Code of Colorado Regulations
1000 - Department of Public Health and Environment
1001 - Air Quality Control Commission
5 CCR 1001-1 - PROCEDURAL RULES
Part B - Procedural Rules for All Proceedings before the Commission on or After August 1, 2025, Except Rulemaking Proceedings Commenced by a Petition for Rulemaking and Adjudicatory Proceedings Commenced by a Request for Hearing Filed Before August 1, 2025
Section 5 CCR 1001-1-B-XII - STATEMENTS OF BASIS, SPECIFIC STATUTORY AUTHORITY, AND PURPOSE
Current through Register Vol. 48, No. 6, March 25, 2025
XII.A. Revisions to the Air Quality Control Commission Procedural Rules adopted on January 16, 1998
The purpose of these rules is to provide for the fair and efficient administration of hearings and meetings before the Commission, and to make the rules consistent with the Colorado Air Pollution Prevention and Control Act, and the Colorado Administrative Procedures Act.
Federal Requirements
The Federal Clean Air Act requires that the State Implementation Plan contain provisions requiring the Commission to:
Statutory Authority
Specific statutory authority for the adoption of such procedural rules is provided in § 25-7-106(3).
Findings pursuant to § 25-7-110.8
The procedural rules adopted by the Commission on January 15, 1998 do not include the adoption of any control measures intended to reduce air pollution. Such rule changes are administrative in nature. The rule changes are designed to improve the efficiency of Commission hearings, to encourage the resolution of issues, and to promote the cost-effective administration of hearings before the Commission.
Division's role in assisting the proponent of an alternative proposal to prepare an economic impact analysis § 25-7-110.5(4)(a) requires the proponent of an alternative proposal to provide a final economic impact analysis in advance of the hearing. The proponent may request assistance from the Division in the development of such a final economic impact analysis. The Commission anticipates that the Division will continue its current practice of consulting with the proponent of any such alternative proposal and providing such assistance as may be necessary for the proponent to comply with the requirements of § 25-7-110.5 (4). Special procedures for hearings on applications submitted pursuant to § 25-7-105(2). Section V.F.13.a. establishes special procedures for certain applications submitted pursuant to § 25-7-105(2). The purpose of this section is to resolve the conflict between §§ 25-7-110(1) and 25-7-119 for hearing on the petitions described in § 25-7-105(2), and to do so in a manner that provides for efficient and cost-effective hearings.
§ 25-7-105(2) requires the commission to hold hearings pursuant to § 25-7-119 for "applications for review of the classification of any attainment, nonattainment, or unclassifiable area within the state ..., all applications for designation or redesignation ... and all applications for any revision of general application of the state implementation plan ..." The types of actions listed in § 25-7-105(2) tend to be rulemaking activities of general applicability, but the procedure described in § 25-7-119 is an adjudicatory, rather than rulemaking, process. The adjudicatory aspects of § 25-7-119 include:
The activities listed in § 25-7-105(2) are primarily rulemaking actions. Therefore, the Commission will generally follow the rulemaking procedures outlined in § 25-7-110, and will not apply the adjudicatory procedures described in § 25-7-119 unless the petitioner specifically requests a hearing that observes the adjudicatory procedures. This requirement is consistent with the plain language of § 25-7-105(2) to establish a specific procedure for hearings on certain applications submitted to the Commission. In any case in which the Commission cannot reasonably comply with both the rulemaking requirements and the adjudicatory requirements, the Commission will apply the procedures most applicable to the type of action being requested. That is, the rulemaking procedures set out in § 25-7-110 should apply to actions that are primarily rulemaking in nature; the adjudicatory procedures in § 25-7-119 should apply to matters that are primarily adjudicatory in nature. In most instances, the Commission will assume, unless otherwise indicated, that matters such as area classifications, designations, and SIP revisions of general applicability, are rulemaking matters.
Conflicts of Interest
Section X. on Conflicts of Interest is not intended to expand or contract the standard for disqualification of a Commissioner. This Rule reflects an attempt to interpret and apply the law, as it exists at this time, on the subject of disqualification. This section is to be interpreted to implement fully the goal of the General Assembly to have a citizen-based Commission with a minority business vote. One of the parties to the hearing was concerned that the standard set out in Section X.A.1.b.(i) may require disqualification if a Commissioner had prejudged the law or the facts of a case. The party pointed out that commissioners are likely to have taken previous positions on the meaning of a rule or statute and should not, therefore, be required to recuse themselves from future hearings concerning the same rule or statute. However, the standard in Section X.A.1.b.(i) is conjunctive, and would not require disqualification in an adjudicatory hearing merely because a commissioner had decided the meaning of the law in advance of the hearing. Section X.A.1.b.(ii) requires disqualification in an adjudicatory hearing if the Commissioner, or the Commissioner's employer, has a substantial financial interest in the outcome of the proceeding. This standard does not require that such substantial financial interest be direct. An action involving an indirect substantial interest, such as an enforcement action involving a competitor may require disqualification in an adjudicatory hearing.
XII.B. Revisions to Air Quality Control Commission Procedural Rules adopted by the Air Quality Control Commission October 15, 1998
The revisions to the Air Quality Control Commission Procedural Rules are adopted to provide for notice and meaningful public meetings to review conformity determinations, to repeal the procedure for disqualification of a Commissioner for an impermissible conflict of interest, and to simplify some of the requirements that apply to parties to rulemaking hearings before the Commission.
The revisions add a new Section IV.M. to the procedural rules. This section establishes a procedure for public meetings on conformity determinations following notice to the public. The rule ensures that documents supporting the conformity determination are available for review prior to the hearing. The rule also provides a means for the Commission to review a proposed conformity determination and submit timely comments to the metropolitan planning organization. The revisions to Section V.E. make the Commission's rulemaking procedures more efficient. At the request of Legislative Legal Services, the Commission repealed the provisions in Section X.C. that established a procedure for the Commission to disqualify a member of the Commission upon a finding of an actual conflict of interest. Legislative Legal Services concluded that the Commission does not have such authority.
Federal Requirements
The procedures for the review of conformity determinations are related to the federal transportation conformity requirements set out at 40 CFR, part 93, subpart A. Those provisions require the State to establish criteria and procedures for making transportation conformity determinations, but do not require the State to establish a procedure for public hearings before the Air Quality Control Commission on such conformity determinations. The procedural requirements for conformity determinations established in the procedural rules exceed federal requirements and, therefore, are adopted solely under state law and shall not be submitted to EPA for inclusion in the SIP.
Although not required by federal law, such procedural requirements are consistent with state law. § 25-7-124, C.R.S. provides that the Commission is the state agency for all purposes of the federal Clean Air Act. As the state air quality agency, the Commission must be included in the consultation procedures, 40 CFR Section 93.105. The meetings of the Commission must be open to the public, § 24-6-402, C.R.S. (1997). Review of a conformity determination is similar in nature to rulemaking and it is appropriate for the Commission to follow procedures that are similar to its rulemaking procedures in reviewing conformity determinations, and to provide an opportunity for interested parties outside of the agency to make comments on the conformity determination. Therefore, it is reasonable and appropriate for the commission to promulgate state-only procedural rules that provide for public participation in the review of conformity determinations. The revisions to Sections V.E. and X.C. of the procedural rule are not related to transportation conformity, and are not required by any federal rule or law. Such provisions are adopted solely under state law to provide for more efficient rulemaking hearings.
Statutory Authority
§ 25-7-106 (3), C.R.S. provides the Commission with the statutory authority to adopt regulations governing procedures before the Commission.
Findings pursuant to § 25-7-110.8
The procedural rules are administrative in nature and are exempt from the requirements of § 25-7-110.8(1)(b), C.R.S. (1997). The rule revisions adopted by the Commission ensure that interested parties have an opportunity to make their views on conformity determinations and rulemaking matters. In this way, the rule revision improves the Commission's decision-making process. The rule revisions provide for cost-effective hearings and public meetings before the Commission.
XII.C. Revisions to Air Quality Control Commission Procedural Rules adopted by the Air Quality Control Commission February 21, 2002.
This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedures Act, § 24-4-103, C.R.S., and the Colorado Air Pollution Prevention and Control Act, §§ 25-7-110 and 25-7-110.5, C.R.S ("the Act").
Basis
The Commission Procedural Rules establish the procedures through which the Commission conducts hearings. Regulation Number 3 contains the procedural and substantive requirements for both construction and operating permits. The Commission's Procedural Rules and Regulation Number 3 set forth the mechanisms available for interested persons to be heard regarding both Commission and Division matters.
Specific Statutory Authority
§ 25-7-109, C.R.S. of the Act, provides the Commission with the authority to adopt and revise rules and regulations that are consistent with state policy regarding air pollution and with federal recommendations and requirements.
Purpose
§ 25-7-114.5(5) and (6), C.R.S., requires the Division to give public notice of a permit application in a newspaper of general distribution in the area in which the proposed project is located or by such other method reasonably designed to ensure effective general public notice. In this rulemaking, the Commission set out a two-tiered notification system. The newspaper notice contains basic information about the proposed project and provides the location of the Division's web site and a Division person to contact should any interested person desire more detailed information. The statute also requires that certain permit information be filed with the county clerk of the county wherein the particular source that is subject to the permit application is proposed. If the proposed source straddles more than one county, the information must be filed with the clerk of each county in which the source is located. § 25-7-114.5(6), C.R.S., requires the Commission, following a written request, to hold a public comment hearing to allow interested persons the opportunity to appear and submit written and/or oral comments regarding air pollution considerations about a proposed permit, the sufficiency of the Division's preliminary analysis and whether the permit application should be approved or denied. This requirement extends to the nonattainment area new source review, prevention of significant deterioration, and renewable operating permit programs. In this rulemaking, the Commission clarified the existing procedures by adding a section to the Commission's Procedural Rules to specifically address public comment hearing procedures. That section, denominated Section VII., specifies how the Commission will conduct public comment hearings relating to applications for permits controlled by these programs. The Commission also made conforming changes to Regulation Number 3.
Public comment hearings are intended to encourage citizen participation in the air quality permitting process and to provide a forum for gathering information for use by the Division in final evaluation of applications for construction and operating permits. The Commission intends to conduct public comment hearings in a way that will ensure an effective opportunity for the public to present information for use by the Division. In addition, the revisions to these regulations specify the role of public comments in the Division's decision-making process following development of the preliminary analysis. The Commission concluded that Division responses to such comments are an important feature of the permitting process in order to assure the public that their comments and concerns are considered.
Finally, the revisions underscore the distinction between a public comment hearing that is intended to provide information to the Division prior to making a final determination on a permit application, and an adjudicatory hearing before the Commission that may be requested only by an applicant to challenge the Division's final action on a permit application. A public comment hearing does not constitute an adjudication or a rulemaking and the provisions of the Administrative Procedures Act relating to those proceedings do not apply. In the Commission's view, the hearing allowed under § 25-7-114.5(6), C.R.S., does not require the procedural mechanisms applicable to adjudications or rulemakings. These revisions establish reasonable mechanisms that appropriately balance the goal of providing public input to the Division with the need to manage the time and resources of both the Commission and Division effectively.
Federal Requirements
Title 40, Section 124.12 of the Code of Federal Regulations requires the State to provide an opportunity for public comment on permit applications under the nonattainment new source review, prevention of significant deterioration, and operating permit programs. These revisions meet the federal requirement.
Findings pursuant to § 25-7-110.8, C.R.S.
The procedural provisions addressed in this rulemaking are administrative in nature and are not intended to reduce air pollution. Accordingly, § 25-7-110.8(1) exempts this rulemaking from the requirements of that section.
XII.D. Revisions to the Air Quality Control Commission Procedural Rules adopted by the Air Quality Control Commission November 18, 2004.
This revision establishes the procedural and substantive criteria for hearings on objections filed by local governments to emissions control units proposed for installation at oil and gas exploration and production operations, natural gas compressor stations or natural gas drip stations located upstream of a natural gas-processing plant in the 8-hour Ozone Control Area in order to comply with the emission reduction requirements of Section XII. of Regulation Number 7. The specific statutory authority for this regulation is set out at § 25-7-133(7)(d)(VI), C.R.S. The requirements of § 25-7-110.8 do not apply because this rule change is administrative in nature and its purpose is to decide disputes between local governments and regulated entities, rather than reduce air pollution.
XII.E. Revisions to the Air Quality Control Commission Procedural Rules adopted by the Air Quality Control Commission October 18 & 19, 2007
This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedure Act §§ 24-4-103(4) and (12.5), C.R.S. for new and revised regulations.
Basis
The Air Quality Control Commission's (AQCC) Procedural Rules (Rules) establish the framework and procedures for the AQCC to discharge its statutory responsibilities under the Colorado Air Pollution Prevention and Control Act (Act). Among the established procedures is the filing by parties to rulemakings and adjudicatory hearings of various documents, including petitions for rulemakings and the attendant attachments to such petitions (including an Economic Impact Analysis, Agenda Item Control Sheet, briefs, exhibits, proposed rule revisions and additions and Statements of Basis, Specific Statutory Authority, and Purpose), requests for party status, prehearing statements, rebuttal statements, and exhibits. In the last several years the quantity of documents fillings for rulemakings and other documents under the procedural rules has expanded dramatically. To reduce the quantity of paper associated with such filings, the AQCC has determined that it should require the use of electronic filings in lieu of paper filings for all rulemaking and adjudication proceedings. In several rulemakings last year, the AQCC allowed parties to file rulemaking prehearing, rebuttal and motion documents by electronic mail. This allowed parties to file these documents more quickly and efficiently and reduced the amount of paper filed with the AQCC. Section III.J.2. requires that an electronic mail submittal be "signed" by the filing party. It is expected that this signature will be accomplished by the filing party through "scanning in" the signature page and transmitting the scanned signature page along with the rest of the filing.
While the amendments to the Procedural Rules include a size limitation of twenty (20) megabytes for electronic mail filings, parties to rulemakings and adjudications are encouraged to limit the size of electronic mail filings to ten (10) megabytes to minimize transmission delays because of server limitations. In addition, because of the potential for future server size capacity increases, the rule amendments allow the Commission the flexibility to increase the size of the documents being electronic mailed on a case-by-case basis. Parties to rulemakings and adjudications who do not have access to computers may apply to the Commission for a waiver from this requirement under Section III.J.3. or under the "Good cause" provision of Section III.J.
Specific Statutory Authority
The specific statutory authority for these revisions to the procedural rules derives from the authority granted the AQCC in §§ 25-7-106(3) and -106(5), which authorizes the AQCC to adopt rules and regulations to conduct hearings so that they will be fair and impartial and to carry out the AQCC's statutory responsibilities in conformity with the State Administrative Procedure Act, §§ 24-4-103, -105 C.R.S.
Purpose
The purposes of these revisions of the procedural rules are (1) to reduce the amount of paper filed with the AQCC's administrative office, and (2) to require parties to rulemakings and adjudications to more quickly and efficiently file necessary documents with the AQCC, each other, and the Division.
XII.F. Revisions to the Air Quality Control Commission Procedural Rules adopted by the Air Quality Control Commission December 15, 2011
Basis and Purpose
The purpose of these amendments is to streamline the transportation conformity process by allowing the Colorado Air Pollution Control Division to provide concurrence with routine transportation conformity determinations without the need for a public hearing before the Colorado Air Quality Control Commission. This change to the conformity process is allowed for under federal law and will reduce the burden on the Commission, the Division and transportation planning organizations, while ensuring that air quality requirements are met. These amendments were adopted in conjunction with corresponding changes to the AQCC Regulation Number 10, governing conformity determinations in Colorado.
Specific Statutory Authority
The Commission promulgates these regulatory changes pursuant to its authority under § 25-7-106(3), C.R.S. to adopt regulations governing procedures before the Commission.
Findings Pursuant to § 25-7-110.8
These revisions are administrative in nature and are not intended to reduce air pollution. Rather, the revisions are intended to streamline the transportation conformity process, while maintaining the air quality benefits of the existing rule. Accordingly, the requirements of § 25-7-110.8, C.R.S. do not apply to this rulemaking.
XII.G. Rule Review of the Air Quality Control Commission (AQCC or Commission) Procedural Rules adopted by the Air Quality Control Commission March 21, 2013
This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedure Act § 24-4-103, C.R.S. for new and revised regulations.
Basis
Subchapter 1 of the Federal Clean Air Act requires the State of Colorado to adopt a plan to implement, maintain and enforce air quality standards; the adoption and revision of that plan is the responsibility of the AQCC through a comprehensive program of air quality regulation codified in the State Air Act, § 25-7-101 et seq., C.R.S. In addition, § 25-7-105(1), C.R.S. requires the AQCC to promulgate rules and regulations necessary for the proper implementation and administration of the State Air Act. Rulemaking and adjudication procedures must also be consistent with the State Administrative Procedures Act (§ 24-4-101 et seq., C.R.S.). The AQCC, through its Procedural Rules, fulfills the requirements of State and Federal law; periodically the rules need to be updated.
Specific Statutory Authority
The AQCC is authorized to promulgate rules and regulations necessary for the proper implementation and administration of the Colorado Air Pollution Prevention and Control Act (the State Air Act, § 25-7-101 et seq., C.R.S.; the AQCC is authorized to adopt procedural rules pursuant to § 25-7-106(3) and (5), C.R.S. Rulemaking and adjudication procedures must also be consistent with the State Administrative Procedures Act (§ 24-4-101 et seq., C.R.S.).
Purpose
The AQCC proposes to update its Procedural Rules in its entirety to eliminate or update obsolete provisions, delete duplicate language, and to improve their "readability" so that the rules can be more easily understood by the general public. The Air Quality Control Commission's (AQCC) Procedural Rules (Rules) establish the framework and procedures for the AQCC to discharge its statutory responsibilities under the Colorado Air Pollution Prevention and Control Act (Act). Among the established procedures is the filing by parties to rulemakings and adjudicatory hearings of various documents, including petitions for rulemakings and the attendant attachments to such petitions (including an Economic Impact Analysis, Agenda Item Control Sheet, briefs, exhibits, proposed rule revisions and additions and Statements of Basis, Specific Statutory Authority, and Purpose), requests for party status, prehearing statements, rebuttal statements, and exhibits. The changes will make the filing of required documents more efficient for persons participating in AQCC activities and hearings and ease the paper compilation and distribution burden on the AQCC's administrative office.
The Procedural Rules require periodic revision. References to statutory provisions that been repealed (such as the requirement that the AQCC consult with the Air Quality Science Advisory Board (AQSAB), which was repealed in 2008) have been deleted. Other statutory references have been updated; for example, a reference to the Colorado Public Records Act (§ 24-72-101 et seq., C.R.S.) has been updated to refer to the Colorado Open Records Act (§ 24-72-201 et seq., C.R.S.). Provisions have been revised to account for advances in technology: references to faxing have been deleted, the provision regarding electronic signatures has been updated, and the procedure for submitting documents electronically was clarified. The rules reflect minor changes in Commission procedures; a definition for "Consent Agenda" has been added, as have the Commissioners' "Ground rules for Public Comment Hearings." To improve the readability of the document, most uses of the passive voice were eliminated, uses of the word "shall" "must" and "will" were corrected to be consistent with plain language rules of drafting, and some sections were reorganized to eliminate duplicate provisions. Further, these revisions will include any typographical, grammatical and formatting errors throughout the regulation.
XII.H. Revisions to the Air Quality Control Commission Procedural Rules, Adopted July 15, 2021 (Effective Date January 1, 2022)
This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the State Administrative Procedure Act, § 24-4-101 et seq., C.R.S. ("APA"), and the Colorado Air Pollution Prevention and Control Act, § 25-7-101 et seq., C.R.S ("the Act").
Basis
The Commission Procedural Rules establish the procedures through which the Commission conducts meetings, rulemakings, and adjudicatory hearings.
Statutory Authority
The Commission has the authority to adopt procedural rules, consistent with the APA to govern the procedures before the Commission. § 25-7-106(3), C.R.S. The procedural rules are administrative in nature and are exempt from the requirements of § 25-7-110.8(1), C.R.S.
Purpose
The adjudicatory hearings section of the Commission's Procedural Rules had long needed a broad update, as there were outdated and incorrect references, stylistic issues, and other administrative problems that need correction or clarification. Only minor amendments to address narrow issues had been made since the early 2000s. In this hearing, the Commission made changes to the adjudicatory procedures to bring the rules into conformance with current practice as well as to update references and address these administrative corrections and clarifications. The Commission also made improvements to its processes. Further, these revisions will include any typographical, grammatical and formatting errors throughout the regulation.
Adjudicatory Procedures
The Commission has, over the past couple decades, held few adjudicatory hearings. The Commission determined it was time to update the adjudicatory hearing procedures based on past experience and to address improvements in similar proceedings before courts that enhance the adjudicatory process, such as discovery and motions practice. The main areas addressed by these revisions include the scheduling conference, discovery process, and submittal of briefs to the Commission. The majority of the Commission's revisions were to address the difficulty in conducting a comprehensive fact finding process where the hearing must be held within 90 days of the Commission's receipt of the petition for adjudicatory hearing.
Scheduling Conference, Section VI.C.2
The Commission believes that a scheduling conference soon after the request for adjudicatory hearing is received will facilitate an orderly and transparent process. The revisions require the parties to quickly coordinate on a joint proposed scheduling order to address several issues that will inform the Hearing Officer's order setting timing and limits on the discovery process. The Commission is required to consider the request for adjudicatory hearing at its next meeting following receipt. However, it is not possible to predict when a request for adjudicatory hearing will be submitted in relation to the next Commission meeting; therefore, the rules contemplate that a Hearing Officer will be appointed immediately upon receipt of a request for adjudicatory hearing in order to address these procedural matters.
Discovery Process, Section VI.C.3
In earlier versions of the adjudicatory procedures rules, parties could not commence discovery until after the Commission had considered the adjudicatory hearing request at its next meeting. This left less than 60 days for the parties to conduct discovery in accordance with the Colorado Rules of Civil Procedure, which are based on a longer timeframe for the discovery process. Therefore, the Commission determined both to allow discovery to commence earlier in the process and to shorten the presumptive timeframes for responding to discovery requests. However, the revisions recognize that if the 90-day hearing timeframe is waived by the party requesting the hearing, the need to commence discovery earlier is abated, and the full discovery timeline will be governed by the Scheduling Order.
Further, the Commission maintained the provision that provides that the adjudicatory hearing may proceed even if full discovery is not completed. The Commission also revised the motions practice for discovery. Instead of parties submitting written motions regarding discovery disputes, the parties are now directed to jointly contact the Hearing Officer and seek a conference (by telephone or other video conference method, at the discretion of the Hearing Officer). These revisions allow prompt resolution of discovery disputes without unnecessary paperwork.
Written Submittals to the Commission
The revisions streamline the submittals to the Commission. Under these revisions, parties must submit a joint statement of undisputed facts, and submit a list of undisputed exhibits, prior to the prehearing conference. This will enable the Hearing Officer to better understand the disputed issues to be heard at the hearing, and to streamline the package of materials that the Commission will consider. Under the revisions, the parties also have the opportunity to submit prehearing statements and rebuttal statements. The timing of these statements should be addressed by the Hearing Officer in the Scheduling Order. Under previous rule iterations, the parties also were required to submit proposed findings of fact and conclusions of law. These revisions do not mandate the submittal of that document, but would allow for the Hearing Officer to require it, along with additional briefing on legal issues, in the discretion of the Hearing Officer.
Other Changes
In Section VI.B.4.c, the Commission established a streamlined process for hearings that involve only questions of law, as opposed to questions of fact. For example, when a request for adjudicatory hearing challenging a unilateral compliance order of the Division raises only the question of the Division's interpretation of a regulation or permit condition. In such cases, the Commission determined that an extensive fact finding process with discovery is unnecessary, and the case should proceed on briefing alone, as in a court case where there are no disputed issues of material fact. In these situations, the Commission or Hearing Officer, as appropriate, should issue a briefing schedule to allow parties to present their legal arguments to the Commission, and oral argument would be allowed at the adjudicatory hearing itself.
The Commission also clarified the requirements for interested third parties to seek party status. The Commission encourages interested third parties to seek party status prior to the Scheduling Conference and to participate in the consideration of issues pertinent to the Scheduling Order (e.g. discovery timing and limits). However, the Commission recognizes that there may be interested third parties who were not able to have learned about the request for adjudicatory hearing prior to the item being included on a Commission meeting agenda, and so has provided that the Scheduling Order will set the deadline for seeking party status. The Commission does not intend that intervening parties should be able to seek modifications of the Scheduling Order, once issued, absent meeting the requirements of the rules for modifications thereof. Based on a recent case regarding the effective date of Commission final action in an adjudicatory proceeding, the Commission has revised Sections VI.E.3 and VI.F.1 for consistency with the Court of Appeals decision. These revisions do not change the current practice, but offer more clarity in the regulation consistent with that opinion.
XII.I. Revisions to the Air Quality Control Commission Procedural Rules, Adopted December 18, 2024
This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the State Administrative Procedure Act, § 24-4-101 et seq., C.R.S. ("APA"), the Colorado Air Pollution Prevention and Control Act, § 25-7-101 et seq., C.R.S ("the Act"), and the Air Quality Control Commission's (Commission) Procedural Rules, 5 Code Colo. Reg. §1001-1.
Basis
The Commission Procedural Rules establish the procedures through which the Commission conducts meetings, rulemakings, and adjudicatory hearings.
Statutory Authority
The Commission has the authority to adopt procedural rules consistent with the APA to govern the procedures before the Commission. § 25-7-106(3), C.R.S. The procedural rules are administrative in nature and are exempt from the requirements of § 25-7-110.8(1), C.R.S.
Purpose
The Commission's Procedural Rules have long needed a broad update, as there were outdated and incorrect references, stylistic issues, and other issues that need correction or clarification. The Commission reorganized the regulation into Parts A and B. Part A contains the Procedural Rules as they existed as of November 22, 2024, except for corrections to typographical errors and moving the Section on "Special Procedures for Particular Hearings" from Section V to Section VI for better organization and readability. Part A applies to rulemaking and adjudicatory proceedings where the petition was filed with the Commission Office before August 1, 2025. Part B contains the revised Procedural Rules that apply to proceedings where the petition is filed with the Commission Office after August 1, 2025. The Commission directs the Division to propose to repeal Part A in 2026.
The Commission adopted revisions to its Procedural Rules regulation to update obsolete provisions, restructure for better "readability", and account for modern practices. Additionally, the Commission adopted revisions to its prehearing processes and rulemaking procedures, including changes related to alternate proposals. Importantly, the Commission made changes to improve access to the process for interested members of the public, remove barriers to participation, and improve transparency. A significant goal of the Commission in making these changes is to increase public understanding of, and participation in, rulemaking proceedings. To accomplish this, the rule provides, among other things, that the time for public comment at Commission hearings is 3 minutes per person, unless the number of persons registering to comment is so great as to demand less time; written and oral comments will be accepted at the new Rulemaking Request before the Commission and will become part of the rulemaking record; and all Proponents for a rule - not just the Division - must comply with the Environmental Justice Act outreach requirements. The Commission also altered the prehearing process, including changes related to alternate proposals, as well as the hearing process, revising the order of rebuttal testimony.
Section I. Introduction
The Commission adopted minor revisions to the introductory language for clarity.
Section III. Definitions
The Commission adopted minor revisions to existing definitions of "Attorney General", "Division", "File or Filed", "Party" and "Staff" to reflect current Commission practice. The Commission added new definitions for "Administrator/Technical Secretary", "Person", "Proponent", "Redlines" and "Written Testimony". The Commission also revised the definition of "Alternate Proposal". The Commission added a new definition and process for "Redlines" to encourage Parties with diverse ideas to meaningfully engage with the Proponent. .The previous practice around Alternate Proposals has been replaced with a more equitable approach. The revised definition of "Alternate Proposal" reflects how this new practice will work. Parties submit Redlines for the Proponent to consider incorporating into the Revised Proposal and Final Rule Text. Redlines that are not incorporated by the Proponent may be taken forward to hearing by an interested Party as an Alternate Proposal upon filing with the Commission just before the hearing. Redlines and Alternate Proposals that are outside the scope of rulemaking notice will not move forward to the hearing.
Section IV. Procedures for General Meetings
The Commission adopted revisions to clarify requirements for placing an item on a general meeting agenda. The Commission also clarifies that recordings of meetings will be made available at no cost and transcripts of rulemaking and adjudicatory hearings will be available at cost. Public participation provisions were updated to reflect current practices. Additional clarifications were made regarding the approval of plans, reports, and SIPs to align with current practices and statutory requirements.
Section V. Procedures for Rulemaking
The Commission heavily revised Section V. in an attempt to respond to stakeholder and public feedback. Three principles underlie the adopted revisions:
There are many topics covered in Section V. that will require additional explanation and clarification in guidance. Some parties to the rulemaking advocated for putting needed clarification and expectations in the rule rather than in guidance. The Commission determined that in many cases creating guidance would be more appropriate because any adjustments that may be needed as experience with these new rules is gained can be made more quickly and efficiently through the use of guidance rather than through rulemaking. The Commission expects that any changes to guidance be made only after an opportunity for input from interested stakeholders and the public. Some parties asked the Commission to adopt a requirement that the Commission more thoroughly update the Statement of Basis and Purpose after deliberations, adopted by the Commission with each Rule revision, so that it also reflects an explanation of the Commission's reasoning behind its action, including where the Commission determined not to adopt any revision requested by any Party. The Commission currently reviews all Statement of Basis and Purpose language for deliberations and votes whether to adopt the language and where to update the language. The Statement of Basis and Purpose language summarizes the rule revisions as adopted by the Commission after their consideration of testimony, submissions during the process, public comments, and their discussions and decisions during deliberations. The Commission supports efforts by this Commission and future Commissions to strive to provide a more accessible explanation of reasoning for rule adoption in Statements of Basis and Purpose, in accessible plain language.
The Commission directs Division and Commission staff to update the AQCC Rulemaking Guidebook ("AQCC Guidance") and any necessary Commission Office templates or forms. The Commission directs that the Division and Commission staff take public comment on revised AQCC Guidance beginning no later than the end of February 2025. The Commission recommends that the revised AQCC Guidance be updated to reflect the revisions as adopted in this action, with the following issues clarified in detail.
* Expectations for Proponents in the pre-petition process. The updated guidance should outline best practices, timelines, when and how draft rulemaking concepts and preliminary rule language should be shared, and expectations for outreach to affected disproportionately impacted communities.
* Discussion of Colorado's Environmental Justice Act to highlight comprehensive outreach efforts, including requirements related to best practices for language justice such as information related to the translation of key documents into multiple languages and oral interpretation at public meetings.
* Details and best practices for Parties submitting Redlines and Alternate Proposals.
* How to access and complete new Commission forms and templates developed for these revisions.
* Expectations for decorum at public hearings.
* Clarifying how Errata may be utilized and the process for making substantive changes to the Proponent's final rule proposal. Includes additional details on digital accessibility and accommodation requests.
* The Commission expects the Division and Commission Staff to provide updates to the Commission at its General Meetings on the progress and completion of the AQCC Guidance.
This section includes new requirements for the pre-petition process with a focus on outreach to all interested persons, persons and entities that would be affected by the proposed rule, affected disproportionately impacted communities, and any other relevant regulatory entities to ensure timely consideration of alternative viewpoints and thoughtful development of the text of any proposed rule. There is also a new requirement for a Proponent to publicize that a new rule revision is being contemplated. The Proponent must identify multiple ways for interested persons to engage in the pre-petition process. Proponents must also publish a summary of rulemaking concepts to further inform the public on the details of the proposal being developed. The summary of concepts must clearly identify the regulations and sections impacted by the proposal. The Commission intends that this document be as detailed as practicable and must include preliminary draft rule language. The preliminary draft rule language does not have to be perfect or complete (e.g., placeholders for concepts to be discussed with the public are acceptable). The Commission understands that any rule language shared is subject to change in the petition package. The Commission also required that the rule proponent, if not the Division, comply with the practices in § 24-4-109(3), C.R.S. in satisfying the requirements of this Section V.A.1.a.
The process for scheduling a rulemaking with the Commission Office remains the same as under the current process. However, the petition package deadline of thirty (30) days is intended to be a hard deadline for the majority of rulemaking requests. This deadline has been somewhat fluid under current practice, but having a petition package available for public inspection weeks before the Rulemaking Request is essential to give interested persons the opportunity and time to develop Redlines.
This section has been revised to include a few new items required for the Petition Package. The proposal retains the requirements for a petition package to include: a cover sheet (Agenda Item Control Sheet), proposed rule language, proposed statement of basis, specific statutory authority, and purpose language, a Memorandum of Notice, an Initial Economic Impact Analysis, statements regarding Federal requirements, and a range of regulatory alternatives. Proponents must now also include a draft statement of rulemaking scope. This statement should be short, written in plain language, and describe the scope of rulemaking (i.e., what are the affected source categories, the regulated pollutant(s) of concern, etc.). Care should be taken in drafting this statement to ensure that the scope is well-defined and the purpose of the proposed rulemaking is clear. The Commission may or may not choose to use this draft statement of rulemaking scope when writing the scope of notice included in the Notice of Proposed Rulemaking.
The intent is that the draft scope will help the Commission in finalizing the rulemaking scope, thus making determinations on Redlines a more straightforward process. In determining not to ultimately allow appeals as of right for Hearing Officer determinations on whether a particular set of Redlines is within the scope as set by the Commission, the Commission is relying on this upfront, transparent, and explicit process to encourage earlier resolution of questions regarding scope of the hearing. Also included in the Petition Package is a new summary for any input received from stakeholders during the pre-petition outreach and engagement. This summary will serve to educate the public, Commission, and potential Parties on issues and ideas raised before the Petition Package was submitted. Concern was raised during the rulemaking that the summary may misstate input or fail to include input. The Commission views the summary as a helpful tool in providing information and understands that the summary may not always accurately reflect all comments. The Commission will provide opportunities for stakeholders and the public during the Rulemaking Request and during the rulemaking hearing process to make comments directly to the Commission.
The adopted revisions do not add any new requirements to current practice. The Commission Office will maintain a long-term schedule for rulemakings and post the schedule on its website. Deviation from the schedule will require a showing of good cause from Proponents. Under the adopted revisions, the Commission intends that the majority of rulemakings will take place on a four month timeline by default, however, the Commission may set shorter or longer timelines as allowed by the APA.
The adopted revisions do not add any new requirements to current practice other than clarifying when the Commission Office notifies all persons on the Commission distribution list if a proposal is substantively revised prior to hearing. The revisions also clarify that written comments are encouraged on the substantive revision.
The adopted revisions do not add any new requirements to current practice, except that the pre-petition process in Section V.A. and the Community Outreach and Engagement summary in Section V.B.2.i. are also not required for a rulemakings that (1) solely adopt by reference applicable federal rules; (2) adopt prescriptive state statutory requirements where the Commission is allowed no significant policy-making options; or, (3) will have no regulatory impact on any person, facility, or activity.
This section describes the Rulemaking Request process led by the Commission. Notably, the adopted revisions require that the Commission provide opportunity for public comment on the petition package. Commenters are allowed to make comments orally or in writing on any element of the petition package, including the draft statement of scope. The Commission has broad discretion in its decision to set a matter for hearing or not. The Commission may, in its discretion, weigh a number of considerations before setting a hearing date. Over the years, Division practice had evolved so that it routinely submitted petition packages late with a good cause exception. Under these new rules, the Commission expects that all petition package submissions be filed in a timely manner (i.e. 30 days before the scheduled Rulemaking Request). Late petition packages will only be accepted under rare circumstances with good cause shown.
This section clarifies that a Hearing Officer from amongst the Commissioners be appointed when the Commission sets the rulemaking for hearing.
The Commission adopted revisions to require that the Commission publish a formal notice of proposed rulemaking in the Colorado Register no less than sixty (60) days before the hearing, as required by statute. The notice of proposed rulemaking will detail all prehearing filing deadlines.
The Commission clarified that party status is required to submit Redlines, file Initial Comments, Position Statements, or testify at the rulemaking hearing. Proponents will be granted automatic party status, except the Division, which serves as staff to the Commission. Requests for party status will be made via a form that will be accessible on the Commission website. Details of the party status request form will be covered in the revised AQCC Guidance. The Commission included a requirement that potential Parties make a statement of how that person participated in the pre-petition stakeholder outreach process. This statement will be used for informational purposes only so that the Commission and Division can assess the effectiveness of their stakeholder practices. While engagement in the pre-petition engagement process is critical for interested stakeholders to meaningfully influence a Proponent's petition package, the Commission understands that stakeholders may not always have the resources or expertise to attend these meetings. Parties will have the right to make an individual presentation either orally or in writing, or both, during that part of the rulemaking hearing scheduled for Party presentations. Parties also have the right to make motions and objections and to cross-examine witnesses. In line with past practice, late party status will only be granted with good cause shown. Those seeking party status after the deadline for Initial Comments (see Section V.D.2.) will generally be denied. Parties may lose party status if they fail to comply with the prehearing procedures and orders, at the discretion of the Hearing Officer.
In line with past practice, party status is not the only way to engage in the rulemaking process. The revised language allows for persons or entities to make their views known to the Commission either orally or with written comment. The Commission will host public comment before any hearing and written comments will be accepted up to the day of the hearing. However, the Commission recommends that non-parties submit written comments fourteen (14) days before a hearing to give Commissioners adequate time to review those comments.
This section has been reworked so that subsections occur sequentially in order of events through the prehearing process.
The Commission adopted a new filing intended to allow for a conversation between the Proponent of the rule and the Parties. Instead of cross-filing prehearing statements, the sequential nature of these filings allows the Parties to engage in a back-and-forth to identify and, potentially, resolve issues before the hearing. By separating substantive comments on the rule from the more formal requirements of the position statement, the Parties should be able to focus more squarely on resolving issues relating to the rule itself. A template for initial comments will be made available on the Commission website. Substantive changes to the proposal that are raised by Parties in Initial Comments must be accompanied by Redlines. Initial Comments are mandatory for all Parties. This is intended to encourage Parties to meaningfully engage during the prehearing process to resolve issues and narrow the scope of the hearing. However, the Procedural Rules do not limit the ability of Parties to address issues that arise from subsequent revisions to a proposal. Parties can also respond to issues raised by another Party.
For example, a Party who wishes to revise a monitoring frequency or applicability threshold must file Redlines proposing their desired frequency or threshold, rather than filing a separate document describing the requested revision. This process will allow the Commission and all Parties to review and respond to specific proposals. Any Redlines submitted by Parties must be accompanied by economic impact information in accordance with C.R.S. § 25-7-110.5(4) if there are costs or benefits not accounted for in, or meaningfully different from, the Proponent's Initial EIA. The Commission only adopts rules that are well supported by the rulemaking record. It is the duty of the Parties to ensure that the Commission has enough data and information to adopt any suggested revision in their Redlines. The Commission also adopted deadline provisions for Redlines and Initial Comments that make it possible for Redlines to be required before Initial Comments. The Commission intends that these two deadlines will be identical for rulemakings on a four-month timeline. In instances where the Commission sets a longer timeline, the Commission may allow for submission of Redlines before Initial Comments. If the Commission decides to decouple the deadlines for a rulemaking, the Commission Office will ensure that the timeframe from the Rulemaking Request and the due date for Redlines is not compressed compared to the presumptive timeline.
The rule provides that the Hearing Officer is to make the determination whether submitted issues raised in the Redlines opposed by any Party will be considered by the Commission or will be rejected as not consistent with the scope of the hearing. All parties to the Hearing, except for the Division, urged the Commission to allow for an appeal as of right. The Commission as a whole decided, as a policy matter, to adopt the Division's proposal that the Hearing Officer's determination regarding challenges to a Party's Redline would not be appealable to the full Commission. This decision is based upon the experience with the role and decisions of Hearing Officers in prior rulemakings, the new process that establishes a more detailed and complete description of the scope of a rulemaking, the need to conduct rulemaking hearings efficiently and in keeping with the Commission's full rulemaking calendar, and the ability of the Hearing Officer to refer the determination to the full Commission. A Party whose redlines are rejected may petition the Commission to hold a separate rulemaking hearing on the matter. Hearing Officers are responsible for overseeing and directing the rulemaking process before and during the rulemaking hearing. Because of this responsibility, Hearing Officers will often have a greater understanding of the issues and positions of the Parties earlier in the process than the other Commissioners. Before making any procedural decision, Hearing Officers routinely will confer with the Commission's attorney and staff. Recognizing the responsibility of the Hearing Officer, and early depth of knowledge, the full Commission regularly defers to the Hearing Officer 's procedural determinations.
Parties asserted that an appeal of a Hearing Officer's determination would be rare. The Commission believes that overturning a Hearing Officer's scoping determination would be even more uncommon. This is especially true given the scoping details this new rule requires. Such required detail is intended to give potential Parties and the public a clearer understanding of both the breadth and limits of the subject matter of the proposed rule. A better-defined scope will make it easier for Parties, as well as the Hearing Officer, to determine what Redlines would be considered to be in scope. This also makes the hearing process more efficient. Seeking an appeal before the full Commission would delay the already lengthy rulemaking process, and potentially delay other rulemakings and other matters previously scheduled before the Commission. And, the rule allows the Hearing Officer to refer decisions whether a Redline is or is not consistent with the rulemaking scope based upon opposition to the Redline to the full Commission. For these reasons, without limitation, the Commission declined to adopt the Parties' proposal. The Hearing Officer will have up to fourteen (14) days after the Initial Comments submission deadline to make a determination on whether issues raised in Redlines that were opposed by any Party will be considered by the Commission as part of the noticed rulemaking process. Redlines that are not opposed by any Party are considered to be accepted by the Hearing Officer based on scope and will move through the rulemaking process and on to be considered by the Commission at the rulemaking hearing. Parties will have an opportunity to oppose issues raised in another Party's Initial Comments and Redlines based on scope. If specific issues are determined to be outside the scope of rulemaking, the Party who submitted the rejected Redlines can submit a petition package at a different time so long as the Procedural Rules are followed.
The Commission adopted a new filing intended to continue the conversation started by the Parties' filing of Initial Comments. This new filing gives the Proponent a chance to meaningfully engage with the comments provided by Parties and, potentially, to revise their proposal to address those concerns. A Revised Proposal will consist of rule text in tracked changes of the initial proposal, if necessary, and a summary of the changes made to the initial proposal.
This updated process is intended to replace current practice of informal discussions leading up to the hearing. By specifically identifying the ability to engage in direct, informal discussions in the rules, this provision improves transparency and accessibility for purposes of the rulemaking process. Also, by avoiding late, substantive changes on the eve of the hearing, this section is intended to minimize the possibility of substantive changes that could undermine the validity or applicability of the various required analyses (e.g., Final EIA, Regulatory Analysis, and Cost Benefit Analysis).
The Commission adopted a requirement for final rule text for the Proponent's proposal and any Alternate Proposals to be submitted to provide clarity on what proposed rule revisions are before the Commission at the hearing. By finalizing the proposed rule text later in the process, it allows the Division and/or the Proponent to prepare the required economic analyses and limits the possibility that the analyses could be undermined by substantive changes to the proposed rule between the time when those analyses are prepared and when the rule is presented to the Commission.
Any Redlines that have not been incorporated into the Proponent's final rule text become an Alternate Proposal. The Commission adopted a provision to allow Parties to submit written documentation of the remaining Alternate Proposals after the Final Proposed Rule is filed by the Proponent. The Alternate Proposal - which provides the Commission notice of which Redlines sought by a Party were not accepted by the Proponent - should be based off of the Proponent's Final Rule Proposal. For purposes of the Alternate Proposal, Parties may submit partial Redlines. For example, if a Final Proposed Rule is 90 pages, and the Party has only remaining Redlines addressing two subsections of the rule, the Party may submit partial Redlines that reflect only those changes to those two subsections. The EIA requirements contained in Section V.D.1.b. and V.D.5.b. continue to apply to any Alternate Proposals submitted by Parties. Parties with Alternate Proposals will have the opportunity to address the issues raised by their proposal at the hearing during their testimony. Parties may also address issues with another Party's Alternate Proposal at the hearing. Alternate Proposals may also include new issues where the issue did not exist until the Proponent's final rule text was submitted (e.g. a revision newly included in the final rule text has a legal, technical, or policy issue that the Party wants to address).
The proposed language clarifies that if all Parties and the Division reach consensus agreement on a substantive change after the final rule language has been submitted, then the Division may submit a consensus alternate proposal to be considered by the Commission at the hearing. This caveat allows for the necessary flexibility that will allow Parties to narrow the issues before the Commission at hearing. Any rule change that will result in changes to the costs and benefits of the proposed rule will also need to be accompanied by a revised EIA, if not already covered by the Final EIA.
The proposed language clarifies that errata cannot be used to make substantive changes to the proposed rule text.
The motions practice remains largely unchanged in the proposed revisions, except that motions that are filed and served within fourteen (14) days of the hearing date will be accepted only with good cause shown.
The Commission adopted revisions specifying that final EIA's are now due on the dates specified in the Colorado Statutes to allow the Proponent and Parties submitting Redlines time to update the analysis based on revisions made throughout the prehearing process. The revisions also clarify that EIAs for Redlines and Alternate Proposals may evaluate the incremental impact over that already estimated for the Proponent's original proposal. This clarification is intended to lower the burden involved in preparing an EIA for Parties submitting Redlines and should improve accessibility.
The adopted revisions are intended to clarify expectations for proceedings before the Commission.
The adopted revisions do not add any new requirements to current practice but are included to aid in transparency.
The Commission adopted revisions to clarify that Parties that have submitted alternate proposals will present testimony after the Proponent of the original proposal (and after the Division, if the Division is not the Proponent). The order of rebuttal testimony is set by the Hearing Officer. The Proponent of the rule (and the Division, if not the Proponent) will go first in rebuttal testimony. Surrebuttal testimony will be provided by the Division and the Proponent. Surrebuttal is limited to addressing points and arguments made during rebuttal. The Division will always go last in surrebuttal even if not the Proponent. The Division has a unique role at the hearing because it serves as Commission Staff and is the implementing agency for any rule adopted by the Commission. The Commission also often has the most questions for the Division based upon testimony from other Parties.
The Commission adopted a new section for transparency and to clarify all of the elements that constitute the rulemaking record. Commissioner deliberations are part of the record for purposes of judicial review as provided for in § 24-4-106(6), C.R.S.
The adopted revisions are intended to bring clarity to the Preliminary Final Adoption process. In recent years, the Commission has utilized this process to make the final hearing day more efficient and effective. However, many stakeholders have voiced concerns that it is often unclear exactly what the Commission actually adopted because the final rule text is not presented at the hearing. These revisions are intended to avoid drafting of language by the Commission on the fly. If significant changes are agreed upon by Commissioners, the Commission can more deliberately approach those changes and provide Parties with an opportunity for limited review and comment to avoid any unintended consequences.
All provisions relating to temporary or emergency rules are gathered in one place to avoid any potential for confusion regarding the requirements particular to these proceedings. These are largely the same as previous versions of the Procedural Rules.
Section VI.I. Special Procedures for Particular Hearings
This section was moved from Section V. to Section VI. for better organization and readability. The Commission instructs Commission Staff to review these provisions and evaluate them against the referenced statutes to identify any potential inconsistencies, and to report back to the Commission at a later date.
Section VII.D. Public Comment Hearing Procedures
The Commission adopted revisions to clarify the process for operating permit applications. Operating permits are administered under a federal program authorized by the federal Clean Air Act. Colorado's program is authorized by state law and permission from the United States Environmental Protection Agency. While the Division is responsible for administering all operating permit applications, EPA is responsible for reviewing any permit decisions before they are final. Currently, the Commission's rules can be interpreted to be inconsistent with that process. The Commission is clarifying that no operating permit decision will be issued until the public comment period closes, the Division has responded to any comments, and EPA has reviewed the permit decision. The Commission also clarified that the Division will make responses to comments publicly available after transmittal of a Title V permit to EPA, and that the administrative record for a Title V permit includes any applicant responses to comments.