5 Colo. Code Regs. § 1002-21.37
The provisions of sections 25-8-202 and 401 provide the specific statutory authority for adoption of these regulatory requirements. The Commission also adopted the following statement of basis and purpose.
BASIS AND PURPOSE
In 2007 the Commission adopted new procedural rules regarding appeals of certain Division determinations. The revised rules reflected an attempt to reconcile conflicting statutory provisions within the Colorado Water Quality Control Act. While the amended rules did address the statutory conflict, the current interpretation of the statutory provisions has led to additional confusion regarding appeals procedures, including unwieldy bifurcation of appeals proceedings. Accordingly, the Commission is adopting revisions to the procedural regulations to clarify, improve and streamline the appeals process.
There are three key statutory provisions that have created the current state of affairs. First, C.R.S. § 25-8-202(1)(k) states: "The commission shall...act as an appellate body to review all determinations by the division except those determinations dealing with surface water discharge permits or portions thereof." Second, C.R.S. § 25-8-603 provides that appeals of notices of violation (NOVs) for violations of orders, permits or control regulations shall be heard by the Division. Third, C.R.S. § 25-8-608 provides that the Division makes a final decision regarding penalties, and such decisions may be appealed to the Commission, without making a distinction for penalties associated with permit violations. Together, these provisions create a conflict and in some instances provide for two administrative hearings, and in other instances they may result in bifurcated proceedings.
Prior to 2007, the phrase "dealing with permits" from Section 202(1)(k) was interpreted to include not only the issuance of permits (and any renewals, modifications or appeals thereof), but also violations of a surface water discharge permit and violations for discharging without a permit. Under that interpretation, the Commission was essentially prevented from hearing appeals of all enforcement proceedings, whether the alleged violator had a permit or not.
Since 2007, the phrase "dealing with permits" has been interpreted to exclude violations for discharging without a permit. In 2007, the Commission amended its procedural regulations (21.4(A)(2) and (3), 21.11, and 21.12) to reflect this interpretation. Appeals of recent enforcement cases have revealed unanticipated complications with this approach. When the Division takes enforcement action against a party both for discharging without a permit as well as violations of a permit, and the party appeals violations and/or penalties associated with both, the current regulations result in the matter being bifurcated. The portion "dealing with" violations of a surface water discharge permit is subject to hearing by the Division, and the portion not dealing with a permit (i.e., failure to have a permit) is subject to hearing by the Commission. In addition to the bifurcation issue, the current regulations create the questionable result that a party with a permit is entitled to only one administrative hearing while a party which has failed to obtain a permit is entitled to two administrative hearings.
Both interpretations of the phrase "dealing with permits" are defensible. In order to clarify and streamline the appeals process, the Commission is adopting new procedural regulations essentially reverting back to the interpretation that existed prior to 2007, wherein the phrase "dealing with permits" is interpreted broadly such that the Commission is prohibited from hearing an appeal of an enforcement action for discharges to surface water or for penalties associated therewith. The Commission is also adopting regulations specifying that appeals of enforcement actions for the failure to obtain a stormwater permit when one is required are heard by the Division. See 21.4.A(2)(b)(iii), 21.4.A(2)(e)(iii),21.4.A(3)(b)(iii), and 21.4.A(3)(d)(iii). These regulatory amendments are not intended to change the appeals process for any other type of Division determinations that are heard by the Commission, such as notices of violation and/or penalties for discharges to groundwater with or without a permit.
The Commission is also adopting regulations specifying that hearings concerning Division determinations regarding self-evaluation disclosures are heard by the Commission, pursuant to C.R.S. § 25-1-114.5(5).
The regulation was amended to reduce the number of copies required to be submitted of a request for party status in an adjudicatory hearing.
The Commission also amended the provisions regarding publication of notices of rulemaking to be consistent with legislative changes made to the Administrative Procedures Act.
PARTIES TO THE RULEMAKING HEARING
5 CCR 1002-21.37