2 CCR 402-2-20 - PETITIONS FOR DECLARATORY ORDERS

Basis and Purpose: The statutory authority for this rule is found in section 24-4-105(11). The purpose of this Rule is to comply with the requirement of section 24-4-105(11) and provide the Board's procedures for entertaining, in its discretion, any petitions for declaratory orders to terminate controversies or to remove uncertainties as to the applicability to the petitioners of any statutory provision or of any rule or order of the agency.

20.1 General - pursuant to section 24-4-105(11), C.R.S., this rule provides procedures for the Board's entertaining of petitions for declaratory orders to terminate controversies or to remove uncertainties as to the applicability to the petitioner of any statutory provision or of any rule or order of the agency. The order disposing of the petition constitutes agency action subject to judicial review. The Board retains the right to determine, in its sound discretion, whether to entertain any such petition submitted pursuant to this Rule. See § 24-4-105(11), C.R.S.

20.2 Petition for Statement of Position - Any person may petition the Staff for a statement of position concerning the applicability to the petitioner of any provision of these Construction Rules, or any regulation of the Board. The Staff shall respond with a written statement of position within 30 days of receiving a proper petition.

20.3 Petition for Declaratory Order - Any person who has properly petitioned the Staff for a statement of position, and who is dissatisfied with the statement of position, or who has not received a response within 30 days of the petition, may petition the Board for a declaratory order pursuant to section 24-4-105(11), C.R.S. Such petition must be submitted to the Chief Well Inspector or a member of his or her staff within 30 days of the date of the Staff's written statement of position. A petition for declaratory order must include the following:

a. The name and address of the petitioner.

b. Whether the petitioner holds an active license issued by the Board.

c. Whether the petitioner is involved in any pending administrative hearings with the Board.

d. The language of the statute, rule, or order of the Board to which the petition relates.

e. A concise statement of all facts necessary to show the nature of the controversy or the uncertainty as to the applicability of the statute, rule, or order of the Board to which the petition relates.

f. A concise statement of the legal authorities, if any, and other reasons or authorities upon which the petitioner relies.

g. A concise statement of the declaratory order sought by the petitioner.

20.4 Board's Exercise of its Discretion to Entertain a Petition - The Board will determine, in its discretion and with no prior notice to the petitioner, whether to entertain any petition. If the Board decides it will not entertain a petition, it shall promptly notify the petitioner in writing of its decision and the reasons for that decision. Any of the following grounds are sufficient reason to refuse to entertain a petition:

a. The petitioner failed to properly petition the Staff for a statement of position, or if a statement of position was issued, the petition for declaratory order was filed with the Board more than 30 days after the Staff issued its statement of position.

b. A ruling on the petition will neither terminate the controversy nor remove uncertainties concerning the applicability to petitioner of the statute, rule, or order in question.

c. The petition involves a subject, question, or issue that is currently involved in a pending hearing before the Board or the State Engineer's Office, or that is involved in an on-going investigation conducted by the Board, or that is involved in a written complaint previously filed in any state court or with the State Engineer's Office.

d. The petition seeks an order on a moot or hypothetical question.

e. The petitioner has some other adequate legal remedy, other than an action for declaratory relief pursuant to C.R.C.P. 57, that will terminate the controversy or remove any uncertainty concerning applicability of the statute, rule, or order.

20.5 If Board Entertains a Petition - If the Board determines that it will entertain the petition for declaratory order, it must notify the petitioner within 30 days of making such determination, and the following procedures will apply:

a. The Board may expedite the hearing, so long as the interests of the petitioner will not be substantially prejudiced thereby, by ruling on the basis of the facts and legal authority presented in the petition, or by requesting the petitioner or the Staff to submit additional evidence and legal argument in writing.

b. In the event the Board determines that an evidentiary hearing or legal argument is necessary to a ruling on the petition, a hearing must be conducted in accordance with the state Administrative Procedures Act. The petitioner will be identified as Respondent.

c. The parties to any proceeding pursuant to this rule shall be the petitioner/Respondent and the Staff. Any other interested person may seek leave of the Board to intervene in the proceeding and such leave may be granted if the Board determined that such intervention will make unnecessary a separate petition for declaratory order by the interested person.

d. The declaratory order shall constitute a Final Agency Action subject to judicial review pursuant to section 24-4-106, C.R.S.

20.6 Records of Petitions and Declaratory Orders - Files of all petitions, requests, statements of position, and declaratory order will be maintained by the Board. Such files will be available for public inspection, except for any material required by law to be kept confidential. The Board will post a copy of all statements of position and declaratory orders constituting Final Agency Action on the Board's web site.

Notes

2 CCR 402-2-20

39 CR 11, June 10, 2016, effective 9/1/2016 41 CR 11, June 10, 2018, effective 7/1/2018