DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT

Solid and Hazardous Waste Commission
Hazardous Materials and Waste Management Division (HMWMD)
6 CCR 1007-2

Statement of Basis and Purpose
 and Specific Statutory Authority for
Amendment of Regulations Pertaining to Solid Waste Sites and Facilities (6 CCR 1007-2 Part 1) – Amendment of Section 1.7.3 Annual Fees

(Adopted by the Solid and Hazardous Waste Commission on May 21, 2019)

Statement of Basis and Purpose:

These amendments to 6 CCR 1007-2, Section 1.7.3, are made pursuant to the authority granted to the Solid and Hazardous Waste Commission (the “Commission”) in Section 30-20-109(2.5), C.R.S.

The purpose of these amendments to Section 1.7.3 is to establish revised annual fees for facilities that are not required to pay Solid Waste User Fees. Annual fees are established in Section 30-20-109(2.5)(a), C.R.S., and the Solid Waste User Fee is established in Section 25-16-104.5, C.R.S.

Background

All persons who dispose of solid waste at an “attended solid waste disposal site” in Colorado are required to pay a Solid Waste User Fee. § 25-16-104.5(1.5) and (1.7)(a), C.R.S. “Attended solid waste disposal site” is defined in Section 25-16-102(1), C.R.S. as a site established in Article 20, Title 30, Part 1, C.R.S., at which an attendant is present during normal hours of operation. Because the Solid Waste User Fee is based on volume, an attendant’s presence is typically necessary to account for the amount of solid waste that is being disposed of. The term “attended” also includes facilities where access is limited, monitored and tracked by card keys or gate codes or other access codes.

“[S]olid waste disposal sites and facilities that are not required to pay [the Solid Waste User Fee]” are subject to “annual fees” set by the Commission pursuant to Section 30-20-109(2.5)(a), C.R.S.

Annual fees established under this section are limited to five thousand dollars per year per facility, and “must be uniform among owners of the same type of, and similarly sized facilit[ies].” Annual fees must take into account the Colorado Department of Public Health and Environment’s (the “Department”) level of effort in regulating the facilities and are used to carry out its “duties and responsibilities concerning solid waste management.” § 30-20-109(2.5)(c), C.R.S. Monofills which contain coal combustion products are exempt from annual fees. § 30-20-109(2.5)(a), C.R.S.

This rule impacts the following solid waste disposal sites and facilities, which are subject to annual fees:

- 	Solid waste disposal sites and facilities which are not “attended” pursuant to Section 25-16-102(1), C.R.S., including landfills and monofills in post-closure care and sites performing cleanup or corrective action, as well as sites where a person is disposing of their own waste on their own property Section 30-20-102(3), C.R.S.;

- 	Facilities with waste impoundments;

-	 Other types of solid waste facilities including incinerators, composting facilities, medical waste facilities;

- 	Inactive facilities which have not commenced closure, but have not been accepting any waste for a period of one year or more.

Discussion of the Regulatory Proposal

In February 2008, the Solid and Hazardous Waste Commission promulgated annual fee regulations in Section 1.7.3 as a result of the passage of House Bill 07-1288. This legislation authorized the assessment of annual fees to be paid by solid waste facilities that are not subject to the volume-based fee charged at operating landfills and other solid waste disposal sites and facilities, also known as the Solid Waste User Fee. After a stakeholder process in 2007, annual fees were established for all applicable facilities at a rate of $1,000/year. Since that time, the regulation has been changed several times, but the basic rate of $1,000/year has remained the same.

In 2012, when the Section 9 (Waste Impoundments) regulations were promulgated, the Commission included the following text in the Statement of Basis and Purpose:

The $1,000/yr [annual] fee will be changed into a tiered scheme based on the ongoing effort of the Solid Waste Program to inspect and otherwise track each type of facility. The new annual fee will include, but not be limited to, consideration of the solid waste generation rate at the facility, the type/toxicity of waste generated, and whether the facility is a Type A or Type B facility. When the fee is changed, it will require a rule by the Solid and Hazardous Waste Commission. It is the Commission’s intent to begin that process and stakeholder involvement after this Section 9 is promulgated. Until then, all annual fees for facilities only regulated by Section 9 (i.e., not subject to other solid waste fees except the hourly fee) will be waived.

This 2012 excerpt illustrates that the Commission believed that a tiered system for annual fees for certain types of facilities was preferred. However, no tiered system was previously adopted.

In summary, the rule makes the following changes:

1. 	Overall, this rule maintains annual fees of $1,000/year for most types of active solid waste disposal sites and facilities that do not pay the SWUF. It decreases the annual fees to $500/year for all inactive facilities. It also adds several types of facilities to those that are required to pay the annual fee. And finally, it decreases or eliminates the annual fee for some low risk facility types.

2. 	Section 1.7.3(A) – This change combines the original Section 1.7.3(A)(3) into Section 1.7.3(A)(1); and combines the original Section 1.7.3(A)(4) into Section 1.7.3(A)(2). In the previous regulations, annual fees were split into “annual operating fees” (subsections (1) and (2)) and “post-closure fees” (subsections (3) and (4)). Upon review, the Commission does not believe this is needed and this section can be shortened and simplified without any loss of clarity.

3. 	Section 1.7.3(A)(1) – This change removes the phrase “not subject to” and replaces it with “not required to pay.” This change will improve consistency between Section 1.7.3 and 30-20-109(2.5)(a), C.R.S., which states that annual fees may only be established for “solid waste disposal sites and facilities” that are “not required to pay” the Solid Waste User Fee. The Commission interprets this language to mean that annual fees may be established for sites and facilities which are exempt from the Solid Waste User Fee (such as unattended sites and facilities), as well as sites and facilities which are not required to pay the Solid Waste User Fee because they are not actively accepting waste from producers or other persons disposing of solid waste.

4. 	Section 1.7.3(A)(1)(a) – This change aligns with the previously-described change. It combines existing Section 1.7.3(A)(1)(h)(ii) and Section 1.7.3(A)(3)(j)(ii). This change simplifies language pertaining to the annual fee for unattended, active landfills. This portion of the rule does not change the existing annual fee amounts for this group of facilities. It is intended that this category of facilities would include drinking water treatment facilities disposing of their own sludge in an on-site monofill.

5. 	Sections 1.7.3(A)(1)(b) – This section of the rule is the same as the current Sections 1.7.3(A)(3)(a) and (b) which have been eliminated.

	The Commission intends that this section would only include landfills that remain in post-closure. Once the Hazardous Materials and Waste Management Division (the Division) determines in writing that post-closure care and monitoring can end at a closed landfill, this annual fee would no longer be charged. In addition, the Commission intends that this section would include sites where a) an entity’s own waste has been disposed on their property and has closed in-place and entered post-closure care and monitoring, b) an illegal disposal site has been allowed to close in-place and entered post-closure care and monitoring, and c) other sites that remain in post-closure care and monitoring such as sites undergoing corrective action. The footnote in the regulation also makes clear that monofill facilities that contain only coal combustion products are exempt from the annual fee, consistent with the exemption in Section 30-20-109(2.5)(a), C.R.S. The footnote also exempts unattended landfills in post-closure care and maintenance that are owned by municipalities. All of the facilities in this category are very small and owned by very small towns where payment of a $500/year annual fee would be overly burdensome. This portion of the rule proposal represents an overall fee decrease.

	It should be noted here that any type of solid waste disposal site and facility that closes with waste remaining in place becomes a closed landfill. Therefore, the Commission intends that any solid waste disposal site and facility that closes with waste in place and enters post-closure care and maintenance will become subject to this category of annual fee so long as post-closure care and maintenance is required.

6.	Sections 1.7.3(A)(1)(c) and (d) – This change adds two tiers of annual fees for facilities with waste impoundments where the impoundments are only receiving waste generated on-site (one’s own waste on one’s own property). (Waste impoundments receiving wastes generated off-site are subject to the Solid Waste User Fee.) The lower tier is for facilities with one or more Type A impoundments and no type B impoundments. The fee for this tier of facilities would be $0. Type A impoundments contain very low risk wastes and the Division does not spend a lot of time and effort providing oversight, assistance, and enforcement at these locations. The upper tier is for facilities with one or more Type B impoundments, which contain higher risk materials and, as a result, require more oversight, assistance and enforcement from the Division. Type B impoundment facilities would be charged a facility-wide annual fee of $1,000/year. Given that annual fees have been waived for waste impoundments since 2008, the proposal for Type B impoundments to pay an annual fee could be viewed as a fee increase. On the other hand, not charging Type A impoundments any annual fee could be viewed as either a fee decrease or no increase in fees.

7.	Section 1.7.3(A)(1)(e) and (f) – This change is consistent with other changes aimed at simplifying Section 1.7.3(A). Annual fees for solid waste incinerator facilities and medical waste facilities were previously in Section 1.7.3(A)(1)(d) and (e), respectively, and Section 1.7.3(A)(3)(f) and (g), respectively. Because Sections 1.7.3(A)(1) and Section 1.7.3(A)(3) are being combined, the fees for these facilities now appear in Section 1.7.3(A)(1)(e) and (f). This portion of the rule does not change the existing annual fee amounts for solid waste incinerators and medical waste facilities.

8.	Section 1.7.3(A)(1)(g) – This rule combines fees for composting facilities into one section and adds three tiers for composting facilities, which align with the three classes of composting facilities found in Part 14 (Composting) of the regulations.

a.	Class I composting facilities would have an annual fee of $0. These facilities compost only vegetative wastes and other low-risk materials and have maximum allowable on-site volumes of feedstock and in-process materials. Since these facilities do not consume large amounts of Division staff time, the Commission believes no annual fee is necessary.

b. 	Class II composting facilities have a new proposed fee of $100. In addition to accepting vegetative wastes and other low risk materials and having the same material volume limits as Class I facilities, Class II facilities can accept manure. Because Class II facilities represent slightly higher risk, and consume relatively small amounts of Division staff time, this rule proposes an annual fee of $100.

c. 	Class III composting facilities represent the highest risk and, as a result, have the highest proposed annual fee of $1,000. Class III facilities can accept riskier materials including biosolids, and have no maximum allowable on-site volumes of feedstocks or material in process. These facilities represent a significant effort by the Division providing oversight, assistance, and enforcement, and therefore a fee of $1,000/year is appropriate.
	
	Overall, this part of the proposal also represents a fee decrease, since all of these facilities were previously paying a $1,000 annual fee.

9. 	Section 1.7.3(A)(1)(h) - This section adds a category of annual fees for inactive facilities, including unattended inactive facilities, that have not been accepting any waste for a period of one year or more and are, therefore, not paying the Solid Waste User Fee. These facilities have not been required to commence closure due to market conditions, pending site improvements or other reasons, but represent a category of facility that consumes quite a bit of Division staff effort. The annual fee for these facilities is $500. This portion of the rule represents a fee increase, as these facilities are not currently assessed an annual fee. If a facility becomes active again they would begin paying the Solid Waste User Fee and a portion of the last year’s annual fee payment would be refunded depending on the date the facility re-opened.

10.	Section 1.7.3(A)(2) – These changes clarify when the annual fee applies.

11.	Section 1.7.3(A)(3) – This paragraph clarifies that facilities conducting activities that fall under more than one annual fee category presented in section 1.7.3(A)(1)(a) through (h) owe the annual fee associated with each activity. For example, if a facility is a drinking water treatment facility that has both Type B impoundments and an on-site alum sludge monofill (an unattended landfill), that facility would owe an annual fee of $2,000/year.

12.	Section 1.7.3(B) – These changes describe a) that payment of the annual fee will follow receipt of an invoice from the Department, and b) the consequences for when annual fees are not paid, consistent with § 30-20-109(2.7), C.R.S.