TITLE
20 ENVIRONMENTAL PROTECTION
CHAPTER
1 ENVIRONMENTAL PROTECTION GENERAL
PART 6 RULEMAKING PROCEDURES - WATER
QUALITY CONTROL COMMISSION
20.1.6.1 ISSUING
AGENCY: New Mexico Water Quality Control Commission.
[20.1.6.1
NMAC - Rp, 20.1.6.1 NMAC, 03/16/2018]
20.1.6.2 SCOPE: This part governs the procedures to be
followed by the commission, and by participants before the commission, in connection
with all rulemaking hearings before the commission, except to the extent this
part may be inconsistent with specific procedures in governing law. In cases where this part is inconsistent with
any rulemaking procedures specified in governing law, the procedures in
governing law apply, rather than the procedures in this part.
[20.1.6.2
NMAC - Rp, 20.1.6.2 NMAC,
03/16/2018]
20.1.6.3 STATUTORY
AUTHORITY: Subsection E of Section 74-6-4 NMSA 1978
directs the commission to adopt, promulgate and publish regulations. Section 74-6-6 NMSA 1978 requires a public
hearing prior to the adoption, amendment or repeal of a regulation, and
specifies requirements for such a hearing. Sections 14-4-1 through 14-4-11 NMSA 1978 require
specific public notice process and specifies filing requirements with the State
Records Administrator.
[20.1.6.3
NMAC - Rp, 20.1.6.3 NMAC, 03/16/2018]
20.1.6.4 DURATION:
Permanent.
[20.1.6.4
NMAC - Rp, 20.1.6.4 NMAC, 03/16/2018]
20.1.6.5 EFFECTIVE
DATE: March 16, 2018, unless a later date is cited
at the end of a section.
[20.1.6.5
NMAC - Rp, 20.1.6.5 NMAC, 03/16/2018]
20.1.6.6 OBJECTIVE:
The objectives of this rule are:
A. to standardize
the procedures used in rulemaking proceedings before the commission;
B. to encourage public
participation in the hearings conducted by the commission for the promulgation
of regulations;
C. to make possible
the effective presentation of the evidence and points of view of parties and
members of the general public;
D. to allow all interested
persons a reasonable opportunity to submit data, views or arguments orally or
in writing; and
E. to assure that
commission hearings are conducted in a fair and equitable manner.
[20.1.6.6
NMAC - Rp, 20.1.6.6 NMAC, 03/16/2018]
20.1.6.7 DEFINITIONS: As used in this part:
A. “Act” means the
Water Quality Act, Sections 74-6-1 through 74-6-17 NMSA 1978.
B. “Commission administrator”
means the department employee designated by the secretary of environment to
provide staff support to the commission.
C. “Commission”
means the water quality control commission.
D. "Constituent
agency" means any or all agencies of the state defined as such under the act.
E. “Department”
means the New Mexico environment department.
F. “Document” means
any paper, exhibit, pleading, motion, response, memorandum, decision, order or
other written or tangible item that is filed in a proceeding under this part,
or brought to or before the commission for its consideration, but does not
include a cover letter accompanying a document transmitted for filing.
G. “Exhibit” means
any document or tangible item submitted for inclusion in the hearing record.
H. “General public”
means any person attending a hearing who has not submitted a notice of intent
to present technical testimony.
I. “Governing law”
means the statute, including any applicable case law, which authorizes and
governs the decision on the proposed regulatory change.
J. “Hearing
officer” means the person designated by the commission to conduct a hearing
under this part.
K. “Hearing record”
means:
(1) the transcript of proceedings; and
(2) the record proper.
L. “Participant”
means any person who participates in a rulemaking proceeding before the
commission.
M. “Party” means the
petitioner, any person filing a notice of intent to present technical
testimony, and any person filing an entry of appearance.
N. “Person” means
an individual or any entity, including federal, state and local governmental
entities, however organized.
O. “Petitioner”
means the person who petitioned the commission for the regulatory change that
is the subject of the hearing.
P. “Provide to the
public” means for the commission to distribute rulemaking information by:
(1) posting it on the commission’s
website;
(2) posting it on the New Mexico sunshine
portal;
(3) making it available at the applicable
constituent agency’s district, field, and regional offices, if any;
(4) sending it by email to persons who
have made a written request for notice of announcements addressing the subject
of the rulemaking proceeding and who have provided an email address to the
commission administrator;
(5) sending it by email to persons who
have participated in the rulemaking and who have provided an email address to
the commission administrator;
(6) sending written notice that includes,
at a minimum, an internet and street address where the information may be found
to persons who provide a postal address; and
(7) providing it to the New Mexico
legislative council for distribution to appropriate interim and standing
legislative committees.
Q. “Record proper”
means all documents related to the hearing and received or generated by the
commission prior to the beginning, or after the conclusion, of the hearing,
including, but not limited to:
(1) the petition
for hearing and any response thereto;
(2) the minutes (or an appropriate
extract of the minutes) of the meeting at which the petition for hearing was
considered, and of any subsequent meeting at which the proposed regulatory
change was discussed;
(3) the notice of hearing;
(4) affidavits of publication;
(5) a copy of all publications in the New
Mexico register relating to the proposed rule;
(6) notices of intent to present
technical testimony;
(7) a copy of any technical information
that was relied upon in formulating the final rule;
(8) all written pleadings, including
motions and responsive pleadings, and orders;
(9) statements for the public record or
other relevant materials received by the agency during the public comment
period;
(10) the hearing officer’s report, if any;
(11) a copy of the full text of the initial
proposed rule, the full text of the final adopted rule, and the concise
explanatory statement filed with the state records administrator;
(12) post-hearing submissions, if allowed;
(13) the audio recordings (or an appropriate
extract of the recordings) of the meeting(s) at which the commission
deliberated on the adoption of the proposed regulatory change;
(14) the
commission’s decision and the reasons therefore; and
(15) any
corrections made by the state records administrator pursuant to Section 14-4-3
NMSA 1978.
R. “Regulation”
means any rule, regulation or standard promulgated by the commission and
affecting one or more persons, besides the commission and the department,
except for any order or decision issued in connection with the disposition of
any case involving a particular matter as applied to a specific set of facts.
S. “Regulatory
change” means the adoption, amendment or repeal of a regulation.
T. “Service” means
personally delivering a copy of the document, exhibit or pleading to the person
required by this part to be served; mailing it to that person; or, if that
person has agreed, sending it by electronic transmission; if a person is
represented by an attorney, service of the document shall be made on the
attorney; service by mail is complete upon mailing the document; service by
electronic transmission is complete upon transmission of the document.
U. “Technical
testimony” means scientific, engineering, economic or other specialized
testimony, but does not include legal argument, general comments, or statements
of policy or position concerning matters at issue in the hearing.
V. “Transcript of
proceedings” means the verbatim record (audio recording or stenographic) of the
proceedings, testimony and argument in the matter, together with all exhibits
proffered at the hearing, whether or not admitted into evidence, including the
record of any motion hearings or prehearing conferences.
[20.1.6.7
NMAC - Rp, 20.1.6.7 NMAC, 03/16/2018]
20.1.6.8 LIBERAL
CONSTRUCTION: This
part shall be liberally construed to carry out its purpose.
[20.1.6.8
NMAC - Rp, 20.1.6.8 NMAC, 03/16/2018]
20.1.6.9 SEVERABILITY: If any provision or application of this part
is held invalid, the remainder of this part, or its application to other
situations or persons, shall not be affected.
[20.1.6.9
NMAC - Rp, 20.1.6.9 NMAC, 03/16/2018]
20.1.6.10 - 20.1.6.99 [RESERVED]
20.1.6.100 POWERS AND DUTIES OF THE COMMISSION
AND HEARING OFFICER:
A. Commission: The commission shall exercise all powers and
duties prescribed under the act and this part not otherwise delegated to the
hearing officer or the commission administrator.
(1) The commission may issue procedural
orders that either impose additional procedural requirements or simplify the
procedures provided in this part. In no event,
may the commission eliminate any procedural requirements of the act.
(2) The appointment of a hearing officer
does not preclude the commissioners from attending or participating in the
proceeding.
B. Hearing
officer: The commission shall designate
a hearing officer for each hearing who shall exercise all powers and duties
prescribed or delegated under this part.
The hearing officer shall conduct a fair and equitable 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 consideration of issues arising in proceedings governed by
this part, including, but not limited to:
(1) conducting hearings under this part;
(2) ruling on motions and procedural
requests that do not seek final resolution of the proceeding, and issuing all
necessary orders;
(3) administering oaths and affirmations,
admitting or excluding evidence, examining witnesses and allowing post-hearing
submissions;
(4) making such orders as may be
necessary to preserve decorum and to protect the orderly hearing process;
(5) if requested by the commission,
preparing and filing a report of the hearing, with recommendations for
commission action;
(6) requesting parties to file original
documents with the commission administrator; and
(7) requesting a party to submit a
proposed statement of reasons in support of the commission’s decision.
C. Qualifications: The hearing officer may be an independent
contractor or a commissioner, shall be knowledgeable of the laws of the state
and of administrative hearing procedures, and shall not be:
(1) an employee of the department, except
for the commissioners themselves or their designees, or unless employed by the
department as a hearing officer;
(2) a person who has a personal bias or
prejudice concerning a party or a party’s lawyer or consultant, or has personal
knowledge of disputed facts concerning the proceeding, or is related to a party
within the third degree of relationship, or has a financial interest in the
proceeding.
D. Notice of
hearing officer assignment: If a hearing
officer other than a commissioner is assigned, the commission administrator
shall notify the parties of the name and address of the hearing officer. The commission administrator shall also, at
that time, forward to the hearing officer copies of all documents filed to
date.
[20.1.6.100
NMAC - Rp, 20.1.6.100 NMAC, 03/16/2018]
20.1.6.101 GENERAL PROVISIONS - COMPUTATION OF TIME:
A. Computation of
time: In computing any period of time
prescribed or allowed by this part, except as otherwise specifically provided,
the day of the event from which the designated period begins to run shall not
be included. The last day of the
computed period shall be included, unless it is a Saturday, Sunday, or legal
state holiday, in which event the time is extended until the end of the next
day, which is not a Saturday, Sunday, or legal state holiday. Whenever a party must act within a prescribed
period after service upon them, and service is by mail, three days is added to
the prescribed period.
B. Extension of
time: The commission or hearing officer
may grant an extension of time for the filing of any document upon timely
motion of a party to the proceeding, for good cause shown, and after
consideration of prejudice to other parties.
[20.1.6.101
NMAC - Rp, 20.1.6.101 NMAC, 03/16/2018]
20.1.6.102 GENERAL PROVISIONS - RECUSAL: No commission member shall participate in any
action in which his or her impartiality of fairness may reasonably be
questioned, and the member shall recuse himself or herself in any such action
by giving notice to the commission and the general public by announcing this
recusal on the record. In making a decision
to recuse himself or herself, the commission member may rely upon the
Governmental Conduct Act, Sections 10-16-1 through 10-16-18 NMSA 1978, the
Financial Disclosures Act, Sections 10-16A-1 through 10-16A-8 NMSA 1978, or any
other relevant authority.
[20.1.6.102
NMAC - Rp, 20.1.6.102 NMAC, 03/16/2018]
20.1.6.103 GENERAL PROVISIONS - EX PARTE DISCUSSIONS: At no time after the
commission’s determination to hold a public hearing on a petition and before
the issuance of the commission’s written decision under this part, shall the
department, or any other party, interested participant or their representatives
discuss ex parte the merits of the
proceeding with any commission member or the hearing officer.
[20.1.6.103
NMAC - Rp, 20.1.6.103 NMAC, 03/16/2018]
20.1.6.104 DOCUMENT REQUIREMENTS - FILING AND
SERVICE OF DOCUMENTS:
A. The filing of
any document as required by this part shall be accomplished by delivering the
document to the commission administrator.
B. Any person
filing any document shall:
(1) provide the commission administrator
with the original along with up to 15 copies of the document, provided that the
commission administrator may waive the requirement to provide up to 15 copies
if an electronic copy of the original is provided in a format acceptable for
distribution to the commission members;
(2) serve a copy of the document on each other
party. If a party is represented by an
attorney, service of the document shall be made on the attorney; and
(3) include a certificate of service, as
shown in Section 500 of this rule.
C. Whenever this
part requires service of a document, service shall be made by delivering a copy
to the person to be served by mailing it, or, if that person has agreed, by
sending it by electronic transmission to that person. Agreement to be served by electronic
transmission may be evidenced by placing the person’s email address on a
document filed pursuant to this part. Service
by mail is complete upon mailing the document. Service by electronic
transmission is complete upon transmission of the document.
D. Form of
documents: Unless otherwise ordered by
the hearing officer, all documents, except exhibits, shall be prepared on 8 ½ x
11-inch white paper, printed single-sided, and where appropriate, the first
page of every document shall contain a heading and caption as shown in Section
500 of this rule.
E. Documents issued
by commission or hearing officer: All
documents issued by the commission or hearing officer shall be filed with the
commission administrator, who shall promptly serve copies of the documents upon
all parties.
[20.1.6.104
NMAC - Rp, 20.1.6.104 NMAC, 03/16/2018]
20.1.6.105 EXAMINATION OF DOCUMENTS FILED:
A. Examination
allowed: Subject to the provisions of
law restricting the public disclosure of confidential information, any person
may, during normal business hours, inspect and copy any document filed in any
rulemaking proceeding before the commission.
Such documents shall be made available by the commission administrator,
as appropriate and shall also be made available on the New Mexico sunshine
portal. If the commission administrator determines that any part of the
rulemaking record cannot be practicably displayed or is inappropriate for
public display on the New Mexico sunshine portal, the commission administrator
shall describe that part of the record, shall note on the New Mexico sunshine
portal that the part of the record is not displayed, and shall provide
instructions for accessing or inspecting that part of the record.
B. Cost of
duplication: The cost of duplicating
documents shall be borne by the person seeking copies of such documents, but
the commission administrator shall not charge a fee for providing the notice of
proposed rulemaking in electronic form.
[20.1.6.105
NMAC - Rp, 20.1.6.105 NMAC, 03/16/2018]
20.1.6.106
- 20.1.1.199 [RESERVED]
20.1.6.200 PREHEARING PROCEDURES - PETITION
FOR REGULATORY CHANGE:
A. Any person may
file a petition with the commission to adopt, amend, or repeal any regulation
within the jurisdiction of the commission.
B. The petition
shall be in writing and shall include a statement of the reasons for the
regulatory change. The petition shall
cite the relevant statutes that authorize the commission to adopt the proposed
rules and shall estimate the time that will be needed to conduct the
hearing. A copy of the entire rule,
including the proposed regulatory change, indicating any language proposed to
be added or deleted, shall be attached to the petition. The entire rule and its proposed changes shall
be submitted to the commission in redline fashion, and shall include line
numbers. Any document that does not include all the items required to be in a
petition shall be returned to the petitioner along with a copy of these rules
and a check-off list of required items, and the petitioner will be asked to
resubmit their petition in the form required by these rules.
C. The commission
shall determine, at a public meeting occurring no later than 90 days after
receipt of the petition, whether or not to hold a public hearing on the
proposal. Any person may respond to the
petition either in writing prior to the public meeting or in person at the
public meeting.
D. If the
commission determines to hold a public hearing on the petition, it may issue
such orders specifying procedures for conduct of the hearing, in addition to
those provided by this part, as may be necessary and appropriate to fully
inform the commission of the matters at issue in the hearing or control the
conduct of the hearing. Such orders may
include requirements for giving additional public notice, holding pre-hearing
conferences, filing direct testimony in writing prior to the hearing, or
limiting testimony or cross-examination.
[20.1.6.200
NMAC - Rp, 20.1.6.200 NMAC, 03/16/2018]
20.1.6.201 NOTICE OF HEARINGS:
A. Unless otherwise
allowed by governing law and specified by the commission, the commission shall provide
to the public notice of the proposed rulemaking at least 60 days prior to the
hearing.
B. Public notice for
proposed regulatory changes of general application to the state shall include
publication in at least one newspaper of general circulation in the state,
publication in the New Mexico register, and such other means of providing
notice as the commission may direct or are required by law. Notice for proposed regulatory changes that
are confined in effect to a specific geographic area shall also be published in
a newspaper of general circulation in the area affected.
C. The notice of
proposed rulemaking shall state:
(1) the subject
of the proposed rule, including a summary of the full text of the proposed rule
and a short explanation of the purpose of the proposed rule;
(2) a citation to the specific legal authority
authorizing the proposed rule and the adoption of the rule;
(3) a citation to technical information,
if any, that served as a basis for the proposed rule, and information on how
the full text of the technical information may be obtained;
(4) the
statutes, regulations, and procedural rules governing the conduct of the
hearing;
(5) the manner
in which persons may present their views or evidence to the commission
including information on participating in the public hearing;
(6) the location where persons may secure
copies of the proposed regulatory change;
(7) an internet link providing free
access to the full text of the proposed rule; and
(8) if applicable, that the commission
may make a decision on the proposed regulatory change at the conclusion of the
hearing.
[20.1.6.201
NMAC - Rp, 20.1.6.201 NMAC,
03/16/2018]
20.1.6.202 TECHNICAL TESTIMONY:
A. Any person,
including the petitioner, who intends to present technical testimony at the
hearing shall, no later than 20 days prior to the hearing, file a notice of
intent to present technical testimony.
The notice shall:
(1) identify the person for whom the
witness(es) will testify;
(2) identify each technical witness the
person intends to present, and state the qualifications of that witness,
including a description of their educational and work background;
(3) if the hearing will be conducted at
multiple locations, indicate the location or locations at which the witnesses
will be present;
(4) include a copy of the direct
testimony of each technical witness in narrative form, and state the estimated
duration of the direct oral testimony of that witness;
(5) include the text of any recommended
modifications to the proposed regulatory change; and
(6) list and attach all exhibits
anticipated to be offered by that person at the hearing.
B. The hearing
officer may enforce the provisions of this section through such action as the
hearing officer deems appropriate, including, but not limited to, exclusion of
the technical testimony of any witness for whom a notice of intent was not
timely filed. If such testimony is
admitted, the hearing officer may keep the record open after the hearing to
allow responses to such testimony. The
hearing officer may also require that written rebuttal testimony be submitted
prior to hearing.
[20.1.6.202
NMAC - Rp, 20.1.6.202 NMAC, 03/16/2018]
20.1.6.203 ENTRY OF APPEARANCE: Any person may file an entry of appearance as a party. The entry of appearance shall be filed no
later than 20 days before the date of the hearing on the petition. In
the event of multiple entries of appearance by those affiliated with one
interest group, the hearing officer may consolidate the entries, or divide the
service list to avoid waste of resources.
[20.1.6.203
NMAC - Rp, 20.1.6.203 NMAC, 03/16/2018]
20.1.6.204 PARTICIPATION BY GENERAL PUBLIC:
A. Any member of
the general public may testify at the hearing.
No prior notification is required to present non-technical testimony at
the hearing. Any such member may also
offer non-technical exhibits in connection with their testimony, so long as the
exhibit is not unduly repetitious of the testimony.
B. A member of the
general public who wishes to submit a written statement for the record, in lieu
of providing oral testimony at the hearing, shall file the written statement
prior to the hearing or submit it at the hearing. Written comment must be mailed or delivered
to the commission administrator.
C. If the
commission changes the date of the hearing or the deadline for submitting
comments as stated in the notice of proposed rulemaking, the commission shall
provide to the public notice of the change.
[20.1.6.204
NMAC - Rp, 20.1.6.204 NMAC, 03/16/2018]
20.1.6.205 LOCATION OF HEARING:
Unless otherwise provided by governing law, the commission shall hold
hearings on proposed regulatory changes of statewide application in Santa Fe,
and at other places the commission may prescribe. The commission may hold hearings
on proposed regulatory changes that are not of statewide application within the
area substantially affected by the proposal.
[20.1.6.205
NMAC - Rp, 20.1.6.205 NMAC, 03/16/2018]
20.1.6.206 PARTICIPATION BY CONFERENCE
TELEPHONE OR OTHER SIMILAR DEVICE:
A. A member of the
commission may participate in a meeting or hearing of the commission by means
of a conference telephone or other similar communications equipment when it is
otherwise difficult or impossible for the member to attend the meeting or
hearing in person, provided that each member participating by conference
telephone can be identified when speaking, all participants are able to hear
each other at the same time and members of the public attending the meeting or
hearing are able to hear any member of the commission who speaks at the meeting
or hearing. A commission member’s
participation by such means shall constitute presence in person at the meeting
or hearing. A commission member who needs
to participate in this manner must notify the commission administrator
sufficiently in advance so as to permit the commission administrator to arrange
for the appropriate communications equipment.
B. A witness may
participate in a hearing of the commission by means of a conference telephone
or other similar communications equipment when an emergency or circumstances
make it impossible for the witness to attend the hearing in person. A witness who needs to participate in this
manner must receive permission from the hearing officer sufficiently in advance
of the hearing so as to permit the commission administrator to arrange for the
appropriate communications equipment.
Each witness participating in this manner must be identified when
speaking, all participants must be able to hear each other at the same time,
and members of the public attending the hearing must be able to hear any
witness who speaks during the hearing.
[20.1.6.206
NMAC - Rp, 20.1.6.206 NMAC, 03/16/2018]
20.1.6.207 MOTIONS:
A. General: All motions, except those made orally during
a hearing, shall be in writing, specify the grounds for the motion, and state
the relief sought. Each motion shall be
accompanied by an affidavit, certificate or other evidence relied upon and
shall be served as provided by 20.1.6.104 NMAC.
B. Unopposed
motions: An unopposed motion shall state
that the concurrence of all other parties was obtained. The moving party shall submit a proposed
order approved by all parties for the hearing officer’s review.
C. Opposed
motions: Any opposed motion shall state
either that concurrence was sought and denied, or why concurrence was not
sought. A memorandum brief in support of
such motion may be filed with the motion.
D. Response to
motions: Any party upon whom an opposed
motion is served shall have 15 days after service of the motion to file a
response. A non-moving party failing to
file a timely response shall be deemed to have waived any objection to the
granting of the motion.
E. Reply to
response: The moving party may, but is
not required to, submit a reply to any response within 10 days after service of
the response.
F. Decision: Non-dispositive motions may be decided by the
hearing officer without a hearing. The
hearing officer shall refer any motion that would effectively dispose of the
matter to the commission for a decision, and may refer any other motion to the
commission. A procedural motion may be
ruled upon prior to the expiration of the time for response; any response
received thereafter shall be treated as a request for reconsideration of the
ruling. The hearing officer shall file
all original documents with the commission administrator.
[20.1.6.207
NMAC - Rp, 20.1.6.207 NMAC, 03/16/2018]
20.1.6.208
- 20.1.6.299 [RESERVED]
20.1.6.300 HEARING PROCEDURES - CONDUCT OF
HEARINGS:
A. The rules of
civil procedure and the rules of evidence shall not apply.
B. The hearing
officer shall conduct the hearing so as to provide a reasonable opportunity for
all persons to be heard without making the hearing unreasonably lengthy or
cumbersome, or burdening the record with unnecessary repetition. The hearing shall proceed as follows.
(1) The hearing shall begin with an
opening statement from the hearing officer.
The statement shall identify the nature and subject matter of the
hearing and explain the procedures to be followed.
(2) The hearing officer may allow a brief
opening statement by any party who wishes to make one.
(3) Unless otherwise ordered, the
petitioner shall present its case first.
(4) The hearing officer shall establish
an order for the testimony of other participants. The order may be based upon notices of intent
to present technical testimony, sign-in sheets and the availability of
witnesses who cannot be present for the entire hearing.
(5) If the hearing continues for more
than one day, the hearing officer shall provide an opportunity each day for
testimony from members of the general public.
Members of the general public who wish to present testimony should
indicate their intent on a sign-in sheet.
(6) The hearing officer may allow a brief
closing argument by any person who wishes to make one.
(7) At the close of the hearing, the
hearing officer shall determine whether to keep the record open for written
submittals in accordance with 20.1.6.304 NMAC.
If the record is kept open, the hearing officer shall determine and
announce the subject(s) on which submittals will be allowed and the deadline
for filing the submittals.
C. If the hearing
is conducted at multiple locations, the hearing officer may require the petitioner’s
witnesses to summarize their testimony or be available for cross-examination at
each location. Other participants are
not required to testify at more than one location, and the hearing officer may
prohibit a witness from testifying at more than one location.
[20.1.6.300
NMAC - Rp, 20.1.6.300 NMAC, 03/16/2018]
20.1.6.301 TESTIMONY AND CROSS-EXAMINATION:
A. All testimony
will be taken under oath or affirmation which may be accomplished in mass or
individually.
B. The hearing
officer shall admit any relevant evidence, unless the hearing officer
determines that the evidence is incompetent or unduly repetitious. The hearing officer shall require all oral
testimony be limited to the position of the witness in favor of or against the
proposed rule.
C. Any person who
testifies at the hearing is subject to cross-examination on the subject matter
of his or her direct testimony and matters affecting his or her
credibility. Any person attending the
hearing is entitled to conduct such cross-examination as may be required for a
full and true disclosure of matters at issue in the hearing. The hearing officer may limit
cross-examination to avoid harassment, intimidation, needless expenditure of
time or undue repetition.
[20.1.6.301
NMAC - Rp, 20.1.6.301 NMAC, 03/16/2018]
20.1.6.302 EXHIBITS:
A. Any person
offering an exhibit at hearing other than a document filed and served before
the hearing shall provide at least an original and 15 copies for the commission,
and a sufficient number of copies for every other party.
B. All exhibits
offered at the hearing shall be marked with a designation identifying the
person offering the exhibit and shall be numbered sequentially. If a person
offers multiple exhibits, he shall identify each exhibit with an index tab or
by other appropriate means.
C. Large charts and
diagrams, models, and other bulky exhibits are discouraged. If visual aids are used, legible copies shall
be submitted for inclusion in the record.
[20.1.6.302
NMAC - Rp, 20.1.6.302 NMAC, 03/16/2018]
20.1.6.303 TRANSCRIPT OF PROCEEDINGS:
A. Unless specified
by the commission or the hearing officer, a verbatim transcript shall be made
of the hearing, including any deliberations.
The cost of the original transcript of the proceeding and of providing a
copy for each commission member shall be borne by the petitioner.
B. Any person may
obtain a copy of the transcript of a proceeding. It shall be obtained directly from the court
reporter, and the cost of the transcript shall be paid directly to the source.
[20.1.6.303
NMAC - Rp, 20.1.6.303 NMAC, 03/16/2018]
20.1.6.304 POST-HEARING SUBMISSIONS:
The hearing officer may allow the record to remain open for a reasonable
period of time following the conclusion of the hearing for written submission
of additional evidence, comments and arguments, revised proposed rule language,
and proposed statements of reasons. The
hearing officer’s determination regarding post-hearing submissions shall be
announced at the conclusion of the hearing.
In considering whether the record will remain open, the hearing officer
shall consider the reasons why the material was not presented during the
hearing, the significance of the material to be submitted and the necessity for
a prompt decision.
[20.1.6.304
NMAC - Rp, 20.1.6.304 NMAC, 03/16/2018]
20.1.6.305 HEARING OFFICER’S REPORT:
If the commission directs, the hearing officer shall file a report of
the hearing. The report shall identify
the issues addressed at the hearing, identify the parties’ final proposals, and
the evidence supporting or opposing those proposals, including discussion or
recommendations as requested by the commission, and shall be filed with the commission
administrator within the time specified by the commission. The commission administrator shall promptly
notify each party that the hearing officer’s report has been filed and shall
provide a copy of the report along with a notice of any deadline set for
comments on that report.
[20.1.6.305
NMAC - Rp, 20.1.6.305 NMAC, 03/16/2018]
20.1.6.306 DELIBERATION AND DECISION:
A. If a quorum of
the commission attended the hearing, and if the hearing notice indicated that a
decision might be made at the conclusion of the hearing, the commission may
immediately deliberate and make a decision on the proposed regulatory change.
B. If the commission
does not reach a decision at the conclusion of the hearing, the commission
administrator, following receipt of the transcript, will promptly furnish a
copy of the transcript to each commission member that did not attend the hearing
and, if necessary, to other commission members, commission counsel and the
hearing officer. Exhibits provided to
those persons at the time of the hearing need not be supplied again.
C. The commission
shall reach its decision on the proposed regulatory change within 60 days
following the close of the record or the date the hearing officer’s report is
filed, whichever is later.
D. If, during the
course of its deliberations, the commission determines that additional
testimony or documentary evidence is necessary for a proper decision on the
proposed regulatory change, the commission may, consistent with the
requirements of due process, reopen the hearing for such additional evidence
only.
E. The commission
shall issue its decision on the proposed regulatory change in a suitable
format, which shall include its reasons for the action taken.
F. The commission’s
written decision is the official version of the commission’s action, and the
reasons for that action. Other written
or oral statements by commission members are not recognized as part of the commission’s
official decision or reasons.
G. If the
commission fails to act on a proposed rule within two years after the notice of
proposed rulemaking is published in the New Mexico register, the rulemaking is
automatically terminated unless the commission acts to extend the period for an
additional two years by filing a statement of good cause for the extension in
the rulemaking record. If the commission
extends the rulemaking period, it shall provide for additional public
participation, comments, and hearing prior to adopting the rule.
H. The commission
may terminate a rulemaking at any time by publishing a notice of termination in
the New Mexico register. If the
commission terminates a rulemaking in this manner, it shall provide to the
public notice of its action.
[20.1.6.306
NMAC - Rp, 20.1.6.306 NMAC, 03/16/2018]
20.1.6.307 NOTICE OF COMMISSION ACTION:
A. The commission
administrator shall provide to the public notice of the commission’s action and
a concise explanatory statement.
B. The adopted rule
shall not take effect unless within 15 days of adoption of the rule, the
commission delivers the final rule to the state records administrator,
accompanied by a concise explanatory statement that contains:
(1) the date that the commission adopted
the rule;
(2) a reference to the specific statutory
authority authorizing the rule; and
(3) any findings required by law for
adoption of the rule.
C. Adoption of the
final rule occurs upon signature of the written decision.
D. If the state
records administrator notifies the commission of having made any minor, nonsubstantive corrections in spelling, grammar, and format
in the filed rule, the commission administrator shall provide to the public
notice of the correction within 30 days of receiving the state records administrator’s
record of correction.
[20.1.6.307
NMAC - Rp, 20.1.6.307 NMAC, 03/16/2018]
20.1.6.308
- 20.1.6.399 [RESERVED]
20.1.6.400 APPEAL OF REGULATIONS:
A. Appeal of any
regulatory change by the commission shall be taken in accordance with governing
law.
B. The appellant
shall serve a copy of the notice of appeal on the commission and on each party.
C. The appellant
shall be responsible for preparation of a sufficient number of copies of the
hearing record at the expense of appellant.
D. Unless otherwise
provided by governing law, the filing of an appeal shall not act as a stay of
the regulatory change being appealed.
[20.1.6.400
NMAC - Rp, 20.1.6.400 NMAC, 03/16/2018]
20.1.6.401 STAY OF
COMMISSION REGULATIONS:
A. Any person who
is or may be affected by a rule adopted by the commission may file a motion
with the commission seeking a stay of that rule or regulatory change. The motion shall include the reason for, and
the legal authority supporting, the granting of a stay. The movant shall file and serve the motion in
accordance with the requirements of Section 104 of this part at least 30 days
before the meeting at which the commission will consider the motion. The commission chair will decide at which
meeting the motion will be heard.
B. Unless otherwise
provided by governing law, the commission may grant a stay pending appeal of
any regulatory change promulgated by the commission. The commission may only grant a stay if good
cause is shown after a motion is filed and a hearing is held.
C. In determining
whether good cause is present for the granting of a stay, the commission, upon
at least a two-thirds vote of the members voting shall consider:
(1) the likelihood that the movant will
prevail on the merits of the appeal;
(2) whether the moving party will suffer
irreparable harm if a stay is not granted;
(3) whether substantial harm will result
to other interested persons; and
(4) whether harm will ensue to the public
interest.
D. If no action is
taken within 60 days after filing of the motion, the commission shall be deemed
to have denied the motion for stay.
[20.1.6.401
NMAC - Rp, 20.1.6.401 NMAC, 03/16/2018]
20.1.6.402 - 20.1.6.499 [RESERVED]
20.1.6.500 PREFERRED
FORMAT:
STATE OF NEW MEXICO
WATER QUALITY
CONTROL COMMISSION
IN THE MATTER OF PROPOSED
AMENDMENTS TO ______ NMAC
[Name of Petitioner],
Petitioner.
CERTIFICATE OF
SERVICE
I hereby
certify that a true and correct copy of the foregoing [name of document] was served
by [hand-delivery] [first class mail] [email] to all parties on [date].
[20.1.6.500
NMAC - Rp, 20.1.6.500 NMAC, 03/16/2018]
HISTORY
OF 20.1.6 NMAC:
Pre-NMAC
History: The material in this part was derived from Guidelines
for Water Quality Control Commission Regulation Hearings (Approved November 10,
1992; Amended June 8, 1993).
History
of Repealed Material:
20.1.6
NMAC, filed 05/01/2017, repealed effective 03/16/2018
Other
History: [RESERVED]