2 Colo. Code Regs. § 407-1-2

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

Rule 2 CCR 407-1-2 - BOARD MEETING - SPERMIT APPLICATION HEARINGS, DECISIONS AND APPEALS

2.1BOARD MEETINGS

2.1.1General Provisions

Except for Executive Sessions of the Board, all meetings shall be open to the public and any member of the public may, at the discretion of the Board, address the Board on any subject within the Board's jurisdiction. In the event the item is not on the agenda, no formal action may be taken by the Board until the full notice provisions in these Rules are met.

2.2NOTICE PROCEDURES FOR MEETINGS OF THE BOARD

2.2.1 Regular Board Meetings

Except as otherwise provided by law or these Rules, Public Notice of regular meetings shall be provided by the Board as follows:

(a) A minimum of ten (10) days prior to the meeting, Notice of its date, time, place, format, and agenda by:

(i) mailing or e-mailing to all persons having requested Notice of Board meetings and prepaid costs of the service, unless costs are waived for good cause, and to Operators whose Permit(s) or operation(s) may be the specific subject of consideration at the meeting;

(ii) publishing at least once in a newspaper of general circulation in the state, listing each Applicant's name, local address and the location of the affected land by section, township and range and by street address, if applicable;

(iii) posting in a conspicuous, publicly accessible location at the offices of the Office of Mined Land Reclamation, the Office Website, and in all Press Rooms of the State Legislature; and

(iv) mailing a copy of the agenda to the local newspaper in the locality of the proposed mining operation.

(b) All parties entitled to notice of the hearing, including the Applicant or Operator shall be given notice of the time, place, format, and nature thereof, the legal authority and jurisdiction under which it is to be held, and the matters of fact and law asserted. Such hearing shall be conducted pursuant to these Rules and the provisions of Section 24-4-105, C.R.S.

2.2.2Other Meetings

Public Notice of all other meetings shall be provided by the Board as prescribed in Rule(s) 2.2.1 and/or 1.12.2 except upon a Board finding that an emergency condition exists, whereupon notice shall be provided as much in advance of the meeting as possible.

2.2.3Agenda Changes or Additions

Additions or changes to the agenda after the 10-day notification may be made regarding emergency situations, and informational items. In this event, the Board will endeavor to give notification, if possible, as outlined above, and will be required to notify any Operator or individual scheduled to be heard.

2.3BOARD QUORUM

(1) Four (4) Board members shall constitute a quorum.

(2) The Board shall act by majority vote of members present, except that four (4) affirmative votes are required for any amendment of these Rules.

2.4RESERVED

2.5DECLARATORY ORDERS (Section 24-4-105, C.R.S.)

2.5.1Cause for Seeking a Declaratory Order

Any person who is or may be directly and adversely affected or aggrieved and whose interests are entitled to legal protection under the Act may petition the Board for declaratory order to terminate controversies or to remove uncertainties as to the applicability to the Petitioner of any statutory provision of or any rule or order of the Board made pursuant to the Mined Land Reclamation Act (Section 34-32-101, C.R.S. et seq.).

2.5.2Petition Submission

(1) The petition must be submitted electronically to the Board, and is served on the Office, at a minimum, ten (10) days prior to the Board meeting at which it is to be considered. At a hearing the Board may grant, deny, or continue consideration of the petition. Unless requested by the Board, all hearings for considerations of petitions shall be non-evidentiary. The Petitioner shall have the burden of proving all of the facts stated in the petition, all of the facts necessary to show the nature of the controversy or uncertainty and the manner in which the statute, rule or order in question applies or potentially applies to the Petitioner and any other facts the Petitioner desires the Board to consider.

(a) At the regularly scheduled Board meeting, the Board will determine in its discretion and without notice to Petitioner, whether to rule upon any such petition.

(b) If the Board determines that it will not rule upon such a petition, the Board shall promptly notify the Petitioner of its action and state the reasons for such action.

(2) Any petition filed pursuant to this rule shall set forth the following:

(a) the name, e-mail address and physical address of the Petitioner and whether the Petitioner is a Permittee pursuant to the Colorado Mined Land Reclamation Act;

(b) the statute, rule or order to which the petition relates;

(c) a concise statement of all of the facts necessary to show the nature of the controversy or uncertainty and the manner in which the statute, rule or order in question applies or potentially applies to the Petitioner.

2.5.3Consideration of Petition

In determining whether to grant or deny a petition filed pursuant to this Rule, the Board will consider the following matters, among others:

(a) whether a ruling on the petition will terminate a controversy or remove uncertainties as to the applicability to Petitioner of any statutory provision or rule or order of the Board.

(b) whether the petition involves any subject, question or issue which is the subject of a formal or informal matter or investigation currently pending before the Board or a court involving one or more of the Petitioners.

(c) whether the petition involves any subject, question or issue which is the subject of a formal or informal matter or investigation currently pending before the Board or a court, but not involving any Petitioner.

(d) whether the petition seeks a ruling on a moot or hypothetical question or will result in an advisory ruling or opinion.

(e) whether the Petitioner has some adequate legal remedy, other than an action for declaratory relief pursuant to Rule 57, Colorado Rules of Civil Procedure, which will terminate the controversy or remove any uncertainty as to the applicability to the Petitioner of the statute, rule or other in question.

2.5.4Procedure for Consideration

If the Board determines that it will rule on the petition the following procedures shall apply:

(a) Notice of hearing shall be provided to the Petitioner and all parties granted intervention pursuant to Rule 2.5.5 . The Board may, without further notice, rule upon the petition based solely upon the facts presented in the petition. In such a case, any ruling of the Board will apply only to the extent of the facts presented in the petition and any amendment to the petition.

(b) The Board may order the petitioner to file a written brief, memorandum or statement of position.

(c) The Board may set the petition, upon due notice to Petitioner, for a non evidentiary hearing.

(d) The Board may request the petitioner to submit additional facts, in writing. In such event, such additional facts will be considered as an amendment to the petition.

(e) The Board may take administrative notice of facts pursuant to the administrative procedure act (Section 24-4-105(8), C.R.S.) and may utilize its experience, technical competence and specialized knowledge in the disposition of the petition.

(f) If the Board rules upon the petition without a hearing, it shall within ten (10) working days notify the petitioner of its decision by electronic notice and deposit in the mail.

(g) The Board may, in its discretion, set the petition for hearing upon due notice to Petitioner, for the purpose of obtaining additional facts or information or to determine the truth of any facts set forth in the petition or to hear oral argument on the petition. The notice to the Petitioner setting such hearing shall set forth, to the extent known, the factual or other matters into which the Board intends to inquire. For the purpose of such a hearing, to the extent necessary, the Petitioner shall have the burden of proving all of the facts stated in the petition, all of the facts necessary to show the nature of the controversy or uncertainty and the manner in which the statute, rule or order in question applies or potentially applies to the Petitioner and any other facts the Petitioner desires the Board to consider.

2.5.5Party Status and Petition to Intervene

(1) The Office shall be granted party status upon request.

(2) Any other person may seek leave of the Board to intervene in such a proceeding, and leave to intervene will be granted at the sole discretion of the Board based upon the interest of the person and whether that interest is entitled to legal protection under the Act and how that person is affected or aggrieved by the petition for Declaratory Order.

(3) A petition to intervene shall set forth a concise statement of the facts necessary to demonstrate the nature of its position, and the manner in which the statute, rule or order in question does or does not apply to the Petitioner.

2.5.6Effect of a Declaratory Order

Any declaratory order or other order disposing of a petition pursuant to this Rule shall constitute agency action subject to judicial review pursuant to Section 24-4-106, C.R.S.

2.6PRE-HEARING PROCEDURES - MOTIONS, WITNESS AND EXHIBIT LISTS

The provisions of this Rule 2.6 shall apply to the Applicant and any entity that has party status for any 112, 112d, 110 ISL or 112 ISL application.

(1) All motions, except those made during a hearing, or when the Board deems an oral motion to be appropriate, shall be in writing and shall state the grounds for the motion. Motions shall be received electronically by the Board no later than two (2) Working Days following the pre-hearing conference. Any written response to a motion must be received electronically by the Board no later than three (3) Working Days prior to the date of the Formal Board Hearing.

(2) A party to a Formal Board Hearing may use witnesses or exhibits at the Formal Board Hearing. Parties shall provide a written list of all potential witnesses and exhibits at the Pre-hearing Conference in accordance with the following:

(a) The list of potential witnesses must include each witness' name, current address, e-mail, and phone number, area of expertise (if expert witness), and the subject matter of the testimony. Parties are not obligated to use any witness even if listed, but parties may not, without express permission from the Board at the Formal Board Hearing, introduce testimony from a witness that was not listed in accordance with this Rule.

(b) Information on exhibits shall be exchanged as follows:

(i) For any materials not already in the Office public files, each party to the Hearing shall provide all other parties to the Hearing and the Office with copies of any materials to be used as exhibits at the Formal Board Hearing before, at or by close of business the day of the pre-hearing conference via electronic means. Where an item cannot practically be reproduced, the exhibit must be made available to the parties and the Office for inspection upon request.

(ii) For any materials that are already in the Office public files, and for any materials not provided to the other parties pursuant to the exception set out in Rule 2.6, each party shall provide all other parties and the Office with a list of the materials to be used with sufficient specificity to describe the exhibit, including but not limited to the specific title or description of each exhibit, such as maps, reports, adequacy responses, correspondence, agreements, data printouts, photographs, and drawings. The list must also specify where the other parties to the Formal Board Hearing and the Office may review and obtain a copy of, or inspect, each exhibit.

(3) All motions, responses, replies, witness lists, and exhibit lists shall identify the names, e-mails, physical address and phone number of the submitting party, and the file number assigned to the case by the Office. If a party is represented by an attorney or other representative, the name, address and phone number of the attorney or other representative shall be provided on all documents submitted to the Board. All motions and lists shall be served on all parties and the Office at the same time and manner they are filed with the Board. Filing with the Board shall be done electronically through its secretary. Service on the Office shall not constitute filing with the Board.

2.7PRE-HEARING CONFERENCES

2.7.1General Provisions

Prior to the Formal Board Hearing on any application, the Board may hold a Pre-hearing Conference in accordance with the following procedures:

(1) The Pre-hearing Conference will be held to describe the Office's review process, to explain the rights and responsibilities of parties, to discuss and resolve issues to the extent possible, to describe the Board Hearing processes, to propose a list of issues under the Board's jurisdiction, to simplify that list, and to identify parties.

(2) The Pre-hearing Conference shall be conducted by a Pre-hearing Conference Officer appointed by the Board.

(3) The Pre-hearing Conference Officer shall prepare a proposed Pre-hearing order. The proposed Pre-hearing Order shall be made available to all parties prior to the Formal Board Hearing. In no instance shall the Pre-hearing Conference Officer's recommendations to the Board be considered final agency Office action for the purposes of judicial review under Section 24-4-106, C.R.S.

(4) The proposed Pre-hearing Order shall include:

(a) a recommended list of the parties and their names, e-mails, mailing addresses and phone numbers;

(b) a recommended list of issues to be considered by the Board at the Formal Board Hearing; and

(c) a recommended schedule for the hearing with time allotments set for presentation by each party and the Office.

(5) In the case of a Pre-hearing Conference held on the matter of a 112 or 112d Reclamation Permit application, the Pre-hearing Conference shall be held after the Office has issued its written recommendation and at least ten (10) calendar days prior to the Formal Board Hearing.

2.7.2Board Consideration of the Proposed Pre-hearing Order

At the Formal Board Hearing on a matter for which a Pre-hearing Conference was held, the Pre-hearing Conference Officer or a representative of the Pre-hearing Conference Officer shall present the proposed Pre-hearing Order to the Board for its consideration. The Board shall consider any objection to the proposed Pre-hearing Order submitted by a party, as well as any changed circumstances related to the Formal Board Hearing arising subsequent to the Pre-hearing Conference, and shall subsequently adopt, amend and adopt, or reject the proposed Pre-hearing Order. If the proposed Pre-hearing Order is rejected by the Board, the Chair of the Board shall direct the Formal Board Hearing on the matter.

2.7.3Parties Rights and Responsibilities

(1) All parties have the right to present evidence, call witnesses, and cross-examine all other parties' witnesses. All parties are entitled to be represented by an attorney, or may designate a proxy, by way of a written proxy authorization, to attend the Pre-hearing Conference on behalf of the party. The proxy authorization must be on a form approved by the Board and presented to the Pre-hearing Conference Officer on or before the date of the Pre-hearing Conference.

(2) In order for a person to seek judicial review of the Board's decision, that person must have been a party to the Formal Board Hearing that considered the issue. However, all parties to the Formal Board Hearing on a matter, that do not file for judicial review are required by Section 24-4-106, C.R.S., to be named as defendants in any judicial review action.

(3) Any person who is a party to a matter before the Board and who wishes to withdraw as a party must do so in writing prior to the commencement of or on the record during the Formal Board Hearing on the matter.

(4) Any party who does not attend the Pre-hearing Conference forfeits its party status and all associated rights and privileges, unless such party provides a fully executed proxy authorization form to the Pre-hearing Conference Officer and the party's authorized representative is present. A party may attend the Pre-hearing Conference via telephone, or if applicable via video conference, if such a request is made to the Pre-hearing Conference Officer, or a representative, at least five (5) working days, or less for good cause shown, prior to the scheduled Pre-hearing Conference date, and facilities at the site of the Pre-hearing Conference allow for a conference call.

(5) If all parties to a 112 or 112d Reclamation Permit application that is to be considered at a Formal Board Hearing withdraw, the Board directs the Office to act on behalf of the Board and to timely approve or deny the application, unless the Office determines that a Formal Board Hearing should be held.

2.8HEARINGS

2.8.1General Provisions - Board Hearings

(1) Except as otherwise provided by statute, the proponent of an order shall have the burden of proof and every party to the proceeding shall have the right to present its case or defense by oral and documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. Subject to these rights and requirements, 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. Any party, other than an operator / applicant, who does not attend the Board Hearing forfeits its party status and all associated rights and privileges. A party may not appear at a Formal Board Hearing by proxy. A party may file a motion to attend the hearing via telephone or video conference pursuant to the following requirements:

(a) A party may file an e-mail request for telephonic or video appearance with the Board Chair no later than fourteen (14) calendar days prior to the Hearing. The motion shall state the reason(s) for requesting to participate at the hearing by phone or video. The motion shall be served by mail or electronic attachment on all parties.

(b) Any party may file with the Board Chair a response to the request for telephonic or video appearance. The response must be filed by e-mail no later than ten (10) calendar days prior to the hearing.

(c) The Board Chair will rule on the request for telephonic or video appearance at least seven (7) calendar days prior to the hearing. In the event the Board Chair does not issue a ruling on the request no later than seven (7) calendar days prior to the hearing, the request for telephonic or video appearance shall be deemed denied.

(2) The rules of evidence and requirements of proof shall conform to the extent practicable, with those in civil non-injury cases in district courts. However, when necessary to do so in order to ascertain facts affecting the substantial rights of the parties to the proceeding, the Board may receive and consider evidence not admissible under such rules, if such evidence possesses probative value commonly accepted by reasonable and prudent people in the conduct of their affairs.

(a) Objections to evidentiary offers may be made and shall be noted in the record.

(b) The Board shall give effect to the rules of privilege recognized by law.

(c) The Board may exclude incompetent and unduly repetitious evidence.

(d) 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 the opportunity to compare the copy with the original.

(3) The Board may utilize its experience, technical competence, and specialized knowledge in the evaluation of the evidence presented to it.

(4) The Board may take notice of general, technical, or scientific fact, 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.

(5) The Board and Office shall proceed with reasonable dispatch to conclude any matter presented to it with due regard for the convenience of the parties or their representatives.

2.8.2Board Decision

(1) In any case on which the Board has conducted a hearing, the Board shall prepare, file and serve upon each party, its decision in the form of a written order.

(2) Every such decision rendered by the Board at a hearing shall thereupon become the final decision on such matter.

(3) Each written order shall include a statement of findings and conclusions upon all the material issue of fact, law or discretion presented by the record and the appropriate order, sanction, relief, or denial thereof.

(5) Unless otherwise provided by law, the Final Board Order shall be served on each party and the Office by personal service or by mailing by First Class mail to the last address furnished to the Office by such party and shall be effective on the date mailed or such later date as may be stated in the Final Board Order.

2.9RECONSIDERATION OF BOARD DECISIONS

2.9.1Cause for Seeking Reconsideration

(1) Any party to a hearing may petition the Board to reconsider its decision.

(2) Such petitions must set forth a clear and thorough explanation of the grounds justifying reconsideration, and must include new and relevant facts that were not known at the time of the hearing and the explanation why such facts were not known at the time of the hearing.

2.9.2Petition Submission

Petitions for reconsideration must be received by the Office within twenty (20) calendar days of the effective date of the Board's written decision. The effective date of the Board's Order is the date of mailing as set forth in the Order's Certification of Service.

2.9.3Consideration of Petition

The Board may grant or deny the petition based solely on the written submittal in support of the petition or written opposition thereto, or the Board may, in its discretion, grant the parties, as defined in Rules 1.1 and 1.7.1, an opportunity to present oral arguments. The Office staff shall act as staff to the Board, except on matters related to enforcement.

2.9.4Automatic Denial of Petition

The petition shall be deemed denied unless it is granted, or the Board takes other action on the petition, within sixty (60) days of receipt of the petition.

2.9.5Time Limitations

The timely filing of a petition for reconsideration shall not toll the time in which the Parties to the hearing may seek judicial review of the Board's decision.

2 CCR 407-1-2

38 CR 05, March 10, 2015, effective 3/30/2015

42 CR 12, June 25, 2019, effective 7/15/2019

45 CR 12, June 25, 2022, effective 7/15/2022