New Mexico Administrative Code › Title 20 - ENVIRONMENTAL PROTECTION › Chapter 11 - ALBUQUERQUE - BERNALILLO COUNTY AIR QUALITY CONTROL BOARD › Part 80 - ADJUDICATORY PROCEDURES - ADMINISTRATIVE ENFORCEMENT HEARINGS BY DIRECTOR › Section 20.11.80.12 - 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 20.11.80 NMAC governing an action, the 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 director.
B. Liberal construction: 20.11.80 NMAC shall
				be liberally construed to carry out its purpose.
C. Director and hearing officer - powers and
				duties - disqualification and withdrawal:
(1)
				Director: The director shall exercise all powers and duties authorized and
				required by the act and 20.11.80 NMAC that are not otherwise delegated by
				20.11.80 NMAC to the hearing officer or the hearing clerk. The director or
				hearing officer may specify procedures in addition to, or that vary from, the
				procedures provided in 20.11.80 NMAC in order to expedite the efficient
				resolution of the action or to avoid obvious injustice.
(2) Hearing officer: The director shall
				appoint a hearing officer or hearing officers to perform the functions
				described in Subparagraph (b) of Paragraph (2) of Subsection C of 20.11.80.12
				NMAC.
(a) Qualifications and
				disqualifications: A hearing officer may be an independent contractor, a
				hearing officer at the city of Albuquerque office of administrative hearings or
				similar successor city organizational unit, an employee of the department who
				is not air program staff, or an employee of a different city department. A
				hearing officer shall not be:
(i) an employee
				of or staff for the air program;
(ii) an employee of or staff for the
				department unless employed by the department as a hearing officer;
(iii) a person who has a personal bias or
				prejudice concerning a party, has personal knowledge of disputed facts
				concerning the proceeding, is related to a party within the third degree of
				relationship or has a financial interest in the proceeding;
(iv) a person who has performed prosecutorial
				or investigative functions in connection with the matter at issue in the
				proceeding; or
(v) an officer,
				director or trustee of a party to the proceeding.
(b) Hearing officer functions: The hearing
				officer shall exercise all powers and duties required or delegated by the
				director pursuant to the act and 20.11.80 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 to maintain order and the efficient, fair and impartial
				adjudication of issues arising in proceedings governed by 20.11.80 NMAC,
				including, but not limited to:
(i) conducting
				hearings authorized by 20.11.80 NMAC;
(ii) ruling upon motions, procedural requests
				and offers of proof, and issuing all necessary orders;
(iii) administering oaths and affirmations,
				examining witnesses and admitting or excluding evidence;
(iv) requiring parties to attend conferences
				for the settlement or simplification of issues, or for expediting
				proceedings;
(v) imposing
				sanctions, subject to review and approval by the director, on parties who cause
				undue delay or fail to cooperate in the proceeding; and
(vi) filing with the hearing clerk all
				original documents received by the hearing officer.
(3) Director and hearing
				officer; disqualification or withdrawal:
(a)
				The director may not perform functions authorized by 20.11.80 NMAC regarding
				any matter in which the director:
(i) has a
				personal bias or prejudice concerning a party, has personal knowledge of
				disputed facts concerning the proceeding, is related to a party within the
				third degree of relationship or has a financial interest in the
				proceeding;
(ii) has performed
				prosecutorial or investigative functions in connection with the matter at issue
				in the proceeding; or
(iii) is an
				officer, director or trustee of a party to the proceeding.
(b) The director shall not be disqualified
				solely because the director has been briefed on the matter before a compliance
				order is issued.
(c) A party may
				request the withdrawal or disqualification of the director or the hearing
				officer by filing a motion that includes a reason for disqualification listed
				in either Subparagraph (a) of Paragraph (3) of Subsection C of 20.11.80.12 NMAC
				or Subparagraph (a) of Paragraph (2) of Subsection C of 20.11.80.12 NMAC, as
				applicable. The motion shall be filed within 10 days after the later of the
				date the compliance order has been docketed or the hearing officer has been
				designated, or, if a new director or new hearing officer is appointed, within
				10 days after the new director takes office or the new hearing officer is
				appointed, as applicable.
(d) A
				motion seeking withdrawal or disqualification of the director or the hearing
				officer shall be ruled upon by the director. If the director withdraws or is
				disqualified, the duties of the director shall be assumed by an associate
				director, deputy director or other person who would not be subject to
				disqualification and does not directly oversee the air
				program.