Title
Environmental Management Department recommending the Board adopt and authorize the Chair to sign Resolution 199-2023 amending the Certified Unified Program Agency Annual Surcharge Resolution 100-2017 and authorizing an increase to the annual surcharges on behalf of the State of California, to cover costs of the state agencies that have responsibilities under the Certified Unified Program Agency.
FUNDING: N/A
Body
DISCUSSION / BACKGROUND
Environmental Management Department (EMD) recommends the Board adopt Resolution 199-2023 authorizing EMD to collect the increased annual surcharges to fund California Environmental Protection Agency (CalEPA) departments that have State Unified Program (SUP) responsibilities. Surcharges collected by the EMD from regulated businesses are a pass-through to the state, and none of the funds are retained by the County of El Dorado (County).
EMD is authorized by the CalEPA to act as the Certified Unified Program Agency (CUPA). The intent of the CUPA was to consolidate services for hazardous materials under one local agency instead of several agencies. Since the mid-1990s, EMD has been the CUPA for the County. The duties of the CUPA include:
• Facility plan review and inspection of facilities that store hazardous materials and hazardous waste; and
• review of construction and repairs to, and inspection of, facilities that have underground storage tanks that store hazardous materials or hazardous waste; and
• inspection of facilities that have aboveground storage tanks that store petroleum products; and
• on-call (twenty-four hours per day, seven days a week) emergency response to hazardous materials incidents.
The EMD CUPA also keeps records of these facilities and the hazardous materials stored to fulfill Proposition 65 notification requirements and to provide information to first responders of the hazards that they may encounter at a facility in the event of an emergency.
The annual surcharges are mandated by the California Health and Safety Code Division 20, Chapter 6.11, Section 25404.5(b), and California Code of Regulations Title 27, Division 1, Subdivision 4, Chapter 1, Section 15240, which requires the local CUPA to collect these surcharges on behalf of all State of California agencies (CalEPA, California Water Board, Office of the State Fire Marshal, and Department of Toxic Substances Control) that have SUP responsibilities. The funds are used to administer, at the state level, the various programs that are regulated by the local CUPA. None of these funds are retained by the County.
In 2021, the Legislature transferred to CalEPA the responsibility for managing the California Accidental Release Prevention (CalARP) Program and the Hazardous Materials Business Plan (HMBP) Program. Effective July 1, 2023, the Legislature expanded CalEPA’s inspection and enforcement responsibilities and authorities with respect to the HMBP and CalARP programs. The necessary and reasonable costs of state agencies responsible for program implementation, ongoing maintenance, and oversight of the Unified Program have expanded substantially over the years. Further, some fees, such as the State Surcharge, have not been increased in 15 years.
In recognition of the actual needs of the Unified Program, the FY 2023-24 Budget Act authorized 4 permanent positions for CalEPA, to support its administration of the Unified Program, including its responsibilities for the HMBP and the CalARP programs.
To support the necessary and reasonable costs of the program, CalEPA has revised the state surcharge as follows:
• State Surcharge for CalARP facilities will increase from $270 to $370.
• State Surcharge for HMBP to increase from $84 to $94. (Per regulated business, annually).
The Underground Storage Tank, Aboveground Petroleum Storage Act, and Refinery Safety components of the state surcharge remain unchanged.
Under the California Code of Regulation, Title 27 (27 CCR), all CUPAs are responsible for collecting the new surcharge. CUPAs that have not yet sent out invoices for FY 23-24 will be responsible for collecting and remitting to CalEPA the new surcharge this fiscal year. CUPAs that have already sent out invoices for FY 23-24 are not authorized to completely forego collection of the surcharge for FY 23-24; doing so would constitute an impermissible waiver of the state surcharge in violation of 27 CCR 15250(a)(3)(A). Recognizing that some CUPAs have already sent out invoices for FY 23-24, such as the EMD CUPA, CalEPA will extend a grace period to those CUPAs and will not seek remittance from them of the new surcharge for FY 23-24 until FY 24-25. CUPAs that do not invoice the new FY 23-24 surcharge increase until FY 24-25 will still, however, be responsible for collecting the uncollected FY23-24 increase, as well as the full amount of the new state surcharge for FY 24-25.
Certified Unified Program Agencies (CUPAs) are responsible for collecting the new Unified Program Oversight and CalARP State Surcharge commencing 60 days after the October 13, 2023, publication of the final surcharge in the California Regulatory Notice Register, that is, on December 12, 2023. As such, the Environmental Management Department will be required to publish the new fees, notify the impacted facilities, and begin collecting the new fees as of December 12, 2023.
The County has one thousand and twenty-one (1,021) facilities that will be impacted by this surcharge. Impacted facilities will be notified in writing and information concerning the annual surcharge will be posted on EMD’s web page.
ALTERNATIVES
These fees are a mandated increase pursuant to the California Code of Regulation, Title 27 (27 CCR). Failure to amend the Resolution and publish and collect the mandated fees would constitute an impermissible waiver of the state surcharge in violation of 27 CCR 15250(a)(3)(A).
OTHER DEPARTMENT / AGENCY INVOLVEMENT
County Counsel
CAO RECOMMENDATION
Approve as recommended.
FINANCIAL IMPACT
There is no financial impact. Surcharges are a pass-through to the State.
CLERK OF THE BOARD FOLLOW UP ACTIONS
The Board Clerk will obtain the Board Chair’s signature on one (1) original Resolution and forward a copy to the EMD.
STRATEGIC PLAN COMPONENT
N/A
CONTACT
Jeffrey Warren, REHS, Director
Environmental Management Department