5 Colo. Code Regs. § 1002-21.33
The provisions of section 25-8-202(1) and 25-8-401(2), C.R.S. provide the specific statutory authority for adoption of these regulatory amendments. The Commission also adopted the following statement of basis and purpose.
BASIS AND PURPOSE
Numerous revisions to the Procedural Rules were adopted in this hearing, with the overall goal making corrections and clarifications to the rules, and implementing refinements to assure that the rules are consistent with the Commission's evolving practice. The majority of the revisions adopted are corrections of clerical errors or editorial refinements of existing provisions. Other principal changes are described below.
In 2000, the Commission adopted a new process and schedule for triennial reviews of surface water quality classifications and standards. In addition, after receiving input from a Water Quality Forum work group, the Commission has implemented a number of refinements to its rulemaking process for water quality classifications and standards hearings. Several revisions to the rulemaking process provisions in this regulation are being adopted to facilitate these changes. In particular:
- The revised regulation explicitly provides an option for the Commission to require sequential, rather than simultaneous, submission of prehearing statements;
- Provisions regarding written comments from those with mailing list status have been revised to provide greater flexibility as to the due date for such comments;
- Provisions regarding rebuttal statements have been revised to recognize that they may now sometimes be required prior to the prehearing conference;
- The prohibition on submitting party status requests by fax has been eliminated; and
- Additional contact information is requested from party status and mailing list status applicants.
Several changes are being adopted to the adjudicatory hearing procedures is this regulation. In particular:
- Revisions are adopted to subsection 21.4 to clarify when civil penalty appeal hearings are conducted by the Commission and by the Division. The Procedural Rules previously provided that civil penalty appeals are to be heard by the Commission. However, the current interpretation of the Attorney General's Office is that, pursuant to C.R.S. section 25-8-202(1)(k), where civil penalty assessments are "determinations dealing with surface water discharge permits or portions thereof" they are not subject to appeal to the Commission;
- Section 21.7 is revised to clarify who may appeal Division determinations regarding the issuance of discharge permits; and
- The provisions of section 21.9 regarding variances have been re-written to provide greater clarity.
To date, the Commission's practice has been that when members recuse themselves and choose not to participate in a Commission hearing, those non-participating members are still counted for purposes of determining a quorum, so long as they are still present in the room. In one instance last year, this practice was challenged as inconsistent with the provisions of subsection 21.17 of the Procedural Rules. Because this provision stated that members with an actual conflict may participate in an action to avoid the loss of a quorum, it implied that those with such a conflict normally would not be counted as part of a quorum. This section of the regulation has been revised in a manner to clarify the Commission's intent to continue its established practice described above.
Section 21.3 relates to ex parte communications during rulemaking proceedings. The interpretation of the phrase "if to be relied upon in final decision making", could be difficult to interpret in practice. This language is now changed to: "if materially related to issues raised in the rulemaking". The Commission believes that the revised language provides an easier and cleaner formulation to identify instances where disclosure is appropriate.
A second miscellaneous issue relates to the incorporation by reference provisions in section 21.3 . To assure conformance with the Administrative Procedure Act, the following changes are adopted: The initial sentence of subsection section 21.3 is revised to read"... rules without publishing the incorporated material in full only if the material has been properly identified in the notice of proposed rulemaking." Subsection 21.3 is revised to read:"... available to the public no later than the date of publication of the notice of proposed rulemaking."
5 CCR 1002-21.33