DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT

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

Statement of Basis and Purpose
 and Specific Statutory Authority for

Revisions to the Regulations Pertaining to Solid Waste Sites and Facilities (6 CCR 1007-2, Part 1) – Deletion and Replacement of Existing Section 10 (Waste Tire Facilities and Waste Tire Haulers) with New Section 10 Regulations (Waste Tires), Revision of Section 16 Regulations (Materials Prohibited from Disposal) and the Associated Additions, Deletions and Revisions to Section 1.2 Definitions

Repeal of the Regulations Pertaining to the Waste Tire Processor and End User Reimbursement Program (6 CCR 1007-2, Part 4), Section 1 Rules for Reimbursements from the Processors and End Users Fund

(Adopted by the Solid and Hazardous Waste Commission on November 18, 2014)

Basis and Purpose
	
I.	Statutory Authority

The amendments to 6 CCR 1007-2, Section 10: Waste Tires, Section 16: Materials Prohibited from Disposal and Section 1.2: Definitions, and the deletion of 6 CCR 1007-2, Part 4, the Regulations Pertaining to the Waste Tire Processor and End User Reimbursement Program are made pursuant to the authority granted to the Solid and Hazardous Waste Commission in sections 30-20-109, C.R.S. and 30-20-1401(2), C.R.S., and section 30-20-1405(3)(c), C.R.S.  These regulations are a direct result of, and implementation of, House Bill (HB) 14-1352, passed by the legislature in 2014.

II.	House Bill 14-1352

House Bill 14-1352 repealed and reenacted the State’s waste tires laws, moving them into the Solid Waste Act (“the Act”).  The HB 14-1352 also transferred all waste tire program regulatory authority to the Department of Public Health and Environment (the Department). The Department’s existing solid waste enforcement authority applies to waste tires. 

III.	Purpose of revised regulations:

The purpose of revising Sections 1.2, 10 and 16 is to implement the requirements of HB 14-1352 by establishing waste tire rules going forward to replace those in effect as of July 1, 2014.  Prior to the proposed revisions, Section 10 of the Solid Waste Regulations applied specifically to Waste Tire Facilities and Waste Tire Haulers.  The proposed regulations were drafted using the existing framework and construct of the original regulations and include new standards for mobile waste tire processors, the management of used tires, and the administration of the waste tire fee.  Section 10 will also include regulations pertaining to administration of the Waste Tire End Users Fund, which were previously located in the Regulations Pertaining to the Waste Tire Processor and End User Reimbursement Program (6 CCR 1007-2, Part 4).

Discussion of Regulatory Proposal

I.	The Section 10 regulations require the addition, revision and deletion of some existing definitions.  These changes, summarized below, will be incorporated into Section 1.2 of the Solid Waste Regulations (6 CCR 1007-2, Part 1).

The following new definitions are being added to Section 1.2:
1.	Applicant
2.	Authorized signature
3.	Beneficial user
4.	Buffings
5.	Commission
6.	Daily cover
7.	Mobile Processor
8.	Motor vehicle
9.	Public project
10.	Pyrolysis
11.	Recapped or retreaded tire
12.	Retailer (as used in section 10 of the Regulations)
13.	Trailer
14.	Used Tire
15.	Waste Tire Bale
16.	Waste Tire Cleanup Program
17.	Waste Tire Generator
18.	Waste Tire Processor

The following existing definitions are being modified in Section 1.2:
1.	Collection facility
2.	End User
3.	Residentially generated
4.	Retailer (as used in Section 16 of the Regulations)
5.	Tire
6.	Tire-Derived Product
7.	Waste Tire
8.	Waste Tire Collection Facility
9.	Waste Tire Hauler
10.	Waste Tire Monofill
11.	Wholesaler

The following existing definitions are being deleted from Section 1.2, as these terms no longer appear or are irrelevant in the new Regulations:
1.	Fleet Service Facility
2.	Passenger tire equivalents
3.	Processor
4.	Tire (as used in Section 16 of the Regulations)
5.	Waste Tire Facility

II.	Section and Subsection Titles 

The title of Section 10 was updated to incorporate all waste tire provisions within one section of the Regulations.  A new title for Section 10.4 (Standards for Generators of Motor Vehicle and Trailer Waste Tires) was added to conform to HB 14-1352.  New Sections 10.7 (Standards for Mobile Waste Tire Processors), 10.10 (Standards for Management of Used Tires), 10.11 (Waste Tire Fee Administration) and 10.12 (Waste Tire End Users Fund) were added to conform to HB 14-1352. 

All references to waste tires were removed from Section 16 and Section 16 waste tire subsections that conform to HB 14-1352 were incorporated into Section 10.

III.	Scope and Applicability (Section 10.1)

The updated Section 10.1 describes the applicability of Section 10, and now includes all persons who sell new motor vehicle or trailer tires.

Updated language was added to the existing subsection 10.1.3 exemptions.  Previous exemptions in this subsection that were removed or updated and new exemptions that were added include:
1.	Removed the exemption for the transport of used tires due to the addition of subsection 10.10 (Standards for Management of Used Tires). 
2.	Removed the exemption for transportation of waste tires by a private citizen.
3.	Updated household hazardous waste roundup, community cleanup, other one-time waste tire collection event language was added to reflect new waste tire terminology.
4.	Clarified the requirements for the beneficial use of waste tires.
5.	Standardized the waste tire storage limits for owners/operators of solid waste landfills, transfer stations, and recycling facilities who separate waste tires out from the solid waste stream.
6.	Standardized the waste tire storage limits for government entities that store waste tires as part of their road-side cleanup activities.
7.	Added a provision and requirements for the acceptance of unmanifested waste tires from unregistered haulers.

IV.	General Provisions (Section 10.2)

This section states operations that are covered by the multiple parts of Section 10 must comply with all applicable sections. As provided in Section 10.2.2, the Department’s intent is to avoid imposing duplicate or overlapping obligations on entities that are covered by multiple parts of Section 10.This section also specifies the limitations on the disposal of waste tires and incorporates waste tire due diligence language that was previously in Section 16. 

Persons registered pursuant to Section 10 historically have not paid annual fees (Annual Fee) as required in Section 1.7.3 because the Waste Tire Program and Waste Tire Administration, Enforcement, and Cleanup Fund, the End Users Fund and the Waste Tire Market Development Fund are funded by the $1.50 Waste Tire Fee. An exemption from the Annual Fees for persons registered pursuant to sections 10.3, 10.4, 10.6, 10.7, 10.8 or 10.9 was added for clarification. Waste Tire Monofills and solid wastes sites and facilities with a Certificate of Designation are not exempt from the Annual Fee requirement.

Language regarding the enforcement of Section 10 through the Department’s enforcement authorities was added.

V.	Standards for Waste Tire Haulers (Section 10.3)

This section was updated to include a provision allowing Waste Tire Haulers to pick
up waste tires from an unregistered person or site exempted from Section 10 if a manifest
is generated and the waste tires are delivered to an approved waste tire destination
facility. Additionally, the time frame to notify the Solid Waste Program in the event of a
fire or other emergency involving waste tires was updated and the waste tire storage
limits were updated to reflect new storage limit requirements.

Waste Tire Hauler registration, decal, and manifest changes include:
1.	Updated Certificate of Registration Form names.
2.	Removed the $10,000 surety bond requirement.
3.	Language was added regarding when a Waste Tire Hauler is required to notify the Department.
4.	Removed revocation of the Certificate of Registration language.
5.	Added language regarding cancellation of a Certificate of Registration if a person is no longer hauling waste tires.
6.	Revised decal placement requirements.
7.	Added decal requirement for contracted commercial freight carriers. 
8.	Updated manifest requirements by removing the requirement for the actual number of waste tires by category, allowing electronic manifests, requiring information about contracted commercial freight carriers, and accounting for waste tires that originated from an illegal waste tire site, private property, or a unregistered waste tire hauler, per the exemption added in subsection 10.1.3 for acceptance of waste tires from unregistered waste tire haulers.
9.	Added a thirty (30) day requirement for Waste Tire Haulers to provide a manifest copy to the generator/source of waste tires from date of delivery of waste tires to the destination facility.

Waste Tire Hauler annual report requirements were updated by removing the surety bond
verification, removing the passenger tire equivalent language and requiring the reporting
of the total amount of waste tires accepted from persons exempted from Section 10.

Self-certification language was added that allows the Department to require Waste Tire
Haulers to furnish additional information concerning compliance with the regulatory
requirements. 

Notwithstanding this or any other self-certification requirement under these rules, persons desiring to make self-disclosures under the Policy Regarding Implementation of Colorado Environmental Audit Privilege and Immunity Law shall still qualify for protection under the Policy provided any such self-disclosures are made prior to receipt of the annual self-certification form from the Department.

VI.	Standards for Generators of Motor Vehicle and Trailer Waste Tires (Section 10.4)

The section’s title was updated to incorporate the new term for Waste Tire Generators.  Persons subject to this section will continue to include tire retailers, wholesaler and fleet service facilities that generate waste motor vehicle or trailer tires. Additionally, the updated applicability provides examples of the types of business that are sources of waste tires.

This section was updated to include: the updated storage limit of no more than fifteen hundred (1,500) waste tires on site at any one time; the ability for Waste Tire Generators to accept waste tires; and the requirement that a Waste Tire Generator who sells replacement tires must not refuse from a customer waste tires of the same general type and quantity.

Waste Tire Generator registration, decal, and manifest changes include:
1.	Certificate of Registration application requirements were updated to include the requirement that any person who commercially generates motor vehicle or trailer waste tires must register as a Waste Tire Generator.
2.	Language was added requiring a Waste Tire Generator to notify the Department if they are selling new tires. 
3.	Removed revocation of the Certificate of Registration language.
4.	Added language regarding cancellation of a Certificate of Registration if a person no longer generates waste tires at their registered location.
5.	Removed the three (3) year expiration date for a Certificate of Registration and facility decal.
6.	Updated manifest requirements to allow Waste Tire Generators to accept more than ten (10) waste tires without a manifest, per the exemption added in subsection 10.1.3 for acceptance of waste tires from unregistered waste tire haulers, and to allow Waste Tire Generators to offer their waste tires for mobile processing.  The change to the Waste Tire Hauler manifest requirements may result in a Waste Tire Generator not receiving a properly completed Uniform Waste Tire Manifest from the Waste Tire Hauler at the time of waste tire pickup by the Waste Tire Hauler.  The Waste Tire Hauler now has up to thirty (30) days from delivery of the Waste Tire Generator’s waste tires to the destination facility to provide a manifest copy to the Waste Tire Generator.

This section also replaced the requirement for fencing of at least six (6) feet with the requirement to implement security measures that preclude public entry.

Self-certification language was added that allows the Department to require Waste Tire Generators to furnish additional information concerning compliance with the regulatory requirements.

Notwithstanding this or any other self-certification requirement under these rules, persons desiring to make self-disclosures under the Policy Regarding Implementation of Colorado Environmental Audit Privilege and Immunity Law shall still qualify for protection under the Policy provided any such self-disclosures are made prior to receipt of the annual self-certification form from the Department.

With the removal of the Waste Tire Generator Certificate of Registration date and corresponding registration renewal requirements, the self-certification will be used to update Waste Tire Generator information and gather additional information concerning compliance with the regulatory requirements. Because the majority of Waste Tire Generators also sell new motor vehicle or new trailer tires, the Waste Tire Generator self-certification will also be used to determine compliance with the Waste Tire Fee requirements of section 1.7.6 (Waste Tire Fee) and 10.11(Waste Tire Fee Administration). 

VII.	Standards for Waste Tire Monofills (Section 10.5)

This section was updated to include Certificate of Designation requirements for a Waste Tire Monofill which include both an Engineering and Design and Operations Plan (EDOP) and a Waste Tire Inventory Reduction Plan. This section also replaced the requirement for fencing of at least six (6) feet with the requirement to implement security measures that preclude public entry.

The 75%/three year rolling average requirement was replaced with the Waste Tire Inventory Reduction Plan requirement. The Waste Tire Inventory Reduction Plan requires that Waste Tire Monofill owners/operators must on an annual basis, for every one (1) tire received, end use at least two (2) waste tires, or process at least two (2) waste tires into tire-derived product. The owner/operator of a Waste Tire Monofill may claim Confidential Business Information (CBI) or trade secret for any information submitted in the Waste Tire Inventory Reduction Plan. The procedures for asserting CBI claims are established under Colorado law, and the Department does not intend to create any further burden on the owner/operator to show CBI status than that existing under current law. 

The Regulation adopts the change to the statute concerning the dates after which an owner/operator of a Waste Tire Monofill must not place any waste tires into monofill storage (after January 1, 2018) and when Waste Tire Monofills must close (by July 1, 2024).  Clarification regarding when a Waste Tire Monofill can ship whole waste tires to an end user was added.

Waste Tire Monofill registration, decal, and manifest changes include:
1.	Updated Certificate of Registration application requirements.
2.	Language was added regarding when an owner/operator of a Waste Tire Monofill is required to notify the Department.
3.	Removed revocation of the Certificate of Registration language.
4.	Removed the three (3) year expiration date for a Certificate of Registration and facility decal.
5.	Added language regarding cancellation of a Certificate of Registration if a person no longer operates a Waste Tire Monofill at their registered location.
6.	Updated manifest requirements to allow owners/operators of Waste Tire Monofills to accept more than ten (10) waste tires without a manifest, per the exemption added in subsection 10.1.3 for acceptance of waste tires from unregistered waste tire haulers, and to allow Waste Tire Monofills to offer their waste tires for mobile processing. The change to the Waste Tire Hauler manifest requirements may result in an owner/operator of a Waste Tire Monofill not receiving a properly completed Uniform Waste Tire Manifest from the Waste Tire Hauler at the time of waste tire pickup by the Waste Tire Hauler. The Waste Tire Hauler now has up to thirty (30) days from delivery of the waste tires to the destination facility to provide a manifest copy to the source of the waste tires.

Waste Tire Monofill annual reporting requirements were updated to allow the reporting of waste tires by actual count or by weight in tons. The owner/operator of the Waste Tire Monofill must report the total amount of waste tires accepted from unregistered waste tire haulers in the required annual report, and the owner/operator of a Waste Tire Monofill must report compliance with his/her Waste Tire Inventory Reduction Plan.

Self-certification language was added that allows the Department to require Waste Tire
Monofills to furnish additional information concerning compliance with the regulatory
requirements.

Notwithstanding this or any other self-certification requirement under these rules, persons desiring to make self-disclosures under the Policy Regarding Implementation of Colorado Environmental Audit Privilege and Immunity Law shall still qualify for protection under the Policy provided any such self-disclosures are made prior to receipt of the annual self-certification form from the Department.
 
VIII.	Standards for Waste Tire Processors (Section 10.6)

Unlike in the previous Regulation, this section applies only to Waste Tire Processors; End Users have their own separate requirements in Section 10.9.  Waste tire processing is not subject to the Section 8 recycling requirements or annual fee requirements of Section 1.7.3.  A Waste Tire Processor that recycles materials other than waste tires is subject to the requirements of Section 8 and the Section 1.7.3 Annual Fee for a recycling facility. This section also replaced the requirement for the fencing of at least six (6) feet with the requirement to implement security measures that preclude public entry.

The 75%/three-year rolling average recycling rate still applies to waste tire processing. Every year, starting after an initial one-year accumulation period, Waste Tire Processors must have, over the past three (3) years, processed 75% of the average of what the Waste Tire Processor had in inventory at the end of years one through two plus the amount of waste tires received in year three. A Waste Tire Processor that is also registered as a Waste Tire Monofill is exempted from this requirement, but the Waste Tire Monofill must comply with its Waste Tire Inventory Reduction Plan. The Waste Tire Inventory Reduction Plan requires that Waste Tire Monofill owners/operators must, on an annual basis, for every one (1) tire received, end use at least two (2) waste tires, or process at least two (2) waste tires into tire-derived product. 

This section was updated to add a waste tire storage limit for a Waste Tire Processor’s facility that is not also registered as a Waste Tire Monofill. The waste tire processing facility must not have at any one time more than the lesser of: a maximum of one hundred thousand (100,000) waste tires; the amount allowed by the local government; or the amount of waste tires anticipated in the Waste Tire Processors financial assurance instrument. Clarification regarding when a Waste Tire Processor can ship whole waste tires to an end user was added.

Waste Tire Processor registration, decal, and manifest changes include:
1.	Updated Certificate of Registration application requirements. 
2.	Language was added regarding when a Waste Tire Processor is required to notify the Department
3.	Removed revocation of the Certificate of Registration language.
4.	Added language regarding cancelling a Certificate of Registration if a person no longer operates as a Waste Tire Processor at their registered location. 
5.	Removed the three (3) year expiration date for a Certificate of Registration and facility decal.
6.	Updated manifest requirements to allow Waste Tire Processors to accept more than ten (10) waste tires without a manifest, per the exemption added in subsection 10.1.3 for acceptance of waste tires from unregistered waste tire haulers. The change to the Waste Tire Hauler manifest requirements may result in a Waste Tire Processor not receiving a properly completed Uniform Waste Tire Manifest from the Waste Tire Hauler at the time of waste tire pickup by the Waste Tire Hauler. The Waste Tire Hauler now has up to thirty (30) days from delivery of the waste tire waste tires to the destination facility to provide a manifest copy to the source of the waste tires.

Waste Tire Processor annual reporting requirements were updated to allow the reporting of waste tires by actual count or by weight in tons. A Waste Tire Processor must report the total amount of waste tires accepted from unregistered waste tire haulers and document compliance with the 75%/three-year rolling average recycling rate in the annual report.

Self-certification language was added that allows the Department to require Waste Tire Processors to furnish additional information concerning compliance with the regulatory requirements.

Notwithstanding this or any other self-certification requirement under these rules, persons desiring to make self-disclosures under the Policy Regarding Implementation of Colorado Environmental Audit Privilege and Immunity Law shall still qualify for protection under the Policy provided any such self-disclosures are made prior to receipt of the annual self-certification form from the Department.

IX.	Standards for Mobile Waste Tire Processors  (Section 10.7)

This section sets new standards for Mobile Waste Tire Processors. The general provisions of this section state that mobile waste tire processing is not subject to the Section 8 recycling requirements or the Annual Fee requirements of Section 1.7.3.  Mobile Waste Tire Processors must meet general standards, including: processing waste tires only on property not leased or owned by the Mobile Waste Tire Processor, only processing waste tires that already exist on the property where waste tire mobile processing is to occur, obtaining permission from the local government prior to beginning waste tire processing, notifying the Department at least fourteen (14) days prior to beginning processing, and not processing waste tires at a location for more than thirty (30) consecutive days unless the location is registered as a Waste Tire Processor or Department approval is granted.  The Mobile Waste Tire Processor must also develop and comply with an Engineering and Design and Operations Plan (EDOP).

Mobile Waste Tire Processor registration, decal, manifest, and annual reporting sections were added and include:
1.	A registration system for Mobile Waste Tire Processors, including obtaining a Certificate of Registration which is valid until March 15th of the following year. The Certificate of Registration may be canceled if mobile waste tire processing no longer occurs. 
2.	A requirement to display a Department issued Mobile Waste Tire Processor decals.
3.	A manifest system to ensure that waste tires processed by Mobile Waste Tire Processors are accounted for and that manifests (Form WT-7) are created and provided to the Waste Tire Generator/source within thirty (30) days of completion of mobile processing.
4.	A requirement that all Mobile Waste Tire Processors establish and maintain financial assurance in the amount of $10,000, unless they maintain financial assurance as a Waste Tire Processor, Waste Tire Collection Facility or a Waste Tire Monofill.
5.	A requirement to submit the Mobile Waste Tire Processor Annual Reporting Form (Form WT-7) by April 1st of each year.

Self-certification language was added that allows the Department to require a Mobile Waste Tire Processor to furnish additional information concerning compliance with the regulatory requirements. 

Notwithstanding this or any other self-certification requirement under these rules, persons desiring to make self-disclosures under the Policy Regarding Implementation of Colorado Environmental Audit Privilege and Immunity Law shall still qualify for protection under the Policy provided any such self-disclosures are made prior to receipt of the annual self-certification form from the Department.

X.	Standards for Waste Tire Collection Facilities (Section 10.8)

This section was updated to replace the requirement for fencing of at least six (6) feet with the requirement to implement security measures that preclude public entry.  Clarification regarding when a Waste Tire Collection Facility is allowed to ship whole waste tires to an end user was added.

Waste Tire Collection Facility registration, decal, and manifest changes include:
1.	Updated registration application requirements. 
2.	Language was added regarding when an owner/operator of a Waste Tire Collection Facility is required to notify the Department.
3.	Removed revocation of the Certificate of Registration language.
4.	Language was added regarding cancellation of a Certificate of Registration if a person no longer operates as a Waste Tire Collection Facility at their registered location.
5.	Removed the three (3) year expiration date for a Certificate of Registration and facility decal.
6.	Updated manifest requirements to allow the owners/operators of Waste Tire Collection Facilities to accept more than ten (10) waste tires without a manifest, per the exemption added in subsection 10.1.3 for acceptance of waste tires from unregistered waste tire haulers, and the allowance of Waste Tire Collection Facilities to offer their waste tires for mobile processing. The change to the Waste Tire Hauler manifest requirements may result in a Waste Tire Collection Facility not receiving a properly completed Uniform Waste Tire Manifest from the Waste Tire Hauler at the time of waste tire pickup by the Waste Tire Hauler.  The Waste Tire Hauler now has up to thirty (30) days from delivery of the waste tires to the destination facility to provide a manifest copy to the source of the waste tires.

Waste Tire Collection Facility annual reporting requirements were updated to allow the reporting of waste tires by actual count or by weight in tons. The owner or operator of a Waste Tire Collection Facility must report the total amount of waste tires accepted from unregistered waste tire haulers in the required annual report. 

Self-certification language was added that allows the Department to require Waste Tire Collection Facilities to furnish additional information concerning compliance with the regulatory requirements.

Notwithstanding this or any other self-certification requirement under these rules, persons desiring to make self-disclosures under the Policy Regarding Implementation of Colorado Environmental Audit Privilege and Immunity Law shall still qualify for protection under the Policy provided any such self-disclosures are made prior to receipt of the annual self-certification form from the Department.

XI.	Standards for End Users (Section 10.9)

The general provisions of this section apply to End Users who end use more than ten (10) tons of tire-derived product or who end use whole waste tires for energy or fuel in any one State fiscal year. The general provisions require that End Users use a registered Waste Tire Hauler or Mobile Waste Tire Processor for shipment or mobile processing of waste tires. This general provision does not apply to End Users who ship tire-derived product off site. 

End User registration, manifest, and annual reporting sections were added and include:
1.	A system for registering as an End User, including obtaining a Certificate of Registration. The Certificate of Registration may be canceled if end use no longer occurs at their registered location. 
2.	Requiring retention of manifests provided by a Waste Tire Hauler for shipment of waste tires.  Manifests are not required for tire-derived product. 
3.	A requirement to submit the Waste Tire Facility Annual Reporting Form (Form WT-5) by April 1st of each year.

XII.	Standards for the Management of Used Tires (Section 10.10)

New requirements were added which apply to any person who commercially accumulates, stores, transports, or dispenses used tires. These requirements also apply to Waste Tire Generators who sell used tires and used tire shops that sell new tires but do not generate waste tires. Written criteria that distinguish waste tires from used tires must be developed and maintained at the site where used tires are accumulated, stored, and/or dispensed and in any vehicle used to transport used tires. The written criteria must be provided to the Department upon request. Waste tires and used tires must be clearly identified, per the written criteria, and used tires must be organized in a manner that allows inspection of each individual used tire. The written criteria may be designated as Confidential Business Information (CBI) or trade secret.

XIII.	Waste Tire Fee Administration (Section 10.11)

A new section was added for the administration of the Waste Tire Fee. Effective July 1, 2014, HB 14-1352 transferred all regulatory authority for the Waste Tire Fee from the Department of Revenue (DOR) to the Department. The $1.50 fee is not a new fee. The fee is used for waste tire administrative functions, end user rebates, and grant funding.

The $1.50 fee must be collected on the sale of each new tire and applies to the sale of new motor vehicle tires and new trailer tires. New motor vehicle and new trailer tires include the following, but not limited to: all tires used on passenger cars, trucks and vehicles, low speed electric vehicles (per Section 30-20-1402, C.R.S.), motorcycles and motor scooters licensed to travel on roads, semi trucks and semi trailers, any trailer towed behind a vehicle, motor homes, mini vans, campers, buses, medium-duty trucks, fleet vehicles, new and used cars sold by a car retailer if existing tires are changed out for new tires, and online sales of new tires. The fee does not apply to retreaded tires, used tires, tires used for agricultural equipment (e.g., tractors, bailers, and harvesters), off-the-road (OTR) vehicles, (e.g., golf carts, All Terrain Vehicle (ATV), dirt bikes), Segways, wheelchairs, garden equipment, mining equipment, construction equipment, bicycles, airplanes, or toy vehicles.

XIV.	Waste Tire End Users Fund (Section 10.12)

A new subsection was added to manage the End Users Fund rebate program and incorporate applicable rules for this program that currently exist in the Waste Tire Processor and End User Reimbursement Program (6 CCR 1007-2, Part 4), Section 1 Rules for Reimbursements from the Processors and End Users Fund. Section 1 of 6 CCR 1007-2, Part 4 will be repealed as part of this rulemaking because of incorporation of this new subsection into Section 10 of the Regulations.
Minor changes regarding application procedures, the appeals process, deadlines for applications, and processing of applications were made. 
Major changes and additions to this program, as it existed in 6 CCR 1007 Part 4, include:

1.	Retailers of tire-derived products are now eligible for a rebate from the End Users Fund.
2.	Processors are only eligible for a rebate from the End Users Fund when they process waste tires into tire-derived products that they sell and move offsite to an out-of-state End User. 
3.	The rebate will only be paid one time for the end use, retail sale or processing of the tire-derived product.
4.	An annual per ton rate will be used to determine the rebate for approved tons from the End Users Fund. 
5.	Processors, Retailers, and/or End Users are not eligible for a rebate if funding was provided by the Waste Tire Administration, Enforcement, and Cleanup Fund to clean up an illegal waste tire site. 
6.	An eligibility table (Table 10-12.01) was added to clarify eligibility for End Users, Retailers and Processors to participate in the End Users Fund. 
7.	End using tire bales (a) in an engineered, permanent structure stamped and sealed by a Colorado Registered Professional Engineer, is eligible for a rebate, and (b) installed for end use on agricultural land using galvanized steel baling wire and installed to facilitate tire bale stability and longevity, using applicable design standards, as allowed by state laws and regulations and local ordinances (including fencing, windbreaks, and corrals) is also eligible for a rebate.
8.	The minimum amount of tons of waste tires end used to be eligible to participate in the End Users Fund was reduced from fifty (50) tons per fiscal year to ten (10) tons per fiscal year. 
9.	Language was adjusted regarding ineligibility to participate in the End Users Fund for those who knowingly or intentionally submit false information to the Department. 
10.	Language was added that states the Department may deny a rebate if an applicant is out of compliance with any State or Federal environmental law, rule or regulation. 

Tire-derived products or whole waste tires that are being end used should have economic value. The Commission feels that End Users should provide, when requested by the Department, documentation which establishes that tire-derived products or whole waste tires were purchased or provide other proof that demonstrates that the tire-derived products or whole waste tires have economic value.

Description of Local Government Involvement in the Stakeholder Process 
	
	Executive Order D 2011-005 (EO5), “Establishing a Policy to Enhance the Relationship between State and Local Government” requires state rulemaking agencies to consult with and engage local governments prior to the promulgation of any rules containing mandates. The Department completed an EO5 – Internal Communication Form – Internal Conception Phase which was transmitted to local governments.  The amended regulations will have little effect on local governments unless the local government generates, accumulates, stores, transports, dispenses, or processes waste tires, used tires or tire-derived product, sells new motor vehicle or trailer tires, or applies for a rebate from the End Users Fund.

Issues Encountered During Stakeholder Process: 
1.	Some stakeholders asked why the beneficial use requirements for waste tires are located in the Section 8 Recycling and Beneficial Use regulations instead of in the Section 10 Waste Tire regulations.  Section 8 regulates recycling, a broad category that includes beneficial use.  Waste tire processing is a form of recycling.  However, the legislature has determined that because the waste tire stream presents unique challenges, requirements unique to waste tires are necessary.  Although the legislature created unique requirements for waste tire generators, haulers, processors, end users, monofills and collection facilities, it did not create unique requirements for beneficial use of waste tires.  Therefore, beneficial use of waste tires – an act distinct from the End Use of waste tires or tire-derived product – is still regulated in Section 8.    
2.	A question arose regarding whether warranty tires – that is, tires that a retailer returns to the wholesaler or manufacturer – are waste tires. The Commission feels that warranty tires and tires with a manufacturing defect that are returned to the wholesaler or manufacturer for credit or return do not fall under the definition of a waste tire because the manufacturer or wholesaler, rather than the retailer, ultimately makes the determination if the tire is usable or should be discarded. 
3.	Some stakeholders wanted to add tire retread businesses to the applicability list for Waste Tire Generators in Section 10.4.  The Commission did not add tire retread businesses to the list because the Waste Tire Generator definition is not all inclusive.  If a retread business makes the determination that a motor vehicle or trailer tire cannot be retreaded, then the tire is a waste tire.  The retread business would therefore be a Waste Tire Generator subject to all the requirements of Section 10.4.
4.	Some stakeholder asked whether it is possible for a corporation, business, or government agency that has registered under their corporation, business, or government agency with multiple Waste Tire Hauler registrations (e.g., corporation A has five (5) stores and each of these five (5) stores are registered as Waste Tire Haulers because they haul more than ten (10) waste tires at a time) to complete only one Commercial Waste Tire Hauler Annual Report Form (Form WT-4) for  all of the Waste Tire Haulers registered under their corporation/business instead of completing a separate Form WT-4 for each Waste Tire Hauler location.  Rather than addressing this situation in the Regulations, the Department will modify Form WT-4 to allow the completion of one Form WT-4 for corporations, businesses, or government agencies that have multiple Waste Tire Hauler registration locations. Each Waste Tire Hauler registration location must be listed and accounted for on the form.
5.	Some stakeholders were concerned that under the previous regulations, parties who tracked tire amounts in tons rather than in actual counts could apply a formula to convert tonnage to estimated tire amounts in their annual report.  Some stakeholders felt the conversion could lead to errors by the person completing the form.  To address this concern, the new regulation allows reporting by actual weight in tons.  The Department will convert waste tire amounts reported in tons to an estimated tire count.
6.	Some stakeholders expressed confusion over whether compliance with Section 10 requirements exempted parties from compliance with laws or regulations concerning certificates of designation (CDs).  To address this concern Section 10.5 .1(A) makes clear that in addition to the Section 10 requirements, persons owning or operating a Waste Tire Monofill must maintain a CD pursuant to Section 1.3.  Additionally Section 1.7.3, Section 1.8, Section 2 and Section 3 clearly state requirements for Solid Waste Disposal Sites and Facilities.
7.	An issue arose during the stakeholder process concerning Section 30-20-1410, C.R.S. which prohibits the sale of used tires if the used tire would violate Section 42-4-228, C.R.S. tire safety standards. Section 42-4-228, C.R.S. requires tires driven on roads to be in a safe condition.  Violation of Section 42-4-228, C.R.S. is a traffic offense and law enforcement officers enforce these requirements.  Some stakeholders argued the Commission should adopt a robust used tire management regime, making the Hazardous Materials and Waste Management Division the regulator of tire safety in the State.  Other stakeholders argued this section is overly broad because it prohibits common practices such as sales of certain used tires to jurisdictions without the Section 42-4-228, C.R.S. standards as well as the sale of certain used tires to be recycled by beneficial users, Waste Tire Processors and Waste Tire End Users.  The Commission determines the purpose of Section 30-20-1410, C.R.S. is to assist the Department in distinguishing waste tires, which it regulates, from used tires, which it does not.  As such, Section 10 does not adopt an elaborate used tire management regime. The Department will develop and make available guidance to help the used tire seller distinguish a waste tire from a used tire.
8.	Some stakeholders expressed concern the Department would not collect the Waste Tire Fee from online retailers of new tires.  The Commission believes that the Department has the authority to collect the Waste Tire Fee on online sales of new motor vehicle or new trailer tires from out of state parties that sell new motor vehicle or new trailer tires to persons who live in Colorado. 
9.	Some stakeholders asked why there are two Waste Tire Fee Forms on the Department website for submitting the Waste Tire Fee payment. The Department is accepting payment of the Waste Tire Fee either electronically or by mail. The Waste Tire Fee Form must be included with the payment. Two versions of the Waste Tire Fee Form are available online: one for online payment and one for payment by mail. The forms are identical except for the addition of the mailing address on the payment by mail form and the online form has a submit button for online submittal. 
10.	Stakeholders discussed reducing the minimum of fifty (50) tons per fiscal year to ten (10) tons per fiscal year for applicants to be eligible to apply for a rebate from the End Users Fund. The Commission decided to reduce the minimum number of tons to be eligible to apply for a rebate from fifty (50) tons to ten (10) tons to allow more participation in the End Users Fund. The Department and stakeholders agreed that allowing more low volume processors, retailers and/or end users of tire-derived products would stimulate more market development for these products. 
An applicant may apply for a rebate once they reach the combination of processing, retail sales or end use of ten (10) tons of tire-derived products or whole waste tires for fuel or energy recovery within the current state fiscal year. For example: an applicant who end uses two (2) tons in July, four (4) tons in August, zero (0) tons in September and four (4) tons in October can apply in November for a rebate for the entire ten (10) tons end used that fiscal year. In this example, the applicant would receive the rebate amount calculated for October.  Each applicant must reach this minimum every state fiscal year prior to being eligible to participate in the End Users Fund.  Once the minimum amount has been applied for, and approved by the Department, the applicant cannot combine applications going forward for that fiscal year; they must apply each month for any amount that is processed, sold by a retailer, or end used.
11.	Stakeholders questioned which processing, retail sales, or end uses of tire-derived products and whole waste tires would be eligible for a rebate from the End Users Fund.  The Department, working with the stakeholders, developed an eligibility table (Table 10-12.01) showing which processes, retail sales, or end uses of tire-derived products and whole waste tires are eligible for rebates. This table determines which activities are eligible for which category of end use, processor or retailer rebate pursuant to the End User, Processor, and Retailer definitions. The table also lists several scenarios which are not eligible for a rebate from the End Users Fund. This table does not create any new rights; it only specifies processes, retail sales and end uses that are eligible for rebates from the End Users Fund.  The Department has the discretion to determine eligibility for any activity not included in the table.
12.	Some stakeholders wondered what would happen if two or more applications that are deemed eligible for a rebate for the same tire-derived product or whole waste tires that are received at the same time by the Department. The Commission has determined that the Department should notify each applicant that more than one application was received for the same tire-derived product or whole waste tires and that the impacted applicants must notify the Department within two (2) business days of notification which application(s) would be withdrawn.  If a notification is not received by the Department within two (2) business days all received applications will be denied.
13.	Another issue was the change in eligibility for the end use of tire bales. The Commission has determined that tire bales shall remain eligible for rebates if used (a)  in an engineered, permanent structure that has been stamped and sealed by a Colorado Registered Professional Engineer; or (b) installed for end use on agricultural land using galvanized steel baling wire and installed to facilitate tire bale stability and longevity, using applicable design standards, as allowed by state laws and regulations and local ordinances (including fencing, windbreaks, and corrals). 
To be eligible for a rebate from the End Users Fund, an applicant will need to submit an End Users Tire Bale Approval Form, available on the Department’s website, along with proof the structure was stamped and sealed by a Colorado Registered Professional Engineer.
This determination does not restrict the processing, selling or end use of tire bales, as long as the tire bales continue to be considered a beneficial use by the Department and local laws and ordinances allow for their end use in the location they are installed. 
14.	Stakeholders questioned why there is a requirement for applicants participating in the End Users Fund to provide estimated forecasts of future processing, retail sales or end use of tire-derived products or whole waste tires. Due to changes in HB 14-1352, the Department must set the same per ton rate for a twelve (12) month period. The same per ton rate is intended to provide more market certainty for applicants so they can better forecast their budgeting and use of tire-derived products. For the Department to be able to set a per ton rate, having forecast information from those actively participating the End Users Fund allows the Department a more accurate picture to set a rate that allows market stability.  The Commission has determined that this information is needed for the Department to set a per ton rate that meets the requirements of HB 14-1352.
15.	A few stakeholders expressed concern about the term “applicant” in section 10.12.6 which states that applicants who knowingly or intentionally provide false information to the Department are prohibited from receiving future rebates from the End Users Fund. Specifically, some stakeholders were concerned that their companies would be held liable for actions of “rogue employees.” It is the intention of the Commission that only culpable parties be prohibited from receiving rebates under these Rules.
16.	Some stakeholders questioned why pyrolysis is considered an end use and not a process. 
Senate Bill 13-252, Section 40-2-124, C.R.S. defines pyrolysis:
“Pyrolysis” means the thermochemical decomposition of material at elevated temperatures without the participation of oxygen.
Section 1.2 adopts this definition. For purposes of Section 10, pyrolysis of waste tires or tire-derived product means to convert waste tires or tire-derived product into other components with economic value – typically gas, oil and carbon based products.  The Commission has determined that pyrolysis is an end use, and would be eligible from the End Users Fund based on Table 10-12.01.
17.	Some stakeholders questioned - how materials created by the method of pyrolysis will be treated for the purposes of eligibility for a rebate from the End Users Fund.  Pyrolysis is considered an end use, as defined in Section 30-20-1401(4) (c), C.R.S.: 
Consumes tire-derived product or uses tire-derived product in its final application or in making new materials with a demonstrated sale to a third-party customer. 
The Commission deems those companies who purchase materials from a company who used pyrolysis to create those materials to be not eligible for a rebate from the End Users Fund. 
18.	Another issue arose regarding how a retailer was going to be defined for the purpose of eligibly for receiving a rebate from the End Users Fund.  Per Section 30-20-1405 (2)(b), C.R.S., the Department shall use moneys in the End Users Fund to provide rebates to in-state:
Retailers who sell tire-derived product…
The Commission has determined that retailers of tire-derived products are retailers who sell small quantities of tire-derived products to customers who will use the tire-derived product for its ultimate use.  For example, a retailer selling landscape mulch made of processed waste tires to a residential customer who will install the landscape mulch on their own property is eligible to receive a rebate.  Retailers will need to provide proof of retail sales tax being collected from the ultimate customer or provide proof that the ultimate customer is exempt from paying retail sales tax.  Retailers of tire-derived products must have a current retail sales tax license to be eligible to participate in the End Users Fund.
19.	Another issue encountered concerned a rebate for waste tires located at an illegal waste tire site that received funds from the Administration, Enforcement and Cleanup Fund. Specifically, if those tires are processed onsite, should the processing of those same waste tires also be eligible for a rebate from the End Users Fund? The Commission has determined such processing should not be eligible to receive a Processor rebate because the Processor is already receiving state money from another fund to process and remove the waste tires.  This would be the same for Retailers who sell the tire-derived product processed from these illegal sites. Conversely, if a person receives money from the Administration, Enforcement and Cleanup Fund to remove waste tires from an illegal waste tire site and subsequently processes those waste tires offsite, they would be eligible for the Processor rebate (if sold to an out-of-state End User) because the Administration, Enforcement and Cleanup Fund would be funding only the removal of those waste tires, not the subsequent processing. End Users would be eligible for a rebate for the end use of those processed waste tires as long as they are not financially benefiting from the cleanup of the waste tires. The Commission feels that the Department should make every effort when awarding a grant to cleanup waste tires from an illegal waste tire site to ensure that the same waste tire is not eligible for both a rebate from the End Users Fund and reimbursement from the Administration, Enforcement and Cleanup Fund and the End Users Fund. 
20.	Factors used to determine the per ton rate of $40 for the next twelve (12) months beginning January 2015. The Commission considered several factors in determining setting the per ton rate: 
•	The audit findings from the Colorado Office of the State Auditor (Department of Public Health and Environment: Waste Tire Processor and End User Program June 2014 Performance Audit) stated that the Department should not pay rebates in excess of the cost of processing or end using tire-derived products. House Bill 14-1352 prohibits the Commission from setting a tiered per ton rate.
•	The Department and stakeholders used a forecasting spreadsheet that included the following information:
o	Breakdown of approved tons over the last fiscal year by End User, Retailer and Processor. Tons approved that are not eligible under the current statute were removed. 
o	Forecast of potential end use of tons from applicants who did not participate or were limited in their participation in the End Users Fund during the last fiscal year. 
o	Projections of revenues based on the previous three years’ historical rates.
Based on these factors, the Commission has determined that the Department will pay a rebate of $40 per ton for the next twelve (12) months.

Regulatory Alternatives

	No other regulatory alternatives were evaluated.

Cost/Benefit Analysis

A cost-benefit analysis will be performed if requested by the Colorado Department of Regulatory Services.