5 Colo. Code Regs. § 1002-21.24
The provisions of 25-8-202(1) (i); and 25-8-401(2) C.R.S. provide the specific statutory authority for the amendments to this regulation adopted by the Commission. The Commission also has adopted in compliance with 24-4-103(4) and 24-4-103(8) (d) C.R.S., the following statements of Basis and Purpose and Fiscal Impact.
Basis and Purpose:
Three changes are made to the introductory material of the regulation. First, the name of the regulation has been shortened to "Procedural Rules" for convenience of reference. Second, the regulation has been renumbered "2.1.0" for consistency with the remainder of the Commission's regulations. Third, a Table of Contents has been added to make the regulation easier to use. Throughout the regulation, numerous non-substantive editorial changes have been made, such as modifying the form of statutory references.
A number of changes have been made in section 2.1.3 , regarding Commission rulemaking procedures. These changes generally are aimed at making those procedures clearer and more efficient in a number of respects. The changes to section 2.1.3 are intended to (1) encourage informal discussion regarding important issues prior to initiation of formal rulemaking, (2) provide for a written explanation if the Commission declines to initiate rulemaking in response to a petition, (3) clarify rulemaking petition requirements, and (4) assure 208 agency review of Division recommendations for water quality classifications and standards amendments.
The change in section 2.1.3 (1) conforms this regulation with a recent statutory change. Section 2.1.3 (4) has been revised to clarify that normal notice requirements do not apply to emergency hearings. The revisions to section 2.1.3 (5) add flexibility to hearing notice publication requirements while assuring public access to information regarding rulemaking proposals. The Commission intends that the proposed statement of basis, specific statutory authority and purpose, prepared in connection with the hearing notice are to be based on the best information available at that time, recognizing that additional or different information may be developed in the rulemaking process.
Section 2.1.3 has been revised to specify the number of copies of party status requests needed by the Commission Office. In addition, an incorrect cross-reference in this section has been corrected.
The changes in section 2.1.3 conform this regulation more explicitly with current Commission practice regarding prehearing procedures. The procedures set forth are intended to focus and resolve issues to the maximum extent feasible prior to the hearing, so that the hearing itself can be conducted more quickly and efficiently. In addition, provisions have been added to revise the number of document copies needed by the Commission, and to specify that copies of all documents submitted must be sent to other party status applicants.
One change has been made in section 2.1.3 to provide flexibility for the consideration of motions that cannot reasonably be submitted prior to a hearing.
A new section 2.1.3 has been added to address "regulatory analysis" requirements established by amendments to the Colorado Administrative Procedures Act (APA) in HB1069, recently adopted by the Colorado Legislature. These new requirements have been paraphrased in the regulation to make them more understandable in the Commission's process. Correspondingly, because HB1069 deleted requirements regarding "fiscal impact statements", references to such statements have been deleted throughout the regulation.
Section 2.1.3 (1) (formerly (J) (1)) has been revised to clarify that written submissions may be required prior to rulemaking hearings. Language has been added to section 2.1.3 (2) (formerly (J) (2)) to provide the option of limiting cross-examination at hearings, to assure that hearings can be completed in a timely manner. Three subsections of section 2.1.3 (formerly (K)) have been revised to assure consistency with the provisions of HB1069. In addition, the Commission has added a discretionary option to circulate a proposed final rule for additional comment, even though this is no longer required by the APA.
Section 2.1.3 (3) (formerly (L) (3)) has been revised to change the number of copies required and to clarify alternative proposal submission requirements for nonparties. Section 2.1.3 (7) (formerly (L) (7)) has been revised to clarify which types of hearings the section 208 agency review requirement applies to.
Section 2.1.3 (formerly (M)) has been revised to conform with provisions of HB1069 and to provide additional flexibility regarding the period during which certain emergency rules may remain in effect, in accordance with the provisions of section 25-8-402(5), C.R.S.
Section 2.1.4 (2) and (3) have been revised to conform with recent changes to the Colorado Water Quality Control Act, in HB1010, expanding the Commission's responsibilities to hear appeals of Division actions. Corresponding changes have been made in section 2.1.10 and 2.1.11 . Section 2.1.4 (3) has been revised to insert a provision previously located in section 2.1.5 (and the corresponding provision has been deleted from section 2.1.5), because the Commission determined that this provision now relates to adjudicatory hearings and is more appropriately located in section 2.1.4 . Sections 2.1.4 and 2.1.4 have been revised to change the number of document copies required for adjudicatory hearings before the Commission.
Section 2.1.9 has been revised to clarify an ambiguity regarding hearings on variance requests and to be consistent with provisions of HB1010. The previous language was confusing and apparently resulted in part from a typographical error in connection with the last set of amendments to this regulation.
A new section 2.1.16 has been added to the regulation, to establish intergovernmental coordination and public participation requirements with respect to antidegradation reviews. In June of this year, the Commission substantially revised the antidegradation provisions in section 3.1.8 of the Basic Standards and Methodologies for Surface Water. The provisions now added to this regulation establish notice and comment procedures which are intended to assure that antidegradation reviews will be conducted with adequate input from the public and other governmental entities.
The Commission's general goal in structuring section 2.1.16 was to provide a meaningful opportunity for input into antidegradation determinations without creating new, unnecessary procedural hoops. The Commission declined to require the Division to respond specifically to all comments received, since this step may not always be practical or necessary. A general response to comments is desirable whenever feasible, and the desirability of avoiding appeals should provide a strong incentive for the division to fully address concerns when formulating its final determinations.
Finally, a new section 2.1.17 is added to address potential conflicts of interest of Commission members. The purpose of these provisions is to provide clear guidelines for the Commission members, other agencies, and members of the public to determine when a potential conflict of interest warrants disqualification of a Commission member with respect to a particular matter under consideration.
Consistent with current common law principles, these provisions require disqualification in the case of a direct and substantial financial interest of a Commission member or his/her employer in the outcome of a Commission action. These provisions also are intended to be consistent with HB1209, recently adopted by the Colorado Legislature. When no such direct and substantial financial interest is present, the new section provides for a case-by-case determination whether an "apparent conflict of interest" exists. If such a conflict exists, only disclosure is required, unless a Commission member voluntarily disqualifies himself/herself. Because the Colorado Water Quality Control Act requires that Commission members reflect a variety of interests in water in the State, and because knowledgeable Commission members necessarily will have established views on various issues, this provision clarifies that such preestablished policy positions of a Commission member or his/her employer do not, in and of themselves, constitute an apparent conflict of interest. In addition, a list of factors is set forth in section 2.1.17 (3) to guide the Commission in making case-by-case determinations regarding apparent conflicts of interest.
The Commission believes that this new section strikes a reasonable balance between the need to establish clear and predictable rules by which it intends to operate and the need to retain flexibility to handle appropriately the wide variety of circumstances that may arise. If experience under this new provision indicates that more specific rules are necessary, those can be considered at a later date. In the meantime, the Commission believes that these provisions provide more guidance regarding potential conflicts of interest than often is provided by state regulatory bodies of this type.
Finally, one general issue raised in the hearing warrants additional comment. Throughout the regulation, both as previously existing and in the new revision, there are instances where some statutory language from the State APA is repeated. After consideration of this issue, the Commission has determined that this duplication cannot and should not be entirely eliminated. The Commission believes that providing one document that sets forth a complete and integrated description of its rulemaking process is beneficial to the public. Merely attaching a copy of the APA to the Commission rules, or selectively reprinting portions of the statute would not serve the same purpose. In order to make APA requirements more understandable in the context of the Commission's rulemaking procedures, relevant provisions of the APA have been paraphrased, excerpted and translated into a more useable from to assist those that are involved in Commission proceedings.
Fiscal Impact:
No significant new public or private costs are anticipated as a result of the adoption of these revisions. Because the revisions are intended to make Commission rulemaking procedures more efficient, and the new conflict of interest provisions may minimize the time required to resolve potential conflict issues, both state agencies and members of the public should benefit from these changes. These benefits would consist of the reduced time and resources required for proceedings before the Commission.
PARTIES TO THE AUGUST 2, 1988 HEARING
5 CCR 1002-21.24