6 Colo. Code Regs. § 1007-3-7.07

Current through Register Vol. 47, No. 11, June 10, 2024

Section 6 CCR 1007-3-7.07 - Formal Actions

(1)General.

a. Any brief, response, rebuttal, summary statement or other writing required to be submitted to the Commission shall not exceed 15 pages, 12 point font, and single-spaced. This limitation shall not apply to exhibits submitted to the Commission. If a party to any proceeding needs additional pages, a petition may be made to the Commission with a brief justification.

b. The Commission, in its sole discretion, may elect to use the prehearing procedure described in Section 7.08 for any formal action.

(2)Interpretive Rules.

a.Interpretive Rule Request.

I. In the event that an administrative law judge requests an interpretive rule as provided in Section 25-15-308(3)(g), C.R.S., or a district court requests an interpretive rule as provided in Sections 25-15-305(2)(e) and 30-20-113 (2.5)(e), C.R.S., the district court or the administrative law judge are to make a request to the Commission.

II. The party requesting the administrative law judge or the district court to obtain an interpretive rule shall pay to the Commission a filing fee in the amount of $100.00.

III. If the Commission agrees to issue an interpretive rule, the Commission shall publish notice of the interpretative rulemaking proceeding in accordance with the provisions of Section 24-4-103, C.R.S. within 45 days of receipt of the request.

IV. An interested party may submit an electronic filing with the Commission within 15 days following the date of publication of the notice.

b.Issuance. The Commission shall issue the written interpretive rule within 30 days following the deadline for the receipt of any written material.

c.Legal Effect. The legal effect of any interpretive rule shall be determined in accordance with applicable law.

(3)Administrative Penalty Reviews.

a.Due Process. In order to assure that all parties to any Commission review of the amount of an administrative penalty imposed by the Department are afforded due process of law, the provisions of this section shall be applicable.

b.Commission Review. Pursuant to Section 25-15-308(3)(i), C.R.S., upon request from an aggrieved party the Commission shall review an administrative law judge's determination regarding the amount of an administrative penalty assessed.

c.Scope. The Commission's scope of review is limited to the amount of the penalty assessed and is based solely upon the record of the administrative hearing.

d.Review Requests.

I. An aggrieved party shall make the request for the Commission to review the administrative law judge's determination, in writing. The requesting party shall send the request electronically and by first class mail to the Commission within 30 days of the administrative law judge's decision.

II. The requesting party shall provide the Commission with an electronic version of the written transcript and any exhibits introduced and admitted at the administrative hearing 20 days after submitting the review request to the Commission.

III. Upon receipt of the request, the Commission Administrator or the Commission Assistant shall notify the Commission and the Attorney General representing the Commission. Within 45 days of receipt of the request the Commission shall give notice to the public of the administrative penalty review.

IV. Unless the Commission in its discretion is unable to conduct the review within the time frame set forth in this section or the parties to the review mutually agree to an extension, a review of the administrative penalty shall commence within 120 days after receipt of the request.

V. The Commission may request the parties to submit a written brief or summary of their position. The written brief or summary shall be electronically filed with the Commission within 30 days from the date of the Commission's request. The requesting party shall also electronically provide a copy of the brief to all other parties to the administrative hearing. The responding party(ies) shall have 14 days from receipt to file a responsive brief with the Commission. The responding party shall also electronically provide the responsive brief to all other parties to the administrative hearing. The requesting party shall have seven days from receipt to file a reply brief. If appropriate, the Commission may request the parties to present an oral summary of and argument for their position during the review.

VI. When reviewing the appropriateness of the administrative penalty amount, the Commission shall consider the following factors based solely upon the factual findings contained in the record:

A. The seriousness of the violation;

B. Whether the violation was intentional, reckless, or negligent;

C. The impact upon or the threat to the public health or the environment as a result of the violation;

D. The degree, if any, of recalcitrance or recidivism upon the part of the violator;

E. The economic benefit realized by the violator as a result of the violation;

F. The voluntary and complete disclosure by the violator of such violation in a timely fashion after discovery and prior to the department's knowledge of the violation, provided that all reports required pursuant to state environmental law have been submitted as and when otherwise required;

G. Full and prompt cooperation by the violator following disclosure of a violation, including, when appropriate, entering into in good faith and implementing a legally enforceable agreement to undertake compliance and remedial efforts;

H. The existence of a regularized and comprehensive environmental compliance program or an environmental audit program that was adopted in a timely and good faith manner and that includes sufficient measures to identify and prevent future noncompliance; and

I. Any other aggravating or mitigating circumstances.

e.Decision. The Commission may issue its decision at the time of the review of the written materials. The written decision shall set forth the basis of the Commission's decision. Alternatively, the Commission may request a hearing, at the Commission's sole discretion, to hear testimony on any issue the Commission deems necessary. If a hearing is requested, notice shall be provided pursuant to 25-15-302(9)(b) and these procedural rules. The Commission will issue a written decision within sixty (60) days after the hearing date, unless an alternative timeframe is determined by the Commission.

(4)Rulemakings.

a.General. The Division or 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 paragraph (d) of this subsection. Action on such a 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. The Commission, in its sole discretion, may elect to use the prehearing procedure described in Section 7.08 for any formal action.

b.Rule Proposals 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 Administrator or the Commission Assistant. Any person can request the Commission to announce and convene a work group or a subcommittee pursuant to Section 7.06(2), action upon which is in the discretion of the Commission. Failure to solicit and consider the positions of others may result in rulemakings having to be postponed, re-noticed, or vacated.

c.Rule Proposals by the Commission or Staff. Prior to notice of a formal rulemaking, the Commission, in its sole discretion, may elect to hold an informal hearing on the pre-proposed rulemaking to solicit participation in the proposed rulemaking. If the Commission elects to hold an informal hearing, the procedures of Section 7.06(2) shall apply.

d.Petitions for Rulemaking. Except for emergency rules addressed in paragraph (5) of this section, the complete petition must be filed by electronic filing, unless granted an exception to electronic filing. Complete petitions must be filed by 11:59 p.m. 30 days prior to the scheduled meeting of the Commission at which the petitioner desires to have the Commission hear the petition. Complete petitions 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 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.

I.Contents of a Petition. Petitioners are advised to contact the Commission Administrator or the Commission Assistant when preparing their petition to discuss whether the petition is complete and addresses all requirements. The Commission may return any incomplete petition with a brief explanation of how the petition is deficient. A complete petition for rulemaking must include the following information:

II.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) and includes:

(a) a statement describing the nature of the request and the need for the regulation;

(b) a statement broadly summarizing the issue to be addressed by the petition;

(c) a statement summarizing what, if any, policy, factual, and legal issues arise due to the proposal;

(d) a statement summarizing any other person(s) or party(ies) included in the drafting and development of the proposed rulemaking;

(e) includes a statement of the Commission's authority to promulgate the rule, citing specific relevant sections of CHWA, SWDA, or other relevant statute; and

(f) a brief narrative statement identifying what elements are not specifically required by provisions of the federal Resource Conservation and Recovery Act or are otherwise more stringent than the requirements of the Resource Conservation and Recovery Act, if applicable.

III.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.

IV.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.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 whether the proposed rule is more stringent than the federal statute. This statement regarding federal requirements may also be used in the notice of rulemaking, and in the final Statement of Basis and Purpose.

VI.Draft Statement of Basis, Specific Statutory Authority, and Purpose: The Petitioner shall also provide a draft statement of the proposed rule's basis, statutory authority, and purpose, which explains the Commission's rationale for adopting a proposed rule or amendment. The statement must contain:

A. A general statement of the basis for the rules;

B. The specific purposes of the rule (e.g., "to implement the provisions regarding ..., by requiring that ...." is a way to frame this required discussion);

C. The specific statutory section(s) authorizing the rulemaking;

D. The Commission's authority to adopt the rulemaking; and

E. For any rule or amendment which involves technological or scientific issues, an evaluation of the scientific or technological rationale justifying the proposal.

VII.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.

VIII.Incorporation by Reference. A petitioner who seeks to incorporate any material by reference must comply with Section 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. If the Commission adopts the rule with the incorporated by reference materials, the Commission will forward the incorporated material to the state publications depository and distribution center.

e.Regulatory Analysis. Upon a written request filed with the Commission at least 15 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 Section 24-4-103 (4.5), C.R.S. The analysis will address the topics reflected in Section 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 office of the Commission at least five days prior to the hearing on the proposed rulemaking and made available on the Commission's website. 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.

f.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, 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.

g.Motions. Prehearing motions are to be filed with the Commission through electronic filing. 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. The Commission or the Hearing Officer may require that parties, the Division, or other persons electronically file 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.

h.Subpoenas. The Commission or the Hearing Officer shall issue subpoenas, without discrimination, to 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 Section 24-4-103(14), C.R.S.

i.Ex parte Communications. Ex parte communications are permissible if agreeable to the Commissioner(s) involved, but such communication must be disclosed to the Commission as a whole and 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.

j.Alternate proposals. Alternate proposals may be 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 electronic filing requirements and the requirements of Section 7.07(4)(d). If a regulatory analysis and/or cost benefit analysis was completed by the proponent, the proponent of the alternate proposal is also required to provide a regulatory analysis and/or cost benefit analysis based on the alternate proposal. Submission of an alternate proposal will not change the procedural process for any prehearing or hearing, unless otherwise determined by the Commission or Hearing Officer.

k.Prehearing Procedures. Unless the Commission determines that the use of prehearing procedures would substantially facilitate the rulemaking process, no prehearing process, conference or statement is required. If the Commission determines that a prehearing process is required, the notice of proposed rulemaking shall so specify and the procedures set forth in Section 7.08 are applicable.

(5)Emergency Rules.

a. The Commission may adopt temporary or emergency rules in accordance with the requirements of Sections 24-4-103(6) and (8)(d), C.R.S. without complying with the procedural requirements above. The Commission may adopt such a rule if it finds on the record that immediate adoption of the rule is:

I. Imperatively necessary to comply with a state or federal law or federal regulation, or

II. Imperatively necessary for the preservation of public health, safety or welfare; and,

III. Compliance with the rulemaking procedural requirements of this regulation (excluding this subsection) would be contrary to the public interest.

b. 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), includes 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 paragraph (a) of this subsection. This petition should be filed with the Commission Administrator at the earliest possible date. The Commission will endeavor to provide notice of the proposed emergency rule, as practicable.

c. The required findings in paragraph (a) of this subsection 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 made permanent in accordance with the APA.

6 CCR 1007-3-7.07

37 CR 24, December 25, 2014, effective 3/2/2015

38 CR 11, June 10, 2015, effective 6/30/2015

39 CR 05, March 10, 2016, effective 3/30/2016

39 CR 11, June 10, 2016, effective 6/30/2016

40 CR 06, March 25, 2017, effective 4/14/2017

40 CR 11, June 10, 2017, effective 6/30/2017

40 CR 21, November 10, 2017, effective 11/30/2017

41 CR 06, March 25, 2018, effective 4/14/2018

41 CR 11, June 10, 2018, effective 6/30/2018

41 CR 24, December 25, 2018, effective 1/14/2019

42 CR 06, March 25, 2019, effective 4/14/2019

42 CR 06, March 25, 2019, effective 5/30/2019

42 CR 11, June 10, 2019, effective 6/30/2019

43 CR 12, June 25, 2020, effective 7/15/2020

44 CR 06, March 25, 2021, effective 4/14/2021

44 CR 11, June 10, 2021, effective 6/30/2021

44 CR 24, December 25, 2021, effective 1/14/2022

45 CR 11, June 10, 2022, effective 6/30/2022

45 CR 17, September 10, 2022, effective 9/10/2022

45 CR 17, September 10, 2022, effective 9/30/2022

45 CR 23, December 10, 2022, effective 1/30/2023