5 Colo. Code Regs. § 1001-1-VI

Current through Register Vol. 47, No. 20, October 25, 2024

Section 5 CCR 1001-1-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

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. 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:

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. 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. The Division may appear as a party upon application in proceedings for declaratory orders under Section VI.H.

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. 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. 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.

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. 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. 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.

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. 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. 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.

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. 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.

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.

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. 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. 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:

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. 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. 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.

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. 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 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.

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. 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.

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. 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. 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.

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 Commission Office shall immediately transmit any such motion to all Commissioners who participated in the final decision. If a party or any Commissioner who participated in the final decision requests reconsideration, the Technical Secretary/Administrator, in conjunction with the Hearing Officer, shall arrange a prompt meeting of the Commission, which may include participation by telephone. Only Commissioners who participated in the original final decision may participate in a decision to reconsider. A motion to reconsider requires an affirmative vote by a majority of the Commission in order to pass. If the Commission decides to reconsider, the matter shall be a priority item at the next regular meeting. When the Commission decides to reconsider its final decision or any portion thereof, the effective date of the entire decision is suspended until reconsideration is complete. If the Commission declines to reconsider its final decision, the effective date of the final decision is not suspended.

VI.F.2. Stays Pending Judicial Review:

Any party may move for a stay of the final determination of the Commission, in whole or in part, for the duration of any judicial review sought. The party may present its motion at the conclusion of the hearing, in which case the Commission will resolve the motion at that meeting if possible. A party also may move for a stay by filing the motion in writing with the Commission Office and serving each participant in the hearing not less than five days before the next regular meeting of the Commission following the final decision. The Commission will hear any stay motion made after the hearing at its next regular meeting. The Commission will afford all participants in the hearing an opportunity to respond to the motion for a stay. Decisions on a stay motion shall be made on the motion as presented by the party and no motion by a Commissioner is necessary. The Commission will not consider a motion for a stay after any party files a complaint for judicial review.

VI.F.3. Transcripts:

The Commission Office shall arrange for a full and complete record of all proceedings and testimony presented at the hearing. The reporter shall furnish, upon payment of any fees allowed therefore, a certified transcript of the whole or any part of the transcript to any party requesting it. The record of the hearing shall include all pleadings, applications, evidence, exhibits, and other papers presented or considered, matters officially noticed, rulings upon exceptions, any findings of fact and conclusions of law proposed by any party, and any written briefs filed.

VI.G. Ex Parte Communications:

No ex parte communications, as defined in Section III.I, shall occur with or by any Commission member during the pendency of an adjudicatory proceeding. Commissioners shall disclose any ex parte communications on the record.

VI.H. Declaratory Orders

Pursuant to § 24-4-105(11), C.R.S., the Commission, in its discretion, may review petitions for declaratory orders in order to terminate controversies or to remove uncertainty in the application to a petitioner of provisions of the Act or of any relevant statute, rule, regulation, decision, permit, or order. Any order disposing of a petition constitutes final agency action subject to judicial review. If the Commission votes to review a petition, it shall issue an order disposing of the petition after notice and an adjudicatory public hearing that meets the requirements of the State Administrative Procedure Act, the Act, and these rules. The order shall be limited in its scope to those matters necessary to dispose of the petition properly.

5 CCR 1001-1-VI

44 CR 16, August 25, 2021, effective 9/14/2021