The following is intended to provide summarized guidance to the Colorado Oil and Gas Conservation Commission (COGCC) hearing process. It is not intended to substitute for the COGCC 500 series Rules and the 100 series definitions that provide the detailed requirements for hearing, some of which have been referenced below. Nor is it intended to substitute for or contravene the Colorado Oil and Gas Conservation Act (§34-60-101 et seq., C.R.S.), the Administrative Procedure Act (§24-4-101 et seq., C.R.S.), or any other applicable law.
The most common type of
COGCC hearing is the adjudicatory hearing. The COGCC processes about 60
applications for hearing per year. The COGCC Commissioners (nine part-time
Commissioners appointed by the Governor and confirmed by the Senate –
Commissioners receive a limited per diem but no other compensation) act as
judges in adjudicatory hearings which are conducted in a quasi-judicial manner
under a fairly rigid set of procedural rules (see Rules 509, 510, 511, 514,
515, 517, 518, 519, 528, 530 in particular). The burden of proof is squarely
upon the applicant in adjudicatory matters. Other parties are permitted under
the rules to participate under certain conditions as protestants or intervenors
(see the 100 series definitions) in adjudicatory hearings.
Matters generally
involving determination of rights, duties or obligations of specific
individuals on the basis of presently existing legal standards or policy
considerations to past or present facts developed at a hearing conducted for
the purpose of resolving the particular interests in question are generally the
subject of adjudicatory hearings. Notice is required to be served on all the
“owners” (see the 100 series definition for “owners”) regarding mineral
interests in the lands affected by the application. Communication with the
Commissioners outside of the formal hearing process (“ex parte” communication)
regarding adjudicatory hearing matters is prohibited (see Rule 515).
Expert witnesses are
furnished by the parties to provide testimony only after their qualifications
have been reviewed and accepted by the Commissioners. Other parties to the
adjudicatory hearing also have the opportunity to question the credentials of
proposed expert witnesses. Representation by attorneys licensed to practice law
in the State of Colorado is generally required for parties participating in
adjudicatory hearings (Rule 517). There are also provisions for requesting subpoenas
to ensure that witnesses testify at adjudicatory hearings (Rule 518). The
Colorado Rules of Civil Procedure are conditionally applied to the admission of
evidence in adjudicatory hearings (see Rule 519.b(1)).
Administrative Hearings in Uncontested Adjudicatory
Matters
If an application for a
hearing on an adjudicatory matter is uncontested, an administrative hearing is
usually presided over by COGCC staff hearing officers. If the hearing officers recommend approval
of the application, the matter is placed on the consent agenda for the
Commissioners’ consideration at their next Commission hearing. Most hearing
applications are handled in this manner. (See Rule 526 in particular.)
Rulemaking Hearings
Rulemaking hearings
generally deal with matters of general statewide application and require the
balancing of questions of judgement and discretion in the formulation of
regulatory policy. COGCC Commissioners act as legislators in rulemaking
hearings, which are conducted in a quasi-legislative manner under more flexible
procedural rules (see Rule 529 in particular). The Commission encourages much
broader participation in rulemaking hearings. Notice is required by statewide
publication. Communication with the Commissioners on rulemaking matters outside
the hearing process is permitted.
If there is a question as
to whether a matter should be the subject of an adjudicatory hearing or a
rulemaking hearing, COGCC Commissioners retain discretion to determine
which type of hearing they shall conduct.
Enforcement Hearings
The COGCC staff
representative acts as a quasi-prosecutor in enforcement hearings, which are
presided over by the COGCC Commissioners acting as judges. The COGCC
enforcement process is generally initiated with the COGCC staff issuing a Notice
Of Alleged Violation (NOAV – see Rule 522) to the subject party. Most NOAVs are
resolved satisfactorily without further enforcement action.
In cases where the NOAV
is not satisfactorily resolved, COGCC staff generally makes an offer to
settle the matter with an Administrative Order by Consent (AOC), which is
executed and placed on the Commissioners’ consent agenda for their
consideration at the next hearing. An AOC may contain further requirements for
corrective action and may include fines. If the subject party does not agree to
execute the AOC, COGCC staff brings the matter before the Commissioners at
an Order Finding Violation (OFV) hearing. The Commissioners may decide to
assess fines during an OFV hearing (see Rule 523).
If COGCC staff elects
not to prosecute a particular enforcement matter, any party may file an
application for an OFV hearing before the Commissioners (see Rule 522.b.4).
Standards of Conduct for COGCC Commissioners
Rule 516 provides
extensive requirements for COGCC Commissioners’ conduct to ensure fair and
impartial decision making. The rule addresses potential conflicts of interest.
It also prescribes ethical standards for the COGCC Commissioners to apply in
the discharge of their duties. These are intended to supplement applicable
Standards of Conduct set forth in §24-18-101 et seq., C.R.S.
Roles of the Assistant Attorney General and COGCC Staff
in Hearings
The Assistant Attorney
General (AAG) acts as the attorney to the Commissioners and provides legal
counsel to them in COGCC hearings. The AAG also advises COGCC staff unless
there is a conflict. In the event of a conflict, the Attorney General’s Office
appoints another attorney as counsel to the staff. The AAG generally does not
provide legal advice to the parties involved in COGCC hearings.
COGCC staff
representatives are present to provide analysis, make presentations and respond
to questions at the Commissioners’ discretion. COGCC staff representatives
generally do not provide analysis or other technical support to the parties
involved in COGCC adjudicatory hearings. The matters at issue and the course of
many adjudicatory Commission hearings are such that the participation of COGCC
staff is not necessary. The qualifications of individual Commissioners are such
that they are equipped to make independent technical judgements in the absence
of staff analysis in many cases.
Pre-Hearing Conferences in Contested Matters
COGCC staff usually
conducts pre-hearing conferences in contested matters. The purposes of a
pre-hearing conference are to establish communication between the parties in
contested matters, discuss the potential for settling disputed matters, narrow
the issues disputed between the parties, and set time frames for the conduct of
the hearing. The AAG often attends pre-hearing conferences. The COGCC
staff hearing officer usually prepares a pre-hearing conference report for the
Commissioners. (See Rule 527 in particular.)
The hearing officer may
require the parties to provide pre-hearing statements, address various
procedural matters for the hearing, limit the number of witnesses, and address
other procedural matters. The parties
are required to provide for the hearing officer’s review written agreements for
any issues the parties have resolved. After the pre-hearing conference, but
prior to the hearing, the parties are required to furnish the hearing officer
with a recommended order for the Commissioners to consider for adoption.
Statements from the Public at COGCC Hearings
Rule 510 provides any
person the opportunity to make a statement at any Commission hearing. The rule
also provides the opportunity for oral statements to be made under oath and
subject to cross-examination in order to be accepted into the record of an
adjudicatory hearing. The rule further provides for Commissioners to accept
sworn written statements into the record.
Timing for COGCC Hearings, Applications, Protests,
Interventions, and Pre-Hearing Conferences
A current calendar of
COGCC hearings is posted on the COGCC website under “Hearings”. In addition to
listing the date of each Commission hearing, the calendar also lists: the dates
by which applications must be filed for each hearing; the dates by which
protests or interventions must be filed for those applications; the week in
which pre-hearing conferences will be held in contested matters, and the week
in which administrative hearings will be held. COGCC hearings are generally
held every five weeks. Applications for hearing are generally due approximately
seven weeks prior to the hearing date. Protests or interventions are generally
due two weeks prior to the hearing date. Pre-hearing conferences are held as
soon as practicable after the protest/intervention date. (See Rules 506 and 527
in particular.)
Notice Requirements for COGCC Hearings
There are a variety of
notice requirements specific to various types of hearing applications. In
addition to general notice provisions there are specific notice requirements
for: applications affecting drilling units; applications for involuntary
pooling; applications for unitization; applications for well location
exceptions; applications related to violations; and certain requirements for
notice to local governments. For a
detailed description of hearing notice requirements refer to Rule 507.
Local Public Forums for Increased Well Density
Adjudicatory Hearings
COGCC rules stipulate well setback requirements that result in a maximum allowable default well density of one well per nominal 40 acres without a special hearing. In cases where applications for an adjudicatory hearing propose a surface well site density greater than one surface well site (or multi-well site) per 40 acres, a local public forum is generally required. Local public forums are conducted by COGCC staff at a location convenient to the residents in the proximity of the area subject to the hearing application. Such forums provide the convenience to residents of commenting on the proposed application without travelling to the Commission hearing location. The local public forums are video taped and viewed by COGCC Commissioners prior to the hearing on the application. (See Rule 508 in particular.)