DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT

Solid and Hazardous Waste Commission/Hazardous Materials and Waste Management Division

6 CCR 1007-3

hazardous waste

Amendments adopted by the Solid and Hazardous Waste Commission on May 19, 2009:

Amendments to Hazardous Waste Fees

1) Revise Section 262.13 of Part 262 to read as follows:

§ 262.13 Generator Annual Fees.

(a) Pursuant to the fee requirements of section 25-15-302, C.R.S., generators of hazardous waste shall be assessed the following annual fees for each calendar year:

1)	Conditionally Exempt Small Quantity Generators (CESQGs) that generate waste codes F001, F002, F004, and/or F005: $200

2)	Small quantity generators (SQGs): $625*

3) 	Large quantity generators (LQGs): $3,200**

*Note: CESQGs that operate at the SQG status for one or more calendar months of the year will be assessed the SQG fee level.

**Note: SQGs that operate at the LQG status for less than four (4) months in the same calendar year will be assessed the SQG fee level upon notification to the Department.

2) Revise Subpart 100.3 of Part 100 to read as follows: 

100.3 FACILITY FEES

§ 100.30 COVERAGE OF THE HAZARDOUS WASTE FEE SYSTEM

(a) General applicability. Facilities that are regulated under Parts 261, 262, 264, 265 or 100 of these regulations are subject to the following fees as described in these sections:

(1) Annual fees (§ 100.31)

(i) Operating fees

(ii) Post‑closure fees, as applicable

(iii) Generator fees

(iv) Corrective Action fees, as applicable

(2) Document review and activity fees (§ 100.32)

(i) Document review

(ii) Activity

(3) Hazardous waste notification fees (§ 100.33)

(b) Classification of facilities.

For the purposes of these sections, hazardous waste treatment, storage, and disposal units are classified according to the method or methods used to manage hazardous wastes.  These classes are ranked from I ‑ IV with class I being the highest class.

Class I includes those unit(s) of a facility which manage hazardous wastes in landfills, disposal corrective action management units (“CAMUs”), or underground injection wells pursuant to Parts 264, 265, and 100 of these regulations.

Class II includes those unit(s) of a facility which manage hazardous wastes in surface impoundments, land treatment facilities, waste piles, or treatment/storage CAMUs, or which incinerate hazardous waste or burn hazardous waste in boilers or industrial furnaces, or which are research, pilot, or RD&D units pursuant to Parts 264, 265, and 100 of these regulations. 

Class III includes those unit(s) of a facility used to manage hazardous wastes in tanks or containers, waste piles, containment buildings, or any unit used for physical, chemical, biological, or thermal treatment of hazardous waste pursuant to Parts 264, 265, and 100 of these regulations, except those units listed in Classes I or II.

Class III also includes hazardous waste management units associated with resource recovery, namely, treatment or storage of the hazardous waste residues generated from a resource recovery facility.  Such units associated with resource recovery are subject to the reduced fee requirements described further in § 100.31.

Class IV includes those hazardous waste management facilities that qualify for a permit by rule under § 100.21.

§ 100.31 ANNUAL FEES.

(a) Applicability.

(1) Operating fees.  All facilities that are operated for the treatment, storage, or disposal of hazardous wastes under Parts 264, 265 or 100 of these regulations are subject to the annual operating fee from the time such facilities first begin treating, storing or disposing of hazardous waste until final closure is certified and shall provide payment to provide reimbursement to the Department for those costs incurred in tracking, compliance monitoring, compliance assistance, plan review, enforcement, and other recurring activities that are reasonable and necessary to ensure compliance with these regulations.

(2) Post‑closure fees.  All facilities that conduct post‑closure care under §§ 264.117 through 264.120 or §§ 265.117 through 265.121 of these regulations are subject to the post‑closure fee for the duration of the post‑closure care period and shall provide payment to provide reimbursement to the Department for those costs incurred in tracking, compliance monitoring, compliance assistance, plan review, enforcement, and other recurring activities that are reasonable and necessary to ensure compliance with these regulations. 

(3) Generator fees.  All generators of hazardous waste that are subject to the fee requirements of section 25-15-302, C.R.S. and § 262.13 of these regulations, shall provide payment to reimburse the Department for those costs incurred in tracking, compliance monitoring, compliance assistance, plan review, enforcement, and other recurring activities that are reasonable and necessary to ensure compliance with these regulations.

(4) Corrective Action fees.  Any facility performing corrective action activities under §§ 100.26, 100.27, 264.101, or 265.5 of these regulations are subject to annual fees for the operation and post-closure care of any corrective action management unit established under § 264.552 of these regulations.  In addition, all facilities that utilize environmental use restrictions, as defined in section 25-15-101(4.7), C.R.S., as a basis for corrective action decisions at areas of their facility that are not otherwise subject to post-closure fees are subject to an annual fee for the environmental use restrictions.  These fees are to provide reimbursement to the Department for those costs incurred in tracking, compliance monitoring, compliance assistance, plan review, enforcement, and other recurring activities that are reasonable and necessary to ensure compliance with these regulations. 

(b) Schedule.  Owners and operators of treatment, storage or disposal facilities shall pay annual operating, post‑closure, and corrective action fees according to the schedule in this section.  The total annual operating fee for non‑commercial treatment, storage, or disposal facilities (including operating fees for corrective action management units) shall not exceed $50,000 unless wastes managed at such facility include:  (1) acute hazardous wastes, as specified under § 261.33;  (2) reactive wastes, as specified under § 261.23; or  (3) radioactive mixed wastes.  If a facility manages any of these wastes, then the $50,000 ceiling for annual fees shall not apply to these wastes but shall only apply to other wastes managed at the facility.  Fees for these three types of hazardous waste shall be calculated separately and shall not be subject to the $50,000 limit shown in the schedule presented at the end of this Part.  

(1) Treatment or disposal facilities. 
 
(i) Owners or operators of commercial hazardous waste treatment or disposal facilities shall pay annual operating fees based either on the quantity of hazardous waste received at the facility for treatment or disposal in a hazardous waste management unit during the calendar year, as recorded in the facility operating record kept in accordance with § 264.73 or § 265.73 of these regulations, or a minimum fee based on the type of treatment or disposal units or processes at the facility, whichever results in the greater fee.

(ii) Owners or operators of commercial Class I hazardous waste treatment or disposal facilities shall also pay annual operating fees based on the quantity of non-hazardous waste received at the facility for treatment or disposal in a hazardous waste management unit during the calendar year, as recorded in the facility operating record kept in accordance with § 264.73 or § 265.73 of these regulations.  This fee will not apply to materials regulated by a radioactive materials license issued by this Department.

(iii) Owners or operators of non‑commercial hazardous waste treatment or disposal facilities shall pay annual operating fees based either on the quantity of hazardous waste treated or disposed in a hazardous waste management unit during the calendar year, as recorded in the facility operating record kept in accordance with § 264.73 or § 265.73 of these regulations, or a minimum fee based on the type of treatment or disposal units or processes at the facility, whichever results in the greater fee. 

(iv) Owners or operators of non-commercial Class I hazardous waste treatment or disposal facilities shall also pay annual operating fees based on the quantity of non-hazardous waste received at the facility for treatment or disposal in a hazardous waste management unit during the calendar year, as recorded in the facility operating record kept in accordance with § 264.73 or § 265.73 of these regulations.  This fee will not apply to materials regulated by a radioactive materials license issued by this Department.

(v) For commercial and non‑commercial hazardous waste facilities or units that first begin treating or disposing of any type of waste on a date other than January 1st in any given calendar year, the minimum fee, if applicable, shall be assessed on a prorated basis.

(vi) Each volume of any type of waste treated or disposed at a hazardous waste management unit of a facility is subject to the annual operating fee based on whether that waste is treated or disposed, as shown in the schedule of this section.  In cases where a given volume of any type of waste is treated and/or disposed at a particular facility or undergoes more than one type of treatment at that facility, that volume of waste shall be subject to only one fee ‑ that which applies to the treatment or disposal method in the highest class on the annual fee schedule. 

(vii) In cases where a given volume of hazardous waste is only stored pending treatment or disposal, that hazardous waste is subject to a fee based on the amount of that hazardous waste in storage at the facility on December 31 of the previous year plus the amount of that hazardous waste shipped off‑site during the previous year.  Commercial facilities have the option of calculating the fee for hazardous waste which is only stored pending treatment or disposal by using operating records kept in accordance with § 264.73 or § 265.73 of these regulations that note the volume of this hazardous waste received during the previous calendar year.

(viii) No less than the minimum fee shall apply to each treatment and/or disposal facility regardless of the volume of waste received by the facility or whether any waste is treated, stored or disposed by the facility during the year.  The minimum fee which applies to a given facility shall be calculated by adding the minimums shown in the schedule of this section for each type of treatment, storage or disposal unit or process required to be listed on the facility's Part A permit application.

(2) Storage-only facilities.

(i) Owners or operators of facilities that store hazardous waste but do not perform treatment on or disposal of that waste shall pay annual operating fees based on the volume of hazardous waste in all waste management units (e.g. tanks plus containers) on December 31 of the preceding year plus the amount of hazardous waste shipped off‑site from the facility during the previous year.  For the purposes of this paragraph, this includes storage of hazardous waste prior to resource recovery. Commercial facilities have the option of calculating the fee for hazardous waste which is only stored by using operating records kept in accordance § 264.73 or § 265.73 of these regulations that note the volume of this hazardous waste received during the previous calendar year.

(ii) No less than the minimum fee shall apply to each facility regardless of the volume of hazardous waste shipped off‑site from the facility, or whether any hazardous waste was stored by the facility during the year.  The minimum fee which applies to a given facility shall be calculated by adding the minimums shown in the schedule of this section for each type of storage unit required to be listed on the facility's Part A permit application.

(3) The closure period.

(i) For purposes of this section, the "closure period" for interim status treatment, storage or disposal facilities undergoing final closure (as defined in § 260.10 of these regulations) is that time from final approval of a closure plan under § 265.112(d) until final certification of closure under § 265.115.  For permitted facilities undergoing final closure, the "closure period" is that time from the beginning of implementation of an approved closure plan until final certification of closure under § 264.115.  For purposes of this section, the term “closure plan” includes any equivalent document required under §§ 264.110(c) or 265.110(d). For facilities undergoing final closure, the annual fee during the closure period shall be calculated by adding the following two components:

(A) For that portion of the year prior to the beginning of the closure period, the appropriate fees for the facility as described above in §100.31(b)(1) and (2) shall be assessed on a prorated basis, except that the inventory date for calculating the volume of waste in storage shall be the last day before the closure period begins, instead of December 31, and;

(B) For that portion of the year when the facility is in the closure period, the minimum fee calculated according to (b)(1)(ii) and (b)(2)(ii) shall apply, on a prorated basis.  If any units are being closed under § 264.310 or § 265.310 (as landfills), then the minimum fee shown in the schedule for units closing as landfills shall apply to those units.

(ii) For purposes of this section, the "closure period" for hazardous waste management units at interim status facilities undergoing partial closure (as defined in § 260.10 of these regulations) is that time from final approval of a closure plan for those units under ' 265.112(d) until final certification of closure for those units under § 265.115.  For units at permitted facilities undergoing partial closure, the closure period is that time from the beginning of implementation of an approved closure plan for those units until final certification of closure for those units under § 264.115.  For facilities undergoing partial closure the annual fee during the closure period shall be calculated by adding the following two components:

(A) For that portion of the year prior to the beginning of the closure period, the appropriate fees for the facility as described above in § 100.31(b)(1) and (2) shall be assessed on a prorated basis, except that the inventory date for calculating the volume of hazardous waste in storage shall be the last day before the closure period begins, instead of December 31, and;

(B) For that portion of the year when units at the facility are in the closure period, the appropriate fees for the facility as described above in § 100.31(b)(1) and (2) shall be assessed on a prorated basis, with the following exceptions:  the fee for the facility shall not be based on the volume of hazardous waste managed at units in the closure period, the minimum fee for the facility according to (b)(1)(ii) and (b)(2)(ii) shall include the minimum fees for those units in the closure period, and if any of those units are being closed under § 264.310 or § 265.310 (as landfills), then the minimum fee shown in the schedule for units closing as landfills shall apply to those units.

(4) Post‑closure.  Owners or operators of treatment, storage or disposal facilities subject to post‑closure care shall pay post‑closure fees based on the number of units (e.g., two surface impoundments plus one waste pile) being closed pursuant to §§ 264.110(c) or 264.310 or §§ 265.110(d) or 265.310. The post‑closure fees apply on a prorated basis when a facility or units at a facility are in the post‑closure care period for a portion of the year.

(5) Corrective Action. Owners or operators of facilities that utilize environmental use restrictions as a basis for corrective action decisions, under §§ 100.26, 264.101, or 265.5 of these regulations, at areas of their facility that are not otherwise subject to post-closure fees shall pay an annual fee associated with that environmental use restriction.  The environmental use restriction fee shall be assessed at a rate of $1,000 per each five geographically distinct areas subject to environmental use restrictions, or fraction thereof.  (For example, if a facility had 1, 2, 3, 4 or 5 geographically distinct areas subject to environmental use restrictions, it would pay a $1,000 annual fee; if it had 6, 7, 8, 9, or 10 geographically distinct areas subject to environmental use restrictions, it would pay an annual fee of $2,000; etc.)   This fee applies on a prorated basis for any portion of an environmental use restriction in place for only a portion of the year.

ANNUAL FEES SCHEDULE

Type of facility/regulated unit	Operating Fee	
Class I

  Landfills
     Commercial

     Non-commercial

  
  Units closing as landfills
     Commercial
     Non-commercial

  Underground injection wells

   
  Disposal CAMUs	

$9.92/ton of hazardous waste disposed, 
$5.25/ton of non-hazardous waste disposed, min. of $56,700 

$9.92/ton of hazardous waste disposed,
$5.25/ton of non-hazardous waste disposed, min. of $17,010 

$42,525 
$17,010

$9.92/ton of hazardous waste disposed, 
$5.25/ton of non-hazardous waste disposed, min. of $14,175 

$9.92/ton of hazardous waste disposed, 
$5.25/ton of non-hazardous waste disposed, min. of $7,088	
Class II

  Surface impoundments
     Commercial
     Non-commercial
  
  Waste piles

  Land Treatment

  Incinerators/Boilers and
  Industrial Furnaces
    Off-site (commercial) facilities
    On-site facilities
  
  Research, Pilot or RD & D facilities

  Treatment/Storage CAMUs	

$7.09/ton of waste stored, min. of $17,010 
$7.09/ton of waste stored, min. of $12,474

$7.09/ton of waste stored, min. of $12,474

$7.09/ton of waste treated, min. of $12,474 

$7.09/ton of waste processed, min. of $22,680 
$7.09/ton of waste processed, min. of $11,340 

$7.09/ton of waste processed, min. of $2,835 
 
$3.55 /ton of waste treated or stored, min. of $1,418 	
Class III

  Tank storage
  (except resource recovery)

  Container storage
  (except resource recovery)

  Containment Buildings
  
  Treatment processes, all except those done   in Class II units

  Tank storage (resource recovery)

  Container storage (resource recovery) 	

$7.09/ton of waste stored, min. of $1,871

$7.09/ton of waste stored, min. of $1,871

$7.09/ton of waste stored, min. of $1,871

$7.09/ton of waste treated, min. of $1,871

$4.12/ton of waste stored, min. of $936

$4.12/ton of waste stored, min. of $936	
Class IV

  All except injection wells	

$3.27/ton of waste treated or stored, min. of
 $210	
 Post-Closure Fee

  All units (including CAMUs)	

$5,250 per unit	
Use restrictions for corrective action decisions	$1,000 per each five geographically distinct areas subject to environmental use restrictions, or fraction thereof.(1) 	

(1)  For purposes of this calculation, each Solid Waste Management Unit or otherwise regulated unit shall be considered a geographically distinct unit.  In addition, groundwater shall be treated as geographically distinct from associated soil contamination.

(c) Payment.  All owners and operators of facilities subject to the fees of this section shall provide timely payment of the annual fees to the Treasurer of the State of Colorado, as provided in this section. All annual fees shall be credited to the Hazardous Waste Service Fund.  A late payment fee of 2% per month or portion thereof shall be assessed on any unpaid balance subject to the limitations of ' 24-79.5-101, et seq. C.R.S.

(1) Disposal.  Owners and operators of commercial hazardous waste disposal facilities shall submit payment of the annual operating fee on a quarterly basis.  The fee shall be paid within 30 days after receiving the bill for the previous quarter.  Owners and operators of non‑commercial hazardous waste disposal facilities shall submit payment of the annual operating fee each year within 30 days after receiving the bill.  These fees shall be calculated as previously described in this section using the schedule of this section.

(2) Treatment and Storage.  Owners and operators of hazardous waste treatment and storage facilities shall submit payment of the annual operating fee each year within 30 days after receiving the bill.  The fee shall be calculated as previously described in this section using the schedule of this section.

(3) Post‑closure.  Owners and operators of facilities conducting post‑closure care shall submit payment of the annual post‑closure fee each year within 30 days after receiving the bill.  The fee shall be calculated as previously described in this section using the schedule of this section.

(4) Generators.  Owners and operators of facilities that generate hazardous waste shall submit payment of the annual generator fee each year within 30 days after receiving the bill.  The fee shall be consistent with § 262.13 of these regulations.

(5) Corrective Action. Owners and operators of facilities conducting corrective action shall submit payment of the corrective action fee each year within 30 days after receiving the bill.  The fee shall be calculated as previously described in this section using the schedule of this section.

(d) Annual review.  Each year, beginning July 2002, the Director shall review the annual fee structure for treatment, storage and disposal facilities and generators and shall submit a report to the Commission evaluating whether the fee structure is both equitable to the regulated community and is sufficient to recover reasonable program expenses incurred.  In making this evaluation, and in proposing any adjustments to the fee structure, the Director shall apply the criteria set forth in section 25-15-302(3.5)(b), C.R.S.

§ 100.32 DOCUMENT REVIEW AND ACTIVITY FEES

(a) Applicability.  Facilities subject to regulation under Parts 264 or 265 of these regulations are subject to the following fees:

(1) Document Review Fees.  The Document Review Fees shall provide reimbursement to the Department for professional staff and administrative personnel time spent reviewing, evaluating and responding to any and all documents submitted or required to be submitted in connection with the following:

(i) interim status and modifications thereto;

(ii) permit applications required by Part 100;

(iii) permit implementation not related to compliance inspections;

(iv) permit modifications;

(v) closure plans and modifications, and equivalent documents under §§ 264.110(c) or 265.110(d);

(vi) post‑closure plans and modifications, and equivalent documents under §§ 264.110(c) or 265.110(d);

(vii) permit and interim status corrective action;

(viii) delisting petitions;

(ix) consent decrees, valid orders (or portions thereof) or consent orders for corrective action;

(x) Corrective Action Plans;

(xi) Remedial Action Plans; and

(xii) Environmental Covenants or documents required under § 25-15-320(3), C.R.S.

  	For purposes of this section, "evaluating" includes time spent determining whether the document is adequate for its intended purpose and/or complies with regulatory requirements.  The term "responding" includes Department determinations to approve, approve with conditions, request additional information or modify, or disapprove, revoke, reissue, terminate or deny the permit, closure plan or other document.  The term "reviewing" includes reviews of information submitted to the Department by the facility or its agents, regardless of whether the documents require a determination by the Department.

(2) Activity Fees.  The activity fees shall provide reimbursement to the Department for professional staff and administrative personnel time spent on the following activities related to (a)(1)(i‑xii) above:

(i) oversight activities;

(ii) meetings;

(iii) preparing for meetings;

(iv) negotiations;

(v) responding to questions or information requested at meetings with the facility or the facility's representatives;

(vi) preparation for and attendance at public meetings or hearings; and

(vii) responding to questions or information requested at public meetings or hearings.

For purposes of this section a "public meeting" means a hearing that has been publicly noticed.

For purposes of this section, the Department will begin charging the facility for pre‑permit application meetings and review of documents beginning with the second meeting between the Department and the facility, regardless of whether the facility files a permit application, Corrective Action Plan, or other document listed in (a)(1) above.

In addition to the document review and activity fees specified above, the facility will reimburse the Department for any legal fees incurred by the Department associated with (1) and (2) above, in the amount the Department is then paying for legal representation to the Colorado Attorney General.

The document review and activity fee schedule shall be reviewed annually by the Director and a report shall be provided to the Commission which makes a determination on whether the fee is both equitable to the regulated community and is sufficient to recover reasonable program expenses incurred thereby.

(b) Schedule.  Hazardous waste treatment, storage, and disposal facilities that are subject to the review and activity fees under paragraph (a) of this section shall pay an hourly charge of $150 for departmental staff and administrative time.  The Director shall establish a time‑keeping system and shall make available to the owner/operator of the facility a record of those activities for which the owner/operator has been charged.

The document review and activity fee of each type of regulated unit shall not exceed the ceilings noted in the schedule below and in paragraph (c) of this section.  For facilities with more than one regulated unit, the maximum document review and activity fee is the sum of the ceiling fees for each unit at the facility.

	DOCUMENT REVIEW AND ACTIVITY FEE

Facility Class/Regulated Unit	Ceiling Fee			
	Operating
Permits	Post-Closure
Permits and alternate enforceable mechanisms	Closure
 Plan or alternate enforceable document	
Class I

  Landfills
    Commercial
    Non-commercial

  Underground injection wells
    Commercial 
    Non-commercial	

$250,000
 $85,000

 $85,000
 $42,500	

$85,000
$42,500

$42,500
$21,250	

$85,000
$42,500

$42,500
$21,250	
Class II

  Incinerators/Boilers and Industrial Furnaces
     Off-site (Commercial) facilities
     On-site facilities

  Research, Pilot or RD & D facilities

  Surface impoundments

  All others	

$250,000
 $68,000

 $34,000

 $51,000

 $34,000	

$85,000
$34,000

$17,000

$25,500

$17,000	

$85,000
$34,000

$17,000

$34,000

$17,000	
Class III

  First unit of a facility

  Each additional unit	

$30,000 

$15,000 	

$8,500

$4,250	

$8,500

$4,250	
Corrective Action

  Each Solid Waste Management Unit
  at a facility	

$25,000 per year			

(c) Document Modification Ceiling Schedule.

(1) Class 1 modification.  Review and activity fees for a Class 1 modification of an existing State RCRA permit as defined in § 100.63 shall have a ceiling fee of $2,000. 

(2) Class 2 modification.  Review and activity fees for a Class 2 modification of an existing State RCRA permit as defined in § 100.63 shall have a ceiling of 50% of the ceiling fee identified in § 100.32 for each unit affected by the modification.

(3) Class 3 modification.  Review and activity fees for a Class 3 modification of an existing State RCRA permit as defined in § 100.63 shall have a ceiling fee of 100% of the ceiling fee identified in § 100.32 for each unit affected by the modification.

(d) Payment.  (1) Facilities subject to regulation under Parts 264 or 265 of these regulations shall provide timely payment of the document review and activity fee upon billing by the Department on a quarterly basis or upon another basis as determined by the Director.  For purposes of this section, "timely payment" means within thirty days of receipt of the Department's billing, or other time frame approved in writing by the Director.  Payment shall be made to the Treasurer of the State of Colorado, which monies shall be credited to the Hazardous Waste Service Fund. A late payment fee of 2% per month or portion thereof shall be assessed on any unpaid balance subject to the limitations of § 24-79.5-101, et seq. C.R.S.

(2) Failure to make timely payment of any document review and activity fee is a cause for termination of a permit as described in § 100.64.

(e) Annual review.  Each year, beginning July 2002, the Director shall review the document review fee structure and shall submit a report to the Commission evaluating whether the fee structure is both equitable to the regulated community and is sufficient to recover reasonable program expenses incurred.  In making this evaluation, and in proposing any adjustments to the fee structure, the Director shall apply the criteria set forth in section 25-15-302(3.5)(b).

§ 100.33 HAZARDOUS WASTE NOTIFICATION FEES

(a) Applicability.  Facilities subject to regulation under Parts 99 and 261.5 or 262 of these regulations are subject to the following fees:

(1) A facility modifying their notification to any status requiring a lesser hazardous waste generation rate (e.g., a Large Quantity Generator re-notifying as a Small Quantity Generator, Conditionally Exempt Small Quantity Generator, or non-generator) shall pay $120 along with submittal of their revised notification information.  The Department will not process the notification change without payment of the $120 fee.

(2) A facility submitting a new notification under Part 99 shall pay $120, except that newly notifying Conditionally Exempt Small Quantity Generators shall not be subject to this fee.  The Department will not process the notification without payment of the $120 fee.

All notification updates that are providing or changing information required in the notification will not be assessed any fee unless these updates also meet criteria (1) or (2) above.

3) Add Section 8.70 {Statement of Basis and Purpose for the Rulemaking Hearing of May 19, 2009} to Part 8 of the Regulations to read as follows:

Statement of Basis and Purpose
Rulemaking Hearing of May 19, 2009

8.70		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

After three years under the present hazardous waste fee structure, the Department has determined that an increase in fees is necessary beginning in State Fiscal Year 2010, which begins on July 1, 2009.  § 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.  Without an increase in fee revenues, the Department has determined that it will not be able to operate an adequate program beginning in State Fiscal Year 2010 and would be in danger of losing program authorization.

The purpose of these amendments is to implement a balanced increase in hazardous waste program fees that the Department expects will provide adequate funding for the hazardous waste program for a period of approximately two years.  The adjusted fees are expected to increase the revenue from fees to the hazardous waste program by approximately 15% in state fiscal years 2010 and 2011.  When the funding provided by U.S. EPA is considered, the fee changes are expected to increase funds available to operate the hazardous waste program by approximately 11%.  This 15% fee increase has been discussed and agreed to by a group of key stakeholders convened by the Department.  The stakeholder group included the two largest treatment, storage, and disposal facilities in Colorado, one of the largest hourly fee payers, and several important Large Quantity Generators and Small Quantity Generators of hazardous waste.  This group met three times in January and February, 2009, and discussed many aspects of the Department’s Hazardous Waste Program and its budget and finances.  In the three previous adjustments to this fee structure the Department proposed adjustments that would cover anticipated funding needs for the following three years rather than two.  In discussion with the stakeholder group it was agreed that, given the current economic recession, proposing adjustments to cover a 2-year period rather than three was appropriate.

Over the next two years, Department costs are anticipated to rise about 3% per year, or 6% over the 2-year period of this fee increase.  In addition, over this timeframe, the EPA hazardous waste grant is anticipated to remain the same, as it has for many years.  Therefore, as the EPA grant represents about one-third of program funding, the fee revenue must cover inflationary increases on those items paid for by the EPA grant.  This represents about another 3% increase over the 2-year period.  On top of these cost increases is a one-time $200,000 upgrade to our databases and data management system.  This represents another 4% increase that is needed over the 2-year period.  Lastly, because of the very tough economic recession, we anticipate a decrease in the number of fee-paying businesses in Colorado.  Our staff is projected to stay at about the current levels over the next two years so the drop in the number of fee payers must be offset by further increases in the fee amounts.  This accounts for the remainder, or about 2%, of the 15% overall fee increase.  It is worth noting that this 15% fee increase represents about a 7.5%/yr fee increase over its projected two-year life expectancy.  This is significantly less than the last two hazardous waste fee increases which have averaged about an additional 10%/yr over the last six years.

It is also important to note that the proposed fee increase is not a flat 15% fee increase across the board.  Some fee components have been increased more than 15%, some less.  The reason for the different fee increase amounts is that we have tried to adjust each fee component to more closely align with the Department’s investment of time and effort in activities related to that component, as is asked for by § 25-15-302(2), C.R.S.  This is explained more fully in the following sections.

The amendments being adopted at this time include the following:

a)  	General:  A few non-substantive clarifications and corrections are being incorporated into Part 100 and Part 262.  Substantive changes are explained in more detail below.

b)  Amendment of Part 262:  Section 262.13 of Part 262 is being amended to:

1)	Raise the annual fee for Conditionally Exempt Small Quantity Generators (CESQGs) that generate waste codes F001, F002, F004, and F005 from $100/year to $200/year.  The Department believes this 100% fee increase is justified for the following reasons:
a.	The Department is investing an increasing amount of resources in ensuring that CESQGs comply with the regulations.   The four waste codes listed in this regulation represent the most problematic and wide-spread contamination issues in Colorado.  These are solvent wastes that are extremely toxic and extremely mobile in the environment.  Therefore, the Department is obligated to carefully monitor generators of these waste codes to ensure that they stay in compliance and safely manage their wastes so that public health and the environment are adequately protected.  At $200/year, the CESQG fee is being brought into close alignment with the LQG fee in terms of the fee revenue compared to the Department’s investment of time and effort in this regulated sector.
b.	This fee was instituted in 2007 and is now paid by about 1100 CESQGs in Colorado.  Simply building a system to bill and collect this fee has proven to be a large undertaking with significant time and effort invested by Department staff.  At a fee level of $100/year, too much of the fee went to paying for its collection and not enough went to program implementation.  To resolve this problem, the fee needs to be significantly increased.

2)	Raise the annual fee for Small Quantity Generators (SQGs) from $480/year to $625/year.  The Department believes this 30% fee increase is justified because of the rapidly increasing time and effort investment the Department is making in this 720-facility regulated sector.  Over the last several years, the Department has implemented an annual self-certification program for SQGs where each facility self-reports their compliance status.  This allows the Department to effectively re-train each facility on the regulatory requirements each year.  Similar programs in other states have an impressive record of improved compliance rates – our program is still too new to demonstrate this type of improved compliance.  Self-certification programs are very resource intensive.  The self-certifications must be followed up with a relatively high number (~100) of random inspections each year to ensure accurate and honest self-certifications and to evaluate how the program is working.  This is about the same number of inspections the Department performed at SQGs each year before self-certification, but the administration of the self-certification program has added significant workload – preparation of certification forms and instruction booklets, follow-up with late filers, data entry, and data evaluation.  Bringing the SQG fee up to $625 does not yet raise this fee to a level equivalent to the CESQG and LQG fee in terms of Department time and resources invested.  However, in light of the poor economy and the fact that most SQGs are small businesses, the Department felt limiting the fee increase to 30% was appropriate at this time.  Further adjustments attaining equity and parity can be made in the future.

3)	Raise the annual fee for Large Quantity Generators (LQGs) from $3,050/year to $3,200/year.  The Division believes this 5% fee increase is justified because the Department is not decreasing its efforts within the LQG sector.  These facilities are the largest waste generators in Colorado and have the biggest potential effects on public health and the environment.  We have invested a significant amount of resources in this sector over the last 10 years and have seen measurable improvement in LQG compliance rates.  This, in turn, means that public health and the environment are safer.  However, experience has shown that backing off our efforts in this sector will quickly result in an erosion of our compliance gains.  The LQGs have historically paid a higher share of fee revenue because the Department has spent more time and effort on LQGs than we have SQGs and CESQGs.  In the next few years, Department time with LQGs will remain essentially flat while efforts at SQGs and CESQGs will increase.  Therefore, the proposed fee increase for LQGs is much less than either the SQG or CESQG increases.  

c) Amendment of Part 100.3:  

1)	The Annual Fee Table at the end of Section 100.31 is being amended to include an overall 5% increase in TSD fees.  This applies to both the volume fees and the minimum fees for all classes of facilities.  The Division believes this 5% fee increase is appropriate.  It is less than the increases being proposed for SQGs and LQGs, and it is less than the increase being proposed for the hourly fee rate.  This is due to the fact that the Department is slowly decreasing its investment of time and effort in TSDs – all TSDs needing permits are permitted and our efforts are in permit maintenance; our inspection efforts at TSDs are driven by EPA requirements, but compliance rates have been high so extra time spent in enforcement has been low.  Therefore, this lower fee increase keeps TSD fees in line with the other two major fee components (hourly fees and generator fees) in terms of revenue versus time and effort invested.

2)	Section 100.32(a)(2) is being amended to clarify that document review and activity fees will apply to pre‑permit application meetings and review of documents beginning with the second meeting between the Department and the facility, regardless of whether the facility files a permit application, Corrective Action Plan, or other document listed in Part 100(a)(1).  The Department tries to get contaminated facilities to enter our regulatory process through a Corrective Action Plan (CAP) because that is the most efficient mechanism for the facility and for our staff.  However, in many cases, after investing quite a bit of time meeting with a facility and explaining the CAP document and process, the facility will not submit a CAP and the Department must resort to alternative enforcement mechanisms.  This makes our initial investment of time unrecoverable.  To alleviate this problem somewhat, the proposed regulatory change states that we will begin charging hourly fee beginning with the second meeting, rather than the third.

3)	Section 100.32(b) is being amended to change the hourly rate for the document review and activity fee from $135/hour to $150/hour – an 11% increase.  While this rate is high, the Department believes it is justified for three reasons:
a.	It is a “loaded” fee that recoups the cost of not only the technical staff performing the review, but also the proportional cost of direct management, direct administrative support, direct IT support, and indirect Department support;
b.	The Department has documented that the ‘loaded” cost is actually $152/hour for 2010, slightly more than the proposed $150/hour; and
c.	The document review and activity fee was originally implemented in 1991 at a “loaded” rate of $85/hour.  Inflating $85/hour through 2010 results in $162/hour, again more than the proposed $150/hour.

4)	Section 100.33 is being amended to raise the fee charged for certain notifications from $100 to $120.  This fee was added in 2006 and is intended to be a cost recovery fee for Department staff time spent processing the new or revised notifications.  It is similar to processing fees charged by other Departmental programs.  Similar to item 2 above, the main need for this fee increase is to continue to fully cover our transaction costs.  This fee is only charged for the following types of notifications:
a.	Notifications where a facility is lowering its generator status; and
b.	New notifications for SQGs and LQGs, but not for CESQGs.