N.M. Admin. Code § 19.8.12.1203 - FORMAL REVIEW OF NOTICES OF VIOLATION, CESSATION ORDERS AND SHOW CAUSE ORDERS BY THE DIRECTOR
A. Upon
receipt of a notice of violation, civil penalty assessment or cessation order
pursuant to 19.8.30.3000, 19.8.30.3001 or 19.8.31 NMAC, or any such notice or
order's modification, vacation or termination, a permittee or any person having
an interest that such order or notice does or may adversely affect may apply to
the director for review of the notice or order within 30 days of the notice or
order's receipt or within 30 days of its modification, vacation or
termination.
B. The application for
review shall be in writing, setting forth the applicant's name, address and
telephone number; the applicant's interest and, if the applicant is not the
operator, how the order or notice to be reviewed adversely affects it; and
generally, the grounds alleged and the relief requested.
C. If the permittee or other interested party
does not apply for review in writing, they waive the right to review.
D. The filing of an application for review
shall not stay the order or notice, or any order or notice's modification,
vacation or termination. Pending the review's completion, the applicant may
file with the director a written request that the director grant temporary
relief in accordance with Subsection D of Section
69-25A-29 NMSA 1978.
E. The review pursuant to Subsection A of
19.8.12.1203 NMAC shall include
such investigation as the director deems appropriate and an opportunity for a
hearing at the capitol (or such other place as the applicant may agree), at the
applicant's request and within 30 days after receiving the request, to enable
the applicant to present information relating to the order or notice's
issuance, continuance, modification, vacation or termination.
F. The director or his authorized
representative shall hold a hearing at the capitol (or such other place as the
permittee may agree) within 30 days after actual notice to the permittee of an
order to show cause's issuance pursuant to
19.8.30.3002 NMAC.
G. The director or his authorized
representative shall give the operator, permittee or other interested persons
written notice of the time, place and date of any hearing this rule requires at
least five days prior to the hearing, except that the director or his
authorized representative shall give at least 15 days notice for hearings that
Subsection F of
19.8.12.1203 NMAC requires. Any
times for holding a hearing may be extended by the parties'
agreement.
H. All hearings this
section requires shall be of record, stenographically recorded, adjudicatory in
nature and conducted in accordance with
19.8.12.1200 NMAC. The inspector
issuing or causing to be issued the cessation order, notice of violation or
order to show cause shall not participate, directly or indirectly, in the
decision making process. A party may not introduce as evidence or use to
impeach a witness statements another party makes or evidence another party
produces at an informal hearing or conference held pursuant to
19.8.30.3004 NMAC, or at an
assessment conference held pursuant to
19.8.31.3106 NMAC.
I. The director, or his authorized
representative serving as hearing officer, may hold pre-hearing conferences to
facilitate stipulation of facts, delineation of the issues, order of
presentation or other appropriate procedural rules and settlement.
J. The director shall issue, and serve upon
the parties, a written decision and order, including his reasons and findings
of fact, as follows:
(1) within 30 days
(unless the director has granted temporary relief pursuant to Subsection D of
Section 69-25A-29) of a hearing, and after
receiving the report of such investigation conducted pursuant to Subsection B
of 19.8.12.1203 NMAC, vacating,
affirming, modifying or terminating the issuance, continuance, modification,
vacation or termination of the order or notice; and
(2) within 60 days of the hearing held
pursuant to Subsection F of
19.8.12.1203 NMAC, quashing, in
whole or in relevant part, the order to show cause or suspending or revoking,
in whole or relevant part, the permit.
K. The district court may review the
director's decision pursuant to Subsection A of Section
69-25A-30 NMSA 1978 and
19.8.12.1202 NMAC.
L. The director may consolidate any hearing
this rule requires, to the extent practicable without prejudicing the rights of
the person to whom a notice, cessation order or order to show cause is
directed, with any other hearing provided for by these
rules.
Notes
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