6 CCR 1007-3-8.80 - Basis and Purpose

These amendments to 6 CCR 1007-3, Part 262 and Part 100 are made pursuant to the authority granted to the Solid and Hazardous Waste Commission in § § 25-15-302(2) and (3.5), C.R.S.

Amendments to Hazardous Waste Fees

The Solid and Hazardous Waste Commission put the current fees in place in 2009. After two years under that hazardous waste fee structure, the Department determined that a one-year temporary decrease of 12% in hazardous waste fees was necessary for Calendar Year 2011. After further review, the Department determined that an additional one-year temporary decrease of 30% in hazardous waste fees was necessary for Calendar Year 2012. At that time, the Department suspected that the 30% fee reduction could possibly be extended into Calendar Year 2013 and maybe even further. However, due to an uncertain economy and the resulting difficult revenue and cost projections, the 30% fee reduction was only included in the regulations for Calendar Year 2012. After additional analysis, the budget for the Hazardous Waste Program remains healthy and our projections have been accurate, so this rulemaking extends the fee reduction for another year, Calendar Year 2013.

§25-15-301.5, C.R.S., provides general directives for implementation of the hazardous waste regulatory program. These directives include implementing a hazardous waste program that a) maintains program authorization by the U.S. EPA, b) promotes a community ethic to reduce or eliminate waste problems, c) is credible and accountable to industry and the public, d) is innovative and cost-effective, and e) protects the environmental quality of life for impacted residents of the state. § 25-15-302(2), C.R.S., provides guidance for future fee adjustments by the Solid and Hazardous Waste Commission. This guidance includes setting the fees such that the revenue generated by each fee approximates the actual reasonable program costs attributable to the facilities paying the fee.

The Department is authorized by the U.S. EPA to operate the hazardous waste regulatory program in Colorado in lieu of the federal government. One of the key criteria evaluated by the U.S. EPA in authorizing the state program is resources, both in terms of funding and in terms of qualified personnel.

Even with this fee decrease, the Department has determined that it will continue to be able to operate an adequate program.

Amendments to these same sections of the regulations made in May, 2009, effective July 1, 2009, implemented a balanced 15% increase in hazardous waste program fees that the Department expected would provide adequate funding for the hazardous waste program for a period of approximately two years. However, because of several unanticipated events, the current fee structure has collected too much money. The Department has benefitted from higher-than-anticipated revenue, particularly in 2011, and lower-than-expected costs. Revenues have been higher due to 1) greater-than-expected volumes processed by Colorado's permitted Treatment, Storage, and Disposal (TSD) facilities, 2) collecting a sizable hazardous waste volume fee for a new waste stream at another TSD, and 3) other fee components (number of billable hours and number of hazardous waste generators) remaining stronger than anticipated.

The Hazardous Waste Program has had lower expenses because 1) salaries did not increase in FY10, FY11, or FY12, and will not increase in FY13, 2) salaries were actually cut 2.5% in FY11 and FY12 by legislative action diverting more salary to PERA (the retirement program for state employees) and decreasing the amount paid by the state the same amount, 3) the Hazardous Waste Program has not spent the budgeted $200,000 that we built into the 2009 fee increase for building a new data management system, 4) the Hazardous Waste Program did not have to pay attorney costs out of the cash account in FY11 or FY12, and 5) the Hazardous Waste Program lost ~4 FTE in FY11 due to some minor reorganization and movement of time and effort over to the Solid Waste Program.

Higher revenues and lower expenses caused overall revenue to outpace expenses in both FY10 and FY11. In FY12, revenue and expenses were approximately equal. This has caused the Program's bank account to grow to a level that significantly exceeds what is allowed by law. § 24-75-402, C.R.S., requires that the fiscal-year end balance in this type of bank account not exceed 16.5% of the previous year's expenditures. Because of the unanticipated events described above, projections show that the 16.5% carry-over limit will be exceeded until beyond FY15 unless the fees are decreased. With a fee decrease the bank account balance will again reach the 16.5% limit in FY15.

This fee decrease rulemaking will become effective on January 1, 2013.

The amendments being adopted at this time include a second one-year temporary fee decrease of 30% for all fee components. The 2009 fee increase was calculated carefully to collect proportional amounts of revenue from each hazardous waste sector equivalent to the amount of time and effort the Department spent regulating that sector. That proportion between sectors is still correct and, therefore, the fairest and simplest approach to the fee decrease is an across-the-board equal fee reduction of 30%. This means that the fees included in Parts 262.13 (Generator fees), 100.31 (TSD annual, volume, and minimum fees), 100.32 (document review and activity fees), and 100.33 (notification fees) have all been reduced by 30% for calendar year 2013.

The maximum and ceilings for non-commercial TSDs in Part 100.31(b) and for document review in Parts 100.32(b) and (c) have not been adjusted. These ceilings were not raised in 2009 when the last fee increase (15%) was implemented so there is no reason to lower them now for this fee decrease. In truth, these ceilings are only very rarely reached even under the 2009 fee amounts.

Statement of Basis and Purpose - Rulemaking Hearing of November 20, 2012

Notes

6 CCR 1007-3-8.80
37 CR 24, December 25, 2014, effective 3/2/2015 38 CR 11, June 10, 2015, effective 6/30/2015 39 CR 05, March 10, 2016, effective 3/30/2016 39 CR 11, June 10, 2016, effective 6/30/2016 40 CR 06, March 25, 2017, effective 4/14/2017 40 CR 11, June 10, 2017, effective 6/30/2017 40 CR 21, November 10, 2017, effective 11/30/2017 41 CR 06, March 25, 2018, effective 4/14/2018 41 CR 11, June 10, 2018, effective 6/30/2018 41 CR 24, December 25, 2018, effective 1/14/2019 42 CR 06, March 25, 2019, effective 4/14/2019 42 CR 06, March 25, 2019, effective 5/30/2019 42 CR 11, June 10, 2019, effective 6/30/2019 43 CR 12, June 25, 2020, effective 7/15/2020 44 CR 06, March 25, 2021, effective 4/14/2021 44 CR 11, June 10, 2021, effective 6/30/2021 44 CR 24, December 25, 2021, effective 1/14/2022 45 CR 11, June 10, 2022, effective 6/30/2022 45 CR 17, September 10, 2022, effective 9/10/2022 45 CR 17, September 10, 2022, effective 9/30/2022 45 CR 23, December 10, 2022, effective 1/30/2023

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