5 Colo. Code Regs. § 1001-1-XII
The purpose of these rules is to provide for the fair and efficient administration of hearings and meetings before the Commission, and to make the rules consistent with the Colorado Air Pollution Prevention and Control Act, and the Colorado Administrative Procedures Act.
Federal Requirements
The Federal Clean Air Act requires that the State Implementation Plan contain provisions requiring the Commission to:
Statutory Authority
Specific statutory authority for the adoption of such procedural rules is provided in § 25-7-106(3).
Findings pursuant to § 25-7-110.8
The procedural rules adopted by the Commission on January 15, 1998 do not include the adoption of any control measures intended to reduce air pollution. Such rule changes are administrative in nature. The rule changes are designed to improve the efficiency of Commission hearings, to encourage the resolution of issues, and to promote the cost-effective administration of hearings before the Commission.
Division's role in assisting the proponent of an alternative proposal to prepare an economic impact analysis § 25-7-110.5(4)(a) requires the proponent of an alternative proposal to provide a final economic impact analysis in advance of the hearing. The proponent may request assistance from the Division in the development of such a final economic impact analysis. The Commission anticipates that the Division will continue its current practice of consulting with the proponent of any such alternative proposal and providing such assistance as may be necessary for the proponent to comply with the requirements of § 25-7-110.5(4). Special procedures for hearings on applications submitted pursuant to § 25-7-105(2). Section V.F.13.a. establishes special procedures for certain applications submitted pursuant to § 25-7-105(2). The purpose of this section is to resolve the conflict between §§ 25-7-110(1) and 25-7-119 for hearing on the petitions described in § 25-7-105(2), and to do so in a manner that provides for efficient and cost-effective hearings.
§ 25-7-105(2) requires the commission to hold hearings pursuant to § 25-7-119 for "applications for review of the classification of any attainment, nonattainment, or unclassifiable area within the state ..., all applications for designation or redesignation ... and all applications for any revision of general application of the state implementation plan ..." The types of actions listed in § 25-7-105(2) tend to be rulemaking activities of general applicability, but the procedure described in § 25-7-119 is an adjudicatory, rather than rulemaking, process. The adjudicatory aspects of § 25-7-119 include:
The activities listed in § 25-7-105(2) are primarily rulemaking actions. Therefore, the Commission will generally follow the rulemaking procedures outlined in § 25-7-110, and will not apply the adjudicatory procedures described in § 25-7-119 unless the petitioner specifically requests a hearing that observes the adjudicatory procedures. This requirement is consistent with the plain language of § 25-7-105(2) to establish a specific procedure for hearings on certain applications submitted to the Commission. In any case in which the Commission cannot reasonably comply with both the rulemaking requirements and the adjudicatory requirements, the Commission will apply the procedures most applicable to the type of action being requested. That is, the rulemaking procedures set out in § 25-7-110 should apply to actions that are primarily rulemaking in nature; the adjudicatory procedures in § 25-7-119 should apply to matters that are primarily adjudicatory in nature. In most instances, the Commission will assume, unless otherwise indicated, that matters such as area classifications, designations, and SIP revisions of general applicability, are rulemaking matters.
Conflicts of Interest
Section X. on Conflicts of Interest is not intended to expand or contract the standard for disqualification of a Commissioner. This Rule reflects an attempt to interpret and apply the law, as it exists at this time, on the subject of disqualification. This section is to be interpreted to implement fully the goal of the General Assembly to have a citizen-based Commission with a minority business vote.
One of the parties to the hearing was concerned that the standard set out in Section X.A.1.b.(i) may require disqualification if a Commissioner had prejudged the law or the facts of a case. The party pointed out that commissioners are likely to have taken previous positions on the meaning of a rule or statute and should not, therefore, be required to recuse themselves from future hearings concerning the same rule or statute. However, the standard in Section X.A.1.b.(i) is conjunctive, and would not require disqualification in an adjudicatory hearing merely because a commissioner had decided the meaning of the law in advance of the hearing.
Section X.A.1.b.(ii) requires disqualification in an adjudicatory hearing if the Commissioner, or the Commissioner's employer, has a substantial financial interest in the outcome of the proceeding. This standard does not require that such substantial financial interest be direct. An action involving an indirect substantial interest, such as an enforcement action involving a competitor may require disqualification in an adjudicatory hearing.
The revisions to the Air Quality Control Commission Procedural Rules are adopted to provide for notice and meaningful public meetings to review conformity determinations, to repeal the procedure for disqualification of a Commissioner for an impermissible conflict of interest, and to simplify some of the requirements that apply to parties to rulemaking hearings before the Commission.
The revisions add a new Section IV.M. to the procedural rules. This section establishes a procedure for public meetings on conformity determinations following notice to the public. The rule ensures that documents supporting the conformity determination are available for review prior to the hearing. The rule also provides a means for the Commission to review a proposed conformity determination and submit timely comments to the metropolitan planning organization.
The revisions to Section V.E. make the Commission's rulemaking procedures more efficient.
At the request of Legislative Legal Services, the Commission repealed the provisions in Section X.C. that established a procedure for the Commission to disqualify a member of the Commission upon a finding of an actual conflict of interest. Legislative Legal Services concluded that the Commission does not have such authority.
Federal Requirements
The procedures for the review of conformity determinations are related to the federal transportation conformity requirements set out at 40 CFR, part 93 , subpart A. Those provisions require the State to establish criteria and procedures for making transportation conformity determinations, but do not require the State to establish a procedure for public hearings before the Air Quality Control Commission on such conformity determinations. The procedural requirements for conformity determinations established in the procedural rules exceed federal requirements and, therefore, are adopted solely under state law and shall not be submitted to EPA for inclusion in the SIP.
Although not required by federal law, such procedural requirements are consistent with state law. § 25-7-124, C.R.S. provides that the Commission is the state agency for all purposes of the federal Clean Air Act. As the state air quality agency, the Commission must be included in the consultation procedures, 40 CFR Section 93.105. The meetings of the Commission must be open to the public, § 24-6-402, C.R.S. (1997). Review of a conformity determination is similar in nature to rulemaking and it is appropriate for the Commission to follow procedures that are similar to its rulemaking procedures in reviewing conformity determinations, and to provide an opportunity for interested parties outside of the agency to make comments on the conformity determination. Therefore, it is reasonable and appropriate for the commission to promulgate state-only procedural rules that provide for public participation in the review of conformity determinations.
The revisions to Sections V.E. and X.C. of the procedural rule are not related to transportation conformity, and are not required by any federal rule or law. Such provisions are adopted solely under state law to provide for more efficient rulemaking hearings.
Statutory Authority
§ 25-7-106 (3), C.R.S. provides the Commission with the statutory authority to adopt regulations governing procedures before the Commission.
Findings pursuant to § 25-7-110.8
The procedural rules are administrative in nature and are exempt from the requirements of § 25-7-110.8(1)(b), C.R.S. (1997). The rule revisions adopted by the Commission ensure that interested parties have an opportunity to make their views on conformity determinations and rulemaking matters. In this way, the rule revision improves the Commission's decision-making process. The rule revisions provide for cost-effective hearings and public meetings before the Commission.
This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedures Act, § 24-4-103, C.R.S., and the Colorado Air Pollution Prevention and Control Act, §§ 25-7-110 and 25-7-110.5, C.R.S ("the Act").
Basis
The Commission Procedural Rules establish the procedures through which the Commission conducts hearings. Regulation Number 3 contains the procedural and substantive requirements for both construction and operating permits. The Commission's Procedural Rules and Regulation Number 3 set forth the mechanisms available for interested persons to be heard regarding both Commission and Division matters.
Specific Statutory Authority
§ 25-7-109, C.R.S. of the Act, provides the Commission with the authority to adopt and revise rules and regulations that are consistent with state policy regarding air pollution and with federal recommendations and requirements.
Purpose
§ 25-7-114.5(5) and (6), C.R.S., requires the Division to give public notice of a permit application in a newspaper of general distribution in the area in which the proposed project is located or by such other method reasonably designed to ensure effective general public notice. In this rulemaking, the Commission set out a two-tiered notification system. The newspaper notice contains basic information about the proposed project and provides the location of the Division's web site and a Division person to contact should any interested person desire more detailed information. The statute also requires that certain permit information be filed with the county clerk of the county wherein the particular source that is subject to the permit application is proposed. If the proposed source straddles more than one county, the information must be filed with the clerk of each county in which the source is located. § 25-7-114.5(6), C.R.S., requires the Commission, following a written request, to hold a public comment hearing to allow interested persons the opportunity to appear and submit written and/or oral comments regarding air pollution considerations about a proposed permit, the sufficiency of the Division's preliminary analysis and whether the permit application should be approved or denied. This requirement extends to the nonattainment area new source review, prevention of significant deterioration, and renewable operating permit programs. In this rulemaking, the Commission clarified the existing procedures by adding a section to the Commission's Procedural Rules to specifically address public comment hearing procedures. That section, denominated Section VII., specifies how the Commission will conduct public comment hearings relating to applications for permits controlled by these programs. The Commission also made conforming changes to Regulation Number 3.
Public comment hearings are intended to encourage citizen participation in the air quality permitting process and to provide a forum for gathering information for use by the Division in final evaluation of applications for construction and operating permits. The Commission intends to conduct public comment hearings in a way that will ensure an effective opportunity for the public to present information for use by the Division.
In addition, the revisions to these regulations specify the role of public comments in the Division's decision-making process following development of the preliminary analysis. The Commission concluded that Division responses to such comments are an important feature of the permitting process in order to assure the public that their comments and concerns are considered.
Finally, the revisions underscore the distinction between a public comment hearing that is intended to provide information to the Division prior to making a final determination on a permit application, and an adjudicatory hearing before the Commission that may be requested only by an applicant to challenge the Division's final action on a permit application. A public comment hearing does not constitute an adjudication or a rulemaking and the provisions of the Administrative Procedures Act relating to those proceedings do not apply. In the Commission's view, the hearing allowed under § 25-7-114.5(6), C.R.S., does not require the procedural mechanisms applicable to adjudications or rulemakings. These revisions establish reasonable mechanisms that appropriately balance the goal of providing public input to the Division with the need to manage the time and resources of both the Commission and Division effectively.
Federal Requirements
Title 40, Section 124.12 of the Code of Federal Regulations requires the State to provide an opportunity for public comment on permit applications under the nonattainment new source review, prevention of significant deterioration, and operating permit programs. These revisions meet the federal requirement.
Findings pursuant to § 25-7-110.8, C.R.S.
The procedural provisions addressed in this rulemaking are administrative in nature and are not intended to reduce air pollution. Accordingly, § 25-7-110.8(1) exempts this rulemaking from the requirements of that section.
This revision establishes the procedural and substantive criteria for hearings on objections filed by local governments to emissions control units proposed for installation at oil and gas exploration and production operations, natural gas compressor stations or natural gas drip stations located upstream of a natural gas-processing plant in the 8-hour Ozone Control Area in order to comply with the emission reduction requirements of Section XII. of Regulation Number 7.
The specific statutory authority for this regulation is set out at § 25-7-133(7)(d)(VI), C.R.S.
The requirements of § 25-7-110.8 do not apply because this rule change is administrative in nature and its purpose is to decide disputes between local governments and regulated entities, rather than reduce air pollution.
This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedure Act §§ 24-4-103(4) and (12.5), C.R.S. for new and revised regulations.
Basis
The Air Quality Control Commission's (AQCC) Procedural Rules (Rules) establish the framework and procedures for the AQCC to discharge its statutory responsibilities under the Colorado Air Pollution Prevention and Control Act (Act). Among the established procedures is the filing by parties to rulemakings and adjudicatory hearings of various documents, including petitions for rulemakings and the attendant attachments to such petitions (including an Economic Impact Analysis, Agenda Item Control Sheet, briefs, exhibits, proposed rule revisions and additions and Statements of Basis, Specific Statutory Authority, and Purpose), requests for party status, prehearing statements, rebuttal statements, and exhibits. In the last several years the quantity of documents fillings for rulemakings and other documents under the procedural rules has expanded dramatically. To reduce the quantity of paper associated with such filings, the AQCC has determined that it should require the use of electronic filings in lieu of paper filings for all rulemaking and adjudication proceedings. In several rulemakings last year, the AQCC allowed parties to file rulemaking prehearing, rebuttal and motion documents by electronic mail. This allowed parties to file these documents more quickly and efficiently and reduced the amount of paper filed with the AQCC. Section III.J.2. requires that an electronic mail submittal be "signed" by the filing party. It is expected that this signature will be accomplished by the filing party through "scanning in" the signature page and transmitting the scanned signature page along with the rest of the filing.
While the amendments to the Procedural Rules include a size limitation of twenty (20) megabytes for electronic mail filings, parties to rulemakings and adjudications are encouraged to limit the size of electronic mail filings to ten (10) megabytes to minimize transmission delays because of server limitations. In addition, because of the potential for future server size capacity increases, the rule amendments allow the Commission the flexibility to increase the size of the documents being electronic mailed on a case-by-case basis. Parties to rulemakings and adjudications who do not have access to computers may apply to the Commission for a waiver from this requirement under Section III.J.3. or under the "Good cause" provision of Section III.J.
Specific Statutory Authority
The specific statutory authority for these revisions to the procedural rules derives from the authority granted the AQCC in §§ 25-7-106(3) and-106(5), which authorizes the AQCC to adopt rules and regulations to conduct hearings so that they will be fair and impartial and to carry out the AQCC's statutory responsibilities in conformity with the State Administrative Procedure Act, §§ 24-4-103,-105 C.R.S.
Purpose
The purposes of these revisions of the procedural rules are (1) to reduce the amount of paper filed with the AQCC's administrative office, and (2) to require parties to rulemakings and adjudications to more quickly and efficiently file necessary documents with the AQCC, each other, and the Division.
Basis and Purpose
The purpose of these amendments is to streamline the transportation conformity process by allowing the Colorado Air Pollution Control Division to provide concurrence with routine transportation conformity determinations without the need for a public hearing before the Colorado Air Quality Control Commission. This change to the conformity process is allowed for under federal law and will reduce the burden on the Commission, the Division and transportation planning organizations, while ensuring that air quality requirements are met. These amendments were adopted in conjunction with corresponding changes to the AQCC Regulation Number 10, governing conformity determinations in Colorado.
Specific Statutory Authority
The Commission promulgates these regulatory changes pursuant to its authority under § 25-7-106(3), C.R.S. to adopt regulations governing procedures before the Commission.
Findings pursuant to § 25-7-110.8
These revisions are administrative in nature and are not intended to reduce air pollution. Rather, the revisions are intended to streamline the transportation conformity process, while maintaining the air quality benefits of the existing rule. Accordingly, the requirements of § 25-7-110.8, C.R.S. do not apply to this rulemaking.
This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedure Act § 24-4-103, C.R.S. for new and revised regulations.
Basis
Subchapter 1 of the Federal Clean Air Act requires the State of Colorado to adopt a plan to implement, maintain and enforce air quality standards; the adoption and revision of that plan is the responsibility of the AQCC through a comprehensive program of air quality regulation codified in the State Air Act, § 25-7-101et seq., C.R.S. In addition, § 25-7-105(1), C.R.S. requires the AQCC to promulgate rules and regulations necessary for the proper implementation and administration of the State Air Act. Rulemaking and adjudication procedures must also be consistent with the State Administrative Procedures Act (§ 24-4-101 et seq., C.R.S.). The AQCC, through its Procedural Rules, fulfills the requirements of State and Federal law; periodically the rules need to be updated.
Specific Statutory Authority
The AQCC is authorized to promulgate rules and regulations necessary for the proper implementation and administration of the Colorado Air Pollution Prevention and Control Act (the State Air Act, § 25-7-101et seq., C.R.S.; the AQCC is authorized to adopt procedural rules pursuant to § 25-7-106(3) and (5), C.R.S. Rulemaking and adjudication procedures must also be consistent with the State Administrative Procedures Act (§ 24-4-101et seq., C.R.S.).
Purpose
The AQCC proposes to update its Procedural Rules in its entirety to eliminate or update obsolete provisions, delete duplicate language, and to improve their "readability" so that the rules can be more easily understood by the general public. The Air Quality Control Commission's (AQCC) Procedural Rules (Rules) establish the framework and procedures for the AQCC to discharge its statutory responsibilities under the Colorado Air Pollution Prevention and Control Act (Act). Among the established procedures is the filing by parties to rulemakings and adjudicatory hearings of various documents, including petitions for rulemakings and the attendant attachments to such petitions (including an Economic Impact Analysis, Agenda Item Control Sheet, briefs, exhibits, proposed rule revisions and additions and Statements of Basis, Specific Statutory Authority, and Purpose), requests for party status, prehearing statements, rebuttal statements, and exhibits. The changes will make the filing of required documents more efficient for persons participating in AQCC activities and hearings and ease the paper compilation and distribution burden on the AQCC's administrative office.
The Procedural Rules require periodic revision. References to statutory provisions that been repealed (such as the requirement that the AQCC consult with the Air Quality Science Advisory Board (AQSAB), which was repealed in 2008) have been deleted. Other statutory references have been updated; for example, a reference to the Colorado Public Records Act (§ 24-72-101et seq., C.R.S.) has been updated to refer to the Colorado Open Records Act (§ 24-72-201et seq., C.R.S.). Provisions have been revised to account for advances in technology: references to faxing have been deleted, the provision regarding electronic signatures has been updated, and the procedure for submitting documents electronically was clarified. The rules reflect minor changes in Commission procedures; a definition for "Consent Agenda" has been added, as have the Commissioners' "Ground rules for Public Comment Hearings." To improve the readability of the document, most uses of the passive voice were eliminated, uses of the word "shall" "must" and "will" were corrected to be consistent with plain language rules of drafting, and some sections were reorganized to eliminate duplicate provisions. Further, these revisions will include any typographical, grammatical and formatting errors throughout the regulation.
This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the State Administrative Procedure Act, § 24-4-101et seq., C.R.S. ("APA"), and the Colorado Air Pollution Prevention and Control Act, § 25-7-101et seq., C.R.S ("the Act").
Basis
The Commission Procedural Rules establish the procedures through which the Commission conducts meetings, rulemakings, and adjudicatory hearings.
Statutory Authority
The Commission has the authority to adopt procedural rules, consistent with the APA to govern the procedures before the Commission. § 25-7-106(3), C.R.S. The procedural rules are administrative in nature and are exempt from the requirements of § 25-7-110.8(1), C.R.S.
Purpose
The adjudicatory hearings section of the Commission's Procedural Rules had long needed a broad update, as there were outdated and incorrect references, stylistic issues, and other administrative problems that need correction or clarification. Only minor amendments to address narrow issues had been made since the early 2000s. In this hearing, the Commission made changes to the adjudicatory procedures to bring the rules into conformance with current practice as well as to update references and address these administrative corrections and clarifications. The Commission also made improvements to its processes. Further, these revisions will include any typographical, grammatical and formatting errors throughout the regulation.
Adjudicatory Procedures
The Commission has, over the past couple decades, held few adjudicatory hearings. The Commission determined it was time to update the adjudicatory hearing procedures based on past experience and to address improvements in similar proceedings before courts that enhance the adjudicatory process, such as discovery and motions practice. The main areas addressed by these revisions include the scheduling conference, discovery process, and submittal of briefs to the Commission. The majority of the Commission's revisions were to address the difficulty in conducting a comprehensive fact finding process where the hearing must be held within 90 days of the Commission's receipt of the petition for adjudicatory hearing.
Scheduling Conference, Section VI.C.2
The Commission believes that a scheduling conference soon after the request for adjudicatory hearing is received will facilitate an orderly and transparent process. The revisions require the parties to quickly coordinate on a joint proposed scheduling order to address several issues that will inform the Hearing Officer's order setting timing and limits on the discovery process. The Commission is required to consider the request for adjudicatory hearing at its next meeting following receipt. However, it is not possible to predict when a request for adjudicatory hearing will be submitted in relation to the next Commission meeting; therefore, the rules contemplate that a Hearing Officer will be appointed immediately upon receipt of a request for adjudicatory hearing in order to address these procedural matters.
Discovery Process, Section VI.C.3
In earlier versions of the adjudicatory procedures rules, parties could not commence discovery until after the Commission had considered the adjudicatory hearing request at its next meeting. This left less than 60 days for the parties to conduct discovery in accordance with the Colorado Rules of Civil Procedure, which are based on a longer timeframe for the discovery process. Therefore, the Commission determined both to allow discovery to commence earlier in the process and to shorten the presumptive timeframes for responding to discovery requests. However, the revisions recognize that if the 90-day hearing timeframe is waived by the party requesting the hearing, the need to commence discovery earlier is abated, and the full discovery timeline will be governed by the Scheduling Order. Further, the Commission maintained the provision that provides that the adjudicatory hearing may proceed even if full discovery is not completed.
The Commission also revised the motions practice for discovery. Instead of parties submitting written motions regarding discovery disputes, the parties are now directed to jointly contact the Hearing Officer and seek a conference (by telephone or other video conference method, at the discretion of the Hearing Officer). These revisions allow prompt resolution of discovery disputes without unnecessary paperwork.
Written Submittals to the Commission
The revisions streamline the submittals to the Commission. Under these revisions, parties must submit a joint statement of undisputed facts, and submit a list of undisputed exhibits, prior to the prehearing conference. This will enable the Hearing Officer to better understand the disputed issues to be heard at the hearing, and to streamline the package of materials that the Commission will consider.
Under the revisions, the parties also have the opportunity to submit prehearing statements and rebuttal statements. The timing of these statements should be addressed by the Hearing Officer in the Scheduling Order. Under previous rule iterations, the parties also were required to submit proposed findings of fact and conclusions of law. These revisions do not mandate the submittal of that document, but would allow for the Hearing Officer to require it, along with additional briefing on legal issues, in the discretion of the Hearing Officer.
Other Changes
In Section VI.B.4.c, the Commission established a streamlined process for hearings that involve only questions of law, as opposed to questions of fact. For example, when a request for adjudicatory hearing challenging a unilateral compliance order of the Division raises only the question of the Division's interpretation of a regulation or permit condition. In such cases, the Commission determined that an extensive fact finding process with discovery is unnecessary, and the case should proceed on briefing alone, as in a court case where there are no disputed issues of material fact. In these situations, the Commission or Hearing Officer, as appropriate, should issue a briefing schedule to allow parties to present their legal arguments to the Commission, and oral argument would be allowed at the adjudicatory hearing itself.
The Commission also clarified the requirements for interested third parties to seek party status. The Commission encourages interested third parties to seek party status prior to the Scheduling Conference and to participate in the consideration of issues pertinent to the Scheduling Order (e.g. discovery timing and limits). However, the Commission recognizes that there may be interested third parties who were not able to have learned about the request for adjudicatory hearing prior to the item being included on a Commission meeting agenda, and so has provided that the Scheduling Order will set the deadline for seeking party status. The Commission does not intend that intervening parties should be able to seek modifications of the Scheduling Order, once issued, absent meeting the requirements of the rules for modifications thereof.
Based on a recent case regarding the effective date of Commission final action in an adjudicatory proceeding, the Commission has revised Sections VI.E.3 and VI.F.1 for consistency with the Court of Appeals decision. These revisions do not change the current practice, but offer more clarity in the regulation consistent with that opinion.
5 CCR 1001-1-XII