Committee deadlocks on repeal of Solid and Hazardous Waste rule that creates EPR appeals process

The Committee on Legal Services on March 6 considered whether to repeal rule 18.2.7 of the Solid and Hazardous Waste Commission, a regulation that lays out an appeals pathway for disputes over producer dues under Colorado’s Extended Producer Responsibility (EPR) law.

Jennifer Berman of the Office of Legislative Legal Services told the committee the rule “exceeded the agency’s rule making authority and conflicts with statute,” arguing the advisory board created under the EPR act was described in law as an advisory entity whose duties are to “advise, review, consult, or recommend,” not to preside over evidentiary adjudicatory hearings. Berman recommended repeal of 18.2.7, saying the statute and the Administrative Procedure Act (section 24-4-105) reserve adjudicatory hearings for agencies or an administrative law judge.

The Department of Law, represented by Senior Assistant Attorney General Lucas Stacks, presented a contrasting legal view. Stacks said the rule “enhances due process by allowing producers to bring an administrative appeal of the PRO’s assessment of dues,” and that the advisory board’s hearing role is advisory and followed by a department decision. He told the committee the regulation helps “protect Colorado from litigation risks” by providing a more immediate appeals path than waiting for formal enforcement actions.

Stakeholders were sharply divided. Deborah Nelson, EPR reporting manager for Circular Action Alliance Colorado, argued the rule and the department’s existing processes provided appropriate notice and escalation and warned that removing the rule “increases the litigation risk.” EcoCycle’s Randy Mormon said the program is at a critical implementation point and urged preserving the rule to avoid disruption. Brian Lama, who serves on the advisory board’s environmental justice seat, said board members expected to be consulted and to make recommendations in dispute settings.

Committee members debated whether the problem was one of statutory drafting or of agency overreach. Supporters of repeal said the General Assembly had not expressly authorized an advisory board to perform adjudicatory functions and that any change should be made by statute; opponents said the rule is a practical tool to resolve technical disputes about how dues are calculated and to minimize program disruption.

Vice Chair Frizzell moved to adopt the staff recommendation to repeal rule 18.2.7 (the motion cited the memorandum dated 03/06/2026). After discussion, the committee conducted a roll-call vote and the motion failed on a 5–5 tie, with yes votes from Representative Camacho, Senator Carson, Representative Luck, Representative Soper and the Madam Vice Chair, and no votes from Senator Gonzales, Representative Joseph, Senator Roberts, Senator Weisman and the Chair.

With the motion defeated, the rule remains in effect pending any future legislative action or further administrative rulemaking. Committee members and witnesses noted litigation is already pending in another state and that parties could pursue statutory clarification during the current session if they choose.

The committee’s action leaves open the practical question stake‑holders raised throughout the hearing: whether to preserve an expedient technical appeal route built into regulation (and risk a legal challenge) or to require new statute to authorize that specific function and thereby reduce the agency’s ability to rely on the rule during the current implementation phase.