HomeMy WebLinkAbout1997-09-08 City Council (32)City of Polo Alto
C ty Manager’s Report
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TO:
FROM:
HONORABLE CITY COUNCIL
CITY MANAGER DEPARTMENT:
AGENDA DATE: September 8, 1997 CMR: 365:97
SUBJECT:PARTICIPATING AGENCY AGREEMENT BETWEEN
COUNTY OF SANTA CLARA AND CITY OF PALO
ALTO PROVIDING FOR ADMINISTRATION OF THE
UNIFIED HAZARDOUS WASTE AND HAZARDOUS
MATERIALS PROGRAMS MANAGEMENT PROGRAM
Council is requested to approve, and authorize the Mayor to sign, the attached
Participating Agency Agreement with Santa Clara County. The Agreement specifies the
elements of the Hazardous Materials Unified Program that the City and County will
administer as mandated by SB 1082 (Calder0n, 1993).
Staff recommends that Council approve the attached Agreement (Attachment 1). This
Agreement is necessary under current law for the City to cor~tinue to implement the
Hazardous Materials Business Plan, Underground Storage Tank, and Aboveground Storage
Tank programs it now conducts as authorized by the City’s Hazardous Materials Storage
Ordinance.
Unless the City approves and signs the attached Agreement, the County’s authority as
CUPA to implement state regulations related to hazardous materials will overlap with the
City’s authority under the Hazardous Materials Storage Ordinance. It is not beneficial or
efficient to have duplicative regulations.
CMR: 365:97 Page 1 of 6
BACKGROUND
In a letter dated April 17, 1997, the director of the Santa Clara County Department of
Environmental Health informed Fire Chief Ruben Grijalva that the California
Environmental Protection Agency (CAL-EPA) had certified the County agency as the
Certified Unified Program Agency (CUPA) for all of Santa Clara County, except for the
Cities of Gilroy and Santa Clara (Attachment 2)., Gilroy and Santa Clara were granted
independent CUPA status. At the same time, CAL-EPA rejected the applications and
subsequent appeals for CUPA status by Mountain View, Milpitas, Palo Alto, and
Sunnyvale. The basis for CAL-EPA action was that, for those cities, there was an
overlapping jurisdiction with the County’s application, although the cities were deemed
technically qualified (Attachment 3). At the same time, CAL-EPA informed the City that
its authority to conduct any Unified Program elements was extended through May 31. A
subsequent letter extended that authority to June 30, 1997.
This action by CAL-EPA means that as of July 1, 1997, except in Santa Clara and Gilroy,
the lead agency throughout Santa Clara County for enforcement of state laws regarding
hazardous materials is the Santa Clara County Department of Environmental Health,
Hazardous Materials Control Division (HMCD). As such, the County is responsible for
conducting a consolidated billing, permitting, inspection, and enforcement program within
its jurisdiction, but may contract with Participating Agencies (PAs) to conduct portions of
the Unified Program.
Legislation passed in 1993 (SB1082, Calderoh) required consolidation of permitting,
inspection, and enforcement of six hazardous materials programs, formerly run by four
separate agencies, under one single local CUPA. The City was denied CUPA status
because of a jurisdictional overlap with the County’s application. The County has declined
to remove the City from its jurisdiction. Instead, the City was invited to apply to the
County to become a Participating Agency (PA) on the County’s terms, as authorized by
SB1082.
Negotiations among Milpitas, Mountain View, Palo Alto, San Jose, and the County have
resulted in the attached Participating Agency Agreement. The Santa Clara County Fire
District (previously known as the Central Fire Protection Distrie0 also reached an
agreement to be a PA, although the text of its agreement is significantly different from the
Agreement drafted by-the other agencies. The Milpitas, Mountain View, and San Jose
City Councils have approved their Participating Agency Agreements. Sunnyvale is
pursuing legal action to overturn the CAL-EPA decision to deny its CUPA application.
CMR: 365:97 Pege 2 of 6
The Agreement attached to this report is similar, but not identical, to the agreement that
¯ was worked out with the County by the Cities of Milpitas, Mountain View, and San Jose.
The Agreement specifies in Attachment A (of Attachment 1) which of the six program
elements the City will conduct, and which will be conducted by the County. Under the
Agreement, the County will continue to inspect large hazardous waste generators and
facilities conducting onsite hazardous waste treatment. The County will also continue to
review and approve risk management plans for faciiities using acutely hazardous materials.
The Fire Department will continue to implement the Business Plan, Underground Storage
Tank, and Aboveground Storage Tank (AST) programs. These are currently conducted
by the Fire Department as part of the hazardous materials program authorized by the
Hazardous Materials Storage Ordinance.
The Agreement also identifies the City as the responsible party for permitting, billing and
collection. Since the City already issues a permit to hazardous materials facilities and
collects associated fees (which include, where appropriate, Underground Storage Tank
permit and fees) it is most logical for the City to be the permitting and billing agency.
Until a single fee system is adopted and implemented, the City will continue to bill only
for activities associated with the Hazardous Materials Storage Ordinance. For the time
being, the County will continue to bill for its activities and the State service charges that
are authorized under SB 1082. The regulations allow five years before the: implementation
of a single fee system.
The City has three other alternatives to signing a PAA. The first option is to pursue legal
action against CAL-EPA and/or Santa Clara County for actions that led to the City’s being
denied CUPA status. The outcome of such legal action is not certain, and in the meantime
the City’s status would be in limbo. The second option is to withdraw from the
administration and enforcement of State laws and regulation of hazardous materials, and
make substantial revisions to the City’s Hazardous Materials Storage Ordinance to remove
references to the City’s authority to enforce State laws regarding hazardous materials. This
-would have the impact of loss of local control over hazardous materials handling in the
City, and possible revenue reductions and subsequent staff reductions. The third option
is to execute the participating agreement but to reapply for CUPA status in 1998, which
may be an available alternative under pending legislation (SB659, Sher). The bill passed
the Senate, and was amended and approved at the July 15 hearing of the Assembly
Committee on Environmental Safety and Toxic Materials. It has been referred to the
Assembly Committee on Appropriations. The bill authorizes agencies that were denied
certification on the basis of jurisdictional overlap, but were otherwise deemed teclmieally
CMR: 365:97 Page 3 of 6
qualified to be CUPAs to reapply. Fourteen cities, including Palo Mto, would be eligible
to reapply under the legislation. Staff would return to Council for approval before any
change would take effect.
By law, additional costs incurred by agencies to operate the Unified Program are 100
percent cost recoverable. Detailed cost accounting is required to verify costs for each
program element. Documenting those costs in acceptable format for reporting to the
County and State represents an additional record keeping step. Negotiations with the other
PAs and the County regarding a single fee and consolidated billing system are expected
to begin shortly. These discussions are intended to establish a common basis for recovery
of PA costs for Unified Program activities. A consolidated billing system by the City and
County will be required within 5 years (by July I, 2002), which may result in additional
costs in the future.
]~usinesses:
SB 1082 was intended to streamline permitting processes, reduce duplication, and reduce
costs to business. However, with the addition of CAL-EPA oversight and County
administration, business costs may increase. CUPAs must collect annual "service
charges" from each regulated business and submit such fees quarterly to CAL-EPA for its
oversight of the Unified Program. Such oversight fees vary from $8/year for underground
storage tanks to $498/year for facilities operatingonsite hazardous waste treatment units.
These fees represent additional costs to businesses regulated under the Unified Program.
In the past, .the County’s hazardous waste generator program was supported through local
and state hazardous waste generator fees. Under a Memorandum of Understanding (MOU)
between the County and the Department of Toxic Substances Control, the State hazardous
waste fees were kept by the County.. Businesses were not required to pay both the County
and the State. However, with the certification of CUPAs, the MOU is invalid. Businesses
will be required to pay State fees and the County must support its programs through
additional fees.
Under the existing County fee structure, hazardous waste generators in the County paic!
$1.7 million annually to the County to support its programs. Under the Unified Program,
$1.0 million will now be paid to the State instead of the County, and there will be a
potential loss of $296,0~ in local fees formerly paid to the County by hazardous waste
generators in Santa Clara, Gilroy, and Sunnyvale. That leaves roughly $419,500 .in
revenues to support the County’s programs. A likely outcome of that situation isthat a
CMR: 365:97 P~ge 4 of 6
revised County-wide fee structure will result in County fee increases for businesses in San
Jose, Milpitas, Mountain View and Palo Alto.
This activity is categorically exempt under CEQA.
STEPS FOLLOWING APPROVAI~
Technical Committee. The Agreement calls for the formation of a County-wide technical
committee to address issues related to Unified Program consolidation, coordination, and
consistency. This committee would include representatives of the other CUPAs and PA’s
in the County. Quarterly meetings of agency program coordinators will also be held to
accomplish the same objectives within the Santa Clara County CUPA. A committee will
be formed to develop a single fee system and schedule for implementation. The law
requires implementation of a single fee system and consolidated billing by July 1, 2002.
Referral System. A referral system for small hazardous waste generators is under
discussion. If it is implemented, City staff will be trained by the County. to conduct
observations of hazardous Waste management, using checklists developed by the County.
When these steps are complete, these observations and referrals would be incorporated into
the City’s existing inspection program. Noncompliant facilities would then be referred to
the County for further action.
CAL-EPA Review of PAA. The Agreement must meet the requirements of SB1082,
which places a great deal of authority in the hands of the CUPA agency. CAL-EPA has
received a copy of the .Agreement, and will conduct an analysisof its adequacy. That
analysis and any identified deficiencies and corrections may not be complete in time to
incorporate those changes before this matter is considered by Council. If such
amendments are needed, staff will realm to Council at the time that such amendments are
required. However, it is imperative in the meantime that an interim Agreement be
executed to continue the City’s authority to regulate underground and aboveground storage
tanks and collect business plans.
Attachment 1.-Participating Agency Agreement
Attachment 2.Letter from County dated April 17, 1997
Attachment 3.Letter from CAL-EPA to Fire Chief Ruben Grijalva, dated March
27, 1997
CMR: 365:97 . Page 5 of 6
Prepared By:
Department Head Review:
Doris J. Maez, Environmental Protection Coordinator
Fire Chi~ ,
EMILY HARRISON
Assistant City Manager
CC: Palo Alto Chamber of Commerce
Santa Clara County Manufacturer’s Group
CMR: 365:97 Page 6 of 6
Attachment
Participating Agency Agreement
PARTICIPATING AGENCY AGREEMENT BETWEEN
COUNTY OF SANTA CLARA AND CITY OF PALO ALTO
PROVIDING FOR ADMINISTRATION OF THE UNIFIED HAZARDOUS WASTE
AND HAZARDOUS MATERIALS MANAGEMENT PROGRAM
This Participating Agency Agreement is made and entered into this __ day of~m,
1997 between the County of Santa Clara ("County") and the City of Palo Alto relating to the
implementation of certain hazardous materials and’ waste programs within the City of Palo
Alto as specified in Attachment A which is incorporated herein by reference.
Both of the above-mentioned entities are collectively referred to hereinafter as the
"Parties" and individually as "Party." The City of Palo Alto is referred to as "Agency" and
as "PA" when appropriate, which abbrevia~tion is explained below.
RECITALS
WHEREAS, County has applied to the Secretary of the California Environmental
Protection Agency (CalEPA) to become a Certified Unified Program Agency ("CUPA")
under Health and Safety ("H&S") Code §5 25404 et seq. within Agency:s boundaries;
WHEREAS, H&S Code 55 25404 et seq. allow a CUPA to reach agreement with
one or more entities that are certified fis participating agencies ("PA(s)") concerning the
respective roles that the PA(s) and the CUPA v¢ill play in the implementation of the
laazal’dons materials and waste laws specified in H&S Code 55 25404 bt seql ("Unified
Program") within each PA’s bonndaries; .~
WHEREAS, County and Agency wish to enter into this Participating Agency
Agreement ("PA Agreement" or "Agreement") pursuant to H&S Code §§ 25404 et seq. in
whicla County is the CUPA and Agency is a PA;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, the Parties agree as follows:
1.0 GENERAL PROVISIONS
t.1 Definitions of Terms. Terms used in this Agreement have the meaning
¯ assigned them by state law as established by H&S Code §§ 25404 et seq., and by CalEPA
r.egulations respecting those sections (See 27 CCR sections 15100715320).
1.2 Citations. References or citations to laws and regulations’herein are current
as of the date this PA Agreement was entered into.
1.3 Effective Date. The effective date of this Agreement shall be July 1, 1997.
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2.0 IMPLEMENTATION AND MAINTENANCE OF UNIFIED PROGRAM
2.1 Quarterly Coordination Meetings. County and Agency agree to
implem.ent and maintain a consolidated, coordinated and consistent Unified Program
through quarterly meetings of the Parties" Coordinators or their designees. The Parties’
Coordinators of their designees shall be responsible, for alternating the selection and
provision of a meeting location. The purpose of the meetings will be to identify program
improvements and modifications mutually acceptable.to the parties that will allow for
greater consolidation, coordination and consistency in the implementation of the Unified
Program Elements shown in Attachment A.
2.2 Counl)’-wide Coordination~ County and Agency agree to establish and
participate in a county-wide technical com{nittee to address issues related to unified
program consolidation, coordination and consistency. County and Agency agree that they
shall each have their own vote on the technical committee.
3.0 COUNTY RESPONSIBILITIES
3.1 County CUPA Designation. As a condition precedent to an)’ obligations
arising hereunder, Cot.tory shall obtain CalEPA certification as the CUPA, with jurisdiction
within A~ency s boundaries.
3.2 County CUPA Application. Count), will incorporate into its CUPA
application the terms of this PA Agreement, incl.uding designation of Agency as a
proposed PA performing the Unified Program elements setforth in Attachment A.
3.3 Count)" Implementation of Unified Program Elements. County, .shall be
responsible for implementing within Agency’s boundaries those Unified Program Elements
specified in Attachment A to this PA Agreement, and shall coordinate those activities with
the Agency. County shall remain in compliance with the requirements of H&S Code §
25404.3 (b), which includes maintaining adequate technical expertise, staff resources,
budget resources and funding mechanisms to effectively and continuously implement such
Program elements, and County shall ensure that the requirements of H&S Code § 25404.2
will be fully implemented for such Program Elements.
3.4 Reporting and Review. County shall collect and consolidate
documentation submitted by Agency and prepare and submit reports to CalEPA as required
to implement the Unified Program. County shall condt~c~ an annual self-audit, ~vhich shall
include an evaluation of Agency’s performance and self-audit and shall prepare a report of
audits within ninety (90) days after the end of each fiscal year. Audits and reports shall
conform to CalEPA requirements for CUPA self-audits. County shall be responsible for
providing such supplemental information and reporting as may be requested by CalEPA.
4.0 AGENCY RESPONSIBILITIES
4.1 Agency Implementation of Unified Program Elements. Agency shall be
responsible for implementing within its boundaries those Unified Program Elements
specified in Attachment A to this Agreement, and shall coordinate those activities with the
County. Agency shall remain in compliance with the requirements of H&S Codb §
25404.3(b), which includes maintaining ade.quate technical expertise, staff resources,
budget resources and funding mechanisms to effectively and continuously implement such
Program Elements, and Agency shall ensure that the requirements of H&S Code § 25404.2
will be fully implemented for such Program Elements.
4.2 Reporting and Auditing information.
4.2.1 Annual Audit ~nd Report. Agency shall perform and
prepare an am~ual self-audit at the end of each fiscal year. The audit shall be submitted to
the County by September 1 of each year. The self-audits shall conform to CalEPA
requirements for CUPA self-audits.
4.2.2 Required Annual Information. Agency agrees to provide the
following information to Couuty in a mutually agreed upon format as part of the annual
self audit: (1) a summary of Program Element activities including, but not limited to, the
number and types of regulated businesses under each Program Element, the number and
types of inspections completed and violations found and the number and types of
enforcement actions taken. The summary shall evaluate the effectiveness and efficiency of
permitting, inspection and enforcement acti~,ities~ unde!’tak~n; (2) a summary of the Single
Fee System activities; (3) a summary of the progress made toward consolidating,
coordinating and making consistent the Unified Program; (4) a record of changes in local
ordinances, resolutions and agreements affecting the Unified Program; and (5) a summary
of the annual review and update of the fee accountability program.
5.0 Single Fe,e System and Permit Consolidation
5.1 Single Fee system Implementation Date. Agency and County shall
implement a Single Fee System in accordance with H&S Code §§ 25404(d) and 25404.5,
and 27 CCR § 15210 within five (5) years of the Effective Date of thi-s Agreement.
5.2 Development of Single Fee System. Agency Coordinator and County
Coordinator shall each assign, an appropriate representative(s) to meet on a quarterly basis
for the purpose of developing a single fee system and schedule for implementatiori of the
single fee system that is mutually acceptable to both parties. The first such meeting shall
occur no later than August 3 l, 1997. The Parties’ assigned representatives shall each be
responsible for alternating the selection and provision of the meeting location. At least
thirty (30) days prior ko the first meeting the parties shall exchange up-to-date lists (in
compatible electronic format if possible) of the facilities whidh they regulate and the
unified program permits issued to each facility. The single fee system shall be designed to
ensure that each part)’ receives the amount that it determines to constitute its necessary and
reasonable costs of implementing the Program Elements(s) which it is responsible for
implementing, including all costs associated with implementation of this PA Agreement.
5.3 Agency Collection of Single Fee. Upon implementation of the single fee
system, Agency shall administer the collection of the ~ingle Unified Program fee. County
shall notify the City, in writing, of its program costs and the fees that have been adopted by
County resolution/ordinance by April 30th of the first year ih ~vhich the single fee system
is to be implemented and by April 30th of each year thereafter. County shall provide to
Agency a list of the facilities and the appropriate fees for each Program Element being
implemented by County using nmtually agr.~eable electronic transfer protocols ~vhere
appropriate. Upon request by Agency, CouAty shall make available for Agency review, all
applicable records regarding County’s fees, collections, transfers and retentions. Agency
shall be entitled to recover its cost of implementing the single fee system through Permit
Fees for the Programs Elements being implemented by City, or through a Unified Program
administrative fee which shall be incorporated into the single fee ~ystem.
5.4 Issuance of Consolidated Program Permit. The single fee to be issued to
each regulated facility shall include a summary sheet’itemizing fees associated with each
Program Element, including the annual State service charge. ’Each facility shall pay
Agency all fees for Program Elements delineated in the single fee billing statement within
thirty (30) days of the invoice date, unless Agency and County have mutually agreed to
adoption of a deferred or installment paYmerit plma as part of development of the unified
fee system. Upon receipt of full payment, a consolidated permit may be issued to-the
facility by Agency.
5.5 Disbursement of Fecs. Agency shall transmit all funds collected f6r
County, and the State surcharge, to.county within :twenty (20) day, s of the end of the State
fiscal quarter in which the fees were collected. Each transmittal of funds to the County
shall include an itemized listing of County account number, business name and site
address, the total anaount due, the fees and penalties that were collected and an~, balance
due. Partial payments shall be apportioned to the Agency, County and the State based on
the proportionate amount due to each agency.
5.6 Collection of Delinquent Fees. Agency will transmit a list of those .
facilities that have failed to fully pay’ County fees and/or the State surcharge to County
within sixty (60) days after the fees have become delinquent. County shall be responsible
for collecting any delinquent County fees or State surcharges, including any late payment
penalty imposed by the County. Agency shall be responsible for collecting any delinquent
Agency fees, including any late payment penalty imposed by Agency.
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5.7 County Remission of State Surcharge. Cotinty shall transmit to’the
Secretary all collected State surcharge revenues within thirty (30) days of the end of each
State fiscal quarter in which the revenue is collected.
5.8 Non-Recurring Fees. Each of the Parties shall be entitled to continue
independent billing and collection of all non-recurring fees, including but not limited to
fees associated with one time.permits, or new businesses or facilities. -
5.9 Fee Collection Pending Implementation of Single Fee System. Each of
the Parties shall be entitled to continue independent billing and collection of all fees
currently billed until implementation of the single fee system.
5.10 Fee Accountability Progra/n. Prior to implementation of the Single Fee
System, Agency and County will review thhir existing fee accountability programs as
contained in the Parties’ CUPA applications, and shall adopt such modifications as are
required to maintain compliance with H&S Code Section 25404.5(c) and 27 CCR Section
15210(b), and are mutually acceptable to both Parties. Agency and County shall review
and update their fee accountability programs as necessary to maintain compliance with
unified program agency requirements.
5.11 Authorization of Single Fee. Upon implementation of the single fee
system, this Agreement shall constitute authorization to Agency to collect the State
surcharge and any anaount(s) established as unified program fees, including any Unified
Program Administrative Fee(s), adopted by ordinance or resolution of County Board of
Supervisors or Agency City Council.
6.0 ADMINISTRATION OF AGREEMENT
6.1 County Administration. County’s Coordinator for this Agreement shall be
the following person Or his or her designee:
Erwin Koehler
2220 Moorpark Ave., Room 204, East Wing,
San Jose, CA 95128-2690
Tel: (408)299-6930 Fax: (408)280-6479
6.1.1 Notice. All notices to be provided to County under this Agreement
shall be provided to County Coordinator. County shall notify Agency in writing of any
change to this info .rmation.
6.1.2 Coordinator Responsibilities. County’s Coordinator shall be
responsible for ensuring that the objectives, standards, and requirements of this Agreement
are met and for monitoring the Agency’s performance hereunder. Count)" Coordinator
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shall be responsible for attending, or designating a representative to attend, the @arterly
coordination meetings required under Section 2.1 above.
6.2 Agency Administration. The Agency’s Coordinator for this Agreement
shall be the following person or his or her designee:
Fire Chief, Palo Alto Fire Dept.
250 Hamilton Avenue
Palo Alto, CA 94301
Tel: (415) 329-2424 Fax: (415) 327-6951
6.2.1 Notice. All notices to be provided to Agency under this Agreement
shall be provided to Agency Coordinator..Agency shall notify County in writing of any
change to the above information.
6.2.2 Coordinator Responsibilities. Agency’s Coordinator shall be
responsible for ensuring that the objectives, standards, and requirements of this Agreement
are met. The Coordinator shall also be responsible for monitoring Agency’s performance
under this Agreement and designating a representative to attend the quarterly coordination
meetings required under Section 2.1 above.
7.0 MODIFICATION AND TERMINATION
7.1. Response to Changing Requirements. In the event of changes in
appl!cable laws, or CalEPA regulations or guidance regarding Unified Programs, .County
and Agency shall reassess their respective roles and responsibilities. The Parties will
cooperate to comply with applicable requirements to satisfy CaIEPA of the appropriateness
of any necessary revisions]
7.2 New Programs. Should new environmental programs be added to the
Unified Program by future legislation, Agency, in its capacity as PA, shall have the option
to implement, enforce, and administer the new programs within its jurisdiction, within the
framework of this Agreement. In the event that Agency elects to implement new
programs, Agency shall work cooperatively with the County, in its capacity as a CUPA, to
meet all mandated reporting re.quirements resulting from the implementation of a new
program element.
7.3 Termination. This PA Agreement shall continue in force until terminated
for any of the following reasons:
7.3.1 Automatic Termination. This PA Agreement shall automatically
terminate if changes to state or federal law eliminate provision for CUPAs and PAs, or
render it unlawful o.r impracticable to continue this PA Agreement.
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render it unlawful or impracticable to continue this PA Agreement.
7.3.2 Voluntary Discontinuance by Count)’ or Agency. This PA
Agreement shall terminate if County, with the approval of CaIEPA, voluntarily
discontinues its role as a CUPA within Agency’s boundaries, or may terminate if Agency
voluntarily discontinues its role as a PA as provided herein. A Party may withdraw only
by providing at least one hundred eighty (180) days advance written notice to the other
party and to CalEPA of its intent to withdraw. Any ~uch ~,ithdrawal shall occur in
compliance with all applicable requirements promulgated by CalEPA. During the period
between notice and withdrawal, the Parties shall cooperate to facilitate an)’ necessary
transfer of pertinent UnifiedProgram responsibilities. In the event the notice does not state
the withdrawing agency will apply for individual CUPA status, the County shall become
responsible for performance of Program Ele.,ments specified~ in Attachment A as assigned to
the withdrawing Agency.
In the event that Agency elects to apply for individual.CUPA status as authorized
by statute, this Agreement shall remain in effect until such time as CalEPA grants Agency
CUPA status. At such time Agency is granted individual CUPA status, this Agreement
shall terminate.
7.3.3 Revocation of CUPAfPA Status by CalEPA. Should CalEPA notify
the Parties of its intention to revoke Countyls CUPA status or Agency’s PA status, the
Parties shall work together to correct any deficiencies noted by CaiEPA as the basis for the
notice of revocation, and to reallocate Unified Program responsibilities, as necessary, but
without materially increasing the duties or responsibilities of either Part),, to ensure that a
coordinated, consolida[ed, and consistent Unified Program is achieved and maintained. If
the notice of revocation is thereafter rescinded, this PA Agreement shall remain in effect.
If eitherthe CUPA status of the County or the PA status of Agency is revoked by CalEPA,
this Agreement shall terminate.
7.3.4 Revocation of PA Status by CUPA. The County may revoke the
Agency’s PA status only if all of, the following occur:
7.3.4.1 Notice. The Secretary of CalEPA has given County a written notice
of intent to withdraw certification, pursuant to H&S Code Section 25404.4 which is based
on a deficiency in implementation of the Unified Program relating to a Program Element
being implemented by Agency, or a Unified Program function assigned to Agency under
this Agreement; and
7.3.4.2 Refusal to Correct. Agency has’ refused to agree to enter into a
Program Improvement Agreement, or to correct the deficiency, as required by H&S Code
Section 25404.4 within a reasonable period of time after County provides Agency with a
copy of the notice of intent to withdraw certification; and
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7.3.4.3 Public Hearing. The Secretary has decided to proceed with
withdrawal of Agency’s PA certification after conducting a public hearing at which
Agency has been given the opportunity to respond to the notice.
8.0 DISPUTE RESOLUTION BETWEEN COUNTY AND AGENCY
8.1 Notice of Dispute. In the event a dispute arises between the Parties with
respect to the implementation of this Agreement, the affected Party shall promptly provide
written notice of the dispute to other Party of its concerns. The notice shall detail the
questions and concerns of the Party desiring to invoke dispute resolution.
8.2 Meet and Confer. As soor~ as practicable .after receipt of notice of dispute,
the County and Agency Coordinators shall’meet and confer on the issues detailed in the
notice of dispute. When disputes between Agency and County arise, if there is no
resolution after two (2) Coordinator level meetings, County Executive should meet with
Agency’s City Manager. If there is no resolution after two executive level meetings, the
Agency’s Mayor should meet with the Chair of County Board of Supervisors.
8.3 Consultation BeV, veen Attorneys. When disputes involving legal issues
arise between Agency and County, the County Counsel should meet with Agency’s City
Attorney. The County Counsel and Agency’s City Attorney shall meet prior to the filing
of any lawsuit.
9.0 Miscellaneous
9.1 Indemnification and Insurance. In lieu of and notwithstanding the pro
rata risk allocation which might otherwise be imposed between the ’Parties pursuant to
Government Code § 895.6, the Parties agree that all losses or liabilities incurred by a party
shall not be shared pro rata but instead the County and Agency agree to indenmify and -
defend the other for liabilities resulting from acts or omissions of its officers or employees
arising out of activities conducted pursuant to -this Agreement. Insurance requirements are
specified in Attacbanent B.
9.2 Parties Resen’ation of Rights. Nothing in this Agreement shall be
interpreted to reduce or control the exercise of powers and discretion which each Party may
have in its own jurisdiction, including without limitation the police power, Charter City
powers, the powers of the Fire Chief or his or her designee under the Uniform Fire Codes
as adopted in each jurisdiction, or the prosecutorial authority of the District Attorney or the
City Attorney in each jurisdiction.
9.3 No Third Party Beneficiary Rights. This Agreement does not provide any
third party beneficiary rights.
9.4 Law to Govern. This Agreement is made and entered into in the County of
Santa Clara, State of California. The law of the State of California shall govem this
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Agreement, and exclusive venue shall be in the County of Sdnta Clara. In the event of
litigation in federal court, exclusive venue shall be in the N6i’them Districtof Califomia.
WITNESS THE EXECUTION HEREOF on the day and year first written above.
ATTEST:CITY OF PALO ALTO
.City Clerk
APPROVED AS TO FORM:
Senior Asst. City Attorney
APPROVED:
Mayor
City Manager
Fire Chief
Acting Director of
Administrative Services
Risk Manager
APPROVED AS TO FORM:
Deputy County Counsel
"COUNTY"
COUNTY OF SAMTA CLARA
~’gE~E~ Q U),gE L
Director, Dept. Of Environmental Health
ATTACHMENT B..
Insurance Required
Commercial General Liability Insurance - for bodily injury (including death)
and property damage which provides limits as follows:
a.General limit per occurrence - $1,000,000
b..General limit aggregate - $2,000,000
Products/Complected Operations - $1,000,000 aggregate
Personal Injury limit - $1,000,000
I:f coverage is provided under a Commercial General Liability Insurance form, a
rniafirnum of 50% of each of the aggregate limits must remain available at all times.
If over 50% of any aggregate limit has been paid or reserved, County or Agency
may require additional coverage to be purchased by the other Party to restore the
required limits.- Each Party shall also notify the other Party’s Coordinator
promptly of all losses or claims over $25,000 resulting from work peffomaed
under this Agreement, or may products/completed operations loss or claim.
For either type insurance, coverage shall include:
ao Premises and Operations
Products/Completed Operations with limits of one million dollars
($1,000,000) per occurrence/aggregate to be maintained for two (2) years
following completion of-any work under this Agreement.
Co Contractual Liability expressly including liability assunadd under this
Agreement
Personal Injury liability
Independent Contractors’ (Protective) liability
Severability of Interest clause providing that the coverage applies
separately to each insured except with respect to the limits of
liability.
o For either type insurance, coveraae shall include the followin~ endorsements,
co_pies of which shall be provided to the Count-g or A,~encv: ¯ ’~
ao Additional Insured Endorsement:
Agency insurance shall also apply to the Count’ of Santa Clara, and
members of the Board of.Supervisors of the County of Santa Clara, and
the officers, agents, and ,employees of the County of Santa Clara,
individually and collectively, as additional insurers.
County insurance shall also apply to Agency, and members of the City
Council of Agency, and the officers, agents, and employees of Agency,
individually and collectively, as additional insurers.
Primary Insurance~’Endorsement: "
Agency insurance shall apply as primary insurance, and other insurance
maintained by the .Count?, of Santa Clara, its officers, agents, and
employees shall be excess only and not contributing with insurance
pro.vided under this policy.
County insurance shall apply as primary insurance, and other insurance
maintained by the Agency, its officers, agents, and employees shall be
excess only and not contributing with insurance’ provided under this
policy.
Notice of Caneellatior~ or Change of Coverage Endorsement:
Agency insurance shall not be canceled or changed so as to no longer
meet the specified. Countyinsurance requiremen:s without 30 days’ prior
written notice of such cancellation or change being delivered to the
County of Santa Clara at the address sho~,a on the Certificate of
Insurance.
County insurance shall not be canceled or ch,_nged so as to no longer
meet the specified Agency insurance requirements without 30 days’ prior
written notice of such cancellation or change being delivered to Agency
at the address shown on the Certificate of Insurance.
do Contractual Liability Endorsement:
Agency insurance shall apply to liability assumed by the insured under
written contract with the County of Santa Clara.
o
County insurance shall apply to liability assumed by the insured under
v, Titten contract with Agency.
eo Personal Injury Endorsement:
It is agreed that this policy provides Personal Injury coverage.
Severability of Interest Endorsement:
It is agreed that this policy provides coverage separately to each insured
who is see’king coverage or against whom a claim is made or a suit is
l~rought, except with respect to the policy’s limit of liability.
Comprehensive Automobile-
for bodily injury (incquding death) and property damage which provides total limits
of not less than one million dollars ($1,000,000) combined single limit per
occurrence applicable to all owned, non-owned and hired vehicles. Part or all of
this requirement may be waived by the County or Agency if it determines there is
no. significant risk exposure. All requests for such waivers must be .submitted to
the Cotmty or Agency in writing.
Workers’ Compensation and Employer’s Liability Insurance for:
ao Statutory California Workers’ Compensation cove-rage including a broad
form all-states endorsement. -
Employer’s Liability coverage for not less than one million dollms
($1,000,000) per ~occurrence for-all employees engaged in services or
operations under this Agreement.
Co Inclusion of the County or Agency and their governing boards, of-ricers,
representativ.es, agents, and employees as additional .insureds,.or a
waiver of subrogation.
Coverage under the United States Longshoremen’s and Harbor Worker’s
Act shall be provided when applicable.
~9ecial Provision
Tl~e following provisions shall apply to this Agreement:
The foregoing requirements as to the types and limits, of insurance
coverage to be maintained by the Agency and County and any approval
of said insurance by the County or Agency or their insurance
consultant(s) are not intended to and shall not in any manner limit or
qualify iJae liabilities and obligations, otherwise assumed by the Agency
and County pursuant to this Agreement, including but no! limited to the
provisions concerning indemnification.
bo The County and Agency acknowledges that some or all insurance
requirements contained in this Agreement may be fulfilled by self-
insurance on the part of the Agency and County. However, this shall not
in any way limit liabilities as~u.rned by the Agency or County under this
Agreement. Any self-insurance shall be approved in writing by the
County.
Should any of the work under this Agreement be sublet, the Party
subletting the work shall require each of its subcontractors of any tier to
carry the aforementioned coverages, or Agency or County may insure
subcontractors under its own policies.
S :~UKR.ETCH~N S UR..KE Q
Attachment 2
Letter from County dated April 17, 1997
County of Santa Clara
April 17, i 997 CERTIFIED MAIL: P 065 96;1 004
Ruben Grijalva, Fire Chief
Palo Alto Fire Departrnem
250 Hamilton Avenue
Palo Alto, CA 94301
Dear Chief Grijalva:
The County of Santa Clara, Department of Environmental Health, has been certified as
the Certified Unified Program Agency (CUP.A) for all of Santa Clara County, both
incorporated and unineorporated~ except for the cities of Gilroy and Santa Clara. As a
CUPA, the department is responsible for all six elements ofthe unified hazardous
materials program within its jurisdiction. The six program elements are:
1.Hazardous waste generalors and hazardous waste onsite treatment.
2.Underground storage tanks. .,
3.Above ground storage tanks (SPCCP).
4.Hazardous Materials Release Response Plar~ and Inventories.
5.Risk Management and Prevention Program Plans.
6.Uniform Fire Code Hazardous Materials Management Plmas and Inventories.
The Central Fire Protection District and the Department have agreed that the District will
be a Participating Agency (’PA) in the County CUPA program continuing ils current
storage tank inspection responsibilities in those areas where they previously administered
the program.
Your city is welcome to apply to this department for certification as a PA for those
program elements that your organization has previously administered. Because the state
has imposed a deadline date of May 30, 1997 for submission to CalEPA of all CUPA/PA
agreements, we are requesting that all prospective PAs contact this department no later
than AI~d125, 1997 to begin the agreement process. The County CUPA is required to
assume sole responsibility for all program elements that have not been covered by a
CUPA/PA agreement prior to the May 30th deadline.
Ruben Grijalva, Fire Chief, April 17, 1997
Page 2
Cal/EPA h~ encouraged the county and cities to resolve the overlapping jurisdiction
issue by April 30, 1997. However, by previous correspondence, the Secretary of
Cal/EPA has been advised that we fully enforce his ~lecision to minimize the number of
CUPAs in the county, and that we support the concept of a centralized program
administration that will assure a regional approach to hazardous materials enforcement.
Having accepted the decision by Cal/EPA, I believe we can address any issue or concern
your jurisdiction may have without making any modifications to our application for
CUPA certification.
The department has consistently su~l~’rTt’edthe 0~i~’~al g~al ~ Sg i 682 to promote
regional, uniformity and consistency in the’application of state hazardous materials laws
and regulations. The best way to achieve that goal in Santa Clara County is with a single
county-wide CUPA. The Department of Environmental Hqalth, asa regional agency,
will work closely with participating cities to administer atmified county-wide program.
If you wish more information or need further clarification, please feel free to contact me
at (408) 299-6060 or Erwin Koekler at (408) 299-6930.
Sincerely,
quibel ",f
etor
Department of Environmental Health
LE:rh
Leode G. Franklin, Director Environmental Resources Agency
James M. Strock, S~retary Cal/EPA
Crawford Tulle, D~puty Secretary Cal/EPA
Attachment 3
Letter to Chief Grijalva from CAL-EPA, dated March 27, 1997
Cal/EPA
California
Environmental
Protection
Agency
555 Capitol Mall
Suite 525
Sacrmncnto, CA
95gl4
(916) 445-3846
(916)445-6401 FAX
Air Resources
Board
Department
of Pesticide
Regulation
- -t~arlanent
:oxic
bubstm~ces
Control
Integrated
Waste
Mmmgeinmat
Board
Oll’ice of
Enviro~unental
I.le,’d th Hazard
Assessment
State Water
Resources
Control Board .
Regional
Water Qualit)’
Control Boards
Pete Wilson
~overnor
March 27, 1997 James M. Strock
Secretao’ for
Environmentt~!
Protectton
CERTIFIED MAIL
Mr. Ruben Grijalva
City of Palo Alto Fire Department
250 Hamilton Avenue
Palo Alto, California 94301
Dear Mr. Grijalva:
The City of Palo Alto Fire Department’s (City) application to become a
Certified Unified Program Agency (CUPA) and yoar appeal of the Notice of
Intent to Deny that application have been re#iewed in accordance with
applicable laws mid regulations.
On Febrnary 20, 1997, tiae California Environmental Protection Agency
(Cal/EPA) conducted a public hem’ing.to provide the City an opportunity to
respond to the December 31, 1996, Notice of Intent to Deny. After
considering tlie information submitted by and on behalf of the City, the appeal
panel has concluded that jurisdictional overlap remainsan um’esolved issue
with respect to your application. Evidence was not presented to address this
issue and, thus, justify reversal of the Notice of ]ment to Deny.
As ~you "know, Cal/EPA received competing applications front your
agency and Santa Clara County (the County) for the same jurisdietion~
Health and Safety Code section 25404.3(c)(2)(A) requires the Secretary for
Enviromnental Protection to make findings.of countywide coordination and
consistency in order to certify any applicant. Given that requirement, we
cmmot approve your application at this time. However, we believe that if the
jurisdictionaloverlap issue were resolved, the City otherwise could meet the
requirements to be a CUPA.
Mr. Ruben Grijalva
March 27, 1997
Page 2
As discussed in Cal/EPA’s January 31, 1997, letter to all CUPA
applicants, your authority for any Unified~ Program elements currently being
implemented by the City is hereby extended through May 31, 1997. CalfEPA
is sending the County a separate letter expressing this decision. This period
is intended to provide .the City and the County until April 30, 1997, to resolve
the jurisdictional overlap issue; or if resolution is not possible by that date, to
develop participating agency (PA) arrangements with or transfer program
elements to the appropriate CU-PA by May 5i, i997. Please notify us by
April 30, 1997, if you have resolved the jurisdictional overlap issue or are
developing PA arrangements with or transferring program elements to the
appropriate CUPA, both subject to the Secretary for Environmental
Protection approval.
Thank you for your continued commitment to the protection of public
health and safety and the environment. Should you have any questions or
need further assistance, please contact Ms. Tam Doduc, Special Assistant, at
(916) 322-8284.
Sincerely,
./ames M. Streck