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., the On-site Wastewater Treatment Systems Act, section 25-10-101 et seq. (the OWTS 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
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D.	In the event of a conflict between this regulation and the APA, the Act, the OWTS 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, on-site wastewater treatments systems regulations, or drinking water regulations, the provisions of this section shall be applicable.
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C.	Notice
1)	Notwithstanding any notice that may be provided through the mailing lists maintained pursuant to sections 25-8-302(1)(e), and 24-4-103(3)(b), C.R.S., or otherwise, official notice of proposed rulemaking proceedings shall be filed with the Secretary of State in sufficient time for publication in the Colorado Register.
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D.	Party Status
1)	Unless in its notice of proposed rulemaking issued pursuant to section 21.3(C) of this regulation the Commission specifies otherwise, status as a party as that term is defined in section 24-4-102(11), C.R.S., will be granted in rulemaking proceedings before the Commission. Where an opportunity to obtain party status is provided, it may be obtained in the manner prescribed in the notice issued pursuant to section 21.3(C). One original, email attachment or fax of each party status request shall be submitted by the deadline established in the notice. Party status shall always be available in proceedings specified in section 21.3(M). Any person requesting a rulemaking hearing shall be granted party status without application therefor. Parties to rulemaking hearings shall have those rights specified in section 21.3(K)(2).
2)	All party status requests shall include:
a)	Name of the organization, entity or person requesting party status;
b)	A contact person (if different from (a));
c)	The contact person's mailing address;
d)	The contact person's phone number;
e)	The contact person's e-mail address (if available).
E.	Prehearing Conference
1)	The Commission may specify in the notice of proposed rulemaking that a prehearing conference will be held. Any such conference shall be held not less than 10 days in advance of the hearing, unless the Commission for good cause specifies otherwise. The Administrator of the Commission, a hearing officer or another member of the Commission may preside at any prehearing conference.
2)	In accordance with, and by the deadlines specified in the hearing notice, each applicant for party status, where applicable, the Division, and every interested person who intends to call witnesses at the hearing and offer exhibits into the record of the hearing, shall provide one PDF version of a prehearing statement to the Water Quality Control Commission. In addition, everyone who submits a prehearing statement electronically shall provide paper copies to the Commission Office in the number and by the deadline established in the hearing notice. The hearing notice may establish different deadlines for prehearing statements by rulemaking proponents and by those responding to proposals. A prehearing statement shall contain the following:
a)	A specific statement of the factual and legal claims asserted or a list of the issues to be resolved;
b)	Copies of all exhibits to be introduced at the hearing; 
i)	Where the nature of an exhibit is such that providing copies would be unduly burdensome, the prehearing statement shall describe the exhibit and indicate that the exhibit shall be available for inspection at a specified location prior to the hearing. Any such exhibit shall where feasible be made available electronically and also be available for inspection at the prehearing conference and at the hearing, and shall become part of the record of the hearing.
ii)	Where a party’s or any governmental entity’s position or proposal in a hearing is based in part on analysis of water quality data, the party or governmental entity shall submit its analysis of the data and a description of the data upon which the analysis is based, but is not required to submit the raw data into the hearing record.  However, the party or governmental entity shall provide an electronically manipulable copy of its data to the Division and any party that requests it.  If the Division or any party or governmental entity chooses to submit some or all of the data into the hearing record, it must be provided in PDF format.
c)	A list of witnesses to be called and a brief description of their testimony;
d)	Any alternative proposal to the proposed rule (Note: The submission of a proposed statement of basis and purpose and regulatory analysis for any alternative proposal is encouraged but not required);
e)	All written testimony to be offered into evidence at the hearing.
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7)	Except as provided in section 21.3(E)(2)(b) above, PDF versions and the paper copies of any documents submitted after the initial party status request shall be submitted to the Commission Office in the number and by the deadline established in the hearing notice.  (Note:  The requirement for submittal of paper copies may be satisfied by delivery to the Colorado Department of Public Health and Environment’s mail room by the specified due date.)
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L.	Final Agency Action and Post-Hearing Procedures
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7)	An adopted rule shall be published in the Colorado Register and in the Code of Colorado Regulations.  An unofficial version of the adopted rule shall also be posted on the Commission’s web site.
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M.	Procedures to be Followed in Classifying State Waters, Setting Water Quality Standards and Adopting Control Regulations
1)	Prior to classifying State waters and promulgating any water quality standard or any control regulation the Commission shall conduct a public rulemaking hearing thereon as provided in section 21.3 (B) through (L) and (N), except as is provided in this subsection M.
2)	Notice of any such hearing shall conform to the requirements of this regulation, but shall be given at least sixty days prior to the hearing and shall include each proposed standard or regulation.
3)	Any person desiring to propose a standard or regulation differing from the standard or regulation proposed by the Commission shall email one PDF version of such other written proposal and, in accordance with the notice of proposed rulemaking provide paper copies thereof to the Commission as part of a prehearing statement in accordance with section 21.3(E), or, if party status is not applied for, by submission to the Commission Office prior to the prehearing conference. When on file, such proposal shall be open for public inspection.
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21.4	Adjudicatory Procedures
A.	Applicability
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2)	The Commission shall provide the opportunity for a formal public adjudicatory hearing in the following cases:
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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.
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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.
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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 shall 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.
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J.	Conduct of Hearings
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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(d) of the Colorado Discharge Permit System Regulations, 5 CCR 1002-61.
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21.18	Hearings on Total Maximum Daily Loads
The publication of a final TMDL in the Water Quality Information Bulletin constitutes the Division’s determination on the final TMDL.  Any 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 of publication of a final TMDL in the Water Quality Information Bulletin.  If no such appeal is timely filed, the Division may submit the final TMDL to EPA.  If an appeal is timely filed, it shall be heard by the Commission in accordance with section 105 of the APA and section 21.4 of this regulation, except that notice of any adjudicatory hearing shall also be provided to all dischargers with Waste Load Allocations in the TMDL and to the proponent of a third-party TMDL.  The Division will not submit the final TMDL to EPA until at least 30 days after the Commission’s decision regarding any appeal becomes final.  The filing and disposition of an appeal to the Commission is a prerequisite to the right of judicial review pursuant to the APA.
21.19	Reserved
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21.39	Statement of Basis, Specific Statutory Authority and Purpose (May 13, 2013 Rulemaking, Final Action June 10, 2013, Effective July 30, 2013)
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 added language to the Procedural Rules acknowledging the Commission’s statutory authority regarding On-site Wastewater Treatment Systems.   
The Commission eliminated “mailing list status” in rulemaking hearings, because, with hearing documents readily available online, there is no longer a need to provide special accommodations for those who wish to monitor rulemaking hearings.
The Commission decided to streamline the requirements for exchange of documents among parties in rulemaking hearings.  Because all submittals are posted on the Commission’s web site and easily accessible, parties will no longer be required to email their documents to all parties to the rulemaking.  Rather, their submission of electronic (PDF) versions of their documents to the Commission office will suffice.  Unless the notice of rulemaking specifies otherwise, however, parties will continue to provide paper copies of their documents to the Department’s mail room by the dates specified in the notice.
New provisions were added regarding the submission of data in rulemaking hearings.  Where a party’s or governmental entity’s position or proposal is based in part on analysis of water quality data, the party or governmental entity will be required to submit its analysis of the data and a description of the data upon which the analysis is based, but will not be required to submit the raw data into the hearing record.  However, the party or governmental entity will be required to provide an electronically manipulable copy of the data to the Division and make it available to parties upon request.  If the Division or any party or governmental entity chooses to submit some or all of the data into the hearing record, the data must be provided to the Commission office in PDF format to accommodate the State standards for retained electronic records. 
Section 21.3(L)(7) was modified to align with revisions to the APA.
The Commission adopted a new subsection 21.4(A)(2)(k) and section 21.18 to explicitly reflect that appeals of final TMDLs are to be heard by the Commission.  Such appeals may be filed with the Commission after a determination is made by the Division. C.R.S. § 25-8-202(1)(k) states: “The Commission shall…act as an appellate body to review all determinations by the division except those determinations dealing with surface water discharge permits or portions thereof.” There has been some uncertainty regarding what constitutes the Division’s “determination” of final TMDLs that triggers the right to appeal. The Division will develop a TMDL, provide public notice of a draft TMDL and an opportunity for public comment, prepare a response to those comments, make modifications to the TMDL as appropriate, and finalize the TMDL. The Division will then publish the final TMDL in the Water Quality Information Bulletin. The publication of the final TMDL in the Bulletin will constitute the Division’s “determination” triggering the appeal period pursuant to C.R.S. § 25-8-202(1)(k).  If no appeal is filed within the statutory timeframe, the Division will submit the final TMDL to EPA for approval.  If an appeal is timely filed, it shall be heard in accordance with section 105 of the APA and section 21.4 of this regulation, except that notice of any adjudicatory hearing shall also be provided to all dischargers with Waste Load Allocations in the TMDL and to the proponent of a third-party TMDL.  The Division will not submit the final TMDL to EPA until 30 days after the Commission’s decision regarding any appeal.
PARTIES TO THE RULEMAKING HEARING
1.	Centennial Water and Sanitation District
2	Northern Colorado Water Conservancy District
3.	Metro Wastewater Reclamation District