TITLE 19 NATURAL RESOURCES AND WILDLIFE
CHAPTER 11 GEOTHERMAL RESOURCES DEVELOPMENT
PART 3 HEARINGS
19.11.3.1 ISSUING AGENCY: Energy, Minerals and Natural Resources
Department, Energy Conservation and Management Division.
[19.11.3.1
NMAC - N, 2/27/2018]
19.11.3.2 SCOPE: All persons who engage in the exploration,
development or production of a geothermal resource.
[19.11.3.2
NMAC - N, 2/27/2018]
19.11.3.3 STATUTORY AUTHORITY: Geothermal Resources Development Act, Section 71-9-1
et seq. NMSA 1978 (2016).
[19.11.3.3
NMAC - N, 2/27/2018]
19.11.3.4 DURATION: Permanent.
[19.11.3.4
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19.11.3.5 EFFECTIVE DATE: February 27, 2018, except where a later date
is cited at the end of a section.
[19.11.3.5
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19.11.3.6 OBJECTIVE: The objective of 19.11.3 NMAC is to establish procedures
for hearings before the energy conservation and management division pursuant to
the Geothermal Resources Development Act, Section 71-9-1 et seq. NMSA 1978 (2016).
[19.11.3.6
NMAC - N, 2/27/2018]
19.11.3.7 DEFINITIONS: [RESERVED]
[See 19.11.1.7 NMAC for definitions.]
[19.11.3.7 NMAC – N, 2/27/2018]
19.11.3.8 PERMIT HEARING: The applicant or permittee, affected persons
or interested persons may file a request with the division for a permit hearing.
The person requesting a permit hearing
or an attorney representing that person shall sign the hearing request. The director shall generally grant a permit
hearing if the applicant or an affected person requests a hearing. However, the director has discretion to deny a hearing
request if the issues are not substantial or have previously been heard and
decided before the Oil Conservation Division, the Oil Conservation Commission
or the division and the parties to the hearing, other than the division, would
be the same as the parties to the original hearing. If the applicant or an affected
person does not request a hearing, the director may grant a hearing if there is significant public
interest in the application; or if the director determines, in his or her
discretion, that a hearing may clarify one or more substantial issues involved
in the permit. Permit hearings
shall be held in Santa Fe. The hearing
request shall be submitted in writing to the division and be postmarked or e-mailed
by the close of the public comment period in Paragraph (3) of Subsection A of
19.11.2.13 NMAC. The hearing request shall
include:
A. the requestor’s
name;
B. the requestor’s
address, or the address of the requestor’s attorney, including an e-mail
address and phone number if available;
C. the division’s action
that is disputed or a copy of the public notice referencing the division’s action;
D. the name or
general description of the property interest that the division’s action affects,
if any;
E. briefly, the
general nature of the dispute with the division’s action or proposed action;
and
F. any other matter
division rules or a division order requires.
[19.11.3.8
NMAC - N, 2/27/2018]
19.11.3.9 PERMIT HEARING NOTICE:
A. The division
shall publish notice of a permit hearing in the name of the “State of New
Mexico”, signed by the director stating:
(1) the
time and place for the hearing;
(2) the
hearing requestor’s name and address, or address of the requestor’s attorney,
including an e-mail address, if available;
(3) a
case name and number;
(4) brief
description of the purpose of the hearing; and
(5) a
reasonable description of the subject matter of the hearing that alerts persons
who may be affected if the division approves or enacts the proposed action.
B. The division
shall publish notice of each hearing at least 30 days before the hearing by:
(1) posting
notice on the division’s website;
(2) delivering
written notice to the hearing requestor, by certified mail, return receipt
requested and the applicant or permittee if not the hearing requestor;
(3) delivering
written notice by ordinary first class United States mail to federal and state
agencies with jurisdiction over fish and wildlife resources and state and
tribal historic preservation officers;
(4) delivering
written notice by ordinary first class United States mail to the EPA and any other
agency which the division knows has issued or is required to issue a Resource
Conservation and Recovery Act permit, an air quality permit, a national
pollutant discharge elimination system permit, 404 permit or sludge management
permit for the same facility or activity;
(5) delivering
written notice by ordinary first class United States mail to any unit of local government
having jurisdiction over the area where the well or facility is to be located
and to any state agency having authority with respect to the construction or
operation of the well or facility;
(6) delivering
written notice by ordinary first class United States mail or e-mail to each
person who has requested in writing to be notified of such hearings or of the
hearing for a specific application;
(7) delivering
written notice by ordinary first class United States mail or e-mail to persons
on a mailing list developed by the division including those who request in
writing to be on the list, soliciting persons for “area lists” from
participants in past permit proceedings in that area and notifying the public
of the opportunity to be put on the mailing list through periodic publications in
the public press, etc.; and
(8) publishing
notice in a newspaper of general circulation in the county where the well or
facility is located or is proposed to be located or in a newspaper of general
circulation in the state.
[19.11.3.9
NMAC - N, 2/27/2018]
19.11.3.10 PARTIES TO PERMIT HEARINGS: The parties to a permit hearing shall include:
A. the division;
B. the applicant or
permittee of the geothermal well or facility; and
C. an affected
person who has requested a hearing or to intervene in the hearing.
[19.11.3.10
NMAC - N, 2/27/2018]
19.11.3.11 CONDUCT OF HEARINGS:
A. Testimony. Hearings shall be conducted without rigid
formality. The division shall take or
have someone take a transcript or recording of the testimony and preserve it as
part of the division’s records. A person
testifying shall do so under oath. The
hearing examiner shall designate whether an interested person’s unsworn
comments and observations are relevant and, if relevant, include the comments
and observations in the record.
B. Pre-filed testimony. The director or hearing examiner may order the
parties to file prepared written testimony in advance of the hearing. The witness shall be present at the hearing
and shall adopt, under oath, the prepared written testimony, subject to
cross-examination and motion to strike the unless the witness’ presence at
hearing is waived upon notice to other parties and without their objection. The parties shall number pages of prepared
written testimony, which shall contain line numbers on the left-hand side.
C. Appearances pro se or through attorney.
Parties may appear and participate in
hearings either pro se (on their own behalf) or through an attorney. Corporations, partnerships, governmental
entities, political subdivisions, unincorporated associations and other
collective entities may appear only through an attorney or duly authorized
officer or member. Participation in hearings
shall be limited to parties as defined in 19.11.3.10 NMAC, except that a
representative of a federal, state or tribal governmental agency or political
subdivision may make a statement on the agency’s or political subdivision’s
behalf. The hearing examiner shall have
the discretion to allow other persons at the hearing to make a relevant
statement, but not to present evidence or cross examine witnesses. A person making a statement shall be subject
to cross-examination by the parties or their attorneys.
D. Presentation of evidence. The hearing examiner shall afford full
opportunity to the parties at a hearing to present evidence and to
cross-examine witnesses. The rules of
evidence applicable in a trial before a court without a jury shall not control,
but hearing examiners may use such rules as guidance in conducting hearings. The hearing examiner may admit relevant
evidence, unless it is immaterial, repetitious or otherwise unreliable. The hearing examiner may take administrative
notice of the authenticity of documents copied from the division’s files.
E. Parties
introducing exhibits at hearings shall provide a complete set for the court
reporter, if applicable, the hearing examiner and other parties.
[19.11.3.11
NMAC - N, 2/27/2018]
19.11.3.12 HEARING EXAMINER’S POWER AND
AUTHORITY:
The hearing examiner to whom the
director refers a matter shall have full authority to hold a hearing on the
matter, subject only to such limitations as the director may order in a case. The hearing examiner shall have the power to
perform all acts and take all measures necessary and proper for the hearing’s
efficient and orderly conduct, including administering oaths to witnesses,
receiving testimony and exhibits offered in evidence and ruling upon such objections
as may be interposed. The hearing
examiner shall cause a complete record of the proceedings to be made and
transcribed or recorded and shall certify the record of the proceedings to the
director.
A. The hearing
examiner may hold a pre-hearing conference prior to the hearing on the merits
on cases pending before the division upon a party’s request or upon the hearing
examiner giving notice. The pre-hearing
conference’s purpose shall be to narrow issues, eliminate or resolve other
preliminary matters and encourage settlement. The director or hearing examiner shall either
provide or ensure that written or oral notice of a pre-hearing conference is
given to the parties.
B. The director or
hearing examiner may rule on motions that are necessary or appropriate for
disposition prior to the hearing on the merits. Prior to ruling on a motion, the director or
hearing examiner shall give written or oral notice to each party who has filed
an appearance in the case and who may have an interest in the motion’s
disposition (except a party who has indicated that it does not oppose the motion),
and shall allow parties a reasonable opportunity to respond to the motion. The director or hearing examiner may conduct a
hearing on the motion, following written or oral notice to the parties.
[19.11.3.12
NMAC - N, 2/27/2018]
19.11.3.13 REPORT AND RECOMMENDATIONS FROM
HEARING EXAMINER: Upon
conclusion of a hearing, the hearing examiner shall promptly consider the
proceedings in such hearing, and based upon the hearing’s record prepare a
written report with recommendations for the division’s disposition of the
matter or proceeding. The hearing
examiner shall draft a proposed order and submit it to the director with the
certified record of the hearing.
[19.11.3.13
NMAC - N, 2/27/2018]
19.11.3.14 DISPOSITION OF CASES HEARD BY A
HEARING EXAMINER: After
receipt of the hearing examiner’s report, the director shall enter the
division’s order, which the director may have modified from the hearing
examiner’s proposed order disposing of the matter.
[19.11.3.14
NMAC - N, 2/27/2018]
19.11.3.15 CIVIL PENALTIES AND HEARINGS:
A. If a person violates the provisions of the Act or the rules
promulgated pursuant to the Act or an order or permit issued pursuant to the
Act, the division may assess the person a civil penalty of $2,500 for each
violation. In the case of a continuing
violation, each day of violation shall constitute a separate violation.
B. To begin an
action for a civil penalty, the division will issue a notice of violation. The notice of violation shall:
(1) identify
the person against whom the order is sought;
(2) identify
the provision of the Act or the provision of the rule, permit or order issued
pursuant to the Act allegedly violated;
(3) provide
a general description of the facts supporting the allegations;
(4) state
the sanction or sanctions sought; and
(5) provide
the date, time and place of the public hearing.
C. The division
shall provide notice by posting notice on the division’s website and by
delivering the notice of violation to the person against whom the order is
sought by certified mail, return receipt requested to the person’s last known
address, and delivering notice by first class United States mail or e-mail to
each person who has requested in writing to be notified of such hearings, and
publishing notice in a newspaper of general circulation in the county where the
violation occurred or in a newspaper of general circulation in the state.
D. The parties to
the public hearing shall include the division and the person against whom the order
is sought.
E. In determining
the amount of the civil penalty, the division shall consider the person’s
history of previous violations of the Act or the Geothermal Resources Act,
Section 19-13-1 NMSA 1978 (1967, as amended) or the rules, permits or orders
issued pursuant to those acts, the seriousness of the violation, any hazard to
the health or safety of the public or the environment and the demonstrated good
faith of the person.
F. The division may
assess a civil penalty only after a public hearing is held or the person has
entered an agreed compliance order that waives the person’s opportunity for a public
hearing.
G. A public hearing
to assess a civil penalty shall be held pursuant to 19.11.3.11 through 19.11.3.14
NMAC.
H. The director may
enter an agreed compliance order with the permittee against whom a civil
penalty is sought to resolve alleged violations of any provision of the Act or
any provision of any rule, permit or order issued pursuant to the Act. The director may enter an agreed compliance
order prior to or after the filing of a notice of violation. An agreed compliance order shall have the same
force and effect as an order issued after a public hearing.
I. After the
public hearing is held, or the person has failed to participate in the public hearing,
the division shall issue an order requiring that the person pay any civil penalty
imposed.
J. If the person
fails to pay the civil penalty as ordered by the division, the division may
file a civil suit to collect the penalty in the district court of the county in
which the defendant resides or in which any defendant resides if there is more
than one defendant or in the district court of any county in which the
violation occurred.
[19.11.3.15
NMAC - N, 2/27/2018]
HISTORY of 19.11.3 NMAC: [RESERVED]