May 6, 2026 · Transportation & Energy · 3,012 words · 16 speakers · 63 segments
Good evening. Senate Transportation and Energy Committee will now be called to order. Ms. Forbes, please call the roll.
Senators Bazley. Present. Catlin. Excused.
Exum. Good afternoon.
Lindstedt. Present.
Mullico. Here.
Kelton. Present.
Sullivan. Here.
Mr. Vice Chair. Here.
And Madam Chair. Present.
Okay, our fearless chair is going to present to us Senate Bill 192. Senator Cutter, whenever you are ready, please tell us about your bill.
Good afternoon, evening, whatever. Thank you. Thank you, committee. I today am bringing for you producer responsibility dues appeal process update. So last month, the committee on, some of you know this and participated, but last month the committee on legal services heard a presentation from OLLS about a regulation adopted last year by the Solid and Hazardous Waste Commission. The regulation created a process for businesses subject to Colorado's EPR, Extended Producer Responsibility Program, for recycling. To appeal dues, they are assessed to fund the program. As you may know, in 2022, I sponsored this legislation to create Colorado's EPR program. And the state is successfully implementing this groundbreaking program that will expand recycling to more than 700,000 households in Colorado at no expense to the government or taxpayers. So we're pretty excited about this. And it's on track. And instead of government and taxpayers, it's funded by dues assessed to consumer good brand owners. But for this system to function fairly and with due process, the brand owners must be able to contest their dues amounts. We just want them the opportunity to appeal. At last month's hearing, the Committee on Legal Services was asked to decide whether the 2022 legislation allowed for the commission to create this process where CDPHE's EPR advisory board could review appeals of these dues. The Attorney General's Office testified about why the regulation was legal, envisioned by the statute, and within the scope of the commission to adopt. The Committee on Legal Services voted to uphold the regulation. We heard consensus among the members of the committee that due process is important and essential for government-mandated dues. While the committee upheld the regulation, the hearing put a spotlight on our statute where there might be some ambiguity. So this bill in front of you today just reaffirms and makes abundantly clear the advisory board's authority to review appeals of VPR dues. I ask for your support of this important bill so we can ensure Colorado's recycling system is strong and its business community is afforded its constitutional rights. And so I'm happy to take questions.
Thank you, Senator Cutter. Are there any questions from the committee? Seeing none, we will proceed to witness testimony. Senator Cutter, do you have a preference on the order? Okay, we will start with our witnesses who are signed up in an amend position. amend or against, we have Erin Radin, Andrea Albersheim, and if there is anybody else present who would like to testify in a oppose or amend position. We will take a senatorial five while we make sure we can get Thank you. Thank you. Thank you The committee will come back to order. Folks who are tuning in online, I was told, could not hear us, so I'll just repeat. We're starting with our panel that is testifying either in an amend or against position. So I have Erin Radin, Andrea Albersheim. If there is anybody else here who would like to testify in an amend or against position, please come forward. I think we have, it's hard to read the text, but I think we have Andrea Albersheim here. So whenever you are ready, please state your name and who you represent.
You have two minutes to testify. Thank you. Chair Cutter, Vice Chair Ball, and members of the committee, thank you for the opportunity to speak today. My name is Andrea Elbersheim, and I lead plastic sustainability and recycling policy at the American Chemistry Council. We appreciate the intent behind SB 26192. Producers should have a clear and fair path to challenge ecomodulated dues and assessments. However, we have significant concerns with the process identified in this bill, which is why we are in an amend position and have provided suggestions to the sponsors. The advisory board should not be at the center of a formal appeals process that affects producers' financial obligations. The advisory board was not created and should not have the authority to conduct hearings, evaluate disputes, or function as a quasi-judicial body. The Office of Legislative Legal Services recently concluded that the existing rule authorizing the advisory board to proceed over these hearings exceeds statutory authority and conflicts with the State Administrative Procedure Act. The memo states that the advisory board is not the appropriate body to conduct evidentiary hearings under Colorado law. This bill codifies that structure even though the advisory board remains an inappropriate body to adjudicate hearings. The advisory board is not a neutral decision-making body. Its membership includes local governments, waste haulers, recyclers, and consultants who may have financial or operational interests tied to the program. This structure raises due process, confidentiality, and antitrust concerns by placing competitors and market participants in a process involving financial disputes and potentially sensitive business information. Finally, this bill was introduced in the final days of session with limited time for stakeholder review. Even so, we have proposed amendments to address these concerns. We believe there is a better path forward. If an appeals process is needed, it should be administered directly by the department with an established administrative process that ensures neutrality and fairness. For those reasons, we respectfully urge additional work on the bill
Thank you very much. Thank you. Your time is up. Let's go now to Erin Radin. You have two minutes. Please proceed.
Thank you, Madam Chair and members of the committee. I'm Erin Radin here on behalf of the Consumer Brands Association. We represent the consumer packaged goods industry, which in Colorado supports over 45,000 jobs, powers the economy with three point five billion dollars in wages and injects five point nine billion dollars into Colorado's economy. The consumer packaged goods industry supports EPR and packaging policies that protect consumer safety, improve recycling access, and deliver strong environmental outcomes. But unfortunately, SB 26192 does not further those goals, and we must respectfully oppose. We support producers having proper due process. However, the advisory board is not the appropriate venue for this to occur. The advisory board consists of members representing the variety of stakeholders in the recycling system, including local governments, haulers, and recycling and composting facilities who benefit from the funds collected by the program, as well as representatives of NGOs and specific material types, creating an inherent conflict of interest. These members are tasked with advising the department and PRO through their individual lens, not to provide an objective judicial function. Even if they are successful in putting their individual interests aside, there is still the perception of bias. Additionally, because of Colorado's Sunshine Laws, any such hearing would have to be conducted in a public meeting, causing the release of a producer's confidential business information and proprietary data. If the actual determination will be made by the department, then they are the appropriate entity to conduct a hearing or other review of the eco-modulated dues. as they are already tasked with enforcement and could conduct their review while maintaining confidentiality of the data. We understand that this process is already approved in rule and may very well go forward regardless of this legislation. However, we still strongly object to the precedent it sets for other states who may be contemplating or implementing EPR programs of their own. Thank you for your time today. We look forward to working with the sponsors and department on amendments to resolve these concerns.
Thank you for your testimony. Committee members, any questions for our witnesses? Senator Callum.
Thank you, Mr. Chair. This question is for you, Ms. Albersheim. This bill's proponents say that this bill is simply codifying something that was recently passed into rule. Why didn't you try to fix this idea before rulemaking and why are you trying to change it now?
Ms. Albersheim.
Thank you for the question. The hearing and appeal structure contemplated in SB 26192 originated during CDPHE's 2025 Ecomodulation Rulemaking where drafts 2 and 3 were introduced in the middle of the public comment period which limited stakeholder review and discussion of this significant governance change Multiple stakeholders raised concerns during the rulemaking regarding the advisory board's role in presiding over these hearings and the disputes, including concerns about due process, scope, authority, equity, and fairness. In CDPHE's summary of the public comment and basis of purpose document that they released in November, the department acknowledged that while a small number of commenters supported the concept, some stakeholders raised concerns and others made suggestions to change the section. while Circular Action Alliance publicly opposed the provision. ACC's engagement now is focused on ensuring that any appeals process is legally durable, neutral, and administered by the appropriate regulatory authority rather than expanding the role of a non-regulatory advisory body beyond its intended purpose. Thank you.
Any additional questions?
I have one question, Ms. Aubersheim. The advisory body, are they doing anything more than making a recommendation?
At this point, they are not doing anything more than making a recommendation. The concern lies more with the proprietary information that they may be receiving, given that there is competitive marketplace. And these are either people who will be regulated under this law or receiving financial or operational support from the fees of this law.
Thank you for that response. One follow-up. The proprietary information you're talking about, though, that would be submitted by a party who's contesting the fees that have been assessed against them, correct?
Correct.
Thank you. Yes.
Correct.
Any other questions from the committee? Seeing none, thank you for your testimony. We will proceed to the next panel. Our next panel, we will call up anyone who is in a for or neutral position on this bill. I have Wolf Cray, Mr. Greer Bailey, Randy Moorman, Jeffrey Reister, and Mr. Jeffrey Leiter. Please come forward or accept your promotion online. We will start here in the room, sir. Whenever you're ready, you have two minutes. Please proceed.
Thank you, Mr. Chairman. My name is Greer Bailey. I'm the Executive Director of the Colorado Wyoming Fuel Marketers, and I'm here today on behalf of my lubricants distributors who are regulated under a PRO called LPMA, and they're being assessed producer responsibility dues. We're in support of this bill because they should have some avenue for redress when the PRO board assesses them dues that they don't feel as fair in the echo modulation criteria. Despite our support for this bill today, which is a positive step forward for smaller producers, It doesn't do anything, this bill doesn't do anything to address the structural and foundational issues with the PRO program and the structure that the legislature envisioned, including non-delegation doctrine issues, assessing hundreds of millions of dollars of fees without legislative oversight, and no redress for the fees that a board assesses on these obligated parties for these producer dues. This bill was sold as zero cost to the consumer. Hundreds of millions of dollars is not zero cost, and we're prohibited from transparently disclosing those costs at the point of sale. For our smaller producers, the LPMA program shows that independent lubricant manufacturers are going to have to increase the cost of a container of mud oil by 30 to 40 cents. That disproportionately affects smaller producers over Valvoline and Pennzoil and Mobile and our national people. There's a lot of benefit to a statewide uniform regulation. We support the concept, but the program as all has serious flaws. This bill is a small step forward in trying to address that, but it's by no means is it a solve. Thank you.
Thank you for your testimony. Now we will go online. I believe we have Mr. Leiter. You have two minutes. Please proceed.
Thank you, Chair Cutter, members of the committee. Good afternoon. My name is Jeffrey Leiter. I'm general counsel to the Independent Lubricant Manufacturers Association, which represents the small, mid-sized companies, mostly family-owned businesses, that blend, package, and sell lubricants across the country, including in Colorado. Thank you for the opportunity to testify virtually. ILMA does not oppose the measure before the committee. The bill creates an administrative appeals process for producers who want to contest echo-modulated dues assessed against them under the Colorado EPR program. This is a procedural improvement. The legislative declaration is candid that the CDPHE and the advisory board acted in this area before clear statutory authority existed. Cleaning that up is appropriate. What I want to focus my time on is to flag for the committee what SB 26192 does not reach and why that matters for producers that ILMA represents. SB 26192 gives a producer a way to contest an individual ecomodulation charge. That presupposes ecomodulation as a working incentive, that fees go up or down based on packaging choices the producer can actually make For ILMA members that premise does not hold There little if any source reduction below the current container weights in terms of subject to motor oil chemistry dispensing requirements and OEM specifications. Ecomodulation for independent lubricant manufacturers is not a behavioral signal, rather it's a fixed cost. This points to a larger problem that the bill does not address. That deals with producer responsibility organizations. An appeals process at the end does not substitute for a voice at the beginning. Small, mid-sized producers need a seat at the table.
Thank you, Mr. Leiter. Committee members, any questions for our witnesses? Seeing none, thank you for your testimony. At this time, we will call up anyone else in the room who has not signed up but who wishes to testify on Senate Bill 192. Sir, welcome to T&E. You have two minutes. Please proceed with your testimony.
Thank you. Appreciate it. Thank you, Mr. Chair, members of the committee. My name is Wolf Cray. I'm the Materials Management Unit Leader for the Colorado Department of Public Health and Environment, and I'm here today in support of Senate Bill 26192. I want to start by thanking Senator Cutter for her sponsorship with this bill and her strong leadership to improve recycling throughout the state of Colorado. This bill reaffirms the authority of the Solid and Hazardous Waste Commission and the rules adopted by the commission, allowing producers to contest eco-modulated dues assessed towards funding the Colorado Producer Responsibility Program. The intent of Rule 18.2.7, producer dues hearing, is to provide producers with a public, transparent process to resolve any alleged errors in the producer dues, specifically with the eco-modulation factors. Extensive stakeholder negotiation went into the development of Rule 18.2.7 before it was adopted unanimously by the Solid and Hazardous Waste Commission in November of 2025. Prior to the Commission's adoption, the Department conducted an extensive stakeholder process in which we notified over 700 stakeholders on the proposed regulations. Over 200 participants attended our stakeholder meetings, including industry associations, producers, local governments, service providers, consultants, and others from the solid waste industry. and NGO stakeholders supported this rule, noting that it will add transparency to a largely internal process. As part of the appeal process afforded under Rule 18.2.7, the Producer Responsibility Advisory Board is tasked with conducting a review hearing and making a recommendation to the department. The board's 13 voting members, none of which are producers, include a diverse group of subject matter experts that have a direct experience in all aspects of recycling as defined in statute.
Thank you, Mr. Carr, for your testimony. Committee members, are there any questions for our witness? Senator Axum.
Thank you, Mr. Chair. Mr. Cray, does CDPHE service the commission?
Mr. Cray.
Yes, thank you, Senator. The department oversees the commission. They're a rulemaking board within CDPHE.
Okay. All right.
Thank you. Any additional questions from the committee? Seeing none, thank you for your testimony. And seeing no other witnesses who wish to testify, the testimony of the portion of this hearing is closed. Senator Cutter, the bill is on the table for amendment.
Are there any amendments?
No amendments. Any amendments? Seeing none, the amendment portion of this hearing is closed. Senator Cutter, would you like to make any concluding comments?
I would. Thank you very much. This process has always existed. It's existed for a while, and that's why we aren't open to changing or relitigating the actual policy. We just want to codify this piece so that it's clear that that was our intention. This bill was originally a massive, some of you remember, it was a massive undertaking. And it was thoughtfully and comprehensively stakeholder over several months, very deliberately structured the way it was so that there was not particularly a government program and the producers could operate this program themselves. We're simply codifying what's already in place again, and we are confident. Unfortunately, Mr. Reister wasn't able to join us, but the AG's office is supportive and completely confident that this is legally sound. So that is their legal opinion, which is what I would defer to. So I hope you guys can help us pass this tonight and just settle the question.
Thank you, Senator Cutter. Committee members, any concluding comments before we vote on this bill? Seeing none, Senator Cutter, would you like to move your bill?
I would. Thank you very much. I move Senate Bill 192 to the Committee of the Whole with a favorable recommendation.
That is a proper motion. Ms. Forrest, please call the roll.
Senators Baisley.
No.
Catlin.
No.
Hexham.
Aye.
Lindstedt.
Aye.
Mullica.
Yes.
Kelton.
No.
Sullivan.
Aye.
Cutter.
Yes.
And Mr. Chair Ball.
Aye.
That passes 6-3 and you are on your way to the Committee of the Whole. That concludes our business here today. Senate T&E is adjourned. And we vote. Thank you.