New Mexico Administrative Code › Title 20 - ENVIRONMENTAL PROTECTION › Chapter 1 - ENVIRONMENTAL PROTECTION GENERAL › Part 5 - ADJUDICATORY PROCEDURES - ENVIRONMENT DEPARTMENT › Section 20.1.5.100 - GENERAL [PROVISIONS]

Current through Register Vol. 35, No. 13, July 16, 2024
A.
				Applicability of Rules of Civil Procedure: In the absence of a specific
				provision in this Part governing an action, the New Mexico Rules of Civil
				Procedure, SCRA 1986, 1-001 to 1-102 and the New Mexico Rules of Evidence, SCRA
				1986, 11-101 to 11-1102 may apply as necessary in the discretion of the
				Secretary or Hearing Officer. The reference to the Rules of Civil Procedure or
				the Rules of Evidence shall not be construed to extend or otherwise modify the
				authority and jurisdiction of the Secretary under any statute.
B. Liberal Construction: This Part shall be
				liberally construed to carry out its purpose.
C. Severability: If any Part or application
				of this Part is held invalid, the remainder of the Part, or its application to
				other persons or situations, shall not be affected.
D. Replacement of Prior Rules: This Part
				replaces the Rules Governing Appeals From Compliance Orders Under the Hazardous
				Waste Act and the Solid Waste Act, HED 90-10 (EID), filed October 16, 1990. Any
				reference in this Title to these Rules shall be construed as a reference to
				this Part.
E. Savings Clause:
				Replacement of the Rules Governing Appeals From Compliance Orders Under the
				Hazardous Waste Act and the Solid Waste Act, HED 90-10 (EID), filed October 16,
				1990, does not affect pending litigation, nor any Compliance Orders or
				Compliance Determinations issued prior to the effective date of this
				Part.
F. Powers and Duties of the
				Secretary, Hearing Officer:
(1) Secretary: The
				Secretary shall exercise all powers and duties as prescribed under the Act and
				this Part, and not otherwise delegated to a staff member, the Hearing Officer,
				or the Hearing Clerk.
(2) Hearing
				Officer: The Secretary may appoint one or more Hearing Officers to perform the
				functions described in Paragraph 2 of this Subsection [Subparagraph (b) of this
				Subsection].
(a) Qualifications: If an
				independent Hearing Officer is required by the Act, then the Hearing Officer
				may be an independent contractor or a State employee who is employed in the
				capacity as a Hearing Officer. The Hearing Officer shall not be anyone who has
				performed prosecutorial or investigative functions in connection with the
				matter at issue in the proceeding.
(b) Functions: The Hearing Officer shall
				exercise all powers and duties prescribed or delegated by the Secretary under
				the Act or this Part. 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 this Part, which includes, but is not
				limited to authority to:
(i) conduct hearings
				under this Part;
(ii) rule upon
				motions, procedural requests, offers of proof, and issue all necessary
				orders;
(iii) issue subpoenas, as
				authorized by the Act, for the attendance and testimony of witnesses and the
				production of documentary evidence as provided for in Subpart III [20.1.5.300
				NMAC];
(iv) administer oaths and
				affirmations, examine witnesses and admit or exclude evidence;
(v) require parties to attend conferences for
				the settlement or simplification of the issues, or the expedition of the
				proceedings; and
(vi) impose
				sanctions, subject to review by the Secretary, on parties who cause undue delay
				or fail to cooperate in the proceeding.
(3) Secretary or Hearing Officer;
				Disqualification or Withdrawal:
(a) Neither
				the Secretary nor any Hearing Officer may perform functions provided for in
				this Part regarding any matter in which the Secretary or the Hearing Officer:
(i) has a personal bias or prejudice
				concerning a party or personal knowledge of facts or information concerning the
				proceeding;
(ii) has a financial
				interest in the proceeding;
(iii)
				is related to a party; or
(iv) is
				an officer, director or trustee of a party to the
				proceeding.
(b) The
				Secretary shall not be disqualified solely because of having been briefed on
				the matter prior to issuance of the Compliance Order or having authorized
				further investigation of the matter prior to issuance of the Compliance Order.
(c) Any party, by motion and for
				cause listed in Section 112.C.1, [Subparagraph (a) of Paragraph (3) of this
				Subsection] may request the disqualification of the Secretary or the Hearing
				Officer within ten (10) days after the matter has been docketed or the Hearing
				Officer designated, or if a new Secretary is appointed, within ten (10) days
				after the Secretary takes office.
(d) Any motion seeking disqualification of
				the Hearing Officer or the Secretary shall be ruled upon by the Secretary. Upon
				disqualification of the Secretary, the Deputy Secretary shall assume the duties
				of the Secretary. In the event that the Deputy Secretary is also subject to
				disqualification, a division director other than the Complainant shall assume
				the duties of the Secretary.