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 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.
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.)