1. A. Board: The board shall exercise all powers and duties as prescribed under the act, the regulations and this part and not otherwise delegated to a staff member, the hearing officer or the board administrator. The board may specify procedures in addition to or that vary from those provided in this part in order to expedite the efficient resolution of the action or to avoid obvious injustice, so long as such procedures do not conflict with the act, the ULA or the regulations or prejudice the rights of any party.

2. B. Hearing officer: The board may appoint one or more hearing officers to perform the functions described in Paragraph (2) of Subsection B of 20.1.2.109 NMAC. From the date a proceeding is initiated under this part, the chair of the board shall serve as hearing officer, until such time as another hearing officer is appointed. The board or the board chair may appoint another hearing officer. The appointment of a hearing officer does not preclude the board members from attending or participating in the proceeding.

   (1) Qualifications: A hearing officer may be an independent contractor, board counsel or a member of the board and shall not be:

   (a) an employee of the department, unless employed by the department as a hearing officer;

   (b) a person who has a personal bias or prejudice concerning a party, 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; or

   (c) a person who has performed prosecutorial or investigative functions in connection with the licensing or permitting action at issue in the hearing.

   (2) Functions: The hearing officer shall exercise all powers and duties prescribed or delegated under the act or this part. 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 for the maintenance of order and for the efficient, fair and impartial adjudication of issues arising in proceedings governed by this part, including, but not limited to:

   (a) conduct hearings under this part;

   (b) rule upon motions and procedural requests that do not seek final resolution of the proceeding and issue all necessary orders;

   (c) issue subpoenas, as authorized by law, for the attendance and testimony of witnesses and the production of documentary evidence;

   (d) administer oaths and affirmations, examine witnesses, and admit or exclude evidence;

   (e) require parties to attend conferences for the settlement or simplification of issues, or the expedition of proceedings;

   (f) impose sanctions, subject to review by the board, on parties and interested participants who cause undue delay and fail to cooperate with the board;

   (g) file original documents with the board administrator.

3. C. Notice of hearing officer assignment: If a hearing officer, other than a board member, is assigned, the board administrator shall notify the parties of the name and address of the hearing officer. The board administrator shall also, at that time, forward to the hearing officer copies of all documents filed to date.
4. D. Participation by conference, telephone or other similar device: A member of the board may participate in a meeting or hearing of the board 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 board who speaks at the meeting or hearing. A board member’s participation by such means shall constitute presence in person at the meeting or hearing. A board member who wishes to participate in a permit hearing in this manner must receive permission from the hearing officer sufficiently in advance of the permit hearing so as to permit the board administrator to arrange for an adequate telephone hookup.

[20.1.2.109 NMAC - Rp, 20 NMAC 1.2.I.109, 08/27/06]