N.M. Code R. § 20.11.7.16 – Hearings - Actions by Board - Written Order

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.
J. The petitioner, the division and any person at the hearing other than a board member may call witnesses and introduce exhibits. The petitioner, the division, board members and any person present at the hearing may cross-examine any person who testifies.
K. No variance shall be granted until the board has considered the relative interests of the petitioner, other owners of property likely to be affected by the variance if granted, or any discharge involved, and the interests of the general public.
L. The board may grant the requested variance, in whole or in part, or may deny the variance. The decision made by the board shall be by written order and, at the sole discretion of the board, may be issued by the board at the end of the hearing or by the next regularly scheduled board meeting after the variance hearing is closed, or, if the hearing was conducted before a hearing officer, by the next regularly scheduled board meeting after the date the transcript of the hearing and exhibits are available for review by board members who were absent from the hearing. A copy of the board’s order shall be mailed to the petitioner by certified mail. The board shall send notice of the board’s decision by regular mail to all persons who appeared before, or were represented at the hearing.
M. Orders of the board shall:
(1) state the petitioner's name and address;
(2) state the date the order is made;
(3) describe the facility for which the variance is sought, if applicable;
(4) identify the limitation prescribed under the Air Quality Control Act, the regulation of the board, or the permit condition imposed by the department regarding which the variance was sought;
(5) state the decision of the board;
(6) if a variance is granted, state the period of time for which it is granted and specify a compliance schedule, if applicable; and
(7) state the reasons for the board's decision including whether and for what reasons the board has found, upon presentation of adequate proof, both (a) that compliance with the requirement of the Air Quality Control Act, the board regulation or the permit condition regarding which the variance is being granted either will result in an arbitrary and unreasonable taking of property or will impose an undue economic burden upon a lawful business, occupation or activity, and (b) that the granting of the variance will not either result in a condition injurious to health or safety, or cause or contribute to an air contaminant level in excess of any primary national ambient air quality standards; the order of the board also shall state that the board’s decision regarding the variance petition complies with all applicable requirements of NMSA 1978 Section 74-2-8.
N. The director shall maintain a file of all variance orders issued by the board. The file shall be open for public inspection.
O. The requirements of 20.11.7.16 NMAC shall apply to the stay hearing authorized by Subsection B of 20.11.7.18 NMAC.
[3/24/82. . .12/1/95; 20.11.7.16 NMAC - Rn, 20 NMAC 11.07.II.5, 10/1/02; A, 8/1/04]