PROCEDURAL RULES
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Code of Colorado Regulations › 1000 Department of Public Health and Environment › 1001 Air Quality Control Commission › 5 CCR 1001-1
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DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT
Air Quality Control Commission
PROCEDURAL RULES
5 CCR 1001-1
[Editor’s Notes follow the text of the rules at the end of this CCR Document.]
_______________________________________________________________________________
Outline of Regulation
PART A
Procedural Rules for All Proceedings before the Commission before August 1, 2025 and
All Rulemaking Proceedings Commenced by a Petition for Rulemaking and Adjudicatory
Proceedings Commenced by a Request for Hearing Filed before August 1, 2025
I.
Introduction
II.
Scope, Purpose and Authority
III.
Definitions
IV.
Procedures for General Meetings
IV.A
General Meetings
IV.B
Frequency
IV.C
Placing an Item on the General Meeting Agenda
IV.D
Conduct of General Meetings
IV.E
Planning
IV.F
Recording Proceedings
IV.G
Minutes
IV.H
Public Participation Encouraged
IV.I
Executive Session
IV.J
Public Hearings
IV.K
Informal Hearings
IV.L
Statements of Policy and Interpretive Rules
IV.M
Approval of Plans, Reports and State Implementation Plans
IV.N
Review of Conformity Determinations
Code of Colorado Regulations
Secretary of State
State of Colorado
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V.
Procedures for Rulemakings
V.A.
How a Rulemaking Proceeding Begins
V.B.
Development of Proposals for Rules or Revisions
V.C.
Petitions for Rulemaking
V.D.
Notice
V.E.
Prehearing Procedures
V.F.
Conduct of Rulemaking Hearings
VI.
Procedures for Adjudications
VI.A
Scope
VI.B
Initiating an Adjudicatory Hearing
VI.C
Prehearing Procedures
VI.D
Hearing Procedures
VI.E
Decisions of the Commission
VI.F
Post-Decision Matters
VI.G
Ex Parte Communications
VI.H
Declaratory Orders
VI.I
Special Procedures for Particular Hearings
VII.
Procedures for Public Comment Hearings on Permit Applications
VIII.
Public Information and Confidential Information
VII.A
Scope
VII.B
Setting the Hearing
VII.C
Appointment of the Public Comment Hearing Commissioner
VII.D
Public Comment Hearing Procedures
VII.E
Appeals of the Permit
IX
Matters
VI.G
Ex Parte Communications
VI.H
Declaratory Orders
VI.I
Special Procedures for Particular Hearings
VII.
Procedures for Public Comment Hearings on Permit Applications
VIII.
Public Information and Confidential Information
VII.A
Scope
VII.B
Setting the Hearing
VII.C
Appointment of the Public Comment Hearing Commissioner
VII.D
Public Comment Hearing Procedures
VII.E
Appeals of the Permit
IX.
Colorado Revised Statutes § 24-4-105(4)
X.
Conflicts of Interest
X.A
Definitions
X.B
Disclosure of a Conflict of Interest
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X.C
Disqualification of a Commissioner for a Conflict of Interest
X.D
Advisory Opinions
X.E
Rule of Necessity
XI.
State Implementation Plan
XII.
Statements of Basis, Specific Statutory Authority, and Purpose
PART B
Procedural Rules for All Proceedings before the Commission on or After August 1, 2025,
Except Rulemaking Proceedings Commenced by a Petition for Rulemaking and Adjudicatory
Proceedings Commenced by a Request for Hearing Filed Before August 1, 2025
I.
Introduction
II.
Scope, Purpose and Authority
III.
Definitions
IV.
Procedures for General Meetings
IV.A
General Meetings
IV.B
Frequency
IV.C
Placing an Item on the General Meeting Agenda
IV.D
Conduct of General Meetings
IV.E
Planning
IV.F
Recording Proceedings
IV.G
Minutes
IV.H
Public Participation Encouraged
IV.I
Executive Session
IV.J
Public Hearings
IV.K
Informal Hearings
IV.L
Statements of Policy and Interpretive Rules
IV.M
Approval of Plans, Reports and State Implementation Plans
IV.N
Review of Conformity Determinations
V.
Procedures for Rulemakings
V.A.
How a Rulemaking Proposal is Developed
V.B.
How a Rulemaking Proceeding Begins
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ecutive Session
IV.J
Public Hearings
IV.K
Informal Hearings
IV.L
Statements of Policy and Interpretive Rules
IV.M
Approval of Plans, Reports and State Implementation Plans
IV.N
Review of Conformity Determinations
V.
Procedures for Rulemakings
V.A.
How a Rulemaking Proposal is Developed
V.B.
How a Rulemaking Proceeding Begins
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V.C.
Participation in Rulemaking
V.D.
How a Proposed Rule is Developed through the Prehearing Process
V.E.
How a Proposed Rule is Prepared for Hearing
V.F.
How a Hearing is Conducted
V.G.
How a Final Rule Becomes a Regulation
V.H.
Special Rulemaking Proceedings
VI.
Procedures for Adjudications
VI.A
Scope
VI.B
Initiating an Adjudicatory Hearing
VI.C
Prehearing Procedures
VI.D
Hearing Procedures
VI.E
Decisions of the Commission
VI.F
Post-Decision Matters
VI.G
Ex Parte Communications
VI.H
Declaratory Orders
VI.I
Special Procedures for Particular Hearings
VII.
Procedures for Public Comment Hearings on Permit Applications
VII.A.
Scope
VII.B.
Setting the Hearing
VII.C.
Appointment of the Public Comment Hearing Commissioner
VII.D.
Public Comment Hearing Procedures
VII.E.
Appeals of the Permit
VIII.
Public Information and Confidential Information
VIII.A
Distribution of Notices, Agendas, and other information by the Commission
VIII.B
Availability of Records; Emissions Data Always Public
VIII.C
Confidential Information
IX.
Colorado Revised Statutes § 24-4-105(4)
X.
Conflicts of Interest
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VII.E.
Appeals of the Permit
VIII.
Public Information and Confidential Information
VIII.A
Distribution of Notices, Agendas, and other information by the Commission
VIII.B
Availability of Records; Emissions Data Always Public
VIII.C
Confidential Information
IX.
Colorado Revised Statutes § 24-4-105(4)
X.
Conflicts of Interest
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X.A
Definitions
X.B
Disclosure of a Conflict of Interest
X.C
Disqualification of a Commissioner for a Conflict of Interest
X.D
Advisory Opinions
X.E
Rule of Necessity
XI.
State Implementation Plan
XII.
Statements of Basis, Specific Statutory Authority, and Purpose
PART A
Procedural Rules for All Proceedings before the Commission before August 1,
2025 and All Rulemaking Proceedings Commenced by a Petition for Rulemaking and Adjudicatory
Proceedings Commenced by a Request for Hearing Filed before August 1, 2025
The rules as set forth in this Part A will cease to apply on August 1, 2025; provided, however, that the
rules in this Part A will continue to apply on and after August 1, 2025, to rulemaking proceedings initiated
by a Petition for Rulemaking and adjudicatory proceedings commenced by a Request for Hearing filed
before August 1, 2025.
I.
INTRODUCTION
The Colorado Air Quality Control Commission (Commission) is appointed by the Governor and authorized
by the Colorado General Assembly to oversee Colorado’s air quality program pursuant to the Colorado
Air Pollution Prevention and Control Act, § 25-7-101 et seq., C.R.S., as amended (the Act).
The primary role of the Commission is to adopt an air quality management program that promotes clean
and healthy air for Colorado’s citizens and visitors, and protects Colorado’s scenic and natural resources
in a cost-effective and efficient manner. The Colorado Department of Public Health and Environment’s Air
Pollution Control Division (Division) acts as staff for the Commission
ended (the Act).
The primary role of the Commission is to adopt an air quality management program that promotes clean
and healthy air for Colorado’s citizens and visitors, and protects Colorado’s scenic and natural resources
in a cost-effective and efficient manner. The Colorado Department of Public Health and Environment’s Air
Pollution Control Division (Division) acts as staff for the Commission. The general public and the
regulated community may appeal certain decisions of the Division to the Commission for review and
determination of fair and appropriate action. The activities of the Commission are open to the public, with
the exception of certain circumstances in which the Commission is permitted by law to meet in executive
session. The Commission encourages public participation to its fullest extent. The Commission’s
Procedural Rules are designed to promote open, fair, and effective proceedings with the input and
participation of the general public.
The Commission is composed of nine citizen members appointed by the Governor and confirmed by the
Colorado State Senate. The members reflect a wide variety of professional backgrounds and individual
interests. Colorado has chosen the citizen board approach to develop and oversee implementation of its
air quality management program to ensure that the air quality program is responsive to the public. These
procedural rules are intended to promote participation by all interested persons in a fair and responsible
manner. The goal of Commission proceedings is to produce thoughtful and well-informed decisions.
In rulemaking proceedings, the Commission promotes policy discussion that is well supported by
technical and scientific data with a minimum of adversarial or formal trial-like proceedings. In adjudicatory
proceedings the Commission intends to enforce its rules and regulations uniformly and equitably while
ensuring that the goals of the air quality program it has adopted are not compromised
isions.
In rulemaking proceedings, the Commission promotes policy discussion that is well supported by
technical and scientific data with a minimum of adversarial or formal trial-like proceedings. In adjudicatory
proceedings the Commission intends to enforce its rules and regulations uniformly and equitably while
ensuring that the goals of the air quality program it has adopted are not compromised. Accordingly, these
procedural rules are intended to promote, rather than obstruct, public participation in decision-making. Air
quality rules and regulations are often complicated and difficult to understand.
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The Commission makes every effort to simplify the process. Persons appearing before the Commission
are encouraged to make well-planned presentations that use clear, concise, common sense language to
explain their points of view. Abusive tactics, misrepresentations, and personal attacks on the motivation of
others will not be tolerated. Persons appearing before the Commission can assist their fellow citizens in
reaching decisions that may have significant social and economic impacts in the state. The Commission
welcomes and appreciates participation in its decision-making process.
II.
SCOPE, PURPOSE, AND AUTHORITY
II.A.
These procedural regulations are adopted pursuant to the authority conferred upon the
Commission in §§ 25-7-106(3) and -106(5), C.R.S., and are intended to implement and be
consistent with the requirements of the State Administrative Procedures Act, § 24-4-101 et seq.,
C.R.S., as amended (the APA), and the Colorado Air Pollution Prevention and Control Act, § 25-
7-101 et seq., C.R.S., as amended (the Act).
II.B.
These regulations govern all procedures and hearings before the Commission. Where specifically
stated, they also govern certain procedures and hearings before the Air Pollution Control Division
within the Colorado Department of Public Health and Environment.
II.C
s amended (the APA), and the Colorado Air Pollution Prevention and Control Act, § 25-
7-101 et seq., C.R.S., as amended (the Act).
II.B.
These regulations govern all procedures and hearings before the Commission. Where specifically
stated, they also govern certain procedures and hearings before the Air Pollution Control Division
within the Colorado Department of Public Health and Environment.
II.C.
These regulations do not apply to interpretive rules or general statements of policy issued by the
Commission that are not intended to be binding.
II.D.
Except when necessary to comply with applicable statutes or to provide due process, the
requirements of these procedural regulations may be waived by the Commission whenever it is
determined that strict adherence to the rules is not in the best interest of fairness, impartiality, or
an efficient proceeding before the Commission. A party to any proceeding before the Commission
who, during the proceeding, fails to raise an objection regarding lack of compliance with any
procedural requirement of these regulations waives that issue for the purpose of judicial review.
II.E.
In the event of a conflict between these regulations and the APA or the Act, the statutes prevail.
Where a conflict between the APA and the Act arises, and the Act is more specific, the Act takes
precedence.
II.F.
The records of the Commission are open to the public for inspection during normal business
hours unless confidential treatment of specified records is required under provision of law. Many
Commission records are available online; please contact the Commission Office for further
information.
III.
DEFINITIONS
The definitions of terms used in these regulations shall be in accordance with the Act, the APA, and other
applicable regulations of the Commission unless the context requires otherwise.
III.A.
Act: The Colorado Air Pollution Prevention and Control Act, § 25-7-101 et seq., C.R.S.
III.B
sion records are available online; please contact the Commission Office for further
information.
III.
DEFINITIONS
The definitions of terms used in these regulations shall be in accordance with the Act, the APA, and other
applicable regulations of the Commission unless the context requires otherwise.
III.A.
Act: The Colorado Air Pollution Prevention and Control Act, § 25-7-101 et seq., C.R.S.
III.B.
Adjudicatory Proceeding: Adjudicatory proceedings include notice and hearing activities which
are required by law to determine past and future rights and obligations of individual persons or
sources, e.g., an appeal of permit terms and conditions, enforcement actions, or declaratory order
proceedings. Adjudicatory proceedings typically occur during the Commission's general meetings
and are governed by the procedures in Section VI. of these regulations.
III.C.
Administrative Procedures Act (APA): § 24-4-101 et seq., C.R.S.
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III.D.
Alternate Proposal: Any new substantive proposed rule text offered for the Commission's
consideration and approval, including wholly new regulation text, or amendments or revisions to
previously proposed regulation text. For purposes of Sections V.E.5.c.(ix), V.E.6., and V.E.7.b.,
proposed text that simply deletes, clarifies or elaborates on elements of an already-submitted
proposal, without substantive new obligations or requirements, is not an alternate proposal.
III.E.
Attorney General: The Attorney General represents and advises the Commission, and also
represents the Division before the Commission.
Office of the Attorney General
Colorado Department of Law
Natural Resources & Environment
Ralph L. Carr Colorado Judicial Center1300 Broadway, 9th Floor
Denver, Colorado 80203
Email: airsupport@coag.gov
III.F.
Commission: The Colorado Air Quality Control Commission created in § 25-7-104, C.R.S
ey General represents and advises the Commission, and also
represents the Division before the Commission.
Office of the Attorney General
Colorado Department of Law
Natural Resources & Environment
Ralph L. Carr Colorado Judicial Center1300 Broadway, 9th Floor
Denver, Colorado 80203
Email: airsupport@coag.gov
III.F.
Commission: The Colorado Air Quality Control Commission created in § 25-7-104, C.R.S.
Colorado Air Quality Control Commission
Colorado Department of Public Health and Environment4300 Cherry Creek Drive South, EDO-
AQCC-A5Denver, Colorado 80246
Email: cdphe.aqcc@state.co.us
Web: https://cdphe.colorado.gov/aqcc
III.G.
Consent Agenda: A consent agenda consists of routine, non-controversial, and self-explanatory
items that the Commission may approve without individual discussion.
III.H.
Division: The Colorado Air Pollution Control Division that exists within the Division of
Administration of the Colorado Department of Public Health and Environment.
Colorado Air Pollution Control Division
Colorado Department of Public Health and Environment
4300 Cherry Creek Drive South, APCD-B1
Denver, Colorado 80246
Email: cdphe.commentsapcd@state.co.us
Web: https://cdphe.colorado.gov/air-pollution/air-pollution-control-division-topics
III.I.
Ex Parte Communication: Means an oral or written communication regarding a proceeding where
the communication is between a member or members of the Commission and a person who has
an interest in the proceeding that: takes place after the adoption of a petition to notice a
rulemaking or after an appeal for an adjudicatory hearing has been filed; is not on the public
record; is not authorized by other specific provision of law or Commission order; and with respect
to which reasonable prior notice to all parties is not given.
III.J.
File or Filed:
III.J.1. Means received in the Commission Office and date-stamped by staff as received on that
day or, when filed by electronic mail for rulemakings or adjudications under Section
III.J.2., as provided herein.
III.J.2. Electronic Filing
orized by other specific provision of law or Commission order; and with respect
to which reasonable prior notice to all parties is not given.
III.J.
File or Filed:
III.J.1. Means received in the Commission Office and date-stamped by staff as received on that
day or, when filed by electronic mail for rulemakings or adjudications under Section
III.J.2., as provided herein.
III.J.2. Electronic Filing
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III.J.2.a.
Filing by electronic mail shall be complete when the Commission Office
receives, by midnight on the date it is due, an electronic mail containing an
attached, signed version of the document to be filed, and a message is
transmitted back to the sender from the Commission Office, confirming the filing
was received by midnight on the day that the document is due. An electronic
document may be “signed” by affixing a signature to the document and scanning
and attaching the signature page to the filing. Alternatively, by affixing his or her
name to the document, a filer agrees that the document constitutes an electronic
transaction pursuant to C.R.S. 24-71.3-105 and an electronic signature pursuant
to 24-71-101.
The Commission’s email address is: cdphe.aqcc@state.co.us unless otherwise specified
in various Commission documents. When a party files by electronic mail, it shall be
considered an agreement to be served by electronic mail. The filer is responsible for
furnishing one or more electronic notification addresses at which the electronic filer
agrees to accept service and shall immediately provide the Commission, and all parties
with any change to the electronic filer’s notification address. Documents larger than
twenty (20) megabytes shall not be filed by electronic mail, unless otherwise approved by
the Commission
mail. The filer is responsible for
furnishing one or more electronic notification addresses at which the electronic filer
agrees to accept service and shall immediately provide the Commission, and all parties
with any change to the electronic filer’s notification address. Documents larger than
twenty (20) megabytes shall not be filed by electronic mail, unless otherwise approved by
the Commission. If the document is too large to transmit by electronic mail, the filer shall
serve the document(s) on a CD or disc or other electronic means by mailing or hand
delivering 15 copies of the electronic version to the Commission Office.
III.J.2.b.
Subject to the size limitation established in Section III.J.2.a., or unless
granted an exception to electronic filing of Section III.J.3., all filings for
rulemakings and adjudications under Procedural Rules V. and VI. shall be made
by electronic mail.
III.J.3. Exception to Electronic Filing
Any person who is unable to comply with the requirements of Section III.J.2. may request the
Commission to file documents in paper format. An original and the number of paper copies
required for each proceeding as specified in these procedural rules must be filed in the
Commission Office.
III.K.
Good Cause: Means a valid and sufficient reason, in the opinion of the hearing officer or the
Commission, to make an exception to a requirement of the Procedural Rules.
III.L.
Party: Any person, entity, or agency named or admitted as a party, or properly seeking and
entitled as of right to be admitted as a party, in any Commission proceedings subject to these
regulations. Parties generally are allowed to make individual presentations to the Commission at
hearing and to cross-examine witnesses (see, Section V.E.2. of these regulations [regarding
parties to rulemaking proceedings]). The Division and any person subject to an order or decision
of the Division are parties to an adjudicatory proceeding (see, Section VI.B.4. of these regulations
[regarding parties to adjudicatory proceedings]).
III.M
to make individual presentations to the Commission at
hearing and to cross-examine witnesses (see, Section V.E.2. of these regulations [regarding
parties to rulemaking proceedings]). The Division and any person subject to an order or decision
of the Division are parties to an adjudicatory proceeding (see, Section VI.B.4. of these regulations
[regarding parties to adjudicatory proceedings]).
III.M.
Publication: Publication in the Colorado Register or Colorado Code of Regulations, as
appropriate.
III.N.
Rule or Regulation: As used in these procedural rules include proposed revisions or amendments
to existing regulations, alternate proposals, or wholly new regulation text.
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III.O.
Rulemaking Proceeding: Rulemaking proceedings are the notice and hearing activities required
by law for the Commission to adopt regulations, as authorized by the Act or other specific
authority, that are of general applicability and future effect that implement, interpret, or declare
law or policy, which are intended to be binding, e.g., emissions control regulations, operating
permit regulations, or inspection and maintenance requirements. They include adoption of
proposed regulations, or deletion of, or revisions or modifications to, existing regulations of the
Commission. Rulemaking proceedings typically occur during the Commission's general meetings
and are governed by the procedures in Section V. of these regulations.
III.P.
State Implementation Plan (SIP): State Implementation Plan for ambient air quality standards
required under 42 U.S.C. Section 7410. This instrument generally consists of enforceable
regulations, plans, and support documentation, and is submitted to the U.S. Environmental
Protection Agency for review and approval (see i.e. 40 C.F.R. Part 52, Subpart G [Colorado]).
III.Q.
Staff: Means the Technical Secretary/Administrator under all circumstances and the Division at
the request of the Commission or the Technical Secretary/Administrator
nstrument generally consists of enforceable
regulations, plans, and support documentation, and is submitted to the U.S. Environmental
Protection Agency for review and approval (see i.e. 40 C.F.R. Part 52, Subpart G [Colorado]).
III.Q.
Staff: Means the Technical Secretary/Administrator under all circumstances and the Division at
the request of the Commission or the Technical Secretary/Administrator.
III.R.
Technical Secretary/Administrator: The person employed by the Commission pursuant to § 25-7-
105(3), C.R.S. The Technical Secretary/Administrator can be reached at the Commission Office.
IV.
PROCEDURES FOR GENERAL MEETINGS
IV.A.
General Meetings:
General meetings of the Commission are typically held once a month. General meetings are held for the
Commission to conduct business, which might include, for example, informal hearings, briefings, reports,
budget matters, noticed rulemaking or adjudicatory hearings, or noticed SIP hearings.
IV.B.
Frequency:
Meeting dates and hearing schedules are set by the Commission. The Commission chairperson or if the
chairperson is absent or has been recused, the vice chairperson may as necessary call special meetings
of the Commission.
IV.C.
Placing an Item on the General Meeting Agenda:
Any person seeking to place an item on the Commission's agenda must file the relevant materials in the
Commission Office prior to the general meeting during which that person desires the matter to be
addressed. Materials filed less than thirty days in advance may result in the matter being placed on the
agenda for the following general meeting, unless the Commission or the chairperson determines, for good
cause shown, that the matter should be addressed at that month's general meeting. Amendments to the
agenda may be made at any time.
IV.D.
Conduct of General Meetings:
Six Commissioners constitute a quorum, and at least five Commissioners must vote in favor of a motion
on a matter within the powers and duties of the Commission for that motion to pass
mmission or the chairperson determines, for good
cause shown, that the matter should be addressed at that month's general meeting. Amendments to the
agenda may be made at any time.
IV.D.
Conduct of General Meetings:
Six Commissioners constitute a quorum, and at least five Commissioners must vote in favor of a motion
on a matter within the powers and duties of the Commission for that motion to pass. The chairperson will
preside over general meetings. If the chairperson is absent or has been recused, the Vice Chair, or a
presiding Commissioner will conduct general meetings. General meetings may proceed under Robert's
Rules of Order, although the Commission typically acts on a more informal basis. Specific procedures for
rulemaking proceedings and adjudicatory proceedings will be governed by the procedures set forth in
Sections V. and VI.
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IV.D.1. The Commission may vote on Agenda items as part of a Consent Agenda. Adoption of a
Consent Agenda allows the Commission to consolidate voting on agenda items that do
not need to be discussed individually and for which presentation of additional information
is not required. If any Commissioner or any member of the public believes that any item
proposed for the Consent Agenda requires discussion that item may be removed from
the consent agenda and handled as a regular agenda item at the same general meeting
or at a subsequent general meeting. Items not removed may be adopted by unanimous
consent without debate.
IV.E.
Planning:
Among other agenda topics, the Commission may periodically set aside time on its agenda for general
discussions regarding planning of Commission business or discussions of policy related to air quality.
IV.F.
Recording Proceedings:
The Commission Office will record the proceedings of all general meetings. Copies of such recordings will
be available to the public upon request at cost.
IV.G
lanning:
Among other agenda topics, the Commission may periodically set aside time on its agenda for general
discussions regarding planning of Commission business or discussions of policy related to air quality.
IV.F.
Recording Proceedings:
The Commission Office will record the proceedings of all general meetings. Copies of such recordings will
be available to the public upon request at cost.
IV.G.
Minutes:
The Commission Office shall prepare the minutes of the general meeting, as promptly as possible, and
mail them to the Commissioners for their comment, modification and approval.
IV.H.
Public Participation Encouraged:
All general meetings are open to the public. The Commission strongly encourages public participation.
The chairperson or presiding Commissioner will provide an opportunity at each general meeting for the
Commission to accept public comments, and the public may be invited to participate at other appropriate
times during the general meeting in the discretion of the chairperson or presiding Commissioner. Public
participation and comment may be reasonably limited as the chairperson or presiding Commissioner
deems necessary. The chairperson or presiding Commissioner will be responsible for the orderly conduct
of the meeting. Members of the public appearing before the Commission are expected to present their
views in a respectful manner and must refrain from abusive tactics and personal attacks.
IV.I.
Executive Session:
The Commission may with respect to particular matters approved under the Colorado Open Meetings
Law call for an executive session, upon affirmative vote of at least six Commissioners and announcement
to the public of the topic for discussion during the executive session, where only the Commission, its
counsel, appropriate staff (which includes the Technical Secretary/Administrator and Program
Coordinator and, when appropriate, relevant Division personnel), and other pertinent or necessary
persons may be present, pursuant to § 24-6-402(3), C.R.S.
IV.J
at least six Commissioners and announcement
to the public of the topic for discussion during the executive session, where only the Commission, its
counsel, appropriate staff (which includes the Technical Secretary/Administrator and Program
Coordinator and, when appropriate, relevant Division personnel), and other pertinent or necessary
persons may be present, pursuant to § 24-6-402(3), C.R.S.
IV.J.
Public Hearings:
The Commission is authorized to hold public hearings that are conducted in compliance with the APA.
Public hearings may include rulemaking hearings to adopt air quality standards and emission control
regulations. Public hearings also include adjudicatory hearings, hearings on delayed compliance orders,
and hearings on construction permits. Public hearings afford any interested person the opportunity to
submit data, views, or arguments orally or in writing. The Commission may designate certain matters for
which oral presentations are unnecessary as “Written Comment Only” hearings. Detailed information
regarding each type of public hearing is addressed in these Procedural Rules.
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IV.K.
Informal Hearings:
Informal hearings are held in the discretion of the Commission to gather information or receive comment
on a matter under preliminary consideration by the Commission or staff. They are typically held during the
Commission's general meetings. Informal hearings generally do not require compliance with the APA and
are therefore conducted as deemed appropriate by the Commission. Matters considered at informal
hearings do not have binding regulatory or adjudicatory effect. See, Section V.B.2.a. of these regulations
(regarding informal hearings for development of a proposed rule).
IV.L.
Statements of Policy and Interpretive Rules:
The Commission may from time to time adopt statements of policy and interpretive rules to guide the work
of the Commission and the implementation of its programs
ed at informal
hearings do not have binding regulatory or adjudicatory effect. See, Section V.B.2.a. of these regulations
(regarding informal hearings for development of a proposed rule).
IV.L.
Statements of Policy and Interpretive Rules:
The Commission may from time to time adopt statements of policy and interpretive rules to guide the work
of the Commission and the implementation of its programs. Their adoption does not require compliance
with the APA and therefore will be conducted as deemed appropriate by the Commission.
IV.M.
Approval of Plans, Reports and SIPs:
The Commission periodically takes formal action on plans, reports, or SIPs, which in many cases does
not involve rulemaking. The actions may vary from review and approval of reports to the state legislature,
to formal promulgation of SIPs or approval of SIP reports. When the approval of regulations or revisions
to regulations is involved, the Commission will follow the procedures provided in Section V. with respect
to the rulemaking elements. With respect to any non-regulatory action or elements, the Commission will,
to the extent appropriate, follow the procedures in Section V. This, however, shall not be construed to
require the Commission to follow such procedures in any action that does not include rulemaking. The
Commission’s written notice for any such actions will describe the specific requirements for participation
applicable to parties and the Division, and, where appropriate, to the public.
Prior to the hearing, the Hearing Officer may also provide a prehearing order that specifies other
procedural requirements. Notwithstanding the foregoing, any plan, report, or other provision which is to
become part of the Federally-enforceable SIP must be adopted by the Commission following a formal
rulemaking hearing
applicable to parties and the Division, and, where appropriate, to the public.
Prior to the hearing, the Hearing Officer may also provide a prehearing order that specifies other
procedural requirements. Notwithstanding the foregoing, any plan, report, or other provision which is to
become part of the Federally-enforceable SIP must be adopted by the Commission following a formal
rulemaking hearing. This requirement may be satisfied by adopting such plan, report, or provision during
the course of a rulemaking hearing on an associated rule, or by publishing notice of the hearing on the
plan, report, or provision in compliance with the notice requirements of §§ 24-4-103 and 25-7-110, C.R.S.
This requirement does not require the promulgation and publication of a plan, report or other provision as
a rule or regulation unless such plan, report or provision is a rule as that term is defined in § 24-4-102,
C.R.S.
IV.N.
Review of Conformity Determinations
IV.N.1. The Commission shall hold at least one public meeting to review non-routine conformity
determinations on a transportation plan or transportation improvement program. In
general, the Division will determine whether a Conformity Determination is routine per the
definition in AQCC Regulation Number 10, Criteria for Analysis of Transportation
Conformity. Such requirement for a public meeting also applies to a non-routine
conformity determination for a Federal Highway Administration or Federal Transit
Administration project or any regionally significant project funded with non-federal
moneys located outside of a metropolitan planning area if any member of the review
team established to consult on such conformity determination requests a review by the
Commission.
IV.N.2. The Commission shall provide written notice of the public meeting to the persons on the
Commission mailing list maintained by the Commission Office. Such notice must be
emailed at least thirty days prior to the public meeting.
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stablished to consult on such conformity determination requests a review by the
Commission.
IV.N.2. The Commission shall provide written notice of the public meeting to the persons on the
Commission mailing list maintained by the Commission Office. Such notice must be
emailed at least thirty days prior to the public meeting.
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IV.N.3. The entity making the conformity determination shall file via email the following
documents with the Commission at least thirty days prior to the public meeting:
IV.N.3.a.
A statement summarizing the conformity finding and the key
assumptions supporting the finding and any technical support documentation.
IV.N.3.b.
One copy each of the relevant Transportation Plan and Transportation
Improvement Program.
IV.N.4. At least fourteen days prior to the public meeting, the Division shall provide each
Commissioner with a copy of its written comments, if any, on the conformity
determination. This provision does not preclude the Division from making additional
comments on the conformity determination at the public meeting.
IV.N.5. The Commission may continue the public meeting to the next regularly scheduled
Commission meeting, or to such other date requested by the entity making the conformity
determination.
IV.N.6. The entity with final authority to adopt a conformity determination is not required to do
prior to the public meeting. If the conformity determination reviewed by the Commission is
not final, or is otherwise subject to change prior to submittal to the Federal Highway
Administration, the Commission may provide provisional concurrence, or continue the
public meeting to review any changes to the conformity determination and any changes
to the plan or program that materially affect the conformity determination, that occur after
the public meeting.
IV.N.7. The following procedures apply to any public meeting continued pursuant to Section
IV.N.5. or IV.N.6.:
IV.N.7.a
dministration, the Commission may provide provisional concurrence, or continue the
public meeting to review any changes to the conformity determination and any changes
to the plan or program that materially affect the conformity determination, that occur after
the public meeting.
IV.N.7. The following procedures apply to any public meeting continued pursuant to Section
IV.N.5. or IV.N.6.:
IV.N.7.a.
Testimony at the continued meeting may be limited to Commission
comments and to changes to the conformity determination that have occurred
since the public meeting on the proposed conformity determination.
IV.N.7.b.
Any change to the conformity determination following the public meeting
must be filed with the Commission at least fourteen days prior to the continued
meeting. The Metropolitan Planning Organization, or the Colorado Department of
Transportation (CDOT), or any other organization responsible for making the
conformity determination, shall file 15 copies of a description of the changes to
the conformity determination, and to the key assumptions supporting the
conformity determination, together with one copy of any revisions to the
supporting documentation. Any changes filed less than fourteen days prior to the
continued meeting may result in an additional continuation of the public meeting
to the following month.
IV.N.8. Nothing in this rule prevents the Division, the Metropolitan Planning Organization,
(CDOT), or members of the Commission from briefing the Commission on upcoming
conformity determinations. Any such briefings will be in addition to the public meetings
required by this rule.
V.
PROCEDURES FOR RULEMAKING
V.A.
How a Rulemaking Proceeding Begins
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rule prevents the Division, the Metropolitan Planning Organization,
(CDOT), or members of the Commission from briefing the Commission on upcoming
conformity determinations. Any such briefings will be in addition to the public meetings
required by this rule.
V.
PROCEDURES FOR RULEMAKING
V.A.
How a Rulemaking Proceeding Begins
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V.A.1. Commencement of Rulemaking:
A rulemaking proceeding formally commences when the Commission approves a petition for
rulemaking. A petition for rulemaking may originate from any member of the public or from the
Division; the Commission may also request that staff prepare a petition for a specific matter.
V.A.2. Members of the Public and Petitions for Rulemaking:
Any member of the public may petition the Commission in writing to issue, amend, or repeal a
rule. Such petition is open to public inspection and must fulfill the requirements of Section V.C. of
this regulation, including those related to timing. Except as provided in Section V.F.13., action on
such petition is within the discretion of the Commission; but, when the Commission undertakes
rulemaking on any matter, all related petitions for the issuance, amendment or repeal of rules on
such matter will be considered and acted upon in the same proceeding.
V.A.3. Commission Schedule for Rulemakings:
The Commission’s Commission Office maintains a long-term schedule for rulemakings and State
Implementation Plan actions; the schedule is available on the Commission’s website. In limited
circumstances, the Commission may grant a petitioner's request to deviate from the
Commission’s schedule upon showing of good cause.
V.B.
Development of Proposals for Rules or Revisions
The Commission strongly encourages thoughtful development of regulation text prior to it being proposed
to the Commission in a formal petition for rulemaking
ule is available on the Commission’s website. In limited
circumstances, the Commission may grant a petitioner's request to deviate from the
Commission’s schedule upon showing of good cause.
V.B.
Development of Proposals for Rules or Revisions
The Commission strongly encourages thoughtful development of regulation text prior to it being proposed
to the Commission in a formal petition for rulemaking. Engaging other interested persons, the Division,
and any other relevant regulatory entities in the regulation development process makes the rulemaking
process more efficient for the Commission and all persons involved. Failure to solicit and consider the
positions of others may result in rulemakings having to be postponed, re-noticed, or vacated.
V.B.1. By Members of the Public:
Persons interested in proposing regulation text to the Commission are encouraged to contact
other interested persons, the Division, and other relevant regulatory entities in developing the
draft regulation text. Appropriate Division staff can be reached by contacting the Commission
Office. Any person can request the Commission to announce and convene a work group pursuant
to Section V.B.2.b., or a subcommittee pursuant to Section V.B.2.c., action upon which is in the
discretion of the Commission.
V.B.2. By the Commission or Staff
V.B.2.a.
Informal Hearings:
Whenever the Commission contemplates rulemaking, public announcement of any
informal pre-rulemaking proceedings, e.g., an informal hearing, may be made at such
time and in such manner as the Commission or staff determines, and the public will be
invited to submit views or otherwise participate informally in conferences with the
Commission or staff on the proposals under consideration. It is in the discretion of the
Commission to determine if and when such proceedings should occur.
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time and in such manner as the Commission or staff determines, and the public will be
invited to submit views or otherwise participate informally in conferences with the
Commission or staff on the proposals under consideration. It is in the discretion of the
Commission to determine if and when such proceedings should occur.
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An announcement should be designed to encourage early and informal public
participation regarding, for example: the consideration and design of the proposed rule;
the process of deciding whether rulemaking should be pursued; and resolution of issues
related to proposing a rule. Informal hearings conducted by the Commission are
discussed in Section IV.J. Whenever time and resources permit, the Commission will
provide for and encourage informal comment and discussion regarding potential
rulemaking issues prior to commencement of the formal rulemaking process.
V.B.2.b.
Workgroups:
A workgroup may be convened by staff at the direction of the Commission for the
purpose of: producing either a consensus proposal or to develop a core proposal and
potential alternatives. Commissioners generally do not participate in workgroups. Public
announcement of any workgroup will be provided as deemed appropriate by the
Commission or workgroup participants. At the end of any workgroup, any person,
including the Division as staff, may proceed with formal action before the Commission.
V.B.2.c.
Subcommittees:
The Commission may convene a subcommittee of Commissioners, and appoint a
Commissioner to chair a subcommittee to evaluate any issue that may come before the
Commission, including new regulatory requirements or revisions to existing regulations. A
subcommittee consists of one or more Commissioners. Members of the public may
participate to assist the Commission, but are not part of the subcommittee
The Commission may convene a subcommittee of Commissioners, and appoint a
Commissioner to chair a subcommittee to evaluate any issue that may come before the
Commission, including new regulatory requirements or revisions to existing regulations. A
subcommittee consists of one or more Commissioners. Members of the public may
participate to assist the Commission, but are not part of the subcommittee.
Subcommittees may identify issues that need to be resolved, consider the views of
interested persons and entities, and propose regulatory language that addresses the
issues of concern. Where possible, the subcommittee will reach consensus on regulatory
text. A subcommittee’s recommendation is a proposal to generate discussion in an
efficient and focused hearing before the full Commission; members of the subcommittee
are not committed to the subcommittee's recommendation. Regulation text developed by
the subcommittee generally will be proposed and presented in a petition by the Division
as staff, although in some circumstances, if the subcommittee so directs, a subcommittee
participant may propose and present the subcommittee text to the Commission. Members
of the public and the Division may offer alternate proposals to those of the subcommittee.
V.B.2.d.
Staff:
In order to solicit participation in the development of regulatory text prior to submitting a
petition for rulemaking to the Commission, the Division may use whatever means are
practical and efficient, including public workshops or staff-initiated workgroups. Such
workshops or workgroups should be noticed where appropriate and should strive to
include the general public.
V.C.
Petitions for Rulemaking
V.C.1. General:
Petitions for rulemaking shall be open to public inspection and must fulfill the requirements
Section V.C. of this regulation. The Commission strongly encourages thoughtful and thorough
preparation of petitions before they are submitted to the Commission Office.
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e general public.
V.C.
Petitions for Rulemaking
V.C.1. General:
Petitions for rulemaking shall be open to public inspection and must fulfill the requirements
Section V.C. of this regulation. The Commission strongly encourages thoughtful and thorough
preparation of petitions before they are submitted to the Commission Office.
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V.C.2. Timing:
Except for emergency rules addressed in Section V.C.6. of this regulation, the complete petition
must be filed by electronic mail pursuant to the provisions of Section III.J.2. If granted an
exception to electronic filing pursuant to the provisions of Section III.J.3., the petitioner must
submit an original and fifteen copies of a complete petition for rulemaking in the Office of the Air
Quality Control Commission, Colorado Department of Public Health and Environment, 4300
Cherry Creek Drive South, EDO-AQCC-A5, Denver, Colorado 80246. Petitions must be filed by
the close of business thirty days prior to the scheduled general meeting of the Commission at
which the petitioner desires to have the Commission hear the petition. Electronically mailed
copies or copies covered under the exception of the provisions of Section III.J.3. must also be
delivered by that time to the Assistant Attorneys General representing the Commission and the
Division, and to the Director of the Division. Failure to comply with this requirement will generally
result in the petition not being considered during the desired general meeting of the Commission,
but being held over to the next general meeting of the Commission. In limited circumstances, the
Commission may grant a petitioner's request to have a late petition heard upon showing of good
cause.
V.C.3. Contents of a Standard Petition:
Petitioners are advised to contact the Commission Office when preparing their petition to discuss
whether the petition is complete and addresses all requirements
but being held over to the next general meeting of the Commission. In limited circumstances, the
Commission may grant a petitioner's request to have a late petition heard upon showing of good
cause.
V.C.3. Contents of a Standard Petition:
Petitioners are advised to contact the Commission Office when preparing their petition to discuss
whether the petition is complete and addresses all requirements. The Commission Office may
return any petition that does not address every requirement specified in this Section V.C.3., with a
brief explanation of how the petition is deficient. Petitions that are returned by the Commission
Office likely will not be considered by the Commission at the general meeting during which the
petitioner desired to have the petition heard. Unless the rule proposal is subject to Section V.C.4.
of this regulation, a complete petition for rulemaking must include the information required in this
Section V.C.3.a., through V.C.3.k.
V.C.3.a.
Petition Cover Sheet
Petitioners shall provide a cover sheet that: identifies the person(s) requesting the
rulemaking (including the representative's name, address, electronic mail address, and
telephone numbers); includes a statement describing the nature of the request; includes
a statement broadly summarizing the issue to be addressed by the petition; includes a
statement summarizing what, if any, policy, factual, and legal issues arise due to the
proposal; and, includes a statement of the Commission's authority to promulgate the rule,
citing specific relevant sections of the Act or other relevant statute.
V.C.3.b.
Memorandum of Notice:
The Technical Secretary/Administrator, in cooperation with the petitioner, must prepare a
Memorandum of Notice (MON) which includes the information required under § 25-7-
110.5(3), C.R.S.
The Memorandum of Notice must also include an Initial Economic Impact Analysis as
required by § 25-7-110.5(4) C.R.S
specific relevant sections of the Act or other relevant statute.
V.C.3.b.
Memorandum of Notice:
The Technical Secretary/Administrator, in cooperation with the petitioner, must prepare a
Memorandum of Notice (MON) which includes the information required under § 25-7-
110.5(3), C.R.S.
The Memorandum of Notice must also include an Initial Economic Impact Analysis as
required by § 25-7-110.5(4) C.R.S. The petitioner may ask the Division for assistance to
prepare the economic impact analysis, but, pursuant to § 25-7-110.5(4)(a) and (c), the
petitioner must confer with the Division to determine what type or types of economic
impact analysis are required.
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V.C.3.c.
Proposed Regulation Text:
Petitioners must also provide the Commission with the precise language of any proposed
new regulations, or amendments to existing regulations. Proposed regulations or
amendments to existing regulations must be presented in a form that the Commission
can view in context, (i.e., track changes/redline or strikeout with small caps if track
changes is not available), and the petitioner must precisely identify the sections of the
Commission’s regulations that are affected by the proposed change.
V.C.3.d.
Range of Regulatory Alternatives:
The Petitioner shall also provide a statement describing the range of regulatory options
available to the Commission, including a no-action alternative. The statement should
discuss those regulatory options that reasonably flow from or relate to the petitioner's
proposal and relevant existing regulation(s).
V.C.3.e.
Statement regarding Federal Requirements:
For any provision that is not required by federal statute or regulations, the Petitioner shall
provide a brief statement that identifies the portion of the proposed rule that is not
required by the federal act, and includes the explanation required by § 25-7-110.5(5)(b),
C.R.S
elate to the petitioner's
proposal and relevant existing regulation(s).
V.C.3.e.
Statement regarding Federal Requirements:
For any provision that is not required by federal statute or regulations, the Petitioner shall
provide a brief statement that identifies the portion of the proposed rule that is not
required by the federal act, and includes the explanation required by § 25-7-110.5(5)(b),
C.R.S. The Petitioner must also, pursuant to §§ 25-7-105.1 and 133(3), state that any
non-federally required provision is not an addition to or a revision of any SIP. This
statement regarding federal requirements may also be used in the notice of rulemaking,
and in the final Statement of Basis, Specific Statutory Authority, and Purpose.
V.C.3.f. Draft Statement of Basis, Specific Statutory Authority, and Purpose:
The Petitioner shall also provide a draft statement of the rule's basis, statutory authority,
and purpose, which explains the Commission’s rationale for adopting a proposed rule or
amendment. The statement must contain:
V.C.3.f.(i)
A general statement of the basis for the rules;
V.C.3.f.(ii)
The specific purposes of the rule (e.g., “to implement the
provisions regarding ..., by requiring that ....” is a way to frame this
required discussion).
V.C.3.f.(iii)
The specific statutory section(s) authorizing the rulemaking;
V.C.3.f.(iv)
For any provision that is not federally required, the statement
described at V.C.3.e.
V.C.3.f.(v)
Pursuant to 25-7-110.8, C.R.S., the statement required when the
Commission has no discretion under state law not to adopt the proposed
rule or to adopt any alternative rule.
V.C.3.f.(vi)
For any rule or amendment which involves technological or
scientific issues, the Petitioner must include an evaluation of the
scientific or technological rationale justifying the proposal.
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uired when the
Commission has no discretion under state law not to adopt the proposed
rule or to adopt any alternative rule.
V.C.3.f.(vi)
For any rule or amendment which involves technological or
scientific issues, the Petitioner must include an evaluation of the
scientific or technological rationale justifying the proposal.
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V.C.3.g.
Technical Support Documents:
Any technical documents required by 40 CFR, Part 51 (July 1997, EPA) for any SIP
submittal or otherwise prepared for submittal to EPA in support of such SIP submittal.
Such technical documents shall be available electronically and for public inspection at the
Commission Office, and at least one location in each portion of the State in which the
relevant SIP will apply.
V.C.3.h.
Final Economic Analysis:
The petitioner shall also prepare, in cooperation with the Division, a Final Economic
Impact Analysis (EIA) pursuant to C.R.S. § 25-7-110.5(4). The EIA is due five working
days prior to the prehearing conference. If no prehearing conference is held, the final
economic analysis is due at least ten days prior to the date of the rule-making hearing.
V.C.3.i.
Identification of Affected SIPs:
The Petitioner should identify which SIPs in the state, if any, are affected by the
Commission’s adoption of the regulation.
V.C.3.j.
Other Information:
Where appropriate, a statement providing any other concise background material that
would help the public and the Commission to understand the impact of the proposed rule.
V.C.3.k.
Incorporation by Reference:
A petitioner who seeks to incorporate any material by reference must comply with § 24-4-
103(12.5)(a)-(c), C.R.S. The petitioner must also provide one complete copy of any
material to be incorporated by reference to the Commission Office, which will forward the
incorporated material to the state publications depository and distribution center.
V.C.4. Content of Particular Petitions:
Some requirements for a petition in Section V.C.3
te any material by reference must comply with § 24-4-
103(12.5)(a)-(c), C.R.S. The petitioner must also provide one complete copy of any
material to be incorporated by reference to the Commission Office, which will forward the
incorporated material to the state publications depository and distribution center.
V.C.4. Content of Particular Petitions:
Some requirements for a petition in Section V.C.3. do not apply to rule proposals that: (1) adopt
by reference applicable federal rules; (2) adopt prescriptive state statutory requirements where
the Commission is allowed no significant policy-making options; or, (3) will have no regulatory
impact on any person, facility, or activity.
Petitions for these types of rule proposals must include all elements of a petition specified in
Section V.C.3. However, these types of petitions need not include:
V.C.4.a.
Either the initial or final economic impact analysis required by § 25-7-
110(5)(3)(g) and (4), C.R.S. or,
V.C.4.b.
Statement regarding Federal Requirements:
The statement describing the potential justification of terms exceeding or differing from
federal requirements as required by § 25-7-110.5(5), C.R.S. or,
V.C.4.c.
Range of Regulatory Alternatives:
The statement describing the range of regulatory alternatives, including the no-action
alternative, is not required.
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V.C.5. Alternate proposals submitted at the same time that the petition is to be considered:
Persons who submit an alternate proposal for consideration while the Commission is considering
a petition for rulemaking, and who intend that the alternate proposal be considered with the
original petition must comply with the timing requirements of Section V.C.2. and the requirements
of Section V.C.3.a. through V.C.3.k., unless the alternate proposal is subject to the abbreviated
requirements of Section V.C.4. A proponent of an alternative proposal must also prepare, in
cooperation with the Division a Final Economic Analysis
ntend that the alternate proposal be considered with the
original petition must comply with the timing requirements of Section V.C.2. and the requirements
of Section V.C.3.a. through V.C.3.k., unless the alternate proposal is subject to the abbreviated
requirements of Section V.C.4. A proponent of an alternative proposal must also prepare, in
cooperation with the Division a Final Economic Analysis. For an alternative proposal, a final
economic analysis is due five working days prior to the prehearing conference. The Commission
may consider alternative proposals and economic analyses that were not submitted prior to the
prehearing conference, for good cause shown.
V.C.6. Petition for an Emergency Rule
V.C.6.a.
Request and Petition:
Any person including the Division may request the Commission to adopt a temporary or
emergency rule without complying with the requirements of Section V.C. of this regulation
and with less than sixty days’ notice (or, where circumstances imperatively require, with
no notice). The Commission may adopt such a rule if it finds on the record that immediate
adoption of the rule is:
V.C.6.a.(i)
imperatively necessary to comply with a state or federal law or
federal regulation, or
V.C.6.a.(ii)
imperatively necessary for the preservation of public health,
safety or welfare; and,
V.C.6.a.(iii)
compliance with the rulemaking procedural requirements of
Section V.C. of this regulation (excluding this Section V.C.6.) would be
contrary to the public interest
adoption of the rule is:
V.C.6.a.(i)
imperatively necessary to comply with a state or federal law or
federal regulation, or
V.C.6.a.(ii)
imperatively necessary for the preservation of public health,
safety or welfare; and,
V.C.6.a.(iii)
compliance with the rulemaking procedural requirements of
Section V.C. of this regulation (excluding this Section V.C.6.) would be
contrary to the public interest.
Unless the immediacy of the situation precludes any preparation, the person requesting a
temporary or emergency rule shall prepare at least a brief petition that describes the
issue at hand, provides the proposed rule text (i.e., track changes/redline or strikeout with
small caps if track changes is not available), to include a statement of the reasons for the
action (i.e., the need for the emergency action), and includes proposed findings of the
basis for the Commission's action under V.C.6.a.(i) and V.C.6.a.(iii), or V.C.6.a.(ii) and
V.C.6.a.(iii). This petition should be filed in the Commission Office at the earliest possible
date. The Commission will endeavor to provide notice of the proposed emergency rule,
as practicable. Any person may request that a regulatory analysis under § 24-4-103(4.5),
C.R.S., be prepared and made available to the public five working days prior to the
hearing, unless there is an imminent and serious hazard to health, welfare, or the
environment. The request must be in writing and filed in the Commission Office at least
fifteen days prior to the hearing at which a temporary or emergency rule is to be
considered. § 24-4-103(4.5)(d), C.R.S. applies to any such regulatory analysis.
V.C.6.b.
Commission Requirements:
The required findings in Section V.C.6.a., and a statement of the reasons for the action,
will be published with any temporary or emergency rule adopted by the Commission
in the Commission Office at least
fifteen days prior to the hearing at which a temporary or emergency rule is to be
considered. § 24-4-103(4.5)(d), C.R.S. applies to any such regulatory analysis.
V.C.6.b.
Commission Requirements:
The required findings in Section V.C.6.a., and a statement of the reasons for the action,
will be published with any temporary or emergency rule adopted by the Commission. A
temporary or emergency rule is effective upon adoption or on such later date as is stated
in the rule, will be published promptly, and will remain in effect for not more than 120
days or less from the date of adoption, (unless it is a special emergency rule adopted
under Section V.C.6.c., or it is made permanent by compliance with this Section V.C.
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V.C.6.c.
Special emergency rules for interim emissions control regulations:
In addition to the general temporary or emergency rulemaking authority described in
Section V.C.6.a., the Commission may conduct emergency rulemaking for the purpose of
adopting an interim emission control regulation to apply for a specified period of time in
place of an existing emission control regulation or to create an emission control
regulation whenever federal regulations have been adopted and become effective
pursuant to Section 111 of the federal act and which add to the list of categories of
stationary sources, or add new or more restrictive standards of performance for new
sources, or whenever federal regulations are adopted and effective pursuant to Section
112 of the federal act and which modify or adopt Maximum Achievable Control
Technology or Generally Available Control Technology for new or existing sources, and
such regulations are required to be implemented by the states. These emergency
emission control regulations are effective upon adoption, unless a later date is specified
in the rule, and will be effective for a period not exceeding twelve months from the date of
adoption.
V.C.7
or adopt Maximum Achievable Control
Technology or Generally Available Control Technology for new or existing sources, and
such regulations are required to be implemented by the states. These emergency
emission control regulations are effective upon adoption, unless a later date is specified
in the rule, and will be effective for a period not exceeding twelve months from the date of
adoption.
V.C.7. Petition for Written Comment Only Rule
Written Comment Only hearings are not subject to standard prehearing procedures. Petitions for
written comment only rulemaking shall be open for public inspection and must fulfill the
requirements of this regulation. If the Commission grants such a petition, all interested persons
are encouraged to provide their views in writing 14 business days prior to the hearing or as
otherwise provided in the Notice of Hearing. No testimony or oral presentations will be taken at
the hearing except for good cause shown. If the Commission determines that a prehearing
process is necessary at the time of the hearing, the Commission must adopt a motion to re-notice
the hearing.
V.D.
Notice
V.D.1. Preparation:
Upon receipt of a complete rulemaking petition, the Commission Office will prepare a draft notice
of proposed rulemaking. Petitioners may consult with the Air Quality Control Commission
regarding the description of the proposed rule in the notice. The Commission Office will provide
the draft notice and the petition to the Commission.
V.D.2. Publication requirement:
Except for temporary or emergency rules under Section V.C.6. of this regulation, or rulemaking
hearings exempt under § 24-4-103(1), C.R.S., or rulemaking hearings covered under Section
V.F.13., each rulemaking hearing of the Commission shall be preceded by formal notice
published in the Colorado Register and on the Commission’s website no less than sixty days prior
to the hearing.
V.D.3
quirement:
Except for temporary or emergency rules under Section V.C.6. of this regulation, or rulemaking
hearings exempt under § 24-4-103(1), C.R.S., or rulemaking hearings covered under Section
V.F.13., each rulemaking hearing of the Commission shall be preceded by formal notice
published in the Colorado Register and on the Commission’s website no less than sixty days prior
to the hearing.
V.D.3. Proposed Rulemaking Packet:
At the time the official notice for a particular rulemaking is published, the Commission Office will
provide to any member of the public upon request, either electronically, or in hard copy at cost, a
copy of the Proposed Rulemaking Packet. (Note: a complete petition for rulemaking meeting the
requirements of Section V.C.3. or V.C.4. if appropriate, constitutes the Proposed Rulemaking
Packet.)
V.D.4. Amended notices:
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V.D.4.a.
Minor Changes
An amended notice with minor changes may be issued by the Commission at any time
prior to the hearing without necessitating a continuance of the hearing date, provided the
original notice is not substantially altered so that it would prejudice any person who might
be interested in the proceedings. Amended notices with minor changes will be available
on the Commission’s website.
V.D.4.b.
Substantial Changes
If an amendment is substantial and would be prejudicial, the hearing date shall be
continued to an appropriate date as determined by the Commission. Notice thereof shall
be made in the same manner as the original notice and must be published in the
Colorado Register, the newspaper, and on the Commission’s website consistent with the
Colorado statutes.
V.E.
Prehearing Procedures
V.E.1. General
These prehearing procedures provide a process by which issues related to a proposed rule are
raised and discussed, and, if they cannot be resolved prior to the prehearing conference,
presented to the Commission for decision in an efficient manner
in the
Colorado Register, the newspaper, and on the Commission’s website consistent with the
Colorado statutes.
V.E.
Prehearing Procedures
V.E.1. General
These prehearing procedures provide a process by which issues related to a proposed rule are
raised and discussed, and, if they cannot be resolved prior to the prehearing conference,
presented to the Commission for decision in an efficient manner. It is the strong desire of the
Commission that the parties and the Division resolve as many issues as possible by negotiation
prior to the prehearing conference.
V.E.2. Selection of the Hearing Officer
The Technical Secretary/Administrator requests that a Commissioner volunteer to serve as the
Hearing Officer for the prehearing process and the rulemaking hearing. The Hearing Officer has
the authority as discussed in Section V.E.4.
V.E.3. Rights and obligations of parties, non-parties, and the Division.
V.E.3.a.
Parties:
Persons granted party status have the right to make an individual presentation either
orally or in writing, or both, during the rulemaking hearing, to make appropriate
objections, and to cross-examine witnesses. Parties to the rulemaking must comply with
the prehearing procedures, including any order of the Commission or the Hearing Officer.
Failure to comply with the prehearing procedures or any order will generally result in loss
of party status.
V.E.3.b.
Non-Parties:
Persons who do not desire party status, but would like to participate in the rulemaking
process, may make their views known to the Commission on any rulemaking by
submitting comments in writing in advance of or at the hearing, and by speaking during
the public comment period at any hearing.
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arty status.
V.E.3.b.
Non-Parties:
Persons who do not desire party status, but would like to participate in the rulemaking
process, may make their views known to the Commission on any rulemaking by
submitting comments in writing in advance of or at the hearing, and by speaking during
the public comment period at any hearing.
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V.E.3.c.
Air Pollution Control Division:
The Division acts as staff to the Commission in any rulemaking hearing, and typically is
not a formal party. In fulfilling its role as staff, the Division may present evidence and
testimony, provide background, summarize evidence and any matters settled before the
hearing, make recommendations to the Commission and perform other duties as
requested by the Commission. The Division or the Assistant Attorney General
representing the Division may, as necessary to assist the Commission, make objections
or cross-examine witnesses, in the discretion of the Commission. The Division may
affirmatively request party status pursuant to the procedure in Section V.E.(3)(c). If the
Division formally gains party status, it may continue to provide staff services to assist the
Commission, as directed by the Commission or the Prehearing Officer. Whether the
Division participates as staff, as a party, or both, it shall comply with prehearing
procedures.
V.E.4. Gaining Party Status:
The requirements for gaining party status to any particular rulemaking typically are specified in
the notice for that rulemaking. In order to be granted party status, the petitioner must comply with
the requirements of this section. Where the notice of rulemaking specifies that a petition for party
status is required, the petition shall be filed by electronic mail in compliance with Section III.J.2.
unless an exception is granted under Section III.J.3
ular rulemaking typically are specified in
the notice for that rulemaking. In order to be granted party status, the petitioner must comply with
the requirements of this section. Where the notice of rulemaking specifies that a petition for party
status is required, the petition shall be filed by electronic mail in compliance with Section III.J.2.
unless an exception is granted under Section III.J.3. Electronically mailed copies must also be
timely received by the Assistant Attorneys General representing the Commission and the
Division, and by the Division staff person identified in the notice.
If granted an exception to electronic filing pursuant to the provisions of Section III.J.3., the
petitioner must complete filing for party status by submitting an original and three copies of the
petition for party status in the Commission Office by the date specified in the notice. As may be
modified by any notice for a rulemaking, the following entities will have party status in rulemaking
proceedings before the Commission:
V.E.4.a.
The Petitioner:
Any person petitioning for rulemaking under Section V.C. shall automatically be granted
party status.
V.E.4.b.
The Proponent of an Alternate Proposal:
Any person who proposes an alternative to a proposed rule or revision shall comply with
the filing requirements of V.E.4. and provide an alternative rule or revision and any other
documents required by V.C.3.a. through V.C.3.k. The required documents should be filed
by the date specified in the notice for party status requests but not less than 20 days prior
to the rulemaking hearing. However, the final economic analysis must be filed at least five
working days prior to the rulemaking hearing. Any person may propose an alternative to a
proposed rule or revision. However, alternate proposals will be considered by the
Commission only if the subject matter of the alternative proposal is consistent with and
fits within the scope of the notice for the particular rulemaking hearing
. However, the final economic analysis must be filed at least five
working days prior to the rulemaking hearing. Any person may propose an alternative to a
proposed rule or revision. However, alternate proposals will be considered by the
Commission only if the subject matter of the alternative proposal is consistent with and
fits within the scope of the notice for the particular rulemaking hearing. By filing an
alternative rule proposal within the specified time frame and fulfilling the necessary
requirements for alternate proposals and other relevant prehearing requirements, a
person automatically obtains party status. Failure to timely file required documents may
cause delay or a continuance of the hearing.
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V.E.4.c.
Any Other Person; Petitions for Party Status:
Any person may seek party status by petitioning the Commission. Granting of party
status under this Section V.E.4.c. is in the sole discretion of the Commission. The petition
must be filed in the Commission Office as specified in the notice of rulemaking by
electronic mail as required by Section III.J.2., and if not specified in the notice then in no
event later than forty-five days before the rulemaking hearing. If granted an exception to
electronic filing pursuant to the provisions of Section III.J.3., the petitioner must complete
filing for party status by submitting an original and three copies of the petition in the
Commission Office by the date specified in the notice. The petition for party status must:
pecified in the notice then in no
event later than forty-five days before the rulemaking hearing. If granted an exception to
electronic filing pursuant to the provisions of Section III.J.3., the petitioner must complete
filing for party status by submitting an original and three copies of the petition in the
Commission Office by the date specified in the notice. The petition for party status must:
(1) identify the applicant; (2) provide the name, address, electronic mail address, and
telephone of the applicant or applicant's representative; and (3) briefly summarize what, if
any, policy, factual, and legal issues the applicant has with the proposal(s) as of the time
of filing the application. Copies of the petition for party status must also be filed by
electronic mail as required by Section III.J.2. or copies covered under the exception of
the provisions of Section III.J.3. and received by the Division staff person identified in the
notice, and the Assistant Attorneys General representing the Commission and the
Division, by the same day that it is due to be filed in the Commission Office.
V.E.4.d.
Late Party Status:
The Commission may grant party status requests submitted fewer than forty-five days
before the hearing on a particular rulemaking only upon written request and for good
cause shown. Action on such is at the discretion of the Commission or the Prehearing
Conference Officer. Any such request must be filed in the Commission Office at the
earliest possible opportunity, and must also be received by each party of record, and the
Division staff person identified in the notice, and the Assistant Attorneys General
representing the Division and the Commission. Persons seeking party status by the act of
proposing an alternative rule are subject to the time requirements provided in the notice
or that are provided in Section V.E.4.b.
V.E.5. Status Conference
The Hearing Officer may require one or more status conferences with the Division and the parties
to a rulemaking hearing
nd the Assistant Attorneys General
representing the Division and the Commission. Persons seeking party status by the act of
proposing an alternative rule are subject to the time requirements provided in the notice
or that are provided in Section V.E.4.b.
V.E.5. Status Conference
The Hearing Officer may require one or more status conferences with the Division and the parties
to a rulemaking hearing. The Commission may, in the notice of rulemaking, make attending the
status conference mandatory. Status conferences will typically be held prior to the prehearing
conference, shortly after the close of the deadline for party status. The Hearing Officer will
preside at the status conference. The goal of the status conference is to ascertain and discuss
the issues involved in the rulemaking, and to ensure that the Division and the parties are making
all necessary efforts to discuss and resolve all possible issues prior to the date that prehearing
statements are due. It is the intent of the Commission that final positions on the issues in a
rulemaking (including final alternate proposals) will be reflected in the prehearing statements for
the prehearing conference, so that all necessary discussions and revisions to positions will take
place before the prehearing statements are due. If it is apparent that the final positions of the
parties and the Division are not reflected in the prehearing statement, i.e., if further discussions,
revisions to positions, or alternate proposals are warranted at the time of the prehearing
conference, the Hearing Officer may decide to continue the rulemaking hearing. The Hearing
Officer may impose appropriate sanctions on any party that fails to attend a mandatory status
conference. These sanctions may include limits on the issues that may be raised at the hearing,
or the denial of party status.
V.E.6. Prehearing Conference
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e Hearing Officer may decide to continue the rulemaking hearing. The Hearing
Officer may impose appropriate sanctions on any party that fails to attend a mandatory status
conference. These sanctions may include limits on the issues that may be raised at the hearing,
or the denial of party status.
V.E.6. Prehearing Conference
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V.E.6.a.
Participation Mandatory:
If the Commission determines that a prehearing conference is necessary, the
Commission will specify in the notice of proposed rulemaking when a prehearing
conference will be held. A duly appointed Commissioner will preside as Hearing Officer at
the prehearing conference, and is authorized to issue procedural orders. All parties and
the Division shall participate in the prehearing conference in person. A party may submit,
in writing, a request to not participate in the hearing in person. For good cause shown,
the Hearing Officer may grant the request. Failure to comply with the requirements of this
section may result in denial of a party status application, dismissal of a party or limits on
the issues that may be raised at the hearing.
V.E.6.b.
Goals of the Prehearing Conference and Authority of the Hearing Officer:
The goals of the prehearing conference include: the identification of stipulations; the
identification of contested matters and issues to be raised at the hearing; the disposal of
motions; the identification of witnesses and exhibits to be presented by the parties, the
Division, and other persons (where applicable); and, the formulation of a prehearing order
for the rulemaking proceeding. The Hearing Officer will take action on petitions for party
status at the prehearing conference. Such action is appealable to the Commission at the
rulemaking hearing. The parties, the Division, or other persons should make known at the
prehearing conference any objections to the procedures or evidence that may be used at
the hearing
formulation of a prehearing order
for the rulemaking proceeding. The Hearing Officer will take action on petitions for party
status at the prehearing conference. Such action is appealable to the Commission at the
rulemaking hearing. The parties, the Division, or other persons should make known at the
prehearing conference any objections to the procedures or evidence that may be used at
the hearing. Prehearing motions are to be filed with the Commission Office by electronic
mail or as otherwise provided in Section III.J.3. Copies are to be provided to the parties,
the Division, the Assistant Attorneys General representing the Commission and the
Division, and to any other person as required by the notice of proposed rulemaking. A
prehearing order shall be prepared at the direction of the Hearing Officer based upon the
prehearing conference. The order shall reflect any rulings made by the Hearing Officer
with respect to procedures to be followed at the hearing, or any other matter. The order
will specify the order of presentations and the time allotted for such presentations. The
Hearing Officer may make any necessary or appropriate procedural rulings; any party
may appeal such rulings to the Commission at its next meeting by filing a written appeal
with the Commission Office (with copies provided simultaneously to all parties, the
Division, and the Assistant Attorneys General representing the Division and the
Commission) no later than five working days prior to the hearing. The Hearing Officer
may also make procedural decisions outside the Prehearing Conference, reflected in an
order, e.g., requiring attendance at status conferences, requiring written briefs on
particular legal or factual issues, requiring intermediate informational presentations, or
segmenting the rulemaking hearings for the benefit of the Commission.
V.E.6.c
five working days prior to the hearing. The Hearing Officer
may also make procedural decisions outside the Prehearing Conference, reflected in an
order, e.g., requiring attendance at status conferences, requiring written briefs on
particular legal or factual issues, requiring intermediate informational presentations, or
segmenting the rulemaking hearings for the benefit of the Commission.
V.E.6.c.
Prehearing Statements:
Seven days prior to any prehearing conference, or at such other time as may be specified
in the notice of proposed rulemaking, each party, the Division, and each applicant for
party status shall file by electronic mail as required by Section III.J.2. a prehearing
statement in the Commission Office, and shall provide the prehearing statement to every
other party, applicant for party status, the Assistant Attorneys General representing the
Commission and Division, and the Division staff person for the proceedings, by electronic
mail, by midnight that same day. If granted an exception to electronic filing pursuant to
the provisions of Section III.J.3., the applicant for party status shall, by close of business
that same day, file an original and fifteen copies of the prehearing statement in the
Commission Office, and shall also deliver copies to each other party, applicant for party
status, the Assistant Attorneys General representing the Commission and Division, and
the Division staff person for the proceedings, as provided by the exception granted under
Section III.J.3. The prehearing statement must contain:
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the
Commission Office, and shall also deliver copies to each other party, applicant for party
status, the Assistant Attorneys General representing the Commission and Division, and
the Division staff person for the proceedings, as provided by the exception granted under
Section III.J.3. The prehearing statement must contain:
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V.E.6.c.(i)
A cover document that summarizes in layperson's terms, the
Division's or the party's general position and the contents of the
prehearing statement. The summary must also summarize any
voluminous exhibits and provide a reasonable estimate of the time
necessary for presentation, and
V.E.6.c.(ii)
A prehearing statement that explains the factual and legal issues
that arise from the rulemaking proposal, and what position is being taken
on each such issue. Briefs discussing legal issues are encouraged, and
may be required by the Hearing Officer, and
V.E.6.c.(iii)
A list of the issues to be resolved by the Commission during the
hearing.
V.E.6.c.(iv)
A copy of each exhibit to be introduced at the hearing.
V.E.6.c.(iv)(A) Any exhibit to be introduced at the hearing shall be
included with the prehearing statement and will be sent to the
individual Commissioners for review prior to the hearing
V.E.6.c.(iv)(B) Where the nature of an exhibit is such that providing an
electronic mailed copy or fifteen paper copies would be unduly
burdensome, the prehearing statement shall describe the exhibit,
indicate what evidence is reflected in the exhibit, and indicate
that the exhibit shall be available for inspection with the
Technical Secretary/Administrator in the Offices of the
Commission, at the discretion of the Prehearing Conference
Officer. Any such exhibit shall also be available for inspection at
the prehearing conference and at the hearing
rehearing statement shall describe the exhibit,
indicate what evidence is reflected in the exhibit, and indicate
that the exhibit shall be available for inspection with the
Technical Secretary/Administrator in the Offices of the
Commission, at the discretion of the Prehearing Conference
Officer. Any such exhibit shall also be available for inspection at
the prehearing conference and at the hearing. Such exhibit will
not be mailed to the Commissioners prior to the hearing, but
shall become part of the record of the hearing absent an
objection that is sustained by the Prehearing Conference Officer
or the Commission.
V.E.6.c.(v)
A list of witnesses to be called and a brief description of their
testimony, including where applicable, what exhibits they will discuss or
rely upon; any witnesses not listed in the prehearing statement will be
prohibited from testifying unless the Hearing Officer approves the
witness upon a request and for good cause shown.
V.E.6.c.(vi)
All written testimony to be offered into evidence at the hearing.
(Note: The Commission encourages, and in some instances may require,
witness testimony to be provided in writing).
V.E.6.c.(vii)
Where applicable, the text of any alternate proposed rule or
revision in the format specified in Section V.C.3.b.
V.E.6.c.(viii)
If an alternate proposed rule or revision is offered, a brief
narrative statement identifying what elements of the alternate proposed
rule are not specifically required by provisions of the federal Clean Air
Act or are otherwise more stringent than the requirements of the Clean
Air Act pursuant to §§ 25-7-105.1,110,5(1)(d) and -133(3), C.R.S. This
statement may also be used in the final statement of basis and purpose
pursuant to V.C.3.h.
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alternate proposed
rule are not specifically required by provisions of the federal Clean Air
Act or are otherwise more stringent than the requirements of the Clean
Air Act pursuant to §§ 25-7-105.1,110,5(1)(d) and -133(3), C.R.S. This
statement may also be used in the final statement of basis and purpose
pursuant to V.C.3.h.
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V.E.6.c.(ix)
The Final Economic Impact Analysis required for the proposed
rule, or the Final Economic Impact Analysis for any alternate proposal
developed in cooperation with the Division that meets the requirements
of § 25-7-110.5(4)(a) and (c), C.R.S. If the Final Economic Impact
Analysis is the same as the Initial Economic Impact Analysis (submitted
pursuant to sections V.C.3.c. or V.C.5.), an affirmative written statement
to that effect must be submitted to satisfy this Section V.E.6.c.(ix).
Economic impact analyses for alternate proposals may, if feasible and
appropriate, evaluate the incremental impact over that already estimated
for the original petition proposal.
V.E.6.d.
Rebuttal Statements & Late Filings:
The Hearing Officer may provide a reasonable period of time following the prehearing
conference for the filing of electronic mailed or written rebuttal statements which may
include identification of rebuttal witnesses, rebuttal testimony, and exhibits. Rebuttal
statements are limited to topics raised in the prehearing statements of the parties or the
Division, and are not to raise new issues or arguments. Rebuttal statements will include
an executive summary document consistent with Section V.E.4.c.(i) of this regulation.
The statement must be filed by electronic mail in compliance with the requirements of
Section III.J.2
estimony, and exhibits. Rebuttal
statements are limited to topics raised in the prehearing statements of the parties or the
Division, and are not to raise new issues or arguments. Rebuttal statements will include
an executive summary document consistent with Section V.E.4.c.(i) of this regulation.
The statement must be filed by electronic mail in compliance with the requirements of
Section III.J.2. in the Commission Office within five working days after the prehearing
conference unless otherwise provided in the notice of proposed rulemaking or directed by
the Prehearing Officer; and copies shall also be delivered by electronic mail to each
party, to the Assistant Attorneys General for the Commission and Division, and to the
Division staff person for the proceeding by midnight of that same day. If granted an
exception to electronic filing pursuant to the provisions of Section III.J.3., the original and
fifteen copies of the rebuttal statement must be filed in the Commission Office within five
working days after the prehearing conference unless otherwise provided in the notice of
proposed rulemaking or directed by the Hearing Officer. Copies must also be provided to
each party, (the Assistant Attorneys General representing the Commission and Division,
and the Division staff person for the proceedings, by electronic mail as provided in
Section III.J.2., or as provided in the exception granted under Section III.J.3. by close of
business that same day. Except for such rebuttal, the Commission will not accept any
witnesses, documentation or exhibits submitted by any party or the Division after the
prehearing conference (i.e., “late filings”), except for good cause shown, at the discretion
of the Hearing Officer.
V.E.6.e.
Additional Conferences:
Where scheduling allows and it appears that an additional conference would be useful,
the Hearing Officer may schedule an additional status conference prior to the hearing.
V.E.7
umentation or exhibits submitted by any party or the Division after the
prehearing conference (i.e., “late filings”), except for good cause shown, at the discretion
of the Hearing Officer.
V.E.6.e.
Additional Conferences:
Where scheduling allows and it appears that an additional conference would be useful,
the Hearing Officer may schedule an additional status conference prior to the hearing.
V.E.7. Final Economic Impact Analyses:
If no prehearing conference is held, the Final Economic Impact Analysis required for the
proposed rule, pursuant to and meeting the requirements of § 25-7-110.5(4)(c), C.R.S., must be
filed in the Commission Office, by electronic mail in compliance with the requirements of Section
III.J.2. or as otherwise provided in the exception granted under Section III.J.3. at least ten working
days before the rulemaking hearing. If the Final Economic Impact Analysis is the same as the
Initial Economic Impact Analysis (submitted pursuant to Sections V.C.3.c. or V.C.5.), an
affirmative written statement to that effect must be submitted to satisfy this Section V.E.7.
Economic impact analyses for alternate proposals may, if feasible and appropriate, evaluate the
incremental impact over that already estimated for the original petition proposal.
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V.E.8. Alternate Proposals Offered After the Prehearing Conference:
Except as provided in Sections V.E.8.a. through V.E.8.c., the Hearing Officer will not accept an
alternative proposal by a party after the prehearing conference. However, the parties are
encouraged to develop consensus positions, and to narrow the issues in contention based upon
discussions during or after the prehearing conference and prior to a final Commission action in
the proceeding, provided the Commission and the parties have a reasonable opportunity to
evaluate such alternative proposals
ernative proposal by a party after the prehearing conference. However, the parties are
encouraged to develop consensus positions, and to narrow the issues in contention based upon
discussions during or after the prehearing conference and prior to a final Commission action in
the proceeding, provided the Commission and the parties have a reasonable opportunity to
evaluate such alternative proposals. The following requirements are to guide the Commission in
its considerations of such alternative proposed rule text prior to taking final action in the
proceeding:
V.E.8.a.
The Commission or the Hearing Officer may grant leave to submit such
alternate proposed rule text for good cause shown. In granting or denying such
leave, the Commission or the Hearing Officer will consider the timing of the
proposal and the hearing, the complexity of the issues, and whether the parties
and the Division are or expect to be in agreement on such alternate proposed
rule text.,
V.E.8.b.
Such alternate proposed rule text must be accompanied by a Final
Economic Impact Analysis, developed in cooperation with the Division, pursuant
to and meeting the requirements of § 25-7-110.5(4)(c), C.R.S. Economic impact
analyses for alternate proposals may evaluate the incremental impact over that
already estimated for the original petition proposal, if feasible and appropriate;
and
V.E.8.c.
Such alternate proposed rule text and Final Economic Impact Analysis
must be delivered by electronic mail, as provided in Section III.J.2., or as
otherwise provided in the exception granted under Section III.J.3., to all parties,
the Division staff person for the proceeding, and the Assistant Attorneys General
for the Commission and the Division, within the time set by the Hearing Officer or
the Commission
rnate proposed rule text and Final Economic Impact Analysis
must be delivered by electronic mail, as provided in Section III.J.2., or as
otherwise provided in the exception granted under Section III.J.3., to all parties,
the Division staff person for the proceeding, and the Assistant Attorneys General
for the Commission and the Division, within the time set by the Hearing Officer or
the Commission. If granted an exception to electronic filing pursuant to the
provisions of Section III.J.3., an original and fifteen copies of such alternate
proposed rule text and Final Economic Impact Analysis must be delivered in the
Commission Office, to all parties, the Assistant Attorneys General representing
the Commission and Division, and the Division staff person for the proceedings.
V.E.9. Motions:
The Commission or the Hearing Officer may require that parties, the Division, or other person’s
file by electronic mail in compliance with Section III.J.2., or otherwise, in compliance with Section
III.J.3., in advance of the hearing, all motions or requests for rulings that they intend to make with
respect to the proposed rulemaking. Filings that must be made prior to the hearing include
motions regarding procedures, the scope and nature of the proceedings, or any other matter that
requires a determination prior to final agency action based on the record, or any matter that may
reasonably be disposed of prior to receiving testimony or other evidence.
V.E.10. Discovery:
The Commission or the Hearing Officer may on their own motion, or upon the motion of staff, or
any interested person or a party for good cause shown, take depositions or have depositions
taken. Other forms of discovery may be allowed by the Commission or the Hearing Officer on
their own motion, or where staff, any person or a party is granted leave to conduct such discovery
for good cause shown.
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he motion of staff, or
any interested person or a party for good cause shown, take depositions or have depositions
taken. Other forms of discovery may be allowed by the Commission or the Hearing Officer on
their own motion, or where staff, any person or a party is granted leave to conduct such discovery
for good cause shown.
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V.E.11. Subpoenas:
The Commission or the Hearing Officer shall issue subpoenas without discrimination between
public and private persons or parties. A subpoena shall be served in the same manner as a
subpoena issued by a district court. Upon failure of any witness to comply with such subpoena,
the proponent of the subpoena may petition the Commission to use its authorities provided in §
24-4-103(14), C.R.S. A witness shall be entitled to the fees and mileage provided for a witness in
§§ 13-33-102 and -103, C.R.S.
V.E.12. Ex Parte Communications:
Ex parte communications are permissible if agreeable to the Commissioner(s) involved, but such
information, if to be considered or relied upon in final decision-making, will be made part of the
record by the Commission). Once the rulemaking record is closed, new information will only be
presented to the entire Commission upon approval of a request to reopen the Commission
record. Ex parte communication with individual Commissioners should not occur subsequent to
the close of the rulemaking record and before the Commission takes final action. If ex parte
communications do occur in that time frame, that fact will be disclosed to the full Commission,
and the Commission may reopen the record to allow the parties, the Division, and the public an
opportunity to respond to the substance of the ex parte communication.
V.E.13. Regulatory Analysis:
Upon a written request filed in the Commission Office at least fifteen days prior to the hearing on
a proposed rule, the Commission, or its staff, shall prepare a regulatory analysis of the proposed
rule pursuant to § 24-4-103(4.5), C.R.S
record to allow the parties, the Division, and the public an
opportunity to respond to the substance of the ex parte communication.
V.E.13. Regulatory Analysis:
Upon a written request filed in the Commission Office at least fifteen days prior to the hearing on
a proposed rule, the Commission, or its staff, shall prepare a regulatory analysis of the proposed
rule pursuant to § 24-4-103(4.5), C.R.S. The analysis will address the topics reflected in § 24-4-
103(4.5)(a)(I) - (VI), C.R.S., will include quantification of the data to the extent practicable, and
will take account of both short-term and long-term consequences. The regulatory analysis will be
available for inspection in the Commission Office at least five days prior to the hearing on the
proposed rulemaking and can be made available electronically upon request. Note: the petitioner
for a proposed rule is encouraged to supply information with the petition or prehearing statement
which could provide the basis for a regulatory analysis
V.E.14. Continuing Hearings:
Except for hearings governed by Section V.F.13., upon motion by a party for good cause shown,
or by its own motion, the Commission or the Hearing Officer may cancel, or continue any
rulemaking hearing to a later date, as deemed necessary and appropriate. For continuances, the
new hearing date, time and place may be announced by an amended notice pursuant to Section
V.D.6. or by a statement at the time and place of the initial noticed hearing. Cancellations may be
announced by issuing a notice to that effect on the Commission’s website or by announcement at
the time and place of the noticed hearing. The Hearing Officer may also continue a rulemaking
hearing by order based upon a written request and for good cause shown, or when the officer
deems it appropriate. The Commission will generally continue a hearing one time only; the
hearing will be rescheduled for the next Commission meeting or at the convenience of the
Commission
te or by announcement at
the time and place of the noticed hearing. The Hearing Officer may also continue a rulemaking
hearing by order based upon a written request and for good cause shown, or when the officer
deems it appropriate. The Commission will generally continue a hearing one time only; the
hearing will be rescheduled for the next Commission meeting or at the convenience of the
Commission. If requested to continue a rulemaking hearing a second time, the Commission may
vacate the hearing and re-notice it for a later date pursuant to Section V.D. and in compliance
with the Colorado Administrative Procedures Act, § 24-4-103(4)(d).
V.F.
Conduct of Rulemaking Hearings
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V.F.1. Public Participation Encouraged:
The Commission shall hold a public hearing before promulgating any rule or regulation. The
Commission encourages the public to participate in rulemaking hearings by commenting on
proposed rules or alternate proposals. The Commission will generally afford any person an
opportunity to submit data, views or arguments orally at the hearing, but, where appropriate, the
Commission may require that such data, views or arguments be submitted in writing in advance
of or at the rulemaking hearing as reflected in the notice of proposed rulemaking or by order of
the Commission. The Commission will generally set aside a portion of the rulemaking hearing to
hear public comment and testimony from those persons who are not a party to the rulemaking.
The presiding Commissioner may limit oral testimony at a hearing. Organized groups are urged to
identify one spokesperson. Speakers are asked to be as concise as possible, and to avoid
repeating comments made by others.
Members of the public may submit written materials to the Commission at the rulemaking hearing
ublic comment and testimony from those persons who are not a party to the rulemaking.
The presiding Commissioner may limit oral testimony at a hearing. Organized groups are urged to
identify one spokesperson. Speakers are asked to be as concise as possible, and to avoid
repeating comments made by others.
Members of the public may submit written materials to the Commission at the rulemaking hearing.
If members of the public would like the Commission to review written material prior to the
rulemaking hearing, such documents must be filed in the Commission Office in sufficient time to
be included in the monthly meeting packets for the Commission (generally three weeks prior to
the noticed rulemaking hearing), or as otherwise specified in the notice of proposed rulemaking
hearing. The Commission may provide parties or the Division an opportunity to rebut oral
testimony or documents submitted by the public during a rulemaking hearing and may provide
time as reasonably necessary for such rebuttal.
V.F.2. Hearings to be Conducted by the Commission:
The Commission shall Conduct all Rulemaking Hearings.
V.F.3. Order of Presentation:
The prehearing order issued by the Hearing Officer following the prehearing conference generally
will specify the order of presentations before the Commission and the time allotted for each
presentation. Subject to the terms of the prehearing order, rulemaking hearings generally will
involve:
V.F.3.a.
Opening the hearing and disposing of any procedural issues not resolved
by the Hearing Officer, e.g., prehearing motions, remaining party status issues,
late filings. The Commission at this time should determine whether any apparent,
potential, or actual conflicts of interest exist as described in Section X. of these
rules.
V.F.3.b.
Presentation by the Division describing the background and basis for the
proposed rule or other matters specified in the prehearing order and at the
discretion of the Commission, presentation of comments offered by staff for the
benefit of the Commission
time should determine whether any apparent,
potential, or actual conflicts of interest exist as described in Section X. of these
rules.
V.F.3.b.
Presentation by the Division describing the background and basis for the
proposed rule or other matters specified in the prehearing order and at the
discretion of the Commission, presentation of comments offered by staff for the
benefit of the Commission. This introductory presentation may at the discretion of
the Commission, be provided by a party proposing the rule.
V.F.3.c.
Public comment on the proposed rule; the prehearing order or the
presiding Commissioner may specify when and how public comment may be
taken during the proceeding.
V.F.3.d.
Presentations by parties and other interested persons as specified in the
prehearing order.
V.F.3.e.
Rebuttal or closing statements as may be provided for in the prehearing
order, or in the discretion of the presiding Commissioner or the Commission.
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V.F.4. Role of the Division:
The Division shall act as staff to the Commission in any rulemaking hearing. In fulfilling its role as
staff, the Division may present evidence, provide background information, make proposals or
alternate proposals, summarize evidence and any matters settled before the hearing, make
recommendations to the Commission; make objections or cross-examine witnesses, and provide
other support as necessary to assist the Commission. The Division may affirmatively request
party status pursuant to the procedure in Section V.E.3. If the Division has formally gained party
status, it may continue to provide staff services to assist the Commission, as directed by the
Commission or the Hearing Officer.
V.F.5. Witness Presentations:
Oaths or affirmations may be required of persons who make statements at rulemaking hearings.
The Commission encourages the general public and party witnesses to make plain, brief and
simple statements of their positions
ormally gained party
status, it may continue to provide staff services to assist the Commission, as directed by the
Commission or the Hearing Officer.
V.F.5. Witness Presentations:
Oaths or affirmations may be required of persons who make statements at rulemaking hearings.
The Commission encourages the general public and party witnesses to make plain, brief and
simple statements of their positions. Where submittal of written testimony is required prior to the
hearing pursuant to the notice of proposed rulemaking or the prehearing order, only an oral
summary of that testimony should be provided at the hearing. When not explicitly required, the
Commission encourages filing of written testimony prior to the hearing in accordance with the
prehearing procedures in Section V.E.5.c.(vi) (for parties, the Division, or other persons), or
V.F.1. (for the general public).
V.F.6. Cross-Examination and Objections:
Where the Commission allows participation as a party, a party may make objections, and all
witnesses are subject to cross-examination by or on behalf of persons who have party status. In
all hearings, witnesses are subject to cross-examination by or on behalf of the Commission, and
the Commission may allow its staff and/or legal counsel for the Commission, or Division staff
and/or legal counsel for the Division to conduct cross-examination. Any witness whose oral
and/or written testimony a party wishes to have as part of the record shall be available for cross-
examination at the rulemaking hearing. Where lengthy cross-examination would use undue time,
the presiding Commissioner may require each party to estimate the amount of time necessary for
cross-examination; to promote an efficient and focused hearing, the presiding Commissioner may
limit each party's time for cross-examination.
V.F.7
shes to have as part of the record shall be available for cross-
examination at the rulemaking hearing. Where lengthy cross-examination would use undue time,
the presiding Commissioner may require each party to estimate the amount of time necessary for
cross-examination; to promote an efficient and focused hearing, the presiding Commissioner may
limit each party's time for cross-examination.
V.F.7. Other Authority:
In conducting any rulemaking hearing, the Commission is authorized to: administer oaths and
affirmations; sign and issue subpoenas; regulate the course of the hearing, set the time and place
for continued hearings, fix the time for filing of documents; take depositions or have depositions
taken; issue appropriate orders which shall control the subsequent course of the proceedings and
take any other action authorized by agency rule consistent with the Act and the APA. These
actions can be directed by the Commission, the presiding Commissioner, or, where appropriate,
the Hearing Officer.
V.F.8. Summation of Facts and Law:
The Commission, after the receipt of evidence, may allow or require staff, parties, or other
persons to present oral or written summations of the facts and the law, either at the hearing or
subsequent thereto.
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V.F.9. Final Action:
In adopting any rule or regulation the Commission shall consider all submissions. The rules and
regulations promulgated will be based upon the record, which will consist of proposed rules and
alternate proposals, evidence, exhibits, testimony, prehearing submittals, and other matters
presented or considered, matters officially noticed, rulings on exceptions, any proposed findings
of fact and conclusions of law, and any written comments or briefs filed. Deliberations of the
Commission are open to the public, and do not constitute part of the rulemaking record. The rules
or regulations will be consistent with the subject matter as set forth in the notice of proposed
rulemaking
s
presented or considered, matters officially noticed, rulings on exceptions, any proposed findings
of fact and conclusions of law, and any written comments or briefs filed. Deliberations of the
Commission are open to the public, and do not constitute part of the rulemaking record. The rules
or regulations will be consistent with the subject matter as set forth in the notice of proposed
rulemaking. The Commission may designate a subcommittee of Commissioners to assist with
deliberations. If the Commission will deliberate at some time other than immediately after the
close of the record for that particular hearing, appropriate notice will be given to the parties and to
any other person requesting such notice. If a proposed final rule tentatively approved by the
Commission differs substantially from the original noticed proposal or any alternate proposals, the
Commission may, at the request of any person, or party, or on its own motion, make the
proposed final rule available for additional comment prior to taking final action. After consideration
of the relevant matter presented, the Commission shall adopt simultaneously with the rules or
revision a statement of basis, specific statutory authority, and purpose pursuant to § 24-4-
103(4)(c), C.R.S.
V.F.10. Filing with Secretary of State:
Each rule adopted by the Commission, together with the statement of basis and purpose and the
Attorney General's opinion rendered in connection with the rule, will be filed with the Secretary of
State for publication in the Colorado register within twenty days after adoption.
V.F.11. Publication and Effective Date:
Except for temporary or emergency rules, a rule shall become effective twenty days after
publication as described in this section, or on such later date as is stated in the rule. Once a rule
becomes effective, the rulemaking process shall be deemed to have become final agency action
for purposes of judicial review
register within twenty days after adoption.
V.F.11. Publication and Effective Date:
Except for temporary or emergency rules, a rule shall become effective twenty days after
publication as described in this section, or on such later date as is stated in the rule. Once a rule
becomes effective, the rulemaking process shall be deemed to have become final agency action
for purposes of judicial review. Publication of an adopted rule shall be by electronic publication of
the Colorado Register pursuant to § 24-4-103(11)(g), C.R.S.
V.F.12. Maintaining Rules:
The Commission maintains copies of its currently effective rules, which are available for
inspection by any person during regular office hours and can be made available electronically
upon request.
VI.
PROCEDURES FOR ADJUDICATIONS
VI.A.
Scope
This section applies to all adjudicatory hearings conducted before the Commission including, for example,
appeals of Division compliance orders and noncompliance penalty determinations, challenges of Division
denials of proposed permits or of permit terms and conditions for construction permits and operating
permits, and applications for declaratory orders. This section may also apply to requests for site-specific
revisions of the state implementation plan.
VI.B.
Initiating an Adjudicatory Hearing
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VI.B.1. Jurisdiction of the Commission and Timing of the Appeal:
All requests for adjudicatory hearings must be timely filed within the deadlines established by the
applicable statutory requirements and in the manner required by these regulations. Requests not
made within statutory deadlines are outside the jurisdiction of the Commission and will be denied.
The Commission may conduct a limited evidentiary hearing to resolve any disputed issues of fact
in order to determine whether a request was timely filed.
VI.B.2. Filing and Serving the Hearing Request:
Hearing requests shall be timely filed in the Commission Office
by these regulations. Requests not
made within statutory deadlines are outside the jurisdiction of the Commission and will be denied.
The Commission may conduct a limited evidentiary hearing to resolve any disputed issues of fact
in order to determine whether a request was timely filed.
VI.B.2. Filing and Serving the Hearing Request:
Hearing requests shall be timely filed in the Commission Office. The request shall also be served
upon the Division, and the First Assistant Attorney General. Hearing requests must be filed
electronically, pursuant to Section III.J.2., or otherwise, if an exception to electronic filing is
granted pursuant to Section III.J.3.
VI.B.3. Contents of the Hearing Request:
All requests for adjudicatory hearings must contain the following information:
VI.B.3.a.
Name of the person(s) requesting the hearing, including address and
telephone number;
VI.B.3.b.
Brief statement of background and relevant facts;
VI.B.3.c.
The legal and factual errors alleged by the person requesting the
hearing;
VI.B.3.d.
The statutory, regulatory, and/or permit-based citations supporting the
request for hearing;
VI.B.3.e.
The relief requested by the person requesting the hearing;
VI.B.3.f. A copy of any Division compliance order, noncompliance penalty determination
or permit which is the subject of the request;
VI.B.3.g.
A statement identifying the date of receipt of the compliance order, date
of issuance of the noncompliance penalty determination, or date of publication of
public notice for a permit;
VI.B.3.h.
An estimate of the time that will be required for the hearing;
VI.B.3.i. A statement as to whether the 90-day hearing timeframe set forth in Section
VI.B.4.a. is waived; and
VI.B.3.j. A certificate of service, confirming that proper filing and service has been made
in accordance with Section VI.B.2.
VI.B.4. Setting the Hearing:
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estimate of the time that will be required for the hearing;
VI.B.3.i. A statement as to whether the 90-day hearing timeframe set forth in Section
VI.B.4.a. is waived; and
VI.B.3.j. A certificate of service, confirming that proper filing and service has been made
in accordance with Section VI.B.2.
VI.B.4. Setting the Hearing:
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VI.B.4.a.
The Commission office will include a request for adjudicatory hearing on
the Commission’s agenda for the next meeting following receipt of a complete
request. The Commission will grant a properly filed request and will set a time
and date for the hearing, which shall be within ninety days of receipt of the
request if the hearing relates to a Division compliance order, a declaratory order,
or to a permit appeal by the permit applicant (unless the ninety-day timeframe is
waived by the person requesting the hearing).
VI.B.4.b.
Once appointed, the Hearing Officer may continue the hearing upon
written motion by any party or for the convenience of the Commission.
VI.B.4.c.
At the meeting of the Commission following receipt of the request, the
Commission will determine whether the request for adjudicatory hearing presents
only questions of law or whether there are disputed issues of fact. If the request
presents only a question of law, the Commission or Hearing Officer may issue a
briefing schedule in accordance with CRCP 56, with the party requesting the
hearing as movant, but permitting the Division sur-reply (the scope of sur-reply
shall be limited to issues raised in the reply). In this case, the provisions of
Sections VI.C and VI.D. may not apply (except that Sections VI.C.1, VI.C.4,
VI.C.6, VI.C.12-13, and VI.D.8 will apply), and oral argument may be permitted at
the hearing (no witnesses or cross-examination).
VI.B.5. Notice of the Hearing:
VI.B.5.a.
All formal adjudicatory hearings of the Commission shall be preceded by
written notice thereof in accordance with the requirements of this section.
VI.B.5.b
ions VI.C and VI.D. may not apply (except that Sections VI.C.1, VI.C.4,
VI.C.6, VI.C.12-13, and VI.D.8 will apply), and oral argument may be permitted at
the hearing (no witnesses or cross-examination).
VI.B.5. Notice of the Hearing:
VI.B.5.a.
All formal adjudicatory hearings of the Commission shall be preceded by
written notice thereof in accordance with the requirements of this section.
VI.B.5.b.
The hearing notice will contain (i) the time, date, place, and general
subject matter of the hearing to be held, (ii) the time, date, place, and general
purpose of the prehearing conference, and (iii) pertinent filing deadlines. The
notice may also contain special procedures or requirements, including
requirements for written testimony, which the Commission or Hearing Officer
deems appropriate for a particular matter. The Commission or the Hearing
Officer may amend the notice, without continuing the hearing date, at any time
prior to the hearing as long as the change does not alter the original notice to the
substantial prejudice of any party or the public.
VI.B.5.c.
The Commission Office shall mail, at least thirty days prior to the
hearing, notice to all persons who have requested to be included on the
Commission’s mailing list, and to each person who has filed a written request to
receive notices for a particular adjudicatory proceeding. [Note: the APA says “any
person entitled to notice of a hearing shall be given timely notice” which shall be
served “personally, or by first class mail…at least thirty days prior to the hearing.”
See § 24-4-105(2)(a).]
VI.B.5.d.
Notice of each hearing shall be published, at least thirty days before the
hearing in a newspaper of general circulation in the area in which the affected
source or activity is located, and on the Commission’s website.
VI.B.6. Parties:
VI.B.6.a.
The person requesting a hearing will appear as a party. The Division will
appear as a party in adjudications of actions of the Division
(2)(a).]
VI.B.5.d.
Notice of each hearing shall be published, at least thirty days before the
hearing in a newspaper of general circulation in the area in which the affected
source or activity is located, and on the Commission’s website.
VI.B.6. Parties:
VI.B.6.a.
The person requesting a hearing will appear as a party. The Division will
appear as a party in adjudications of actions of the Division. The Division may
appear as a party upon application in proceedings for declaratory orders under
Section VI.H.
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VI.B.6.b.
Any person who is affected by the proceeding and whose interests are
not already adequately represented has the opportunity to be a party upon
approval by the Hearing Officer. Any person seeking party status may apply
consistent with any deadline set by the Commission or Hearing Officer. An
application for party status must identify the person making the request, including
an address and telephone number. The application must also contain a
statement of the reasons for seeking party status, the manner in which the matter
affects the person’s interests, an explanation as to why the existing parties do not
adequately represent the person’s interests, a description of the legal and/or
factual issues which the prospective party intends to raise, and potential
witnesses the prospective party intends to call at the hearing. In addition, the
application must describe the general nature of the evidence the applicant
intends to present.
VI.B.6.c.
Applications for party status should be made no later than the deadline
set in the Scheduling Order. If the application for party status is filed after the
Scheduling Conference, the application should include a description of the
amount and nature of discovery requested (e.g. number of depositions) and the
justification therefor
l nature of the evidence the applicant
intends to present.
VI.B.6.c.
Applications for party status should be made no later than the deadline
set in the Scheduling Order. If the application for party status is filed after the
Scheduling Conference, the application should include a description of the
amount and nature of discovery requested (e.g. number of depositions) and the
justification therefor. Late filings will be accepted for good cause and upon a
showing that admittance of the party will not create delay in the prehearing
process or of the date of the hearing.
VI.B.6.d.
The Hearing Officer will grant or deny applications for party status. An
order granting an application for party status will also identify any amendments to
the Scheduling Order related to discovery limits for the new party. Applicants for
party status shall comply with all requirements of these rules pending resolution
of the request.
VI.B.7. Appointment and Powers of the Hearing Officer:
VI.B.7.a.
At its first meeting following receipt of a hearing request, a Commissioner
will be appointed as Hearing Officer for the matter. If the Commission meeting
following receipt of the request is more than fifteen days after receipt of the
request, a Hearing Officer will be appointed within fifteen days of receipt of the
request. The chairperson of the Commission may appoint a Hearing Officer to act
until such meeting or at any time may appoint a replacement Hearing Officer, to
be confirmed by the Commission at its next general meeting.
VI.B.7.b.
The Hearing Officer may exercise any powers conferred by § 24-4-
105(4), C.R.S., including actions in accordance, to the extent practicable, with
the procedure in district courts. The Hearing Officer may require as part of the
prehearing conference or otherwise, each party to submit in advance of the
hearing any motions or requests for rulings that party intends to make
general meeting.
VI.B.7.b.
The Hearing Officer may exercise any powers conferred by § 24-4-
105(4), C.R.S., including actions in accordance, to the extent practicable, with
the procedure in district courts. The Hearing Officer may require as part of the
prehearing conference or otherwise, each party to submit in advance of the
hearing any motions or requests for rulings that party intends to make. These
include motions regarding procedures, the scope and nature of the proceedings,
or any other matter that requires a determination by the Hearing Officer or the
Commission prior to final agency action, or any matter that may reasonably be
disposed of by the Hearing Officer or the Commission prior to the receipt of
testimony or other evidence. The Hearing Officer shall decide all procedural and
preliminary motions subject to appeal to the Commission. Decisions by the
Hearing Officer shall be final unless appealed to the Commission. Failure to
appeal an adverse decision of the Hearing Officer to the Commission constitutes
a waiver of that issue for the purposes of judicial review.
VI.B.7.c.
The Hearing Officer shall conduct the scheduling conference, the
prehearing conference and the hearing.
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VI.C.
Prehearing Procedures
VI.C.1. Settlement Period and Report:
The Commission encourages efforts to settle adjudicatory proceedings and will consider
favorably requests for continuances or other measures to allow discussions to take place.
However, fairness to all parties demands adequate time for hearing preparation. The party
requesting the hearing must submit to the Hearing Officer not less than forty-five days before the
scheduled hearing date a report regarding whether settlement is likely and whether a continuance
of the scheduled hearing is appropriate.
VI.C.2. Scheduling Conference:
VI.C.2.a
allow discussions to take place.
However, fairness to all parties demands adequate time for hearing preparation. The party
requesting the hearing must submit to the Hearing Officer not less than forty-five days before the
scheduled hearing date a report regarding whether settlement is likely and whether a continuance
of the scheduled hearing is appropriate.
VI.C.2. Scheduling Conference:
VI.C.2.a.
The Hearing Officer, upon appointment, will issue a notice of scheduling
conference, setting a date for the scheduling conference to take place between
fifteen (15) and thirty (30) days of receipt of a complete request for adjudicatory
hearing. The purpose of the scheduling conference is to set discovery limitations,
address timing of discovery and other related issues, resolve any pending
motions, and discuss a Scheduling Order.
VI.C.2.b.
At least five (5) days prior to the scheduling conference, the parties will
submit a joint proposed scheduling order addressing the following: (i) cut-off
dates for service of written requests and setting of depositions, and a final
discovery cut-off date for completion of discovery, which must be at least five (5)
prior to the hearing; (ii) the proposed number of depositions, including both fact
and expert witnesses; (iii) the proposed number of interrogatories, requests for
production, and requests for admission, and proposed timeframes for
responding; (iv) timing of service and response to motions, and a motion cut-off
date; and (v) timing and limits for prehearing and rebuttal statements (e.g. page
limits). Parties should also identify potential witnesses (fact and expert) and brief
description of the scope of the anticipated testimony. If parties are unable to
agree on any of the terms as described, each party may submit its own proposed
scheduling order, along with an explanation of the basis for any unilateral
request. Parties must describe their good faith efforts made to reach agreement.
VI.C.2.c
arties should also identify potential witnesses (fact and expert) and brief
description of the scope of the anticipated testimony. If parties are unable to
agree on any of the terms as described, each party may submit its own proposed
scheduling order, along with an explanation of the basis for any unilateral
request. Parties must describe their good faith efforts made to reach agreement.
VI.C.2.c.
The Hearing Officer will issue a Scheduling Order no later than 5 days
after the scheduling conference. The Scheduling Order will include the Hearing
Officer’s rulings on the matters identified in Section VI.C.2.b, and instructions as
to how and the deadline for when an interested person may apply for party status
in the proceedings. If the party requesting the hearing has waived the 90-day
hearing timeframe, the Scheduling Order will also set forth the discovery
commencement date. Parties may request modifications to the Scheduling Order
only upon a showing of changed circumstances and good cause.
VI.C.3. Discovery:
VI.C.3.a.
Except as provided within and as authorized by the Scheduling Order,
parties may conduct depositions and discovery pursuant to Rules 26 through 37
of the Colorado Rules of Civil Procedure (CRCP) without authorization by the
Hearing Officer, to the extent that time is available before the hearing for such
discovery. If the party requesting the hearing has not waived the 90-day hearing
timeframe, written discovery may commence after the Commission meeting
granting the request for adjudicatory hearing or the Scheduling Conference,
whichever is earlier. If the party requesting the hearing has waived the 90-day
hearing timeframe, discovery commencement will be set forth in the Scheduling
Order.
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90-day hearing
timeframe, written discovery may commence after the Commission meeting
granting the request for adjudicatory hearing or the Scheduling Conference,
whichever is earlier. If the party requesting the hearing has waived the 90-day
hearing timeframe, discovery commencement will be set forth in the Scheduling
Order.
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VI.C.3.b.
To the extent practicable, and unless otherwise ordered by the Hearing
Officer, the discovery limitations of Rules 26 through 37, CRCP, apply to all
adjudicatory matters before the Commission. However, Rules 26 (a) and (d), 27,
28, 29, and 35, CRCP, are not applicable in adjudicatory proceedings.
VI.C.3.c.
Responses to written discovery are due within twenty-one (21) days (as
opposed to the time authorized in CRCP 33, 34, and 36), unless otherwise
ordered by the Hearing Officer. Documents provided in response to discovery
must be Bates-stamped or contain other identifying information.
VI.C.3.d.
Depositions must be noticed at least seven (7) days before the date
proposed for the deposition. Parties must confer regarding dates of depositions;
failure to confer may result in cancellation of the deposition by the Hearing
Officer (even if there is not enough time remaining for the deposition to be
rescheduled).
VI.C.3.e.
Written motions practice for discovery issues is not permitted. If there is
a discovery dispute, the parties must work in good faith to resolve it. If it cannot
be resolved, the parties must jointly contact the Commission office and seek a
telephonic hearing with the Hearing Officer. The Hearing Officer will schedule a
conference call (or other electronic meeting), may order a written briefing, and
will either rule after hearing from the parties on the issue or will issue a written
order shortly after the call.
VI.C.3.f.
Parties shall complete discovery no later than five days before the
hearing, unless otherwise ordered by the Hearing Officer
hearing with the Hearing Officer. The Hearing Officer will schedule a
conference call (or other electronic meeting), may order a written briefing, and
will either rule after hearing from the parties on the issue or will issue a written
order shortly after the call.
VI.C.3.f.
Parties shall complete discovery no later than five days before the
hearing, unless otherwise ordered by the Hearing Officer. The hearing may
proceed regardless of whether the period between notice and hearing is
sufficient to enable completion of all discovery.
VI.C.3.g.
The Hearing Officer is empowered to impose sanctions for failure to
participate in good faith in the discovery process and for noncompliance with the
Scheduling Order or other order of the Hearing Officer or Commission, including,
but not limited to, the dismissal of a request for adjudicatory hearing or exclusion
of evidence not timely provided to other parties in discovery (or exclusion of
witnesses not reasonably made available). Any such sanctions will be
proportionate to the noncompliance or failures to participate in good faith. A
decision of the Hearing Officer to dismiss all or part of a claim under this section
is immediately appealable to the full Commission.
VI.C.4. Prehearing Conference:
VI.C.4.a.
A prehearing conference shall be held in each adjudicatory matter before
the Commission, not less than fourteen (14) nor more than twenty-one (21) days
before the hearing, unless otherwise ordered by the Hearing Officer. The
Commission Office will provide notice of the prehearing conference to all parties
and persons who have applied to become parties. The Hearing Officer shall
conduct the prehearing conference.
VI.C.4.b
shall be held in each adjudicatory matter before
the Commission, not less than fourteen (14) nor more than twenty-one (21) days
before the hearing, unless otherwise ordered by the Hearing Officer. The
Commission Office will provide notice of the prehearing conference to all parties
and persons who have applied to become parties. The Hearing Officer shall
conduct the prehearing conference.
VI.C.4.b.
The prehearing conference is held to dispose of procedural motions,
form stipulations, identify and minimize contested matters respecting the issues
to be raised, resolve discovery schedules and disputes, identify witnesses and
exhibits to be presented by the parties, determine the order of presentation
during the hearing, and resolve any other matter that can be resolved before the
hearing. The Hearing Officer may restrict the parties’ presentations, exhibits and
testimony to avoid duplication and to minimize time spent on uncontested or
peripheral issues.
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VI.C.4.c.
Each party and each person who has applied to become a party must
attend the prehearing conference, in person and through counsel (if
represented).
VI.C.4.d.
At least five (5) days prior to the prehearing conference, the parties must
submit a Joint Statement of Undisputed Facts, identifying each undisputed fact
and each exhibit that is uncontested as to authenticity and relevance. The parties
must work in good faith to put together the Statement of Undisputed Facts.
Exhibits on the Joint Statement must be identified as “Joint Exhibit 1”, “Joint
Exhibit 2”, etc.
VI.C.5. Prehearing Statements and Rebuttal Statements:
VI.C.5.a.
All parties must submit by electronic mail a Prehearing Statement to the
Commission Office by close of business of the date specified in the Notice of
Adjudicatory Hearing. The Prehearing Statement must be filed by electronic mail
pursuant to the provisions of Section III.J.2
e identified as “Joint Exhibit 1”, “Joint
Exhibit 2”, etc.
VI.C.5. Prehearing Statements and Rebuttal Statements:
VI.C.5.a.
All parties must submit by electronic mail a Prehearing Statement to the
Commission Office by close of business of the date specified in the Notice of
Adjudicatory Hearing. The Prehearing Statement must be filed by electronic mail
pursuant to the provisions of Section III.J.2. If granted an exception to electronic
filing pursuant to the provisions of Section III.J.3., the petitioner must submit an
original and fifteen copies of a complete petition for adjudication in the
Commission Office. In addition, electronically mailed copies must be delivered by
that date to all persons who have requested party status and the Division point of
contact and each of the Assistant Attorneys General identified in the Notice of
Adjudicatory Hearing.
VI.C.5.b.
Prehearing Statements must contain the following:
VI.C.5.b.(i)
A summary of argument;
VI.C.5.b.(ii)
Legal and factual arguments in support of party’s position to be
taken at the hearing, with citation to exhibits;
VI.C.5.b.(iii)
A description of the specific relief sought from the Commission,
including the specific terms desired in any Commission order
implementing the decision;
VI.C.5.b.(iv)
A list of all exhibits, except demonstrative exhibits, to be relied
upon at the hearing (exhibits must be identified by Bates-stamp and if not
yet provided to other parties, copies must be made available at the time
of filing the Prehearing Statement). Failure to provide the other parties
with copies of all exhibits may result in the exhibit(s) being excluded from
introduction at the hearing;
VI.C.5.b.(v)
A list of all witnesses to be called at the hearing, a statement as
to whether the witness has been (or will be) deposed, and a detailed
description of the witnesses’ testimony
be made available at the time
of filing the Prehearing Statement). Failure to provide the other parties
with copies of all exhibits may result in the exhibit(s) being excluded from
introduction at the hearing;
VI.C.5.b.(v)
A list of all witnesses to be called at the hearing, a statement as
to whether the witness has been (or will be) deposed, and a detailed
description of the witnesses’ testimony. The authenticity of exhibits,
statutes, ordinances, regulations or standards submitted with the
Prehearing statement shall be considered admitted into the record
unless a party files a written objection with the Hearing Officer within ten
days after the prehearing conference. The information provided in a
Prehearing Statement is binding on each party throughout the course of
the hearing unless the Statement must be modified to prevent manifest
injustice. New witnesses or exhibits may be added only if the need to do
so was not reasonably foreseeable at the time of filing the Prehearing
Statement and then only if these additions would not prejudice other
parties or necessitate a delay of the hearing.
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VI.C.5.c.
Rebuttal Statements:
Parties may submit a Rebuttal Statement only to address issues, matters or evidence
that were raised at the prehearing conference or in another party’s Prehearing Statement.
The Notice of Adjudicatory Hearing shall specify the deadline to file any Rebuttal
Statements, and any limitations on the filing of the statement (e.g. page limitations).
Rebuttal Statements must attach any additional exhibits (except demonstrative exhibits)
not capable of being provided at the time of the Prehearing Statement.
VI.C.6. Prehearing Order:
The Hearing Officer shall direct the preparation of a prehearing order by either a party or Staff
deadline to file any Rebuttal
Statements, and any limitations on the filing of the statement (e.g. page limitations).
Rebuttal Statements must attach any additional exhibits (except demonstrative exhibits)
not capable of being provided at the time of the Prehearing Statement.
VI.C.6. Prehearing Order:
The Hearing Officer shall direct the preparation of a prehearing order by either a party or Staff.
The prehearing order will reflect all decisions reached at the prehearing conference, including the
order and timing of each presentation at the hearing, procedures to be followed for the duration of
the matter and any other issues addressed at the prehearing conference. The Hearing Officer
may allow filing of prehearing briefs by a deadline established in the prehearing order. The order
shall control the subsequent course of the hearing unless the order must be modified to prevent
manifest injustice.
VI.C.7. Dispositive Motions:
VI.C.7.a.
Any party may present a dispositive motion for consideration by the
Commission. A dispositive motion is one that would finally resolve the subject of
the adjudicatory hearing or any substantive part thereof.
VI.C.7.b.
The Hearing Officer shall not decide dispositive motions. The
Commission shall schedule these motions for decision. In the discretion of the
Hearing Officer, the Commission may hear dispositive motions at the hearing of
the matter or at a prior meeting.
VI.C.7.c.
Dispositive motions shall be supported by memoranda stating the legal
and factual basis for the motion. All other parties shall be provided a fair
opportunity to respond to the motion.
VI.C.8. Procedural Motions:
VI.C.8.a.
Any party may present a procedural motion for consideration by the
Hearing Officer. Procedural motions relate to issues such as discovery, timing
and processes used in adjudication of the matter at issue.
VI.C.8.b.
The Hearing Officer shall promptly decide procedural motions
tion. All other parties shall be provided a fair
opportunity to respond to the motion.
VI.C.8. Procedural Motions:
VI.C.8.a.
Any party may present a procedural motion for consideration by the
Hearing Officer. Procedural motions relate to issues such as discovery, timing
and processes used in adjudication of the matter at issue.
VI.C.8.b.
The Hearing Officer shall promptly decide procedural motions. As
appropriate, the Hearing Officer may allow verbal procedural motions or require
that they be made in writing or that memoranda support them. Decisions of the
Hearing Officer on procedural motions are not appealable to the full Commission.
VI.C.9. Consolidation of Cases:
Any party may seek consolidation of two or more cases by filing a motion to consolidate in each
case. If more than one Hearing Officer has been assigned to the cases, the motion shall be
decided by the Hearing Officer assigned to the case first filed. If the Hearing Officer orders
consolidation, all subsequent filings shall be in the case first filed and the Commission Office shall
place all previous filings related to the consolidated cases in that case file. The Commission may
order consolidation on its own initiative.
VI.C.10.
Dismissal of Cases:
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VI.C.10.a.
Any person who requested a hearing before the Commission may
request dismissal of the matter at any time. All requests for dismissal shall be in
writing and filed with the Commission Office.
VI.C.10.b.
If there are no parties other than the Division and the person requesting
the hearing, the Hearing Officer, or the chairperson of the Commission if no
Hearing Officer has yet been appointed, may dismiss the matter by written order.
If there are other parties, the Hearing Officer, or the Commission, shall provide
an opportunity for each party to respond regarding the proposed dismissal. The
Hearing Officer or the Commission may dismiss the matter over the objection of
any party by written order.
VI.C.11
or the chairperson of the Commission if no
Hearing Officer has yet been appointed, may dismiss the matter by written order.
If there are other parties, the Hearing Officer, or the Commission, shall provide
an opportunity for each party to respond regarding the proposed dismissal. The
Hearing Officer or the Commission may dismiss the matter over the objection of
any party by written order.
VI.C.11.
Stay of Action Pending Hearing:
Any party may request a stay pending hearing of the matter on the merits. The Hearing Officer
will rule on the request after providing all parties an opportunity to be heard. Any party may
appeal the Hearing Officer’s decision to the Commission.
VI.C.12.
Location of Hearing:
The Commission’s monthly meetings are generally held at the Colorado Department of Public
Health Environment, 4300 Cherry Creek Drive South, Sabin-Cleere Conference Rooms, Denver,
Colorado 80246. Upon request by any party or the public or upon its own motion, the Commission
may elect to conduct a hearing virtually or in another location, including in the geographic area of
a source affected by a particular hearing. Any request for a change in location must be submitted
to the Commission Office not later than five days before the regular monthly meeting that
precedes the scheduled date for the hearing. Any such request must be served by the same
deadline upon all parties and all applicants for party status, who will all receive an opportunity to
respond to the motion before or at the meeting at which the Commission considers the request.
Notice of any change in location of the hearing will be published in a newspaper of general
circulation in the area in which the affected source or activity is located at least twenty days
before the hearing.
VI.C.13.
Continuances:
Any party may request by motion that the Hearing Officer continue a scheduled hearing to a
specific date for the convenience of the Commission or the parties upon a showing of good
cause
ge in location of the hearing will be published in a newspaper of general
circulation in the area in which the affected source or activity is located at least twenty days
before the hearing.
VI.C.13.
Continuances:
Any party may request by motion that the Hearing Officer continue a scheduled hearing to a
specific date for the convenience of the Commission or the parties upon a showing of good
cause. Any motion for a continuance to a date more than ninety days after the request for hearing
shall reflect the waiver by the party requesting the hearing of the provisions of § 25-7-119(1),
C.R.S. In the absence of such a waiver, the Hearing Officer or the Commission shall deny the
request and shall begin the hearing within the period(s) prescribed by § 25-7-119. However, the
Commission may elect to continue the remainder of the hearing at any time after the hearing
begins. Parties shall file motions for continuances with the Commission Office for presentation to
the Hearing Officer at least 10 days before the scheduled hearing; motions for continuance filed
fewer than ten days before the hearing will be granted only for good cause shown and an
unforeseen and unavoidable change in circumstances justifying the continuance. The Hearing
Officer shall rule on continuance requests after providing all parties an appropriate opportunity to
respond. Any party may appeal the Hearing Officer’s decision to the Commission.
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aring will be granted only for good cause shown and an
unforeseen and unavoidable change in circumstances justifying the continuance. The Hearing
Officer shall rule on continuance requests after providing all parties an appropriate opportunity to
respond. Any party may appeal the Hearing Officer’s decision to the Commission.
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VI.C.15.
Subpoenas:
Any counsel who has entered an appearance in the matter, or the Hearing Officer upon
application by any party not represented by counsel, may issue subpoenas for attendance at a
deposition or the hearing. The Hearing Officer shall issue subpoenas without discrimination
between parties. A subpoena shall be served in the same manner as a subpoena issued by a
district court. The provisions of C.R.C.P. 45 apply to the extent not inconsistent with these rules.
Upon failure of any witness to comply with a subpoena, any party may by motion request that the
Commission petition any district court for an order compelling the witness to attend and testify or
produce books, records or other evidence. The party shall file the motion with the Commission
Office, who shall immediately forward them to the Hearing Officer. The Hearing Officer or the
Technical Secretary/Administrator shall present any such motion to the Commission at or before
its next meeting, as appropriate. Any party prejudiced by the absence of the witness or
documentary evidence may also by motion request that the Commission continue the hearing
pending resolution of the Commission s petition to the district court. If the witness who fails to
comply with a subpoena is an employee of a party, the Hearing Officer may entertain motions for
sanctions against the party, including dismissal of the hearing, limitation of the issues or
evidence, or orders concluding the evidence to be provided by the witness to be established
against the party employing the witness.
VI.C.16
mmission s petition to the district court. If the witness who fails to
comply with a subpoena is an employee of a party, the Hearing Officer may entertain motions for
sanctions against the party, including dismissal of the hearing, limitation of the issues or
evidence, or orders concluding the evidence to be provided by the witness to be established
against the party employing the witness.
VI.C.16.
Filing and Service of Documents:
All documents must be filed with the Commission Office unless the Hearing Officer or the
Commission directs otherwise, and documents must be served upon all parties, and the Assistant
Attorneys General’s representing the Commission and the Division by electronic mail in
compliance with the requirements of Section III.J.2. or as otherwise provided in the exception
granted under Section III.J.3.
VI.D.
Hearing Procedures
VI.D.1. Burden of Proof:
The Division has the burden of proof in proceedings regarding alleged violations of the Act,
Commission regulations, and permits or orders, including appeals of compliance orders,
noncompliance penalty determinations, cease and desist orders and notices of penalty
determinations. The permit applicant has the burden of proof in all appeals of permit denials and
of permit terms and conditions under § 25-7-114.5(8), C.R.S. A petitioner for a site-specific
amendment to the state implementation plan has the burden of proof. In all other adjudicatory
matters, the proponent of an order has the burden of proof.
VI.D.2. Order of Presentation:
Every party may present its case through oral and documentary evidence. The party carrying the
burden of proof may submit rebuttal evidence. Opening and closing statements will be allowed.
Unless otherwise established by the Hearing Officer or the Commission, the order of presentation
will be:
VI.D.2.a.
Consideration and resolution of any conflict of interest issues;
VI.D.2.b.
Description of the prehearing order and of the findings and rulings of the
Hearing Officer
. The party carrying the
burden of proof may submit rebuttal evidence. Opening and closing statements will be allowed.
Unless otherwise established by the Hearing Officer or the Commission, the order of presentation
will be:
VI.D.2.a.
Consideration and resolution of any conflict of interest issues;
VI.D.2.b.
Description of the prehearing order and of the findings and rulings of the
Hearing Officer. The prehearing order and rulings of the Hearing Officer govern
the conduct of the hearing unless appealed to the Commission by a party or a
member of the Commission where permitted by these rules.
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VI.D.2.c.
Consideration of any remaining dispositive motions or other motions
allowed by the prehearing order, including appeals by a party to the Commission
of the prehearing order or other rulings of the Hearing Officer.
VI.D.2.d.
Opening statements, beginning with the party upon whom the burden of
proof rests.
VI.D.2.e.
Presentation of evidence, beginning with the party upon whom the
burden of proof rests. The party upon whom the burden of proof rests may
present rebuttal evidence.
VI.D.2.f.
Sixth, closing statements, beginning with the party upon whom the
burden of proof rests.
VI.D.3. Witnesses:
Each witness shall take an oath or affirmation before testifying. Parties and Commissioners may
cross-examine witnesses in the order established by the Hearing Officer.
VI.D.4. Motions and Objections:
The Hearing Officer shall rule on procedural motions and objections relating to procedure and
evidence made during the course of the hearing. Parties may make evidentiary offers and
objections thereto, which shall be noted in the record. The Commission may reconsider the
decision of the Hearing Officer, upon motion of a party or request of a Commissioner. Any
matters not reconsidered by the Commission are deemed waived by all parties for the purposes
of judicial review.
VI.D.5
rocedure and
evidence made during the course of the hearing. Parties may make evidentiary offers and
objections thereto, which shall be noted in the record. The Commission may reconsider the
decision of the Hearing Officer, upon motion of a party or request of a Commissioner. Any
matters not reconsidered by the Commission are deemed waived by all parties for the purposes
of judicial review.
VI.D.5. Public Participation:
The Commission may allow public participation in an adjudicatory hearing at appropriate times as
determined in the sole discretion of the Commission. Comments and any documents offered may
be made part of the record, unless objected to by a party and the objection is upheld by the
Hearing Officer or Commission. Persons who offer comment at the hearing are subject to cross-
examination. If a witness unrelated to a party raises new issues or introduces documents
containing factual matters not previously addressed (which may be permitted unless it will
prejudice any party) and a party requests the opportunity to rebut, the Hearing Officer will allow
an adequate opportunity to rebut at the hearing.
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VI.D.6. Evidence:
The rules of evidence and requirements of proof shall conform, to the extent practicable, with
those in civil non-jury cases in the district courts. However, when necessary to do so in order to
ascertain facts affecting the substantial rights of the parties, the Commission may receive and
consider evidence not admissible under such Rules if the evidence possesses probative value
commonly accepted by reasonable and prudent persons in the conduct of their own affairs. The
Commission shall give effect to the rules of privilege recognized by law and may exclude
incompetent and unduly repetitious evidence. The Commission may utilize its experience,
technical competence and specialized knowledge in the evaluation of evidence before it
s if the evidence possesses probative value
commonly accepted by reasonable and prudent persons in the conduct of their own affairs. The
Commission shall give effect to the rules of privilege recognized by law and may exclude
incompetent and unduly repetitious evidence. The Commission may utilize its experience,
technical competence and specialized knowledge in the evaluation of evidence before it. The
Commission may take notice of general, technical or scientific facts within its knowledge, but only
if the fact so noticed is specified in the record or is brought to the attention of the parties before
final decisions and every party is afforded an opportunity to controvert the fact so noticed. Upon
request by a party, the Hearing Officer may allow the parties to submit evidence not previously
submitted during the prehearing process, but only where the party presenting the evidence
demonstrates that it was not possible to have disclosed the evidence during the prehearing
process in accordance with these rules.
VI.D.7. Good Faith Conferral:
All parties shall confer in good faith before the filing of any motion or the making of any request to
the Hearing Officer or Commission, consistent with the conferral requirements of the Colorado
Rules of Civil Procedure.
VI.D.8. Post-Hearing Briefs and Summaries:
The Commission may allow parties to file hearing briefs or summaries, or proposed findings of
fact and conclusions of law, after the close of evidence by a deadline determined at the hearing. If
the Commission allows such materials, it shall schedule a time at which it will deliberate on the
case, however, no additional deliberations would be required upon submittal of proposed findings
of fact and conclusions of law. At such deliberation, no evidence or argument by the parties may
be received unless the Commission reopens the record.
VI.E.
Decisions of the Commission
VI.E.1
e hearing. If
the Commission allows such materials, it shall schedule a time at which it will deliberate on the
case, however, no additional deliberations would be required upon submittal of proposed findings
of fact and conclusions of law. At such deliberation, no evidence or argument by the parties may
be received unless the Commission reopens the record.
VI.E.
Decisions of the Commission
VI.E.1. Decisions by Motion:
Decisions of the Commission on motions presented by parties, including dispositive motions and
appeals of rulings by the Hearing Officer, shall be on the motion as presented by the party and no
motion by a Commissioner is necessary. The Commission may not grant a dispositive motion
unless a majority of the Commission votes in favor of the motion. Decisions of the Commission on
the merits of the case at the close of the hearing or determination shall be on motion by a
Commissioner, which may be to adopt the Proposed Findings of Fact, Conclusions of Law,
Decision and Order filed by any party or to enter any other appropriate order. Any such motion
shall include findings of fact, conclusions of law, a decision and order. Any decision of the
Commission on the merits requires a majority of the Commission.
VI.E.2. Decision in the Event that No Motion Carries:
If no decision on the merits achieves a majority vote of the Commission, the party upon whom the
burden of proof rests shall be deemed to have failed to sustain its burden. The relief requested or
the order supported by the party will be deemed denied.
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of the Commission.
VI.E.2. Decision in the Event that No Motion Carries:
If no decision on the merits achieves a majority vote of the Commission, the party upon whom the
burden of proof rests shall be deemed to have failed to sustain its burden. The relief requested or
the order supported by the party will be deemed denied.
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VI.E.3. Effective Date of the Decision:
Unless the Commission designates a later date, the effective date of the final decision is the date
the Commission order is mailed, pursuant to § 24-4-105(16)(a). Commission decisions disposing
of parts of a case before the final decision are effective as of the date of mailing the Commission
order. The Commission may direct a delayed entry of a final order in order to allow preparation of
an order with specific changes adopted by the Commission.
VI.F.
Post-Decision Matters
VI.F.1. Requests for Reconsideration:
A request to reconsider all or part of any final decision by the Commission may be made by either
a party or by any Commissioner who participated in the final decision. Any request to reconsider
must be made within ten days of the date of the decision by written motion filed with the
Commission Office by electronic mail in compliance with the requirements of Section III.J.2 or as
otherwise provided in the exception granted under Section III.J.3. The Commissi
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