5 Colo. Code Regs. § 1002-21.13

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

Section 5 CCR 1002-21.13 - Declaratory Orders

A. Any person may petition the Commission or the Division for a declaratory order to remove uncertainties as to the applicability to the petitioner of any statutory provision or of any rule or order of the Commission or Division. Such petitions shall not relate to the manner in which a statutory provision or rule is being applied.

B. The Commission or the Division will determine, after notice to the petitioner and opportunity to be heard, whether to rule upon the merits of any such petition. The Commission shall dispose of such matters as regular business items at a business meeting.

C. In determining whether to rule upon a petition filed pursuant to this section, the following matters will be considered among others:

1) Whether a ruling on the petition will remove uncertainties as to the applicability to petitioner of any statutory provision or rule or order of the Commission or the Division.

2) Whether the petition involves any subject, question or issue which is the subject of a formal or informal matter or investigation currently pending before the Commission or the Division.

3) Whether the petition involves any subject, question or issue which is the subject of a formal or informal matter or investigation currently pending before the Commission or the Division or a court but not involving any petitioner.

4) Whether the petition seeks a ruling on a moot or hypothetical question or will result in an advisory ruling or order.

5) Whether the petitioner has some other adequate legal remedy, other than an action for declaratory relief pursuant to rule 57, Colo. R. Civ. P., which will remove any uncertainty as to the applicability to the petitioner of the statute, rule or order in question.

D. Any petition filed pursuant to this section shall set forth the following:

1) The name and address of the petitioner and whether the petitioner is the holder of a discharge permit pursuant to the Colorado Water Quality Control Act, section, 25-8-101et seq. C.R.S.

2) The statute, rule or order to which the petition relates.

3) A concise statement of all the facts necessary to show the nature of the uncertainty and the manner in which the statute, rule or order in question applies or potentially applies to the petitioner.

E. If the Commission or the Division determines that it will rule on the petition, the following procedures shall apply:

1) The Commission or the Division may rule upon the petition based solely upon the facts presented in the petition. In such a case:

a) Any ruling of the Commission or the Division will apply only to the extent of the facts presented in the petition and any amendment to the petition.

b) The Commission or the Division may order the petitioner to file a written brief, memorandum or statement of position.

c) The Commission or the Division may set the petition, upon due notice to the petitioner, for a non-evidentiary hearing.

d) The Commission or the Division may dispose of the petition on the sole basis of the matters set forth in the petition.

e) The Commission or the Division may request the petitioner to submit additional facts in writing. In such event, such additional facts will be considered as an amendment to the petition.

f) The Commission or the Division may take administrative notice of facts pursuant to the APA (section 24-4-105(8), C.R.S.) and may utilize its experience, technical competence and specialized knowledge in the disposition of the petition.

g) If the Commission or the Division rules upon the petition without a hearing, it shall promptly notify the petitioner of its decision.

2) The Commission or the Division may, in its discretion, set the petition for hearing, upon due notice to petitioner, for the purpose of obtaining additional facts or information or to determine the truth of any facts set forth in the petition or to hear oral argument on the petition. The notice to the petitioner setting such hearing shall set forth, to the extent known, the factual or other matters into which the agency intends to inquire. For the purpose of such a hearing, to the extent necessary, the petitioner shall have the burden of proving all of the facts stated in the petition, all of the facts necessary to show the nature of the controversy or uncertainty and the manner in which the statute, rule or order in question applies or potentially applies to the petitioner and any other facts the petitioner desires the Commission or the Division to consider.

F. The parties to any proceeding pursuant to this section shall be the petitioner and the Division if appropriate.

G. Any declaratory order or other order disposing of a petition pursuant to this section shall constitute final agency action subject to judicial review pursuant to the APA (section 24-4-106 C.R.S.).

5 CCR 1002-21.13

38 CR 07, April 10, 2015, effective 4/30/2015

40 CR 07, April 10, 2017, effective 4/30/2017