New Mexico Administrative Code › Title 20 - ENVIRONMENTAL PROTECTION › Chapter 5 - PETROLEUM STORAGE TANKS › Part 123 - CORRECTIVE ACTION FUND ADMINISTRATION › Section 20.5.123.2320 - ADMINISTRATIVE REVIEW

Current through Register Vol. 35, No. 13, July 16, 2024
A. With the
				exception of compliance determinations under 20.5.123.2303 through
				20.5.123.2305 NMAC, an owner, operator or contractor aggrieved by a decision
				made by the department under 20.5 NMAC may obtain review of the decision using
				the procedures and subject to the limitations set forth in 20.5.125
				NMAC.
B. An offeror aggrieved by a
				selection decision made by the department and the owner or operator pursuant to
				20.5.123.2306 through 20.5.123.2307 NMAC may obtain review of the decision from
				the secretary by submitting a written request for hearing.
(1) Timelines. The request must be made in
				writing to the secretary by the offeror within 10 days after the department has
				notified the owner or operator and all submitting firms of the highest scoring
				proposal. If an appeal is received within the 10-day time limit, the secretary
				shall hold a hearing within 15 days after receipt of the request, unless the
				parties agree to an alternate timeframe. The secretary shall notify the person
				who requested the hearing of the date, time and place of the hearing by
				certified mail.
(2) Burden of
				proof. In the appeal hearing, the burden of proof is on the person who
				requested the hearing.
(3)
				Procedures.
(a) Appeal hearings shall be held
				at a place designated by the secretary, unless other mutually agreed upon
				arrangements are made. The secretary may designate a person to conduct the
				hearing and make a final decision or make recommendations for a final decision.
				The secretary's hearing notice shall indicate who will conduct the hearing and
				make the final decision.
(b) The
				department shall make an audio recording of the hearing. If either party wants
				the hearing transcribed, that party shall bear the costs of
				transcription.
(c) In appeal
				hearings, the rules governing civil procedure and evidence in district court
				shall not apply. Hearings shall be conducted so that all relevant views,
				arguments, and testimony are amply and fairly presented without undue
				repetition. The secretary shall allow department staff and the hearing
				requestor to call and examine witnesses, to submit written and oral evidence
				and arguments, to introduce exhibits, and to cross-examine persons who testify.
				All testimony shall be taken under oath. At the end of the hearing, the
				secretary shall decide and announce if the hearing record will remain open, for
				how long, and for what reason(s) it will be left open.
(4) Secretary's decision. Based upon the
				evidence presented at the hearing, the secretary or designee shall sustain,
				modify, or reverse the action of the department. The secretary or designee's
				decision shall be by written final order within five business days following
				the close of the hearing record. The order shall include the reason(s) on which
				the decision is based, and shall be sent by certified mail to the hearing
				requestor and any other affected person who requests notice.
(5) Stay of action. The filing of an
				administrative appeal shall stay execution of the contract by the owner or
				operator until the secretary or designee issues a final order on the
				appeal.
(6) Judicial review.
				Judicial review of the secretary or designee's final order shall be as provided
				by law. The filing of a judicial appeal shall not stay the execution of the
				contract, corrective action, compliance with the regulations, or any other
				action required by the secretary.