2 Colo. Code Regs. § 404-1-510

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

Section 2 CCR 404-1-510 - HEARINGS

a. The Applicant, as the proponent of the order, has the burden of proof. Any party to the proceeding has the right to present its case or defense, including any affirmative defenses, by oral and documentary evidence, submit rebuttal evidence, and to conduct cross examination as the Commission, Administrative Law Judge, or Hearing Officer determines is required for the full and true disclosure of the facts.

b. No application may be heard until the Applicant has complied with all notice, evidentiary, and other application requirements set forth in the Commission's Rules.

c. A case management order, issued by the Commission, Administrative Law Judge, or Hearing Officer, will govern all hearings, including rulemaking hearings.

d.Administrative Hearings in Uncontested Applications.

(1) As to applications where there has been no petition filed with the Commission pursuant to Rule 507, and where the Administrative Law Judge or Hearing Officer has not issued a written recommended order approving the application, the application may be heard administratively. The date and time of the administrative hearing will be scheduled for the mutual convenience of the Applicant and the Administrative Law Judge or Hearing Officer. The administrative hearing may be conducted prior to the date a petition filed pursuant to Rule 507.d is filed, but no recommended order will issue until the Administrative Law Judge or Hearing Officer has fully considered any timely and properly filed petition.

(2) An Administrative Law Judge or Hearing Officer may hear the application at the administrative hearing. Administrative hearings will proceed informally in a meeting format. The Applicant may present its case using exhibits and witnesses. All witnesses will be sworn. At the conclusion of the administrative hearing, the Administrative Law Judge or Hearing Officer will make a decision concerning approval or denial of the application and so inform the Applicant. The Administrative Law Judge or Hearing Officer will put such decision in a written report to the Commission containing findings of fact, conclusions of law, if any, and a recommended order. If the Administrative Law Judge or Hearing Officer's recommended order is a denial or qualified approval of the application, the Applicant will be entitled to file an exception.

e.Hearings in Contested Applications. Every party will have the right to present its case at hearing by oral and documentary evidence. A case management order, issued by the Commission, Administrative Law Judge, or Hearing Officer, will govern the hearing of a contested application.

f.Order Finding Violation Hearing.

(1) An OFV hearing will be held before the Commission, Administrative Law Judge, or Hearing Officer when:

A. The enforcement matter cannot be resolved through an Administrative Order by Consent ("AOC"); and

B. For any enforcement actions governed by Rule 525.d.(1).

(2) OFV hearings for enforcement actions not governed by Rule 525.d.(1) are commenced by service of the NOAV and Notice and Application for Hearing. The Director is not required to file a separate application for an OFV hearing. An OFV hearing will commence on the date stated in the Notice and Application for Hearing, unless continued by the Commission, Administrative Law Judge, or Hearing Officer.

(3) The Commission may commence an OFV hearing on its own motion, with notice pursuant to Rule 504, if it believes the Director has failed to enforce a provision of the Act, or a Commission Rule, order, or permit.

(4) OFV hearings are de novo proceedings.

g.Hearing on Complainant's Petition for Review.

(1) The Commission's hearing on a complainant's Petition for Review pursuant to Rule 524.c will be limited to evidence and information entered into the record prior to the Director's contested decision, and any evidence or information received and considered by the Director following an order from the Commission, Administrative Law Judge, or Hearing Officer. No party to the Petition for Review hearing may present evidence or information that was not previously presented to the Director.

(2) It is the complainant's burden to show the Director's action was clearly erroneous.

A. If the Commission, Administrative Law Judge, or Hearing Officer finds that the Director's action was clearly erroneous, they may remand the matter to the Director for further proceedings, or order other such relief deemed just and reasonable.

B. If the complainant fails to meet its burden, the Commission, Administrative Law Judge, or Hearing Officer will deny the Petition for Review, and act on the final proposed AOC pursuant to Rule 523.d.(1).C.

h.Rulemaking Hearings. All rulemaking proceedings will be held pursuant to Rule 529.

i.Witnesses. Any witness at a hearing will take an oath or affirmation before testifying. After a witness has testified, the Applicant, the petitioner, and any Commissioner may cross-examine that witness in the order established by the chairperson of the Commission. If the hearing is before an Administrative Law Judge or Hearing Officer, the Administrative Law Judge or Hearing Officer may ask questions during or after witness testimony, or cross-examine the witness.

j.Limitations of Testimony.

(1) Testimony and cross-examination by a petitioner will be limited to those issues that reasonably relate to the interests that the petitioner seeks to protect, and which may be adversely affected by an order of the Commission, as determined by the Commission, Administrative Law Judge, or Hearing Officer.

(2) Where two or more petitioners have substantially similar interests and positions, the Commission, Administrative Law Judge, or Hearing Officer may limit cross-examination or argument on motions and objections to fewer than all petitioners. The Commission may also limit testimony to avoid undue delay, waste of time, or needless presentation of cumulative evidence.

k.Closing of Record. At the conclusion of closing statements, the record will be closed to the presentation of any further evidence, testimony, or statements, except as such may occur in response to questions from the Commission, Administrative Law Judge, or Hearing Officer.

l. The Commission, Secretary, Administrative Law Judge, or Hearing Officer may for good cause cancel, stay, or continue any hearing to another date. Upon continuance of a hearing, the deadline for filing a petition to contest an application pursuant to Rule 507, or any other required deadline under the Commission's Rules, maybe extended for good cause by the Commission, Administrative Law Judge, or Hearing Officer.

m. When a Commission hearing is scheduled for multiple days the Secretary may estimate the time and date that a given matter may be heard by the Commission. The Commission may, in its discretion, change the proposed hearing docket, including the time or date of any scheduled hearing. It will be the responsibility of the participating parties and attorneys to be present when the Commission hears the matter.

2 CCR 404-1-510

37 CR 16, August 25, 2014, effective 9/30/2014

38 CR 01, January 10, 2015, effective 2/14/2015

38 CR 03, February 10, 2015, effective 3/2/2015

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

38 CR 16, August 25, 2015, effective 9/14/2015

39 CR 04, February 25, 2016, effective 3/16/2016

41 CR 05, March 10, 2018, effective 4/1/2018

41 CR 06, March 25, 2018, effective 5/1/2018

41 CR 23, December 10, 2018, effective 12/30/2018

42 CR 02, January 25, 2019, effective 2/14/2019

42 CR 17, September 10, 2019, effective 9/30/2019

42 CR 24, December 25, 2019, effective 1/14/2020

43 CR 17, September 10, 2020, effective 9/30/2020

43 CR 13, July 10, 2020, effective 11/2/2020

43 CR 24, December 25, 2020, effective 1/15/2021

45 CR 07, April 10, 2022, effective 4/30/2022

45 CR 09, May 10, 2022, effective 5/30/2022

45 CR 13, July 10, 2022, effective 7/30/2022