Current through Register Vol. 47, No. 17, September 10, 2024
A. Any person may
petition the Commission or the Division for a declaratory order to remove
uncertainties as to the applicability to the petitioner of any statutory
provision or of any rule or order of the Commission or Division. Such petitions
shall not relate to the manner in which a statutory provision or rule is being
applied.
B. The Commission or the
Division will determine, after notice to the petitioner and opportunity to be
heard, whether to rule upon the merits of any such petition. The Commission
shall dispose of such matters as regular business items at a business
meeting.
C. In determining whether
to rule upon a petition filed pursuant to this section, the following matters
will be considered among others:
1) Whether a
ruling on the petition will remove uncertainties as to the applicability to
petitioner of any statutory provision or rule or order of the Commission or the
Division.
2) Whether the petition
involves any subject, question or issue which is the subject of a formal or
informal matter or investigation currently pending before the Commission or the
Division.
3) Whether the petition
involves any subject, question or issue which is the subject of a formal or
informal matter or investigation currently pending before the Commission or the
Division or a court but not involving any petitioner.
4) Whether the petition seeks a ruling on a
moot or hypothetical question or will result in an advisory ruling or
order.
5) Whether the petitioner
has some other adequate legal remedy, other than an action for declaratory
relief pursuant to rule 57, Colo. R. Civ. P., which will remove any uncertainty
as to the applicability to the petitioner of the statute, rule or order in
question.
D. Any
petition filed pursuant to this section shall set forth the following:
1) The name and address of the petitioner and
whether the petitioner is the holder of a discharge permit pursuant to the
Colorado Water Quality Control Act, section,
25-8-101
et
seq. C.R.S.
2) The
statute, rule or order to which the petition relates.
3) A concise statement of all the facts
necessary to show the nature of the uncertainty and the manner in which the
statute, rule or order in question applies or potentially applies to the
petitioner.
E. If the
Commission or the Division determines that it will rule on the petition, the
following procedures shall apply:
1) The
Commission or the Division may rule upon the petition based solely upon the
facts presented in the petition. In such a case:
a) Any ruling of the Commission or the
Division will apply only to the extent of the facts presented in the petition
and any amendment to the petition.
b) The Commission or the Division may order
the petitioner to file a written brief, memorandum or statement of
position.
c) The Commission or the
Division may set the petition, upon due notice to the petitioner, for a
non-evidentiary hearing.
d) The
Commission or the Division may dispose of the petition on the sole basis of the
matters set forth in the petition.
e) The Commission or the Division may request
the petitioner to submit additional facts in writing. In such event, such
additional facts will be considered as an amendment to the petition.
f) The Commission or the Division may take
administrative notice of facts pursuant to the APA (section
24-4-105(8),
C.R.S.) and may utilize its experience, technical competence and specialized
knowledge in the disposition of the petition.
g) If the Commission or the Division rules
upon the petition without a hearing, it shall promptly notify the petitioner of
its decision.
2) The
Commission or the Division may, in its discretion, set the petition for
hearing, upon due notice to petitioner, for the purpose of obtaining additional
facts or information or to determine the truth of any facts set forth in the
petition or to hear oral argument on the petition. The notice to the petitioner
setting such hearing shall set forth, to the extent known, the factual or other
matters into which the agency intends to inquire. For the purpose of such a
hearing, to the extent necessary, the petitioner shall have the burden of
proving all of the facts stated in the petition, all of the facts necessary to
show the nature of the controversy or uncertainty and the manner in which the
statute, rule or order in question applies or potentially applies to the
petitioner and any other facts the petitioner desires the Commission or the
Division to consider.
F.
The parties to any proceeding pursuant to this section shall be the petitioner
and the Division if appropriate.
G.
Any declaratory order or other order disposing of a petition pursuant to this
section shall constitute final agency action subject to judicial review
pursuant to the APA (section
24-4-106 C.R.S.).
