A.ApplicabilityWhenever the Commission adopts any rule or regulation including, but not limited to, any control regulation, classification of state waters, water quality standards, permit regulations, construction grant regulations, on-site wastewater treatments systems regulations, or drinking water regulations, the provisions of this section shall be applicable.
B.Proposals for Rulemaking1) Whenever the Commission contemplates rulemaking, public announcement of any informal pre-rulemaking proceedings may be made at such time and in such manner as the agency determines, and opportunity may be afforded interested persons to submit views or otherwise participate informally in conferences with the Commission or its staff on the proposals under consideration. It is within the discretion of the Commission to determine if and when such proceedings should occur. Whenever time and resources permit, it is the intention of the Commission to provide for and encourage informal comment and discussion regarding potential rulemaking issues prior to commencement of the formal rulemaking process. 2)a) Any interested person shall have the right to petition the Commission in writing for the issuance, amendment, or repeal of a rule. Such petition shall be open to public inspection. Except as provided in section 21.8 , action on such petition shall be 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 shall be considered and acted upon in the same proceeding. If the Commission decides not to initiate rulemaking, it shall provide a brief written explanation of its reasons therefor to the petitioner.b) Petitions for rulemaking shall include the following information: i) Identification of the persons requesting rulemaking and the nature of the request;ii) The language of the proposed rule;iii) A statement of the Commission's authority to promulgate the rule;iv) A concise general statement of the rule's basis and purpose. The Commission recommends that this proposed statement should not exceed five pages, single-spaced, in length. If the rule involves technological or scientific issues, this statement must include an evaluation of the scientific or technological rationale justifying the proposed rule; and v) Any information which the petitioner wishes to be available to the Commission for the preparation of a regulatory analysis of the proposed rule, if such an analysis is requested before the hearing on the proposed rule pursuant to section 24-4-103 (4.5), C.R.S. and section 21.3(J) of these rules.c) Any person who petitions the Commission to amend a use classification or water quality standard must submit the proposal to the appropriate 208 planning agency(ies), if any, for at least 30 days for review, and shall include the response of such agencies to the proposal, if any, in documents submitted to the Commission for its consideration in acting on any such proposal. Where a hearing is held to consider classifications or standards amendments based on recommendations by the Division, the Division shall assure that any appropriate 208 planning agency has at least 30 days to review the proposal and shall forward any response to the Commission. When the Commission proposes to amend a use classification or water quality standard based on a petition from any person, including a request made at triennial review, the Commission shall not be deemed to support the proposal based merely on the decision to conduct a rulemaking hearing. The Division shall offer into evidence any relevant information reasonably available to it at the time of the hearing.
C.Notice1) Notwithstanding any notice that may be provided through the mailing lists maintained pursuant to sections 25-8-302(1)(e), and 24-4-103(3)(b), C.R.S., or otherwise, official notice of proposed rulemaking proceedings shall be filed with the Secretary of State in sufficient time for publication in the Colorado Register.2) Notice of proposed rulemaking shall be published in the Colorado Register and shall state the time, place, and nature of the public rulemaking proceedings, the authority under which the rule is proposed, and either the terms or the substance of the proposed rule or a description of the subjects and issues involved.3) Except as specified in section 21.3 with respect to classifying state waters, setting water quality standards, or promulgating control regulations, and in section 21.3 with respect to temporary or emergency rules, public rulemaking proceedings shall not be held less than twenty days after publication of notice as provided in this section. Publication shall be by electronic publication pursuant to section 24-4-103(11)(g), C.R.S.4) Public notice may contain requirements with respect to special procedures, including requirements for written testimony, which the Commission deems appropriate as to any particular rulemaking hearing. The following shall either be included in the notice or shall be referenced in the notice, with copies available upon request to the Commission Office on and after the date of notice publication: a) The language of the proposed rule; and b) A proposed statement of basis, specific statutory authority and purpose. Whenever practical, for proposed amendments to existing rules the notice shall include a marked-up version showing the proposed changes from the existing rules. If rules are proposed to incorporate material by reference in accordance with section 21.3 , the notice shall indicate when and how such material will be available for comment during the rulemaking proceeding.
5)a) The Commission may determine that receipt of only written comments on a published proposal, and any substantive written response(s) to such comments or issues raised in such comments, is sufficient public participation to establish an adequate record for Commission deliberation and decision-making. If the proponent of a proposal disagrees with any written comments submitted, the proponent shall submit a written response in accordance with the deadline established in the rulemaking proceeding notice. An opportunity shall be provided to other interested persons to submit written responses to comments in accordance with a deadline established in the rulemaking proceeding notice.b) In accordance with section 21.3 , the Commission may provide in the notice for a written-comment-only rulemaking proceeding that no party status shall be provided.c) Should the Commission determine during the course of a written-comment-only rulemaking proceeding that significant, unanticipated controversy regarding the proposal exists, it may choose to terminate the rulemaking proceeding and re-notice it in accordance with its standard hearing procedures.6) An amended notice 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 to the prejudice of any interested person. If an amendment is substantial and prejudicial, the hearing date shall be continued to an appropriate date as determined by the Commission, and notice thereof shall be made in the same manner as the original notice.7) The Commission may continue a hearing to another date by issuing written notice to that effect at any time prior to the close of the record, or by announcement at the date, time and place of the original hearing.D.Party Status1) Unless in its notice of proposed rulemaking issued pursuant to section 21.3 of this regulation the Commission specifies otherwise, status as a party as that term is defined in section 24-4-102(11), C.R.S., will be granted in rulemaking proceedings before the Commission. Where an opportunity to obtain party status is provided, it may be obtained in the manner prescribed in the notice issued pursuant to section 21.3 . One original, email attachment or fax of each party status request shall be submitted by the deadline established in the notice. Party status shall always be available in proceedings specified in section 21.3 . Any person requesting a rulemaking hearing shall be granted party status without application therefor. Parties to rulemaking hearings shall have those rights specified in section 21.3(K)(2).2) All party status requests shall include:a) Name of the organization, entity or person requesting party status;b) A contact person (if different from (a));c) The contact person's mailing address;d) The contact person's phone number;e) The contact person's e-mail address (if available).E.Prehearing Conference1) The Commission may specify in the notice of proposed rulemaking that a prehearing conference will be held. Any such conference shall be held not less than 10 days in advance of the hearing, unless the Commission for good cause specifies otherwise. The Administrator of the Commission, a hearing officer or another member of the Commission may preside at any prehearing conference.2) In accordance with, and by the deadlines specified in the hearing notice, each applicant for party status, where applicable, the Division, and every interested person who intends to call witnesses at the hearing and offer exhibits into the record of the hearing, shall provide one PDF version of a prehearing statement to the Water Quality Control Commission. In addition, everyone who submits a prehearing statement electronically may be required to provide paper copies to the Commission Office in the number and by the deadline established in hearing notice. The hearing notice may establish different deadlines for prehearing statements by rulemaking proponents and by those responding to proposals. A prehearing statement shall contain the following:a) A specific statement of the factual and legal claims asserted or a list of the issues to be resolved;b) Copies of all exhibits to be introduced at the hearing; i) Where the nature of an exhibit is such that providing copies would be unduly burdensome, the prehearing statement shall describe the exhibit and indicate that the exhibit shall be available for inspection at a specified location prior to the hearing. Any such exhibit shall where feasible be made available electronically and also be available for inspection at the prehearing conference and at the hearing, and shall become part of the record of the hearing.ii) Where a party's or any governmental entity's position or proposal in a hearing is based in part on analysis of water quality data, the party or governmental entity shall submit its analysis of the data and a description of the data upon which the analysis is based, but is not required to submit the raw data into the hearing record. However, the party or governmental entity shall provide an electronically manipulable copy of its data to the Division and any party that requests it. If the Division or any party or governmental entity chooses to submit some or all of the data into the hearing record, the data exhibit may be provided in any electronic format that is on a list maintained by the Commission Office, notwithstanding the requirement to submit the prehearing statement in PDF format as specified above.c) A list of witnesses to be called and a brief description of their testimony;d) Any alternative proposal to the proposed rule (Note: The submission of a proposed statement of basis and purpose and regulatory analysis for any alternative proposal is encouraged but not required);e) All written testimony to be offered into evidence at the hearing.3) The object of the prehearing conference may include the formulation of stipulations or orders respecting the issues to be raised, and witnesses and exhibits to be presented by the parties (where applicable) or interested persons. The parties or interested persons should make known at the prehearing conference any objections to the procedures or evidence that may be raised at the hearing. Stipulations may be made at the prehearing conference to reflect any matters which have been agreed to or admitted by the parties or interested persons. A prehearing order shall be prepared by the Commission or at the Commission's direction by any person or party, based upon the prehearing conference, which shall reflect any rulings with respect to procedures to be followed at the hearing, or any other matter.4) Whenever adequate time is available, the Commission shall provide a reasonable period of time following the prehearing conference for the submission of written rebuttal statements, including testimony and exhibits. Except for such rebuttal, the Commission will not accept any further documentation or exhibits submitted by any party or by the Division after the prehearing conference except for good cause shown or as agreed upon by the parties and the chairperson of the prehearing conference.5) Any additional documentation to be submitted after the prehearing conference pursuant to subsection 4 of this section shall be delivered to the Commission Office within five working days after the prehearing conference unless otherwise provided in the notice of hearing or by the chairperson of the prehearing conference.6) Where scheduling permits and it appears that an additional prehearing discussion would be useful, a decision may be made at the prehearing conference to schedule an additional status conference prior to hearing.7) Except as provided in section 21.3 above, PDF versions and the paper copies of any documents submitted after the initial party status request shall be submitted to the Commission Office in the number and by the deadline established in the hearing notice. (Note: The requirement for submittal of paper copies may be satisfied by delivery to the Colorado Department of Public Health and Environment's mail room by the specified due date.)F.MotionsThe Commission may require that, as part of the prehearing conference or otherwise, parties or interested persons submit in advance of the hearing all motions or requests for rulings that such person or party intends to make with respect to the proposed rulemaking, except where, due to the lack of material information, such motions or requests cannot reasonably be submitted in advance of the hearing. These shall include motions regarding procedures, the scope and nature of the proceedings, or any other matter that requires a determination by the Commission prior to final agency action based on the record, or any matter that may reasonably be disposed of by the Commission prior to receiving testimony or other evidence. A Commission member acting as Hearing Chair may rule upon a nondispositive pre-hearing motion or pleading, though the Hearing Chair retains discretion to refer any pre-hearing motion or pleading to the full Commission for decision.
G.DiscoveryThe Commission or its designee may, on its own motion or upon the motion of any interested person or party for good cause shown, take depositions or have depositions taken, and fix the time and place therefor. Other forms of discovery may be allowed where the Commission deems it appropriate. Discovery may be requested by the Commission or its staff as well as by any interested person or party.
H.SubpoenasSubpoenas shall be issued without discrimination between public and private persons or parties by the Commission or its designee. 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 Commission may petition any district court, setting forth that due notice has been given of the time and place of attendance of the witness and the service of the subpoena, in which event, the district court, after hearing evidence in support of or contrary to the petition, may enter an order as in other civil actions compelling the witness to attend and testify or produce books, records, or other evidence under penalty of punishment for contempt in case of contumacious failure to comply with the order of the court. A witness shall be entitled to the fees and mileage provided for a witness in sections 13-33-102 and 13-33-103, C.R.S.
I.Hearing OfficersExcept as specified in subsection (M) below, the Commission may designate a hearing officer pursuant to part 10 of article 30 of title 24, C.R.S., subject to appropriations made to the Department of Public Health and Environment. When appropriate the hearing officer may be an employee of the Department of Public Health and Environment, or a member or the Administrator of the Commission.
J.Regulatory AnalysisUpon written request by any person received by the Commission at least fifteen days prior to the hearing on a proposed rule, the Commission shall prepare a regulatory analysis of the proposed rule, pursuant to section 24-4-103 (4.5), C.R.S. Such an analysis shall include:
1) A description of the classes of persons who will bear the costs and/or benefit from the proposed rule;2) To the extent practicable, a description of the probable quantitative and qualitative impact of the proposed rule, economic or otherwise, upon affected classes;3) The probable costs to the Commission, the Division, or any other state agency of the implementation and enforcement of the proposed rule and any anticipated effect on state revenues;4) A comparison of the probable costs and benefits of the proposed rule to the probable costs and benefits of inaction;5) A determination of whether there are less costly methods or less intrusive methods for achieving the purpose of the proposed rule; and6) A description of any alternative methods for achieving the purpose of the proposed rule that were seriously considered by the Commission or petitioner and the reasons the alternative methods were rejected in favor of the proposed rule. The analysis shall include quantification of the data to the extent practicable and shall take account of both short-term and long-term consequences. The regulatory analysis shall be available for inspection at the Commission Office at least five days before the hearing on the proposed rule.
(Note: The petitioner for a proposed rule is encouraged to supply information with the prehearing statement which could provide the basis for a regulatory analysis. If such information is not provided, the Commission shall prepare the analysis (if one is requested pursuant to this section) based on information supplied by the parties, the Division, and the public, and on such other information as may reasonably be available.)
K.Conduct of Hearings1) The Commission shall conduct a public rulemaking proceeding before promulgating any rule or regulation, in which it shall afford its staff and interested persons an opportunity to submit written data, views, or arguments, or written rebuttals. Oral testimony at hearings may be limited. Direct testimony should primarily summarize written evidence. Introduction of written material at the hearing will generally not be permitted except by the non-party general public.2) Where participation as a party is allowed by the Commission, persons admitted as parties may make objections, and all witnesses shall be subject to cross-examination by or on behalf of persons who have obtained party status to the proceedings. In all hearings witnesses shall be subject to cross-examination by or on behalf of the Commission, and the Commission may allow its staff, or legal counsel for the Commission or its staff, 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 hearing chair may have each party estimate the amount of time necessary for cross-examination and limit each party's time for cross-examination, taking such estimates into account.3) The Commission in conducting any rulemaking hearing shall, in addition to the authority specified elsewhere, have authority on its own motion or upon the motion of any interested person or party for good cause shown to: administer oaths and affirmations; sign and issue subpoenas; regulate the course of the hearing, set the time and place for continued hearings, and fix the time for the filing of appropriate 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 APA, the Act and the drinking water statutes. In the event more than one person engages in the conduct of a hearing, such persons shall designate one person to perform the functions of this subsection as can best be performed by one person only, and thereafter such person only shall perform those functions which are assigned by the several persons conducting such hearing.4) The Commission encourages the greatest possible participation at rulemaking hearings by members of the general public, and every effort will be made to provide for and solicit such participation.5) The presiding officer may allow parties to submit evidence not previously submitted under pre-hearing conference procedures for good cause shown, such as where necessary for purposes of rebuttal.6) The Division shall act as staff to the Commission in all rulemaking proceedings, and as such shall participate in any manner deemed appropriate by the Commission.7) The Commission, after the receipt of the evidence, may allow or require interested persons or parties to present oral or written summations of the facts and the law, either at the hearing or subsequent thereto, as deemed appropriate.8) Communication, oral or in writing with individual Commission members is permissible if agreeable to the Commission member(s) in question, but such information, if materially related to issues raised in the rulemaking, shall be made part of the record by the Commissioner. Once the rulemaking record is closed, new information shall only be presented to the Commission as a whole, upon approval of a request to reopen the Commission record. Should ex parte communication with an individual Commission member inadvertently occur subsequent to the close of a rulemaking record, that fact shall be disclosed to the full Commission, and the Commission may, if appropriate, reopen the record to allow the parties and the public to respond to the substance of the ex-parte communication.L.Final Agency Action and Post-Hearing Procedures1) In adopting any rule or regulation the Commission shall consider all submissions. The rules or regulations promulgated shall be based on the record, which shall consist of proposed rules, evidence, exhibits, and other matters presented or considered, matters officially noticed, rulings on exceptions, any findings of fact and conclusions of law proposed by any party, and any written comments or briefs filed. The rules or regulations shall be consistent with the subject matter as set forth in the notice of proposed rulemaking (which, together with a proposed statement of basis, specific statutory authority, and purpose, and if requested pursuant to section 21.3 , regulatory analysis, shall be made available to any person at least five days before the hearing). If a proposed final rule approved by the Commission differs substantially from the original noticed proposal, the Commission may, at the request of any person or on its own motion, make the proposed final rule available for additional comment prior to taking final action. If a rule is adopted in a form amending the proposed rule, the statement of basis and purpose shall be revised to explain the rule as actually adopted.2)a) Subject to the provisions of this subsection, the Commission may incorporate the following by reference in its rules without publishing the incorporated material in full only if the material has been properly identified in the notice of proposed rulemaking: i) Federal rules, codes, or standards published in full in the Federal Register or the Code of Federal Regulations;
ii) Published rules, standards or guidelines of any nationally recognized association or organization.b) The Commission may incorporate by reference the material set forth in paragraph (a) of this subsection only if it makes copies of the material available to the public no later than the date of publication of the notice of proposed rulemaking.c) The reference to any incorporated material shall identify the incorporated material by appropriate agency, organization, or association and by date, title or citation. The reference shall also state that the rule does not include later amendments to or editions of the incorporated material. The Commission shall maintain certified copies of the complete text of the material incorporated, which copies shall be available for public inspection during regular business hours. If the version or edition of the material to be incorporated by reference has not previously been distributed to the state publications depository libraries, copies of such material shall be provided to the state publications depository and distribution center no later than the date of the notice of a rulemaking hearing to consider such incorporation. Certified copies of the material incorporated shall be provided at cost upon request. All material incorporated by reference may be examined at any state publications depository library.d) The Commission shall include in any rule which incorporates material by reference the fact that the Administrator of the Commission, at the address of the Commission Office, will provide information regarding how the incorporated material may be obtained or examined and a statement indicating that any material that has been incorporated by reference in the rule may be examined at any state publications depository library.3) After consideration of the relevant matter presented, the Commission shall include as part of the rules a general statement of their basis and purpose. The written statement of the basis and purpose of a rule which involves scientific or technological issues shall include an evaluation of the scientific or technological rationale justifying the rule.4) No rule shall be issued by the Commission unless it is first submitted to the Attorney General for an opinion as to its constitutionality and legality. Any rule issued without being so submitted shall be void.5) Each rule adopted by the Commission, together with the Attorney General's opinion rendered in connection therewith shall be filed within twenty days after adoption with the Secretary of State for publication in the Colorado Register. Rules revised to conform with action taken by the General Assembly shall be filed with the Secretary of State for publication in the Colorado Register and in the Code of Colorado Regulations.6) A rule shall become effective twenty days after publication of the rule as finally adopted, as provided in paragraph (8) below, 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 judicial review purposes.7) An adopted rule shall be published in the Colorado Register and in the Code of Colorado Regulations. An unofficial version of the adopted rule shall also be posted on the Commission's web site.8) All rules adopted by the Commission, including temporary or emergency rules, shall be submitted to the Office of Legislative Legal Services in the form and manner prescribed by the committee on legal services. Any rule issued without being so submitted within twenty days after the date of the Attorney General's opinion rendered thereon to the legislative drafting office shall be void. The Commission shall revise its rules to conform with the action taken by the General Assembly.9) The Commission shall maintain a copy of its currently effective rules and the current status of each published proposal for rules and minutes of all its actions upon proposed rules, as well as any Attorney General's opinion rendered on any adopted or proposed rule, which shall be available for inspection by any person during regular office hours.10) The Commission shall make available to the public and shall deliver to anyone requesting it a copy of any rule of the agency then in effect or of any notice of proposed rulemaking proceeding in which action has not been completed. Upon request, such copy shall be certified. The Commission may make a reasonable charge for supplying any such copy. Except for temporary or emergency rules, such copy shall be in the same format as the rule appears in the Code of Colorado Regulations or the Colorado Register.11) The Commission shall maintain a docket listing the name, address, and telephone number of every person or party who has participated in a rulemaking proceeding by written statement, or by oral comment at a hearing.M.Procedures to be Followed in Classifying State Waters, Setting Water Quality Standards and Adopting Control Regulations1) Prior to classifying State waters and promulgating any water quality standard or any control regulation the Commission shall conduct a public rulemaking hearing thereon as provided in section 21.3 , except as is provided in this subsection M.2) Notice of any such hearing shall conform to the requirements of this regulation, but shall be given at least sixty days prior to the hearing and shall include each proposed standard or regulation.3) Any person desiring to propose a standard or regulation differing from the standard or regulation proposed by the Commission shall email one PDF version of such other written proposal and, in accordance with the notice of proposed rulemaking may be required to provide paper copies thereof to the Commission as part of a prehearing statement in accordance with section 21.3 , or, if party status is not applied for, by submission to the Commission Office prior to the prehearing conference. When on file, such proposal shall be open for public inspection.4) Witnesses at the hearing shall be subject to cross-examination by or on behalf of the Commission or its staff, by or on behalf of persons who have proposed standards or regulations pursuant to paragraph (3) of this subsection, and by or on behalf of persons who have obtained party status to the proceeding.5) Except in written-comment-only rulemaking proceedings pursuant to section 21.3 of these rules, in any proceeding under this subsection M the Commission shall provide interested persons the opportunity to participate as parties to the proceedings. The notice, procedures, and requirements for party status shall be the same in this regard as specified in section 21.4 of this regulation for adjudicatory hearings.6) In any hearing regarding the classification of state waters or the promulgation of water quality standards, the Commission may not designate a hearing officer. Only the Commission or a committee of the Commission may conduct any such hearing.7) Triennial review for any regulation (required by statute) shall commence with a public informational hearing or hearings, as determined by the Commission. Requests for changes in stream classifications and water quality standards shall be submitted to appropriate 208 planning agencies for review prior to a determination to act on any such request as required by section 21.3(B)(2)(c).N.Emergency Rules1) A temporary or emergency rule may be adopted without compliance with the procedures prescribed in this section and with less than 20 days notice (or where circumstances imperatively require, without notice) where the Commission finds that immediate adoption of the rule is imperatively necessary to comply with a state or federal law or federal regulation or for the preservation of public health, safety, or welfare and compliance with the requirements of this section would be contrary to the public interest. Such findings and a statement of the reasons for the action shall be published with the rule. A temporary or emergency rule shall become effective on adoption or on such later date as is stated in the rule, shall be published promptly, and shall have effect for not more than three months from the adoption thereof, unless made permanent by compliance with this section; provided, that any emergency rule relating to water quality classifications or standards or control regulations may be effective for a specified period longer than three months, but not longer than one year, if the Commission determines that such longer period is necessary to complete rulemaking pursuant to section 24-4-103, C.R.S., to reconsider the emergency rule.2) Pursuant to section 25-8-208, C.R.S. the Commission may conduct emergency rulemaking in accordance with section 24-4-103(6), C.R.S. to consider the adoption of an interim water quality standard to apply in place of an existing water quality standard for a specified period of time, not to exceed one year, whenever the Commission finds, in its discretion, that the petitioner has established exigent circumstances which warrant the emergency action.38 CR 07, April 10, 2015, effective 4/30/201540 CR 07, April 10, 2017, effective 4/30/2017