DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT
Water Quality Control Commission
PROCEDURAL RULES
5 CCR 1002-21
21.1	Authority
This regulation is adopted pursuant to the authority conferred upon the Commission in section 25-8-401(2), C.R.S. and is intended to be consistent with the requirements of the State Administrative Procedure Act, section 24-4-101 et seq. (the "APA"), C.R.S., the Colorado Water Quality Control Act, sections 25-8-101 et seq. (the "Act"), C.R.S., and the drinking water statutes, sections 25-1-114.1 and 25-1.5-201 et seq., C.R.S.
21.2	Scope and Purpose
A.	This regulation shall govern all procedures and hearings before the Colorado Water Quality Control Commission (“the Commission”) and the Colorado Water Quality Control Division (“the Division”). They are intended to assure that all such procedures and hearings will be fair and impartial.
B.	This regulation does not apply to interpretive rules or general statements of policy, which are not meant to be binding.
C.	Except when necessary to comply with applicable statutes, the requirements of this regulation may be waived whenever it is determined that strict adherence to the rules is not in the best interests of fairness or impartiality. In any such instance appropriate justification shall be provided to all interested persons or parties.
D.	In the event of a conflict between this regulation and the APA, the Act or the drinking water statutes, the statutes shall prevail.
21.3	Rulemaking procedures
A.	Applicability
Whenever the Commission adopts any rule or regulation including, but not limited to, any control regulation, classification of state waters, water quality standards, permit regulations, construction grant regulations, or drinking water regulations, the provisions of this section shall be applicable.
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K.	Conduct of Hearings
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3)	The Commission in conducting any rulemaking hearing shall, in addition to the authority specified elsewhere, have authority on its own motion or upon the motion of any interested person or party for good cause shown to: administer oaths and affirmations; sign and issue subpoenas; regulate the course of the hearing, set the time and place for continued hearings, and fix the time for the filing of appropriate documents; take depositions or have depositions taken; issue appropriate orders which shall control the subsequent course of the proceedings; and take any other action authorized by agency rule consistent with the APA, the Act and the drinking water statutes. In the event more than one person engages in the conduct of a hearing, such persons shall designate one person to perform the functions of this subsection as can best be performed by one person only, and thereafter such person only shall perform those functions which are assigned by the several persons conducting such hearing.
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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 dealing with surface water discharge permits or portions thereof;
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 which do not deal with surface water discharge permits or portions thereof, pursuant to section 21.11(D) of these rules, including appeals of notices of alleged violations for discharging without a permit, and appeals of penalties associated therewith.
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.; and
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.
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 by the Executive Director or his/her designee, pursuant to section 25-8-608, C.R.S. for violations of any surface water discharge permit.
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 violation of an order, permit, or control regulation.
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.)
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21.5	Business Meetings and Informal Hearings
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B.	Informal Hearings
The Commission may conduct informal hearings not subject to the requirements of the APA, the Act, the drinking water statutes or sections 21.3 and 21.4 of this regulation in order to solicit information from the public with respect to specified matters in order to consider for adoption interpretive rules or statements of policy not intended to be binding, or for such other purposes as may be appropriate. The Commission shall determine the procedures to be followed for such hearings on a case-by-case basis.
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21.12	Civil Penalty Appeals
A.	The Division may assess civil penalties as provided in section 608 of the Water Quality Control Act and section 25-1-114.1 C.R.S. of the drinking water statutes.
B.	Penalties shall be determined by the Executive Director or his/her designee without a hearing. Such penalty determinations may be appealed to the Commission, except for penalties for violating a surface water discharge permit or portions thereof, which may be appealed to the Division in accordance with section 21.4(A)(3)(b). The appeal shall be made in writing to the office of the Administrator of the Commission or the Director of the Water Quality Control Division, as appropriate, and shall be postmarked no later than 30 days after the issuance of the decision of the Executive Director or his/her designee. In his/her written appeal the appellant shall also state those mitigating factors which the appellant desires to raise before the Commission or Division.  In any written appeal of a penalty assessed under section 608 of the Act, the appellant shall also admit or deny each allegation set forth in the Division’s application for civil penalty filed with the Executive Director or his/her designee.
C.	The Commission or Division, as appropriate, shall conduct such hearings in accordance with section 105 of the APA and section 21.4 of this regulation. In any such hearing the Commission or Division shall not hear evidence for the purpose of determining if the underlying violations have occurred, but may only consider evidence relevant to the appropriateness of the amount of the penalty.
D.	Penalties may be collected by the Division by action instituted in a court of competent jurisdiction for collection of such penalties, where payment is not received within 60 days after final agency action assessing the penalties.
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21.14	Reconsideration
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C.	Reconsideration of Decisions by the Division or the Executive Director of the Department of Public Health and Environment (or His/Her Designee) Upon Own Motion
Where any person appeals to the Commission a decision or order of the Division or the Executive Director of the Department of Public Health and Environment (or his/her designee), the Division or the Executive Director (or his/her designee) shall retain continuing jurisdiction over the decision or order until the Commission holds its appeal hearing, and may reconsider and revise the decision or order at any time prior to said hearing. Prior to reconsidering and revising any such decision or order, the Division or the Executive Director (or his/her designee) shall consult with all interested parties. If the person who has requested the hearing no longer wishes to have the hearing after the decision or order has been reconsidered and revised, the person shall file a notice of withdrawal of appeal with the Commission, and the hearing shall not be held. The revised decision or order shall then be subject to appeal to the Commission pursuant to the provisions of the Act, the drinking water statutes and this regulation.
21.15	Definitions
The definitions of terms used in this regulation shall be in accordance with the Act, the drinking water statutes, the APA, and other applicable regulations of the Commission unless the context requires otherwise.
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21.36	Statement of Basis, Specific Statutory Authority and Purpose (February 9, 2009 Rulemaking, Effective March 30, 2009)
The provisions of sections 25-8-202 and 401 provide the specific statutory authority for adoption of these regulatory amendments.  The Commission also adopted the following statement of basis and purpose.
Basis and Purpose
Effective August 8, 2008, HB 08-1099 moved the responsibility for hearing appeals of drinking water penalties from the Colorado Board of Health to the Water Quality Control Commission.  This change is now reflected in section 25-1-114.1, C.R.S.
The Commission has amended the procedural rules to specify that drinking water penalty appeals now go the Commission.  The Commission has also amended the procedural rules to clarify that appeals of other determinations under the Colorado Primary Drinking Water Regulations would first go the Division.  The Commission has further clarified that any subsequent hearings before the Commission would be appellate hearings limited to record review.  A party is not entitled to two full agency adjudicatory hearings under section 105 of the Administrative Procedures Act (one before the Division, and one before the Commission), prior to seeking judicial review.  Finally, the Commission corrected a typo and added references to the drinking water statutes throughout Regulation #21, to clarify the applicability of this regulation to drinking water matters.