Regulatory Changes: Solid Waste Fee Increase

New proposed text in red; Proposed deleted text in strikeout

1.7 SOLID WASTE AUTHORIZATION AND FEES

1.7.1 Authorization:
The Department is authorized per Section 30-20-109, CRS, as amended, to collect various types of fees to fund specified portions of the solid waste program activities and functions. These fees shall be collected and used as defined in the following subsections.
1.7.2 Application review fees:
The Department is authorized to collect a fee for the review of a new application for a solid wastes disposal site and facility or for the review of amendments to an original application upon which a certificate of designation has been issued or for pre-operation inspection of solid waste disposal sites and facilities or for the attendance of Department staff at meetings and hearings concerning such applications or amendments. Also, for the assessment of remediation activities concerning closed or old disposal sites or spill and incident cleanups. The hourly fee is currently $72.47 per hour.
1. The total fee charged by the Department for the review of an application shall not exceed the actual documented costs incurred by the Department in its review.
2. The total fee collected by the Department for the efforts of the Department's solid waste program staff in the review of a single application for a certificate of designation for a solid wastes disposal site and facility shall not exceed ten thousand dollars ($10,000).
3. When a contractor has participated in the comprehensive technical review of an application for a certificate of designation for a solid wastes disposal site and facility, as discussed in Section 1.4.8 of these regulations, the total fee collected by the Department for the efforts of the Department's solid waste program staff in the review of that application for a certificate of designation for a solid wastes disposal site and facility shall not exceed five thousand dollars ($5,000) and the hourly rate for this function shall not exceed one-hundred dollars ($100.00).
  1. The Department shall collect from the applicant the total documented costs incurred by the Department and by any contractor selected to participate in the comprehensive technical review of an application for a certificate of designation for a solid wastes disposal site and facility.
  2. Payment shall be provided by the applicant prior to the issuance of a final recommendation on the application by the Department pursuant to Section 1.4 of these regulations.

1.7.2 Document Review and Activity Fees:

Applicability: All facilitities subject to 6 CCR 1007-2 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 open, closed, new, or existing solid waste sites and facilities including, but not limited to, the following:
  1. new applications for solid wastes disposal site and facilities;
  2. amendments to an original application upon which a certificate of designation has been issued;
  3. remediation activities concerning open, closed, or old disposal sites or spill and incident cleanups;
  4. monitoring reports from open or closed facilities requiring ground water monitoring;
  5. design and operations plans and amendments or modifications thereto;
  6. post-closure plans and modifications;
  7. consent decrees, valid orders (or portions thereof) or consent orders for corrective action; and
  8. Environmental Covenants or associated documents required under § 25-15-320, C.R.S.
2. Activity Fees: The activity fees shall provide reimbursement to the Department for professional staff and administrative personnel time spent on open, closed, new, or existing solid waste sites and facilities including, but not limited to, the following activities related to (A)(1)(a-l) above:
  1. pre-operation inspection of solid waste disposal sites and facilities;
  2. the attendance of Department staff at meetings and hearings concerning such applications or amendments meetings;
  3. preparing for meetings;
  4. negotiations;
  5. responding to questions or information requested at meetings with the facility or the facility's representatives;
  6. preparation for and attendance at public meetings or hearings; and
  7. responding to questions or information requested at public meetings or hearings.
3. For purposes of this section, the following terms shall have these meanings:
  1. "evaluating" includes time spent determining whether the document is complete and adequate for its intended purpose and/or complies with regulatory requirements and may include time spent on site visits, as appropriate;
  2. "responding" includes Department determinations to approve, approve with conditions or modifications, request additional information, or disapprove, revoke, reissue, terminate or deny the permit, closure plan or other document;
  3. "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;
  4. "public meeting" means a hearing that has been publicly noticed.
4. For purposes of this section, the Department will begin charging the facility for pre-permit application meetings and review of documents beginning with the third meeting between the Department and the facility, regardless of whether the facility files a permit application.
5. 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.
6. 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.

Schedule: Solid waste sites and facilities that are subject to the document review and activity fees under paragraph (A) of this section shall pay an hourly charge of $125 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. 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.

The department may, on a case-by-case basis and upon demonstration of need consistent with section 25-15-301.5, request a waiver of the ceiling from a facility subject to the document review and activity fee.

DOCUMENT REVIEW AND ACTIVITY FEES SCHEDULE
Task	Ceiling fee
(Similar to hazardous waste table)

1.7.3 Annual Fees

Applicability:
1. Operating fees: All solid waste sites and facilities that are regulated under Parts 7, 8, 11, 13, and 14 of these regulations, and unattended facilities regulated under Parts 1 and 2 or these regulations, and facilitities regulated under Part 10 of these regulations that do not pay fees under section 25-16-104.5, C.R.S., are subject to the annual operating fee from the time such facilities first begin operating 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 Parts 2 and 3 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.
  1. Owners or operators of solid waste sites and 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. 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.
Schedule: Owners and operators of treatment, storage or disposal facilities shall pay annual operating and post-closure fees according to the schedule in this section.

This fee will not apply to materials regulated by a radioactive materials license issued by this Department.

ANNUAL FEES SCHEDULE
Type of facility/regulated unit	Operating Fee
(Similar to hazardous waste table)

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 Solid Waste Management Fund created in section 30-20-118, C.R.S. 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.

1.7.43
All solid waste facility owners or operators shall transmit to the Department within thirty (30) days following the end of each quarter, the monies collected for the solid waste user fee. The user fee must be charged on all solid waste disposed of in the solid waste facility, regardless of point of origin, density or whether the facility is charging for disposal.
1. Equivalent rate structure: A facility may request that the Department approve an equivalent rate structure for the facility that is based upon the population of the defined service area for the facility. The service area population shall be based upon official Colorado demographic figures that are established under the most recent national census. Each facility using an equivalent rate structure must update its demographic data every five years to ensure that its service area population remains subject to the equivalent rate structure.
  1. The equivalent rate structure will only be available to facilities that have a service area population of no more than 3500 people. All other facilities must utilize the fee structure set forth in § 25-16-104.5, C.R.S.
  2. A facility must request an equivalent rate structure in writing. The facility shall submit the applicable population data, and a map and/or description of the service area to the Department as part of its request.
  3. The equivalent rate structure shall be based on the following formula:
    4.5 lbs./person/day x 365 days/year divided by 2,000 lbs./ton = X tons/year.
    (X tons/year x 3.333 cubic yards/ton) x (the cubic yard rate that is established in current statute) = the dollar amount to be paid per annum.
2. Allowable expenditures and reporting: Local jurisdictions operating disposal facilities and collecting user fees are allowed to use these fees to cover their expenses in performing response activities at National Priority List (NPL) sites, pursuant to § 25-16-104.5(3)(b), C.R.S. The following provisions set forth the reporting requirements, allowable expenses, and other aspects of fee collection and retention or use under this citation.
  1. A jurisdiction must obtain approval from the Department to use or retain for future use, fees as provided in statute. The jurisdiction shall submit a written request including the name of the site, what response activities are to be taken, the requirement for taking such action (e.g., a Record of Decision, Consent Decree or an Order), and estimates of how much money will be expended and over what period of time. The information provided must demonstrate compliance with the provisions of § 25-16-104.5, C.R.S. and these regulations, which shall be the criteria for approval or disapproval by the Department. The Department will use its best efforts to complete its review of such requests within 30 days.
  2. A jurisdiction may retain fees pending the Department’s decision and any appeal thereof; however, the jurisdiction may not expend such fees until approval is granted by the Department. The Department shall provide a jurisdiction with a written statement of reasons for any disapproval or partial disapproval. A jurisdiction may appeal the Department’s determination in accordance with the Colorado Administrative Procedures Act, Section 24-4-105 C.R.S.
  3. A jurisdiction that expends fee monies on designated sites listed on the NPL shall be subject to quarterly reporting requirements. The jurisdiction shall report to the Department all fee monies collected, monies remitted to the solid waste management fund, and monies expended pursuant to statute to fund response activities at NPL sites during the previous quarter. The jurisdiction shall further describe the expended funds on a site specific and activity specific basis, including the site name and the nature of the expenditure. If credits are requested against future expenditures as per paragraph 6 of this subsection, the jurisdiction shall specify the amount, site name and proposed activities. The jurisdiction shall also report the amount of interest or dividend gained on any retained fees and how it was retained, used or remitted on a site-specific basis.
  4. A jurisdiction shall remit any fees and accrued interest not retained or used for allowable expenses as described herein to the Department on a quarterly basis.
  5. If a jurisdiction has received settlement monies for response activities from other responsible parties, the jurisdiction must first use such settlement monies for those response activities before using retained fees. In order to obtain Department approval to retain and spend retained fees on NPL sites where such settlement monies have been received, the jurisdiction must submit information on the settlement to the Department, with an accounting of these monies to show that they have been expended.
  6. Only the costs of response activities at sites on the NPL where the local jurisdiction is required to perform such activities as a consequence of being a potentially responsible party (as defined by the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)and the National Contingency Plan) or as a result of a Record of Decision, Order, Consent Decree, Consent Agreement, or other agreement between the local jurisdiction and the U.S. Environmental Protection Agency, qualify for retention and expenditure of collected fees. Allowable expenses include, but are not limited to: the costs of producing required documents such as Remedial Investigations, Feasibility Studies, Records of Decision, and Remedial Designs; the cost of constructing remedial or removal actions; and legal costs associated with the negotiation of orders with the U.S. Environmental Protection Agency. Allowable expenses do not include, without limitation: certain litigation costs, including cost recovery; costs incurred as a regulatory oversight agency that are not required by the U.S. Environmental Protection Agency; additional actions taken at the discretion of the jurisdiction that are not required by the U.S. Environmental Protection Agency; and costs associated with sites that are not on the NPL.
  7. Upon approval from the Department, a jurisdiction may be credited fees for future allowable expenses, if it can be shown that the expenditure and remittance of fees as described above will not cover the estimated allowable expenses. This need must be demonstrated by showing projected allowable expenditures against expected revenues from retained fees. The approval of the Department will be based on compliance with § 25-16-104.5, C.R.S. and these regulations regarding allowable expenses. In addition, the Department may consider other factors such as the time period of retention, in assessing such a request.
3. Audit: The Department may audit a facility in order to ascertain whether or not the facility is in compliance with these regulations and the governing statute.
  1. An operator of a solid waste disposal facility shall retain all records regarding the collection and remittance of solid waste user fees for a period of three years.
  2. A jurisdiction shall retain all records relating to its retention and/or expenditure of solid waste user fees for a minimum of three years, at which time it may request that the records no longer be retained.
4. Conversion factors: Any solid waste disposal facility or jurisdiction may use the following conversion factors when calculating HSRF fees:
  - 0.333 cubic yards/passenger car
  - 0.666 cubic yards/light duty truck/suv
  - 3.333 cubic yards/ton for municipal solid waste
  - 5.000 cubic yards/1,000 gallons
  - 0.75 cubic yards/ton for soil
  A facility may request that the Department approve an alternate conversion rate, based on the material specific density for a given waste stream. This request must include data that validates the density of the material.

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Regulatory Changes: Solid Waste Fee Increase

New proposed text in red; Proposed deleted text in strikeout

1.7 SOLID WASTE AUTHORIZATION AND FEES

1.7.1 Authorization:

1.7.2 Application review fees:

1.7.2 Document Review and Activity Fees:

1.7.3 Annual Fees

1.7.43