in the = proceeding=20 shall be filed with the Hearing Clerk.

&n= bsp; &nb= sp; =20 (b) = Except=20 as otherwise provided, a party filing documents shall serve copies = thereof upon=20 all other parties. A = certificate of=20 service, as shown in Section 118, [Subsection L. of this Section] shall=20 accompany each filed document.

&n= bsp; =20 (2) =20 Service of Documents: = Except=20 as otherwise provided, all documents may be served personally, by = express mail,=20 by telefax or by first class mail.

&n= bsp; =20 (3) = Form=20 of Documents:

&n= bsp; &nb= sp; =20 (a) = Unless=20 otherwise ordered by the Hearing Officer, all documents, except = exhibits, shall=20 be on 8 1/2 x 11-inch white paper, and where appropriate, the first page = of=20 every document shall contain a heading and caption as illustrated in = Section 118=20 [Subsection L. of this Section]. = Any field citation may be on a pre-printed, multi-copy form.

&n= bsp; &nb= sp; =20 (b) = The=20 original of each document, except exhibits, shall be signed by the party = or the=20 party's counsel or other representative, and shall include address and = telephone=20 number. The signature = constitutes a=20 certificate that the signer has read the document; that to the best of = the=20 signer's knowledge, information, and belief, there is good ground to = support it;=20 and that, except for motions for extension of time, it is not interposed = for=20 delay.

&n= bsp; &nb= sp; =20 (c) = Any=20 notice or service required under this Part shall be deemed adequate if = made to=20 the most recent address provided by the person upon whom service is = made.

J. &nbs= p;=20 Filing and Service of Documents Issued by Secretary or Hearing=20 Officer: All documents = issued by=20 the Hearing Officer shall be filed with the Hearing Clerk. The Hearing Clerk shall = promptly serve=20 copies of the document upon all parties.

K. =20 Examination of Documents Filed: =20

&n= bsp; =20 (1) =20 Examination Allowed: = Subject=20 to the provisions of law restricting the public disclosure of = confidential=20 information, any person may, during normal business hours, inspect and = copy any=20 document filed in any proceeding. Such documents shall be made available = by the=20 Hearing Clerk, as appropriate.

&n= bsp; =20 (2) = Cost=20 of Duplication: Unless = waived by=20 the Department, the cost of duplicating documents filed in any = proceeding shall=20 be borne by the person seeking copies of such documents.

L. &nbs= p;=20 Sample Document: =

&n= bsp; &nb= sp; &nbs= p; =20 STATE OF NEW MEXICO

&n= bsp; &nb= sp; =20 SECRETARY OF ENVIRONMENT

NAME OF COMPLAINANT,

&n= bsp; &nb= sp;=20 Complainant,

&n= bsp;=20 v. &n= bsp; &nb= sp; &nbs= p; = ; = &= nbsp; &n= bsp; &nb= sp; &nbs= p; =20 No.

NAME OF RESPONDENT,

=20 &n= bsp; Respondent.

&n= bsp; &nb= sp; &nbs= p; =20 TITLE OF DOCUMENT

&n= bsp; &nb= sp; &nbs= p; = ; = &= nbsp; &n= bsp; &nb= sp; &nbs= p; =20 Signature__________________________

&n= bsp; =20 &n= bsp; &nb= sp; &nbs= p; = ; = &= nbsp; &n= bsp; NAME

&n= bsp; &nb= sp; &nbs= p; = ; = &= nbsp; &n= bsp; &nb= sp; &nbs= p; =20 ADDRESS & TELEPHONE NUMBER

&n= bsp; =20 &n= bsp; &nb= sp; CERTIFICATE=20 OF SERVICE

&n= bsp; =20 I hereby certify that a copy of the foregoing [name of document] = was=20 [hand-delivered/express mailed/faxed/mailed first class] on the = following=20 [party/counsel] of record [date]:

=20 &n= bsp; [names=20 and addresses of persons upon whom service is made.]

&n= bsp; &nb= sp; &nbs= p; = ; = &= nbsp; &n= bsp; &nb= sp; &nbs= p; =20 Signature__________________________

&n= bsp; =20 &n= bsp; &nb= sp; &nbs= p; = ; = &= nbsp; &n= bsp; Name=20 of signer

[11/15/90, 11/30/95; 20.1.5.100 NMAC = =96 Rn, 20=20 NMAC 1.5.I.106 through 110, and 20 NMAC 1.5.I.112 through 118, = Recompiled=20 11/27/01]

20.1.5.101 to = 20.1.5.199 = [RESERVED]

20.1.5.200 &nbs= p; =20 PREHEARING PROCEDURES: =

A. =20 Initiation of Process: =

&n= bsp; =20 (1) = Filing=20 of Request: The appeal = process=20 governed by this Part shall be initiated by the filing of a Request for = Hearing=20 and served on the Department and any other party.

&n= bsp; =20 (2) =20 Request for Hearing: = The=20 Request for Hearing shall include an Answer. The Answer shall:

&n= bsp; &nb= sp; =20 (a) =20 clearly and directly admit or deny each of the factual assertions = contained in the Compliance Order/Determination; but where the=20 Respondent/Complainant has no knowledge of a particular factual = assertion and so=20 states, the assertion may be denied on that basis. Any allegation of the = Compliance=20 Order/Determination not specifically denied shall be deemed = admitted;

&n= bsp; &nb= sp; =20 (b) =20 indicate any affirmative defenses upon which the = Respondent/Complainant=20 intends to rely. Any affirmative defense not asserted in the Request for = Hearing, except a defense asserting lack of subject matter jurisdiction, = shall=20 be deemed waived;

&n= bsp; &nb= sp; =20 (c) = be=20 signed under oath or affirmation that the information contained therein = is to=20 the best of the signer's knowledge believed to be true and correct; and =

&n= bsp; =20 &n= bsp; (d) have a copy = of the=20 Compliance Order/Determination attached.

B. =20 Notice of Docketing; Notice of Hearing Officer Assignment:

&n= bsp; =20 (1) = Notice=20 of Docketing; Notice of Hearing Officer Assignment: The Hearing Clerk shall, as = soon as=20 practicable after receipt of a Request for Hearing, issue a Notice of = Docketing=20 containing the caption and docket number of the case, the date upon = which the=20 Request for Hearing was received by the Hearing Clerk, and the name of = the=20 Hearing Officer, if one has been designated. If a Hearing Officer has not = been=20 designated, the parties shall be notified of the name and address of the = Hearing=20 Officer as soon as one is assigned. =20 A copy of this Part shall be included with a Notice of Docketing = sent to=20 the Respondent/Complainant.

&n= bsp; =20 (2) =20 Untimeliness: The = Hearing=20 Clerk shall docket any Request for Hearing, without regard to whether it = appears=20 to be timely; but any party may move to dismiss an untimely Request for=20 Hearing.

C. =20 Scheduling the Hearing: =

&n= bsp; =20 (1) =20 Compliance Determinations: =20 The hearing for Compliance Determinations shall be scheduled to = begin no=20 later than ninety (90) days after the date the Request for Hearing was = received,=20 unless a stipulated or unopposed motion is filed requesting that the = ninety day=20 deadline be waived. The = motion to=20 waive must be filed prior to the expiration of the ninety day deadline. =

&n= bsp; =20 (2) = Tire=20 Recycling Act Compliance Order: =20 Within five days of receipt of a Request for Hearing, a public = hearing=20 shall be scheduled to begin at least fifteen days and not more than = twenty days=20 after the date the notice of hearing is mailed to the Respondent.

&n= bsp; =20 (3) = Notice=20 of Hearing: The Hearing = Clerk shall=20 in consultation with the Hearing Officer, but no later than thirty (30) = days=20 prior to the hearing date, issue and serve upon the parties a Notice of = Hearing=20 setting forth the date, time, and location of the hearing.

&n= bsp; =20 (4) =20 Postponement of Hearing: = No=20 request for postponement of a hearing shall be granted except upon = consent of=20 all parties or for good cause shown.

&n= bsp; =20 (5) =20 Location of the Hearing: =20 Unless otherwise ordered by the Secretary, the hearing shall be = in Santa=20 Fe.

D. =20 Motions:

&n= bsp; =20 (1) =20 General: All = motions, except=20 those made orally during a hearing, shall be in writing, specify the = grounds for=20 the motion, state the relief sought and state whether it is opposed or=20 unopposed. Each motion = may be=20 accompanied by an affidavit, certificate, or other evidence relied upon = and=20 shall be served as provided by Section 115 [Subsection I. of 20.1.5.100 = NMAC].

&n= bsp; =20 (2) =20 Unopposed = Motions: An unopposed motion shall = state that=20 concurrence of all other parties was obtained. The moving party shall submit = a proposed=20 order approved by all parties for the Hearing Officer's review.

&n= bsp; =20 (3) =20 Opposed Motions: = Any opposed=20 motion shall state either that concurrence was sought and denied, or why = concurrence was not sought. = A=20 memorandum brief in support of such motion may be filed with the motion. =

&n= bsp; =20 (4) =20 Response to Motions: = Any=20 party upon whom an opposed motion is served shall have fifteen (15) days = after=20 service of the motion to file a response. =20 A non-moving party failing to file a timely response shall be = deemed to=20 have waived any objection to the granting of the motion.

&n= bsp; =20 (5) = Reply=20 to Response: The moving = party may,=20 but is not required to, submit a reply to any response within ten (10) = days=20 after service of the response.

&n= bsp; =20 (6) =20 Decision: All = motions shall=20 be decided by the Hearing Officer without a hearing, unless otherwise = ordered by=20 the Hearing Officer sua sponte or upon written request of any party.

[11/15/90, 11/30/95; 20.1.5.200 NMAC =96 Rn, 20 = NMAC 1.5.II 200=20 through 203, Recompiled 11/27/01]

20.1.5.201 to 20.1.5.299 [RESERVED]

20.1.5.300 &nbs= p; =20 DISCOVERY:

A. =20 Scope of Discovery: =

&n= bsp; =20 (1) =20 Grounds: For a ULA = Hearing,=20 discovery shall be governed by the provisions of the ULA. Discovery of=20 information not privileged may be permitted if it meets the = following:

&n= bsp; &nb= sp; =20 (a) = the=20 discovery will not unreasonably delay the proceeding;

&n= bsp; &nb= sp; =20 (b) = the=20 information to be obtained is not unreasonably cumulative or = duplicative, or not=20 otherwise reasonably obtainable;

&n= bsp; &nb= sp; =20 (c) = the=20 discovery is not unreasonably burdensome; and

= &n= bsp; (d= ) there is a = substantial=20 reason to believe that the information sought will be admissible at the = hearing=20 or will be likely to lead to the discovery of admissible evidence.

&n= bsp; =20 (2) =20 Request: Unless = otherwise=20 directed by the Hearing Officer, a party requesting discovery shall = serve the=20 discovery request directly upon the party from whom discovery is sought = and=20 shall file a notice with the Hearing Clerk, indicating the date of = service of=20 the discovery request, the type of discovery sought and the party from = whom=20 discovery is sought.

&n= bsp; =20 (3) =20 Response to Discovery Request: =20 A party responding to a discovery request shall serve the = response,=20 including any objections, upon the party making the discovery request = and shall=20 file a notice with the Hearing Clerk, indicating the date of service of = the=20 response, the type of discovery request being responded to, and the = party upon=20 whom the response was served.

&n= bsp; =20 (4) =20 Continuing Obligation to Supplement Responses: Any party from whom discovery = is sought=20 has a continuing obligation, subject to any objections interposed and = not=20 overruled by the Hearing Officer, to supplement responses with relevant=20 information obtained after serving of the initial response and any = previous=20 supplemental responses. = Unless=20 otherwise ordered by the Hearing Officer, supplemental responses shall = be served=20 as soon as practicable, but no later than five (5) days from when the=20 information became available. = If=20 the information becomes available less than five days before the hearing = or=20 during the hearing, it shall be brought to the attention of the Hearing = Officer=20 for direction and ruling on use of the information.

&n= bsp; =20 (5) =20 Privilege: A list = of=20 privileged documents, identified by titles, author, date, and privilege = or=20 protection claimed shall be provided in response to discovery.

&n= bsp; =20 (6) =20 Protective Order: = The=20 Hearing Officer may, upon motion and for good cause shown, protect the = discovery=20 from disclosure. If such = motion is=20 granted, the moving party may not present the protected discovery at the = hearing.

&n= bsp; =20 (7) = Motion=20 to Compel, Sanctions: A = party may=20 move for an order compelling discovery where the party from whom = discovery was=20 requested has failed to adequately or timely respond. The Hearing Officer may order = the=20 response and may impose such sanctions as may be appropriate, including = but not=20 limited to the following:

&n= bsp; &nb= sp; =20 (a) =20 refusal to allow the testimony of a witness not identified as = required by=20 Section 301 [Subsection B. of this Section];

&n= bsp; &nb= sp; =20 (b) = denial=20 of admission of a document not disclosed as required by Section 302; = [Subsection=20 C. of this Section]

&n= bsp; &nb= sp; =20 (c) =20 drawing of adverse inferences against the non-responsive party; = and

&n= bsp; &nb= sp; =20 (d) = in an=20 extreme case, dismissal or default judgment against the non-responding=20 party.

B. =20 Identity of Witness: Except=20 as provided in Subsection B of this Section [Paragraph (2) of Subsection = A. of=20 this Section] or allowed by the Hearing Officer, each party shall, = within=20 fifteen (15) days after receipt of notice of the scheduling of the = hearing or=20 within forty-five (45) days before the hearing, whichever is closer to = the=20 hearing date, provide the name and address of each person expected to be = called=20 as a witness and a description of the general subject matter of the = anticipated=20 testimony of each witness.

C. =20 Production of Documents: =20

&n= bsp; =20 (1) =20 Definition: As = used in this=20 Subpart, "document" includes writings, memos, correspondence, financial=20 information, drawings, graphs, charts, photographs, video tapes and = other data=20 compilations from which information can be obtained, and if necessary,=20 translated by the party through detection devices into reasonably usable = form.=20 In addition, each copy of a document that is not identical in all = respects to=20 every other copy shall be considered a separate document.

&n= bsp; =20 (2) =20 Request: Provided = the=20 grounds in Section 300.A [Paragraph (1) of Subsection A. of this = Section] are=20 met, any party, upon written request to another party, may inspect and = make=20 copies of any designated documents in the possession or control of the = other=20 party. The request shall = set forth=20 the items to be inspected either by individual item or by category and = describe=20 each item and category with reasonable particularity. The request shall specify a = reasonable=20 time, place and manner of making the inspection and copies. Reasonable time means not less = than=20 twenty (20) days after service of the request in the case of a = Compliance Order=20 and not less than ten (10) days after service of the request in the case = of a=20 Compliance Determination.

D. =20 Subpoenas: As = allowed by the=20 Act, the Hearing Clerk shall, upon written request by any party, issue a = subpoena requiring the attendance and testimony of any witness and the=20 production of any evidence in the possession or under the control of the = witness=20 at the hearing or at deposition authorized by the Hearing Officer under = Section=20 304 [Subsection E. of this Section]. =20 A subpoena may be issued with the name and address of the witness = blank,=20 to be completed by the requesting party.

E. &nbs= p;=20 Request for Admissions: =20 Provided the grounds in Section 300.A [Paragraph (1) of = Subsection A. of=20 this Section] are met, any party may serve upon any other party a = written=20 request for the admission of any statement or opinion of fact or the = application=20 of law to fact, including the genuineness of any document. If the request includes a = request for=20 admission of the genuineness of a document, the document shall be = attached to=20 the request unless it has been or is otherwise furnished or made = available for=20 inspection and copying. = Each=20 statement shall be deemed admitted unless, within twenty (20) days after = service=20 of the Request, or such longer or shorter period as the Hearing Officer = may=20 prescribe, the party to whom the request is directed serves upon the = requesting=20 party a sworn written response specifically denying such matter.

F. &nbs= p;=20 Depositions and Interrogatories: =20

&n= bsp; =20 (1) =20 Motion: Requests = for=20 Depositions and Interrogatories must be made by motion to the Hearing = Officer=20 and may be permitted only upon determination by the Hearing Officer that = the=20 Grounds listed in Section 300.A [Paragraph (1) of Subsection A. of this = Section]=20 are met.

&n= bsp; =20 (2) =20 Order: Upon = determining that=20 a motion for depositions or interrogatories should be granted, the = Hearing=20 Officer shall issue an order for the taking of such discovery together = with any=20 conditions and terms of the discovery.

[11/15/90, 11/30/95; 20.1.5.300 NMAC =96 Rn, 20 = NMAC=20 1.5.III.300 through 305, Recompiled 11/27/01]

20.1.5.301 to 20.1.5.399 [RESERVED]

20.1.5.400 &nbs= p; =20 HEARING PROCEDURES: =

A. =20 Evidence:

&n= bsp; =20 (1) =20 General: The = Hearing Officer=20 shall admit all relevant evidence, unless the Hearing Officer determines = that=20 the evidence is irrelevant, immaterial, unduly repetitious or otherwise=20 unreliable or of little probative value. =20 Evidence relating to settlement that would be excluded in the = courts=20 under SCRA 1986, 11-408 = is not=20 admissible.

&n= bsp; =20 (2) =20 Examination of Witnesses: = Witnesses shall be examined orally, under oath or affirmation, = except as=20 otherwise provided in this Part or by the Hearing Officer. Parties shall have the right = to=20 cross-examine a witness. The Hearing Officer may limit cross-examination = that is=20 unduly repetitious, harassing or beyond the scope of the witness' direct = testimony.

&n= bsp; =20 (3) =20 Exhibits: All = exhibits=20 offered in evidence shall be marked with a designation identifying the = person by=20 whom the exhibit is offered, and numbered serially in the sequence in = which=20 offered. Large charts and = diagrams,=20 models, and other bulky exhibits are discouraged. Exhibits should be limited to = 8 1/2 by=20 11 inches or be capable of being folded to that size, unless otherwise = necessary=20 for adequate presentation of evidence.

&n= bsp; =20 (4) Official = Notice: Official notice may be taken = of any=20 matter that may be judicially noticed in the New Mexico courts. In a ULA Hearing, parties = shall be given=20 adequate opportunity to show that such facts are erroneously noticed. =

B. =20 Objections and Offers of Proof: =20

&n= bsp; =20 (1) =20 Objection: Any = objection=20 concerning the conduct of the hearing may be stated orally or in writing = during=20 the hearing. The party = raising the=20 objection must supply a short statement of its grounds. The ruling by = the=20 Hearing Officer on any objection and the reasons given for it shall be = part of=20 the record.

&n= bsp; =20 (2) = Offer=20 of Proof: Whenever = evidence is=20 excluded from the record, the party offering the evidence may make an = offer of=20 proof, which shall be included in the record. The offer of proof for = excluded oral=20 testimony shall consist of a brief statement describing the nature of = the=20 evidence excluded and what such evidence would have proved. The offer of proof for = excluded=20 documents or exhibits shall consist of the insertion in the record of = the=20 documents or exhibits excluded. =20 Where the Secretary decides that the ruling of the Hearing = Officer in=20 excluding the evidence was both erroneous and prejudicial, the hearing = may be=20 reopened to permit the taking of such evidence.

C. =20 Burden of Persuasion: =

&n= bsp; =20 (1) =20 Compliance Order: = The=20 Complainant has the burden of going forward with the evidence and of = proving by=20 a preponderance of the evidence the facts relied upon to show the = violation=20 occurred and that the proposed civil penalty is appropriate. Following the establishment of = a prima=20 facie case, the Respondent shall have the burden of going forward with = any=20 adverse evidence or defense to the allegations.

&n= bsp; =20 (2) =20 Compliance Determination: = The Complainant has the burden of proving cost eligibility and=20 substantial compliance with the Act and Corrective Action Fund Payment = and=20 Reimbursement Regulations.

&n= bsp; =20 (3) =20 Preponderance of Evidence: =20 Each matter of controversy shall be determined by the Hearing = Officer=20 upon a preponderance of the evidence.

[11/15/90, 11/30/95; 20.1.5.400 NMAC =96 Rn, 20 = NMAC 1.5.IV.400=20 through 402, Recompiled 11/27/01]

20.1.5.401 to 20.1.5.499 [RESERVED]

20.1.5.500 &nbs= p; =20 POST-HEARING PROCEDURES: =20

A. =20 Filing the Transcript: =20 Unless otherwise ordered by the Secretary or Hearing Officer, The = hearing=20 shall be transcribed verbatim. = The=20 Hearing Clerk shall promptly notify all parties and interested = participants of=20 the availability of the transcript. =20 Any person desiring a copy of the transcript must order a copy = from the=20 reporter.

B. =20 Proposed Findings and Conclusions: =20 Unless otherwise ordered by the Hearing Officer, within thirty = (30) days=20 after the filing of the transcript, or within such time as may be fixed = by the=20 Hearing Officer, any party may submit proposed findings of fact and = conclusions=20 of law and closing argument. = All=20 such submissions shall be in writing, served on all parties and contain = adequate=20 references to the record and authorities relied on. No new evidence = shall be=20 presented unless specifically allowed by the Hearing Officer.

C. =20 Recommended Decision: =

&n= bsp; =20 (1) =20 Content: Unless = otherwise=20 ordered by the Secretary, the Hearing Officer shall issue a recommended = decision=20 within thirty (30) days after the period for filing of proposed findings = and=20 conclusions under Section 501 [Subsection B. of this Section] has = expired. The recommended decision shall = contain=20 the following:

&n= bsp; &nb= sp; =20 (a) = the=20 Hearing Officer's findings of fact; conclusions regarding all material = issues of=20 law or discretion, as well as reasons therefor;

&n= bsp; &nb= sp; =20 (b) = if=20 applicable, a review of the penalty amount to determine if the agency = acted=20 within its discretion in setting the penalty amount. If the Hearing Officer decides = to=20 recommend a civil penalty different in amount or nature from the penalty = recommended to be assessed in the Compliance Order, the Hearing Officer = shall=20 set forth in the recommended decision the specific reasons for the = change;=20 and

&n= bsp; &nb= sp; =20 (c) = a=20 proposed final order.

&n= bsp; =20 (2) =20 Comment on Recommended Decision: =20 Any party may file, within fifteen (15) days after service of the = recommended decision, comments regarding the recommended decision, = including=20 argument for, against or modification of the recommended decision.

&n= bsp; =20 (3) =20 Argument Before the Secretary: =20 The Secretary may, upon request of a party or sua sponte, allow = oral=20 argument on the recommended decision. =20 If oral argument is allowed, the Secretary shall specify the time = and=20 place for such oral argument, after giving due consideration to the = convenience=20 of the parties and the need for expeditious resolution of the = proceeding.

D. =20 Final Order by Secretary: = As=20 soon as practicable, but not later than thirty (30) days, after = expiration of=20 the time for filing of comments on the recommended decision or = conclusion of=20 oral argument, if allowed, the Secretary shall issue a final written = order in=20 the matter.

&n= bsp; =20 (1) =20 Decision: The = Secretary may=20 adopt, modify, or set aside the Hearing Officer's recommended decision, = and=20 shall set forth in the final order the reasons for the action = taken. In a ULA Hearing, if the = Secretary takes=20 any action specified in the ULA against the licensee, the final order = shall=20 specify that the licensee shall bear all costs of the proceeding.

&n= bsp; =20 (2) =20 Penalty: The = Secretary may=20 change the amount and nature of the civil penalty, if any, assessed from = the=20 amount recommended by the Hearing Officer and shall set forth reasons = for the=20 change. The final order = shall also=20 specify the fund to which any civil penalty assessed shall be paid.

E. &nbs= p;=20 Payment of Civil Penalty: = The Respondent shall pay the full amount of the civil penalty, if = any,=20 assessed in the final order within ninety (90) days after receipt of the = final=20 order unless otherwise ordered by the Secretary. Payment shall be made = by=20 forwarding to the Hearing Clerk a cashier's check or certified check in = the=20 amount of the penalty assessed in the final order, payable to the fund = specified=20 in the final order.

F. &nbs= p;=20 Judicial Review: = Judicial=20 review of the Secretary's final order shall be as provided by law. The filing of an appeal does = not stay=20 any action, compliance, corrective action or payment of penalty required = by the=20 final order, unless otherwise ordered by the Secretary or the Court.

G. =20 Preparation of Record Proper: =20 The preparation of the Record Proper for an appeal or for any = other=20 reason shall be the responsibility of the Hearing Clerk. Appellant shall make = satisfactory=20 arrangements, including copying or transcript costs, with the Hearing = Clerk.

[11/15/90, 11/30/95; 20.1.5.500 NMAC =96 Rn, 20 = NMAC 1.5.V.500=20 through 506, Recompiled 11/27/01]

20.1.5.501 to 20.1.5.599 [RESERVED]

20.1.5.600 &nbs= p; =20 ALTERNATE RESOLUTION: =

A. =20 Summary Procedures: =

&n= bsp; =20 (1) = Use of=20 Summary Procedures: Under = the=20 following limited circumstances, the Secretary may dispose of a Request = for=20 Hearing after an expedited hearing for:

&n= bsp; &nb= sp; =20 (a) = a=20 motion by a party to dismiss the Request for Hearing for jurisdictional = defects=20 (i.e. an untimely Request, lack of final action); or

&n= bsp; &nb= sp; =20 (b) = a=20 request by a party to decide the merits of the Request for Hearing on = legal=20 arguments presented in writing and oral argument.

&n= bsp; =20 (2) =20 Expedited Hearing: = If the=20 Hearing Officer determines that a request for an expedited hearing has a = likelihood of success and could fairly expedite the resolution of the=20 proceeding, then notice for a hearing shall be given as set forth in = this=20 Part. The Hearing Officer = shall=20 then submit a recommended decision to the Secretary. The Secretary shall either = follow=20 Section 503 [ Subsection D. of 20.1.5.500 NMAC] for final orders or = remand to=20 the Hearing Officer to proceed with a full hearing under this Part.

B. =20 Settlement:

&n= bsp; =20 (1) =20 Settlement Policy: = The=20 Secretary encourages settlement of a proceeding at any time if the = settlement is=20 consistent with the provisions and objectives of the Act and = Regulations. Settlement conferences shall = not affect=20 any party's obligation to timely respond to any matter governed by this = Part,=20 including the Respondent's obligation to file a timely Request for = Hearing under=20 Section 200 [20.1.5.200 NMAC].

&n= bsp; =20 (2) =20 Stipulated Final Order: = The=20 Secretary may approve a Stipulated Final Order signed by all the = parties. The Stipulated Final Order = shall include=20 all the terms and conditions agreed to by the parties, and shall state = that, for=20 the purpose of this proceeding, the parties admit the jurisdictional = allegations=20 of the Compliance Order/Determination and consent to the relief = specified,=20 including the assessment of the stated civil penalty, if any. If the = Secretary=20 disapproves the Stipulated Final Order, the matter shall proceed as if = there had=20 been no Stipulated Final Order or settlement.

&n= bsp; =20 (3) =20 Withdrawal: The=20 Respondent/Complainant may withdraw the Request for Hearing or the = Compliance=20 Order at any time prior to a decision by the Secretary. A Notice of Withdrawal shall = be filed=20 with the Hearing Clerk and served on all other parties. The parties may file written = objections=20 to the Notice within ten (10) days after receipt. If any objection is = filed, the=20 Secretary shall rule on the Notice.

[11/15/90, 11/30/95; 20.1.5.600 NMAC =96 Rn, 20 = NMAC=20 1.5.VI.601, Recompiled 11/27/01]

20.1.5.601 to 20.1.5.699 [RESERVED]

HISTORY OF 20.1.5 NMAC: =20 [RESERVED]

History of Repealed Material: = [RESERVED]