5 Colo. Code Regs. § 1001-1-V
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.
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.
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.
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.
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.
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. 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.
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.
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. Member of the public and the Division may offer alternate proposals to those of the subcommittee.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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:
Commission has no discretion under state law not to adopt the proposed rule or to adopt any alternative rule.
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.
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.
The Petitioner should identify which SIPs in the state, if any, are affected by the Commission's adoption of the regulation.
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.
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.
Some requirements for a petition in Section V.C.3. do not apply to rule proposals that:
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:
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,
The statement describing the range of regulatory alternatives, including the no-action alternative, is not required.
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. 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.
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:
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.
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.
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.
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.
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.
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.
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.)
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 Commissions website.
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.
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.
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.
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.
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.
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.
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. 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:
Any person petitioning for rulemaking under Section V.C. shall automatically be granted party status.
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. 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.
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:
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.
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.
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.
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.
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.
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:
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
(Note: The Commission encourages, and in some instances may require, witness testimony to be provided in writing).
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. 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.
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.
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.
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. 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:
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.
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.
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.
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.
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
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. 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).
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. 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.
The Commission shall conduct all rulemaking hearings.
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:
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.
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.
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.
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.
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. 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.
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.
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.
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.
Revisions:
the Commission shall grant the request, and set the matter for hearing to be held within ninety days of receipt of the petition.
Pursuant to § 25-7-112, C.R.S., a member of the public may request the Division to investigate a suspected discharge involving a significant risk of air pollution that present a clear, present and immediate danger to the environment or to public health. If the Division denies a request for an investigation, or if a member of the public is dissatisfied with the result of the investigation, such person may complain to the Commission by petition. The Commission may convene an informal hearing, not to determine the merits of the petition, but to decide whether to order the Division to conduct an investigation.
5 CCR 1001-1-V