DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT
Water Quality Control Commission
PROCEDURAL RULES
5 CCR 1002-21
. . . .
21.2	Scope and Purpose
. . . .
B.	This regulation does not apply to interpretive rules or general statements of policy, which are not meant to be binding except as provided herein.
. . . .
21.3	Rulemaking Procedures
. . . .
F.	Motions
The Commission may require that, as part of the prehearing conference or otherwise, parties or interested persons submit in advance of the hearing all motions or requests for rulings that such person or party intends to make with respect to the proposed rulemaking, except where, due to the lack of material information, such motions or requests cannot reasonably be submitted in advance of the hearing. These shall include motions regarding procedures, the scope and nature of the proceedings, or any other matter that requires a determination by the Commission prior to final agency action based on the record, or any matter that may reasonably be disposed of by the Commission prior to receiving 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.
. . . .
21.4	Adjudicatory Procedures
A.	Applicability
. . . .
3)	The Division shall provide the opportunity for a formal public adjudicatory hearing in the following cases:
. . . .
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.
. . . .
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.
. . . .
21.5	Business Meetings and Informal Hearings
. . . .
B.	Informal Hearings
1)	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.
2)	The Commission may conduct administrative action hearings that do not involve formal rulemaking, but which result in a Commission approval action.  The purposes of such hearings may include, but need not be limited to:
a)	Approval of Commission policy documents that do not have regulatory effect and are not intended to be binding;
b)	Approval of proposed Section 319 nonpoint source project funding priorities;
c)	Approval of Section 208 water quality management plans which shall include recommendations approved by the Commission following deliberation;
d)	Approval of the Section 303(d) Listing Methodology, for development of Colorado’s list of impaired waters;
e)	Approval of the Section 305(b) Report on the Status of Water Quality in Colorado;
f)	Approval of a Colorado Nonpoint Source Management Program;
g)	Approval of Intended Use Plans.
Administrative action hearings are not subject to the formal legal requirements of rulemaking hearings.  Notice of such hearings will be published in the non-rulemaking section of the Colorado Register at least 20 days in advance on the hearing.  There is no formal “party status” or mailing list status, generally written comments are not required to be mailed or e-mailed to other hearing participants, no prehearing conference is held, and generally no transcript is prepared.  Written comments submitted prior to the hearing are encouraged, but written or oral comments are accepted at the hearing.
21.6	Appeals from Decisions of the Division Under Section 702 of the Act (Site Locations, Designs for Construction or Expansion)
. . . .
21.11	Hearings on Notice of Alleged Violations
. . . .
D.	All determinations by the Division concerning notices of alleged violations, except alleged violations of surface water discharge permits or portions thereof, operating without a permit, or for engaging in activities without a surface water discharge permit when such a permit is required, must be appealed to the Commission by any person adversely aggrieved or affected as a prerequisite to the right of judicial review pursuant to sections 24-4-105 and 106, C.R.S. The appeal shall be made in writing to the office of the Administrator of the Commission and must be postmarked no later than 30 days after the date the Water Quality Information Bulletin is published. Within 60 days of the filing of the appeal the Commission shall commence a hearing to consider such appeals in accordance with section 24-4-105, C.R.S. and section 21.4 of this regulation; provided, that, if the Division has previously held a hearing regarding the alleged violations under section 24-4-105, C.R.S., the Commission’s review will be limited to record review of the Division’s final determination.
21.12	Hearings on Civil Penalties
. . . .
B.	Penalties shall be determined by the Executive Director or his/her designee and may be appealed to the Commission or the Executive Director in accordance with section 21.4.   An appeal to the Executive Director or his/her designee shall be made in writing to the Director of the Water Quality Control Division and shall be postmarked no later than 30 days after the issuance of the penalty determination.  An appeal to the Commission shall be made in writing to the office of the Administrator of the Commission and shall be postmarked no later than 30 days after the issuance of the penalty determination. In his/her written appeal the appellant shall also state those objections or mitigating factors which the appellant desires to raise before the Commission or the Executive Director or his/her designee.  
. . . .
21.38	Statement of Basis, Specific Statutory Authority and Purpose (November 14, 2011 Rulemaking, Effective January 31, 2012)
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 adopted several changes to its Procedural Regulations to provide helpful clarifications for those involved in Commission processes. 
The Commission adopted regulatory changes to specify that when appealing a civil penalty, in addition to stating mitigating factors, a party’s written appeal must also include the appellant’s objections to the civil penalty. 
At the January 10, 2011 hearing the Commission adopted changes to section 21.4(A)(3)(d) to clarify that the Division shall provide a hearing for review of notices of alleged violations. Pursuant to the Water Quality Control Act, the Division shall hold such hearings for all notices of alleged violation, whether involving discharges to surface water or groundwater. The provisions of section 21.4(A)(3)(d) were not intended to narrow this authority. Accordingly, the Commission clarified that the Division shall hold hearings for notices of alleged violations for discharges without a permit to all state waters. 
The Commission modified the provisions of 21.11(D) to specify that the 30 day appeal period begins to run upon the publication date of the Water Quality Information Bulletin which contains the Notice of Violation being appealed. These changes are not intended to modify the Division’s obligation to provide actual notice to an alleged violator of a notice of violation pursuant to section 25-8-602(1), C.R.S., and notice of a Division determination that is appealable to the Commission pursuant to section 24-4-105(16), C.R.S.
The Commission adopted regulations to address the scope of authority of a hearing chair in both a rulemaking and adjudicatory proceeding.
The Commission also adopted provisions recognizing its practice to hold informal hearings, such as administrative action hearings.  Notice is typically published in the monthly Water Quality Information Bulletin and on the Commission’s web site, and is often mailed to a list of persons interested in the particular topic.
PARTIES TO THE RULEMAKING HEARING
1.	Colorado Mining Association
2	Northern Colorado Water Conservancy District