5 Colo. Code Regs. § 1002-21.4

Current through Register Vol. 47, No. 20, October 25, 2024

Section 5 CCR 1002-21.4 - Adjudicatory Procedures

A.Applicability

1) In order to assure that all parties to any formal adjudicatory proceeding of the Commission or the Division are accorded due process of law, the provisions of this section shall be applicable, except in the event of a conflict with the specific provisions of this regulation applicable to special adjudicatory proceedings, (section 21.6 et seq.) in which case the latter shall prevail.

2) The Commission shall provide the opportunity for a formal public adjudicatory hearing in the following cases:

a) Appeals of variance decisions made by the Division pursuant to section 25-8-401(5), C.R.S. which do not involve discharge permit conditions required by the federal Clean Water Act (Federal Act), including but not limited to conditions required by control regulations but not mandated by the Federal Act, except where a hearing on such appeal is denied by the Commission pursuant to section 21.9 of this regulation;

b) Appeals of the determination of civil penalties for violations of the Act or any control regulation promulgated pursuant to the Act by the Executive Director or his/her designee pursuant to section 25-8-608, C.R.S., except for penalties;

(i) for violations of surface water discharge permits or portions thereof;

(ii) for discharging to surface waters without a permit; or

(iii) for engaging in activities without a surface water discharge permit when such a permit is required.

c) Appeals of decisions of the Division concerning approval of the site locations or designs of domestic wastewater treatment works pursuant to section 25-8-702, C.R.S;

d) Appeals of decisions with respect to 401 certifications, pursuant to section 25-8-302(1)(f), C.R.S.;

e) Appeals of final determinations by the Division on notices of alleged violations, pursuant to section 21.11 of these rules, except for alleged violations:

(i) of surface water discharge permits or portions thereof;

(ii) for discharging to surface waters without a permit; or

(iii) for engaging in activities without a surface water discharge permit when such a permit is required.

f) Appeals of final antidegradation review determinations by the Division, pursuant to section 21.16 of these rules;

g) Appeals of final decisions by the Cherry Creek Basin Water Quality Authority pursuant to Regulation #72, 5 CCR 1002-72 and , where specifically provided for in other State reservoir control regulations, appeals of final determinations by the Division regarding modifications to point source phosphorus allocations or concentrations (through trades, transfers, or withdrawals from reserve/emergency pools);

h) Appeals of the determination of civil penalties for violations of the Colorado drinking water statutes and Primary Drinking Water Regulations, pursuant to section 25-1-114.1, C.R.S.;

i) Appeals of final determinations of the Division on enforcement orders, violations of orders, and other determinations made pursuant to the Colorado Primary Drinking Water Regulations. Because appeals of such matters are first heard by the Division pursuant to subsection (3)(e) below, the Commission's review will be limited to record review of the Division's final determination;

j) Hearings concerning Division determinations regarding self-evaluation disclosures pursuant to section 25-1-114.5(5), C.R.S.; and k) Appeals of determinations by the Division concerning final Total Maximum Daily Loads ("TMDLs") pursuant to 5 CCR 1002-93 and section 21.18 of these rules.

3) The Division shall provide the opportunity for a formal public adjudicatory hearing in the following cases:

a) Adjudications of discharge permits issued pursuant to section 25-8-501 through 504, C.R.S. including major permit modifications as specified in section 21.7 (B) of this regulation.

b) Appeals of the determination of civil penalties shall be heard by the Executive Director or his/her designee, pursuant to section 25-8-608, C.R.S. for:

(i) violations of any surface water discharge permit or portions thereof;

(ii) discharging to surface waters without a permit; or

(iii) engaging in activities without a surface water discharge permit when such a permit is required.

c) Upon request of the permit applicant or permittee or any aggrieved person, review of technology-based effluent limitations based on best professional judgment, in accordance with section 24-4-105, C.R.S., these Procedural Rules and section 61.7 of the Colorado Discharge Permit System Regulations, 5 CCR 1002-61. Said hearing shall be held as part of a hearing requested to challenge the conditions of the permit under section 21.7 of this regulation. The necessity of effluent limitations based on best professional judgment, as well as the reasonableness of the effluent limitation, considering all the factors enumerated in section 61.8(2)(a)(ii) of the permit regulations (5 CCR 1002-61), must be supported by substantial evidence.

d) Notices of alleged violations, pursuant to sections 25-8-602 and 603, C.R.S., for:

(i) violation of an order, permit, or control regulation;

(ii) discharging to state waters without a permit; or

(iii) engaging in activities without a surface water discharge permit when such a permit is required.

e) Reviews of determinations made pursuant to the Colorado Primary Drinking Water Regulations including:

i) violations cited in enforcement orders;

ii) denials and revocations of integrated system applications and approvals;

iii) denials of plans and specifications;

iv) compliance schedules for exemptions and variances from maximum contaminant levels;

v) approvals and denials of variances and exemptions; and vi) denials and revocations of disinfection waivers.

B.Requests for Adjudicatory Hearings

1) All requests for adjudicatory hearings must be timely filed pursuant to this regulation and applicable statutory requirements (see, e.g., 5 CCR 1002-61 Colorado Discharge Permit System Regulations, 5 CCR 1002-22 Procedural Regulations for Site Applications for Domestic Wastewater Treatment; section 25-8-603, C.R.S. regarding notices of violation; 5 CCR 1003-1 Primary Drinking Water Regulations.)

2) All requests for adjudicatory hearings shall contain the following information:

a) Identification of the person(s) requesting the hearing and the subject matter of the request;

b) The statutory and regulatory authority that forms the basis for the request;

c) The basis upon which the applicant believes the Commission or the Division has committed error with respect to the subject matter of the request; and d) An estimate of the time that will be required for the hearing.

C.Notice

1) All formal adjudicatory hearings of the Commission and the Division shall be preceded by written notice thereof in accordance with the requirements of this section.

2) Any person entitled to notice of a hearing, including the petitioners, those persons on the mailing list maintained by the Division pursuant to section 25-8-302(1)(e) C.R.S., and any person requesting notice as to a particular matter, shall be given timely notice of the time, place, nature of the hearing, and legal authority and jurisdiction under which it is to be held, and the matters of fact and law asserted.

3) Unless otherwise provided by law, such notice shall be served personally, by email, or by mailing by first-class mail to the last address furnished the Commission or the Division by the person to be notified, at least 20 days prior to the hearing.

4) In fixing the time and place for a hearing due regard shall be had for the convenience and necessity of the parties and their representatives.

5) Public notice may contain requirements with respect to special procedures, including requirements for written testimony, which the Commission or the Division deems appropriate as to any particular adjudicatory proceeding.

6) An amended notice may be issued by the Commission or the Division 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 party. If an amendment is substantial and prejudicial, the hearing date shall be continued to an appropriate date as determined by the Commission or the Division.

7) The Commission or the Division 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 Status

1) The notice issued pursuant to section 21.4 of this regulation shall prescribe a date by which application for party status shall be filed, which will not be less than 15 days prior to the hearing. Thereafter application to be made a party shall not be granted except upon motion and for good cause shown. Any person who requests an adjudicatory hearing shall be granted party status and need not apply therefor.

2) A person who may be affected or aggrieved by the agency action shall be admitted as a party to the proceeding upon filing a timely written request. One original, email attachment or fax of each party status request shall be submitted in accordance with the requirements of this subsection.

3) Application to be made a party shall set forth a brief and plain statement of the reasons for seeking party status, the facts which entitle such person to be admitted, and the matters which such person claims should be decided. In addition it should contain a description of the general nature of the evidence to be presented in the course of the proceedings.

4) Party status may be granted by the Commission or its designee, or by the Division or its designee. Party status may be granted at the prehearing conference or other appropriate time prior to the hearing.

5) The Division shall automatically be a party in adjudicatory proceedings before the Commission in which it participates. In hearings held by the Division, whether or not conducted by a hearing officer as provided in section 25-8-401(4) C.R.S., the Division shall not be a party; however staff of the Division may participate as if an adversary in any such proceedings, with all the rights of a party, upon approval of the person conducting the hearing, when it is deemed appropriate for the establishment of an adequate record.

6) Nothing in this subsection shall prevent the Commission or the Division from admitting any person as a party to any proceedings for limited purposes.

E.Prehearing Conference

1) The Commission or the Division may specify in the notice of hearing that a prehearing conference will be held. If not, any person who has applied to become a party may request in writing a prehearing conference to be held not less than 10 days in advance of the hearing unless otherwise determined by the Commission or the Division or by their respective designees.

Notice of any such request shall be served upon all other persons who have applied to become parties. A duly appointed committee of the Commission, the Administrator or the chairperson of the Commission, the Division director, or a duly-appointed hearing officer may preside at any prehearing conference.

2) Seven days prior to any prehearing conference, or at such other time as stated in the hearing notice, each party or applicant for party status shall provide one PDF version of a prehearing statement to every other party or applicant for party status, (one copy to the hearing officer, as appropriate), and for hearings before the Commission, to the Commission, the Assistant Attorney(s) General, and the Director of the Water Quality Control Division. In addition, each party or applicant for party status may be required to provide paper copies to the Commission Office in the number and by the deadline established in the hearing notice. The prehearing statement shall contain the following:

a) A specific statement of the factual and legal claims asserted;

b) Copies of all exhibits to be introduced at the hearing;

c) A list of witnesses to be called and a brief description of their testimony, or written testimony for each witness if required by the hearing notice;

d) Proposed findings of fact and conclusions of law, unless a later date for this submission is specified in the hearing notice.

The notice may specify separate deadlines for submission of prehearing statements and rebuttal statements by proponents and opponents of an appeal.

3) The object of the prehearing conference may include the formulation of stipulations respecting the issues to be raised, and witnesses and exhibits to be presented by the parties. The parties 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. A prehearing order shall be prepared by the person conducting the prehearing conference, or at his/her direction by any party, based upon the prehearing conference, which shall reflect any ruling made by the Commission or the Division with respect to procedures to be followed at the hearing or any other matter.

4) Any additional documentation to be submitted after the prehearing conference as permitted by this regulation shall be delivered to the Commission Office within 5 working days after the prehearing conference unless otherwise provided in the notice of hearing or by the chairperson of the prehearing conference.

F.Motions

The Commission or the Division may require that as part of the prehearing conference or otherwise, parties shall submit in advance of the hearing all motions or requests for rulings that a party intends to make with respect to the proceedings. These may include motions regarding procedures, the scope and nature of the proceedings, or any other matter that requires a determination by the Commission or the Division prior to final agency action based on the record, or any matter that may reasonably be disposed of by the Commission or the Division prior to the receipt of 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.Discovery

1) The Commission or its staff, the Division or any party to an adjudicatory hearing may take depositions and fix the time and place therefor. Such persons may also engage in the other forms of discovery provided by the Colorado rules of civil procedure, to the extent that time is available prior to the hearing for such discovery.

2) The Commission, the Division, or a duly-appointed designee may dispose of motions relating to discovery.

3) Discovery shall be completed no later than five days prior to the hearing date, except as otherwise ordered by the Commission, the Division, or a duly-appointed designee. Any notice of hearing issued in accordance with section 21.4 shall be valid, and the hearing may proceed, regardless of whether the period between notice and hearing is sufficient to enable all discovery to be completed.

H.Subpoenas

Subpoenas shall be issued without discrimination between public and private parties by the Commission or the Division. 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 or the Division 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 a court of record.

I.Hearing Officers

1) The Commission or the Division 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 of, or the Administrator of, the Commission, except that no person engaged in conducting a hearing or participating in a decision or an initial decision shall be responsible to or subject to the supervision or direction of any officer, employee, or agent engaged in the performance of investigatory or prosecuting functions for the agency.

2) Upon the filing in good faith by a party of a timely and sufficient affidavit of personal bias of a decision-maker the hearing officer, the Commission or the Division shall forthwith rule upon the allegations in such affidavit as part of the record in the case. A hearing officer may at any time withdraw for good cause shown in which case another hearing officer may be assigned to continue the case, and he/she shall do so in such manner that no substantial prejudice to any party results therefrom. A member of the Commission, the Division employee conducting a hearing, or the Administrator of the Commission if conducting a hearing, may withdraw for any like reason and in like manner, unless such withdrawal makes it impossible for the agency to render a decision.

J.Conduct of Hearings

1) The Commission or the Division or any duly authorized designee conducting a hearing shall have authority to administer oaths and affirmations; sign and issue subpoenas; rule upon offers of proof and receive evidence; dispose of motions relating to the discovery and production of relevant documents and things for inspection, copying, or photographing; regulate the course of the hearing, set the time and place for continued hearings, and fix the time for the filing of briefs and other documents; direct the parties to appear and confer to consider the simplification of the issues, admissions of fact or of documents to avoid unnecessary proof, and limitation of the number of expert witnesses; issue appropriate orders which shall control the subsequent course of the proceedings; dispose of motions to dismiss for lack of agency jurisdiction over the subject matter or parties or for any other ground; dispose of motions to amend or to dismiss for lack of agency jurisdiction over the subject matter or parties or for any ground; dispose of motions to amend or to dismiss without prejudice applications and other pleadings; dispose of motions to intervene, procedural requests, or similar matters; reprimand or exclude from the hearing any person for any improper or indecorous conduct in his or her presence; award attorney fees for abuses of discovery procedures or as otherwise provided under the Colorado rules of civil procedure; and take any other action authorized by this rule consistent with the APA or in accordance, to the extent practicable, with the procedure in the district courts. All parties to the proceeding shall also have the right to cross-examine witnesses who testify at the proceeding. In the event more than one person engages in the conduct of a hearing, such persons shall designate one of their members to perform such of the above functions as can best be performed by one person only, and thereafter such person only shall perform those functions which are assigned to him or her by the several persons conducting such hearing.

2) All parties to the proceeding shall have the right to cross-examine witnesses who testify at the proceeding to the extent necessary for a full and true disclosure of the facts, and to make objections at the proceedings.

3)

a) In hearings before the Commission or the Division with respect to any alleged violation of a control regulation, permit or order, or the imposition of a civil penalty, the burden of proof shall be upon the Division;

b) In hearings on orders or determinations of the Division concerning 401 certifications under section 25-8-302(1)(f) C.R.S., variances, site locations, the design of domestic wastewater treatment works, or TMDLs, the burden of proof shall be upon the person requesting the hearing;

c) In hearings on variance decisions by the Division which do not involve discharge permit conditions required by the Federal Act, the variance applicant shall bear the burden of proof;

d) In hearings on discharge permits, the burden of proof shall be assigned in accordance with the requirements of section 61.7 of the Colorado Discharge Permit System Regulations, 5 CCR 1002-61.

4) Every party to the proceeding shall have the right to present its case or defense by oral and documentary evidence and to submit rebuttal evidence. Where a hearing will be expedited and the interests of the parties will not be substantially prejudiced thereby, a person conducting a hearing may receive all or part of the evidence in written form.

5) The rules of evidence and of civil procedure and requirements of proof shall conform, to the extent practicable, with those in civil nonjury cases in the district courts. However, when necessary to do so in order to ascertain facts affecting the substantial rights of the parties to the proceedings, the person so conducting the hearing may receive and consider evidence not admissible under such rules if such evidence possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs. Objections to evidentiary offers may be made and shall be noted in the record. The person conducting a hearing shall give effect to the rules of privilege recognized by law. He or she may exclude incompetent and unduly repetitious evidence. Documentary evidence may be received in the form of a copy or excerpt if the original is not readily available, but, upon request, the party shall be given an opportunity to compare the copy with the original.

6) The Commission or the Division may utilize its experience, technical competence, and specialized knowledge in the evaluation of the evidence presented to it.

7) The Commission or the Division may take notice of general, technical, or scientific facts within its knowledge, but only if the fact so noticed is specified in the record or is brought to the attention of the parties before final decision and every party is afforded an opportunity to controvert the fact so noticed.

8) Any party, or the agent, servant, or employee of any party, permitted or compelled to testify or to submit data or evidence shall be entitled to the benefit of legal counsel of his or her own choosing and at his or her own expense, but a person may appear on their own behalf. An attorney who is a witness may not act as counsel for the party calling him or her as a witness. Any party, upon payment of a reasonable charge therefor, shall be entitled to procure a copy of the transcript of the record or any part thereof. Any person permitted or compelled to testify or to submit data or evidence shall be entitled to the benefit of legal counsel of his or her own choosing and, upon payment of a reasonable charge therefor, to procure a copy of the transcript of his or her testimony if it is recorded.

9) Prompt notice shall be given of the refusal to accept for filing or the denial in whole or in part of any written applications or other request made in connection with any agency proceeding or action, with a statement of the grounds therefor.

10) The hearing officer shall cause the proceedings to be recorded by a reporter or by an electronic recording device. When required, the hearing officer shall cause the proceedings, or any portion thereof, to be transcribed, the cost thereof to be paid by the agency when it orders the transcription or by any party seeking to reverse or modify an initial decision of the hearing officer. If the agency acquires a copy of the proceedings, its copy of the transcription shall be made available to any party at reasonable times for inspection and study.

11) The presiding officer may allow the parties to submit evidence not previously submitted under prehearing conference procedures, but only for good cause shown, such as where necessary for purposes of rebuttal.

12) All hearings shall be conducted in the following order unless otherwise directed by the Commission or its designee:

a) Call to order, introductory remarks, and action on applications for party status;

b) Presentation of any stipulations or agreements of the parties, prehearing statements, proposed findings of fact, proposed conclusions of law, the prehearing order, and any other matter which was addressed at the prehearing conference;

c) Opening statements by the party upon who the burden of proof rests;

d) Opening statements by all other parties;

e) Presentation of case-in-chief by party upon whom burden of proof rests;

f) Presentation by all other parties wishing to offer evidence in the order to be determined by the chairperson or the presiding officer at the hearing;

g) Rebuttal by the party upon whom the burden of proof exists;

h) Closing statement by party upon whom the burden of proof rests;

i) Closing statements of all other parties;

j) At the conclusion of any witness' testimony, or at the conclusion of the party's entire presentation, as may be determined by the hearing officer, chairperson, or presiding officer, all other parties may then cross examine such witness or witnesses. The order of cross-examination shall be determined by the hearing officer, chairperson or the presiding officer. The Commission or the Division by themselves or through counsel may examine any witness called by any party;

k) At the discretion of the hearing officer, chairperson, or presiding officer, any person, not a party to the proceedings who wishes to present testimony may do so by indicating his or her desire in writing. A sign-up form will be available prior to and during the hearing. Voluntary testimony not specifically requested per the written form may still be allowed. The parties shall be given an opportunity to respond to non-party evidence in a manner deemed appropriate by the presiding officer to avoid prejudice;

l) All briefs and memoranda of law which counsel choose to file shall be served on the Commission, Division, or their designees and all parties and persons who have applied for party status five (5) days prior to the hearing, unless otherwise specified.

13) No ex parte communications with or by the trier of fact or its designee may occur during the pendency of an adjudicatory proceeding, but the Commission or the Division by letter, copy to all parties, may request that certain information be provided to them or that certain tasks shall be performed.

14) The agency, after receipt of the evidence, may allow or require parties to present oral or written summations of the facts and the law, or both, either at the hearing or subsequent thereto, as deemed appropriate.

K.Final Agency Action

1) The agency shall proceed with reasonable dispatch to conclude any matter presented to it with due regard for the convenience of the parties or their representatives, giving precedence to rehearing proceedings after remand by court order.

2) The decision by the agency or initial decision by a hearing officer shall be based on the record. The record shall include: All pleadings, applications, evidence, exhibits and other papers presented or considered, matters officially noticed, rulings upon exceptions, any findings of fact and conclusions of law proposed by any party, and any written brief filed.

3) In any case in which the agency has conducted the hearing, the agency shall prepare, file, and serve upon each party its decision. In any case in which a hearing officer has conducted the hearing, the hearing officer shall prepare and file an initial decision which the agency shall serve upon each party, except where all parties with the consent of the agency have expressly waived their right to have an initial decision rendered by such hearing officer. Each decision and initial decision shall include a statement of findings and conclusions upon all the material issues of fact, law, or discretion presented by the record and the appropriate order, sanction, relief, or denial thereof. In the absence of an appeal to the agency by filing exceptions within thirty days after service of the initial decision of the hearing officer upon the parties, unless extended by the agency, or a review upon motion of the agency within thirty days after service of the initial decision of a hearing officer, every such initial decision of a hearing officer shall thereupon become the decision of the agency. In such case the evidence taken by the hearing officer need not be transcribed.

4) Any party who seeks to reverse or modify the initial decision of the hearing officer shall promptly file with the agency a designation of the parts of the transcript of the proceedings which shall be prepared and advance the cost thereof. A copy of this designation shall be served on all parties. Within 10 days thereafter, any other party or the agency may also file a designation of additional parts of the transcript of the proceedings which is to be included and advance the cost therefor. The transcript or the parts thereof which may be designated by the parties or the agency shall be prepared by the reporter or, in the case of an electronic recording device, the agency and shall thereafter be filed with the agency. No transcription is required if the agency's review is limited to a pure question of the law. The agency may permit oral argument. The grounds of the decision shall be within the scope of the issues presented on the record. The record shall include all matters constituting the record upon which the decision of the hearing officer was based, the rulings upon the proposed findings and conclusions, the initial decision of the hearing officer, and any other exceptions and briefs filed.

5) The findings of evidentiary fact, as distinguished from ultimate conclusions of fact, made by the hearing officer shall not be set aside by the agency on review of the hearing officer's initial decision unless such findings of evidentiary fact are contrary to the weight of the evidence. The agency may remand the case to the hearing officer for such further proceedings as it may direct, or it may affirm, set aside, or modify the order of any sanction or relief entered therein, in conformity with the facts and the law.

An order, permit, sanction, relief, or the equivalent or denial thereof which constitutes final agency action shall include a list of all parties to the agency proceeding and shall specify the date on which the action becomes effective.

6) Each decision and initial decision shall be served on each party by personal service or by mailing by first-class mail to the last address furnished the agency by such party and shall be effective as to such party on the date mailed or such later date as is stated in the decision.

5 CCR 1002-21.4

38 CR 07, April 10, 2015, effective 4/30/2015

40 CR 07, April 10, 2017, effective 4/30/2017