New Mexico Administrative Code › Title 20 - ENVIRONMENTAL PROTECTION › Chapter 11 - ALBUQUERQUE - BERNALILLO COUNTY AIR QUALITY CONTROL BOARD › Part 81 - ADJUDICATORY PROCEDURES- -AIR QUALITY CONTROL BOARD › Section 20.11.81.12 - GENERAL PROVISIONS

Current through Register Vol. 35, No. 13, July 16, 2024
A.
				Applicability of rules of civil procedure and rules of evidence: In the absence
				of a specific provision in 20.11.81 NMAC governing an action, the board and the
				board's hearing officer may look to the New Mexico Rules of Civil Procedure,
				NMRA 1-001 et seq., and the New Mexico Rules of Evidence, NMRA 11-101 et seq.,
				for guidance. No provision of the rules of civil procedure shall be construed
				to extend or otherwise modify the authority and jurisdiction of the
				board.
B. Board and hearing officer
				powers and duties-qualification, disqualification, recusal, withdrawal:
(1) Board: The board shall exercise all
				powers and duties authorized and required by the act, 20.11.81 NMAC and any
				other board regulation if the powers and duties are not otherwise delegated by
				20.11.81 NMAC to a board staff member, a hearing officer or the hearing clerk.
				The board or a hearing officer appointed or authorized by the board may specify
				procedures in addition to, or that vary from the procedures provided in
				20.11.81 NMAC in order to expedite the efficient resolution of the action or to
				avoid obvious injustice, if the procedures do not conflict with the act or the
				regulations, or prejudice the rights of any party.
(2) Hearing officer: The board may appoint a
				hearing officer or authorize the hearing clerk to secure one or more hearing
				officers to perform the functions described in Paragraph (2) of Subsection B of
				20.11.81.12 NMAC. From the date a proceeding is initiated pursuant to 20.11.81
				NMAC, the chair or acting chair of the board shall serve as hearing officer
				until another hearing officer is appointed or authorized by the board and is
				secured by the hearing clerk. The appointment of a hearing officer shall not
				prevent any board member from attending or participating in any proceeding.
(a) Qualifications: A hearing officer may be
				an independent contractor, board counsel or a member of the board and shall not
				be:
(i) an employee of the department, unless
				employed by the department as a hearing officer; or
(ii) a person who is disqualified as a result
				of a condition described in Subparagraph (a) of Paragraph (3) of Subsection B
				of 20.11.81.12 NMAC.
(b)
				Functions: The hearing officer shall exercise all powers and duties required by
				or delegated under the act and 20.11.81 NMAC. 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 adjudication of issues arising in proceedings governed by 20.11.81
				NMAC, including, but not limited to:
(i)
				conducting hearings pursuant to 20.11.81 NMAC;
(ii) ruling upon motions and procedural
				requests that do not seek final resolution of the proceeding, and issuing all
				necessary orders;
(iii) issuing
				subpoenas, as authorized by law, for the attendance and testimony of witnesses
				and the production of documentary evidence;
(iv) administering oaths and affirmations,
				examining witnesses, and admitting or excluding evidence;
(v) requiring parties to attend conferences
				for the settlement or simplification of issues, or the expedition of
				proceedings;
(vi) imposing
				sanctions, subject to review and approval by the board, on parties and
				interested participants who cause undue delay and fail to cooperate with the
				board; and
(vii) filing with the
				hearing clerk all original documents received or generated by the hearing
				officer.
(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.
(3) Board member and hearing officer
				disqualification-recusal-withdrawal:
(a) A
				board member or a hearing officer shall not perform any function authorized by
				20.11.81 NMAC regarding any matter in which a board member or a hearing
				officer:
(i) has a personal bias or prejudice
				concerning a party or the outcome of a proceeding;
(ii) has personal knowledge of disputed facts
				concerning the proceeding;
(iii) is
				related to a party within the third degree of relationship;
(iv) is an officer, director or trustee of a
				party or interested participant in the proceeding;
(v) has a financial interest in the
				proceeding or facility that is the subject of the proceeding or has any other
				conflict of interest; or
(vi) has
				performed prosecutorial or investigative functions in connection with a
				permitting action at issue in the proceeding.
(b) In making its decision regarding whether
				a board member or hearing officer should be disqualified or recuse himself or
				herself, the board and hearing officer may rely on applicable legal
				authority
(c) Disqualification,
				recusal and withdrawal:
(i) Any party, for a
				cause included in Subparagraph (a) of Paragraph (3) of Subsection B of
				20.11.81.12 NMAC, may file a motion requesting the disqualification of a board
				member at any time before the final order is filed, or requesting the
				disqualification of a hearing officer at any time prior to the completion of
				the evidentiary hearing.
(ii) If a
				motion is filed pursuant to Paragraph (3) of Subsection B of 20.11.81.12 NMAC,
				and the motion asks that a board member be disqualified, then, within five days
				after the hearing officer and the challenged board member receive the motion,
				the challenged board member may respond to the motion in writing. Within 10
				days after the hearing officer and the challenged board member receive the
				motion regarding the challenged board member, the hearing officer shall file a
				recommended decision. The board shall vote on the motion. However, the vote of
				the board shall not include the vote of the challenged board member. If the
				vote of the majority of a quorum of the board, not including the vote of the
				challenged board member, determines that the challenged board member is
				disqualified, the disqualified board member will not participate in the
				proceeding thereafter.
(iii) If a
				motion is filed pursuant to Paragraph (3) of Subsection B of 20.11.81.12 NMAC,
				and the motion asks that a hearing officer be disqualified, then, within 10
				days after the hearing officer receives the motion, the hearing officer may
				respond to the motion in writing. The board shall vote on the motion. If the
				vote of the majority vote of a quorum of the board members determines that the
				challenged hearing officer is disqualified, the disqualified hearing officer
				will not participate in the proceeding thereafter, and the board may appoint,
				or authorize the hearing clerk to secure a replacement hearing
				officer.
(iv) A board member may
				recuse himself or herself from a hearing, and a hearing officer may withdraw as
				hearing officer, by filing written notice with the hearing clerk or by making a
				statement on the record at a hearing or meeting of the board. In making a
				decision regarding whether to recuse or withdraw, a board member or a hearing
				officer may rely on applicable legal
				authority.