5 Colo. Code Regs. § 1002-21.39
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 this rulemaking, the Commission added language to the Procedural Rules acknowledging the Commission's statutory authority regarding On-site Wastewater Treatment Systems.
The Commission eliminated "mailing list status" in rulemaking hearings, because, with hearing documents readily available online, there is no longer a need to provide special accommodations for those who wish to monitor rulemaking hearings.
The Commission decided to streamline the requirements for exchange of documents among parties in rulemaking hearings. Because all submittals are posted on the Commission's web site and easily accessible, parties will no longer be required to email their documents to all parties to the rulemaking. Rather, their submission of electronic (PDF) versions of their documents to the Commission office will suffice. Unless the notice of rulemaking specifies otherwise, however, parties will continue to provide paper copies of their documents to the Department's mail room by the dates specified in the notice.
New provisions were added regarding the submission of data in rulemaking hearings. Where a party's or governmental entity's position or proposal is based in part on analysis of water quality data, the party or governmental entity will be required to submit its analysis of the data and a description of the data upon which the analysis is based, but will not be required to submit the raw data into the hearing record. However, the party or governmental entity will be required to provide an electronically manipulable copy of the data to the Division and make it available to parties upon request. If the Division or any party or governmental entity chooses to submit some or all of the data into the hearing record, the data must be provided to the Commission office in PDF format to accommodate the State standards for retained electronic records.
Section 21.3 was modified to align with revisions to the APA.
The Commission adopted a new subsection 21.4 and section 21.18 to explicitly reflect that appeals of final TMDLs are to be heard by the Commission. Such appeals may be filed with the Commission after a determination is made by the Division. 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." There has been some uncertainty regarding what constitutes the Division's "determination" of final TMDLs that triggers the right to appeal. The Division will develop a TMDL, provide public notice of a draft TMDL and an opportunity for public comment, prepare a response to those comments, make modifications to the TMDL as appropriate, and finalize the TMDL. The Division will then publish the final TMDL in the Water Quality Information Bulletin. The publication of the final TMDL in the Bulletin will constitute the Division's "determination" triggering the appeal period pursuant to C.R.S. § 25-8-202(1)(k). If no appeal is filed within the statutory timeframe, the Division will submit the final TMDL to EPA for approval. If an appeal is timely filed, it shall be heard in accordance with section 105 of the APA and section 21.4 of this regulation, except that notice of any adjudicatory hearing shall also be provided to all dischargers with Waste Load Allocations in the TMDL and to the proponent of a third-party TMDL. The Division will not submit the final TMDL to EPA until 30 days after the Commission's decision regarding any appeal.
PARTIES TO THE RULEMAKING HEARING
5 CCR 1002-21.39