6 Colo. Code Regs. § 1007-3-8.75
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 two years under the present hazardous waste fee structure, the Department has determined that a one-year temporary decrease of 12% in hazardous waste fees is necessary for Calendar Year 2011.
§ 25-15-301.5, C.R.S., provides general directives for implementation of the hazardous waste regulatory program. These directives include implementing a hazardous waste program that a) maintains program authorization by the U.S. EPA, b) promotes a community ethic to reduce or eliminate waste problems, c) is credible and accountable to industry and the public, d) is innovative and cost-effective, and e) protects the environmental quality of life for impacted residents of the state. § 25-15-302(2), C.R.S., provides guidance for future fee adjustments by the Solid and Hazardous Waste Commission. This guidance includes setting the fees such that the revenue generated by each fee approximates the actual reasonable program costs attributable to the facilities paying the fee.
The Department is authorized by the U.S. EPA to operate the hazardous waste regulatory program in Colorado in lieu of the federal government. One of the key criteria evaluated by the U.S. EPA in authorizing the state program is resources, both in terms of funding and in terms of qualified personnel.
Even with this fee decrease, the Department has determined that it will continue to be able to operate an adequate program.
Amendments to these same sections of the regulations made in May, 2009, implemented a balanced 15% increase in hazardous waste program fees that the Department expected would provide adequate funding for the hazardous waste program for a period of approximately two years. However, because of several unanticipated events, the current fee structure has collected too much money. The Department has benefitted from higher-than-anticipated revenue and lower-than-expected costs. Revenues have been higher due to 1) greater-than-expected volumes processed by Colorado's permitted Treatment, Storage, and Disposal (TSD) facilities, 2) collecting a sizable hazardous waste volume fee for a new waste stream at another TSD, and 3) other fee components (number of billable hours and number of hazardous waste generators) remaining stronger than anticipated.
The Hazardous Waste Program has had lower expenses because 1) salaries have not been increased in FY10 or FY11, 2) we expect salaries to remain flat in FY12, 3) salaries were actually cut 2% in FY10 due to furloughs and cut 2.5% in FY11 by legislative action diverting more salary to PERA (the retirement program for state employees) and decreasing the amount paid by the state the same amount, and 4) the Hazardous Waste Program has not spent the budgeted $200,000 that we built into the 2009 fee increase for building a new data management system.
Higher revenues and lower expenses have caused overall revenue to outpace expenses in both FY10 and FY11. This has caused the Program's bank account to grow to a level that significantly exceeds what is allowed by law. § 24-75-402, C.R.S., requires that the fiscal-year end balance in this type of bank account not exceed 16.5% of the previous year's expenditures. Because of the unanticipated events described above, projections show that the 16.5% carry-over limit will be exceeded until FY15 unless the fees are decreased. With a fee decrease the bank account balance will again reach the 16.5% limit in FY13.
This fee decrease rulemaking will become effective on April 1, 2011. However, because of how these rules are written, the new decreased fees will actually be retroactive to January 1, 2011 and will continue through December 31, 2011. Because the Department does not collect any fees for calendar year 2011 until after April 1, 2011, when 1st quarter document review fees and CESQG annual fees will be billed, the retroactive aspect of the fee decrease should cause no problems for the Department or for fee payers.
The amendments being adopted at this time include a one-year temporary fee decrease of 12% for all fee components. The 2009 fee increase was calculated carefully to collect proportional amounts of revenue from each hazardous waste sector equivalent to the amount of time and effort the Department spent regulating that sector. That proportion between sectors is still correct and, therefore, the fairest and simplest approach to the fee decrease is an across-the-board equal fee reduction of 12%. This means that the fees included in Parts 262.13 (Generator fees), 100.31 (TSD annual, volume, and minimum fees), 100.32 (document review and activity fees), and 100.33 (notification fees) have all been reduced by 12% for calendar year 2011.
The maximum and ceilings for non-commercial TSDs in Part 100.31(b) and for document review in Parts 100.32(b) and (c) have not been adjusted. These ceilings were not raised in 2009 when the last fee increase (15%) was implemented so there is no reason to lower them now for this fee decrease. In truth, these ceilings are only very rarely reached even under the 2009 fee amounts.
Statement of Basis and Purpose - Rulemaking Hearing of May 17, 2011
6 CCR 1007-3-8.75