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The <br />.. criteria summarized follows: <br />(1) The fee must be non -discriminately iSposed on federal <br />asen=ces. It must be applicable to other entities, <br />including state and local agencies, engaged in similar <br />activities. if units of local government .: _ .. fee <br />rry <br />waived i. receive :: rebate, <br />.» probably »: • f4 • <br />fee structure. <br />(2) The fee must be based on a fair auvroximation of the 1W <br />cost of service prEv—I—ded in return for the fee. A Nr6_ug_h <br />approximation is adequate.. If the fee goes nto, a fund for <br />responding to UST, but the federal facility cannot use the <br />fund, it probably fails this prong. <br />(3). The fee structure must be designed so as not to provide <br />overall of costs of service <br />provided. If UST fees are deposited in the general treasuryof the state, it is arguable that it produces excessrevenues. The budget for the state program should beexamined to deter -mine if excess* revenues are generated. <br />This 4ssue is a sensitive one that can result in litigation or <br />imposition of fines where an agency declines to pay a fee/tax. <br />Please review these assessments carefully to assess whether a fee <br />is authorized under federal law. The issue has been raised in <br />one recent case dealing specifically with fees assessed under I-11ft. <br />RCRA. Maine v. Department of Navy, Slip 0_1� 86-0211-P, D'Maine <br />When a fee assessment is received it is advisable to ask the <br />state agency for a written statement providing assurance that the <br />fees assessed pass the Massachusetts test. This statement should <br />include adequate accounting information and specific statutory or <br />regulatory citations. <br />When you determine that an assessment should not be paid, you <br />should contact the Justice Department attorney handling this <br />issue prior to formally notifying the state of your decision. He <br />is: <br />David M. Thompson <br />Department of <br />Environment and Natural Resources <br />Environmental Defense «n <br />.•o <br />loth & Pennsylvania <br />Washington, D.C.. 0 <br />You may -telephone Mr. Thompson directly, or f * ax to him a <br />description of your fee and proposed action. <br />