New Mexico Administrative Code › Title 20 - ENVIRONMENTAL PROTECTION › Chapter 11 - ALBUQUERQUE - BERNALILLO COUNTY AIR QUALITY CONTROL BOARD › Part 7 - VARIANCE PROCEDURE › Section 20.11.7.16 - HEARINGS - ACTIONS BY BOARD - WRITTEN ORDER

Current through Register Vol. 35, No. 13, July 16, 2024
A. Board variance hearings shall be public
				and shall be held at a public facility with public seating available.
B. Between the dates the petition for
				variance is filed and the conclusion of the variance procedure, no ex parte
				contact shall be made with a board member or the board's hearing officer. No
				board member or board hearing officer shall knowingly accept or participate in
				ex parte contact with any person regarding the merits of a pending proceeding
				unless the petitioner, the department and all other parties are
				present.
C. The board may designate
				a hearing officer to take evidence at the evidentiary phase of the variance
				hearing, and may designate a hearing officer to conduct the entire variance
				hearing. The board may direct the hearing officer to provide the board with
				proposed findings of fact, proposed conclusions of law and a recommended
				decision. A board member shall review the hearing officer's proposed findings,
				conclusions and recommended decision before the board member makes a final
				decision regarding the variance petition.
D. A record shall be made at each variance
				hearing. If the board directs a hearing officer to hold the evidence phase of a
				board variance hearing, and if any of the board members who will make a
				decision regarding the petition for variance are absent during the evidence
				phase of the hearing, then the absent board members shall be provided with an
				audio recording or transcription of the evidence phase, and the hearing record
				will be made available to the absent board members before the absent members
				make a decision regarding the variance.
E. In a board variance hearing, the
				petitioner has the burden of proof, which requires the petitioner to present a
				prima facie case. The petitioner shall present the petitioner's case first and
				must prove by a preponderance of evidence the facts the petitioner is relying
				on to justify the relief the petitioner seeks in the petition for variance. If
				the petitioner has not established a prima facie case, the board shall dismiss
				or deny the petition for variance, and no other person shall be required to
				present evidence in opposition to the petition. If the petitioner has
				established a prima facie case, then any person opposed to the relief sought in
				the petition may present evidence in opposition to the petition to show why the
				petition should not be granted.
F.
				A petitioner may represent himself at the hearing or be represented by any
				other individual authorized to represent the petitioner.
G. In variance hearings, the technical rules
				of evidence and rules of civil procedure shall not apply, but the hearings
				shall be conducted so that all relevant views are amply and fairly presented
				without undue repetition. The board may require reasonable substantiation of
				statements or records tendered and may require any view to be stated in writing
				when the circumstances justify.
H.
				At the hearing, the board shall allow all persons a reasonable opportunity to
				submit non-technical written and oral evidence and arguments and to introduce
				non-technical exhibits. Persons
including the petitioner, but not the
				division for purposes of this sentence, who want to
present oral or
				written technical evidence must deliver a timely statement of intent to present
				technical evidence as required in Subsection I of 20.11.7.16 NMAC. No later
				than five business days before the beginning of the evidentiary phase of the
				board variance hearing begins, if the division wants to present oral or written
				technical evidence, the division must deliver to the petitioner a statement of
				intent as required in Paragraphs (1) through (6) of Subsection I of 20.11.7.16
				NMAC.
I. No later than five
				business days before the beginning of the evidentiary phase of the board
				variance hearing begins, any person who wishes to present oral or written
				technical evidence shall deliver a statement of intent to the director on a
				form obtained from the division. The statement of intent to present technical
				evidence shall include:
(1) the name of the
				person filing the statement;
(2) an
				indication of whether the person filing the statement supports or opposes the
				petition at issue;
(3) the name of
				each witness;
(4) an estimate of
				the length of the direct testimony of each witness;
(5) a list of exhibits, if any, to be offered
				into evidence at the hearing; and
(6) a summary or outline of the anticipated
				direct testimony of each witness.