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California Environmental <br /> Protection Agency <br /> Linda S.Adams Unified Program Bulletin <br /> Secretaryfor 0607-01 <br /> Environmental Protection <br /> DATE: June 6, 2007 <br /> TO: All Certified Unified Program Agencies <br /> SUBJECT: CUPA Evaluations and Federal Facility Surcharge Payment <br /> Introduction <br /> This bulletin addresses the issue of surcharge collections by CUPAs and Cal/EPA's <br /> periodic evaluation of CUPAs. <br /> Certified Unified Program Agencies (CUPAs) are required to assess and collect the <br /> Unified Program Single Fee, encompassing several environmental charges, from <br /> regulated facilities including those owned by the federal government. For the <br /> Underground Storage Tank (UST), Hazardous Waste Management and Accidental <br /> Release Prevention (Cal/ARP) programs, it is undisputed that Congress has clearly <br /> waived sovereign immunity and has directed agencies of the federal government to pay <br /> applicable fees. For the Fire Code, Above Ground Tanks and Business Plan programs, <br /> some federal agencies have asserted there is no clear waiver in federal law and <br /> payment of these fees by federal facilities has, in some cases, has been disputed. <br /> Surcharge Payment Issue <br /> Cal/EPA has defined three surcharges within the Unified Program: general Oversight, <br /> UST, and CaIARP. The UST and CalARP surcharges are specific to their programs <br /> and therefore fall under the respecive waivers of sovereign immunity. The General <br /> Oversight surcharge is not specific to a program and supports the Hazardous Waste <br /> Management, Fire Code, Above Ground Tank and Business Plan programs. Because a <br /> portion of this surcharge goes to support state oversight of the Fire Code, Above <br /> Ground Tank and Business Plan programs, some federal facilities have refused to pay <br /> all or a portion of the General Oversight surcharge. <br /> In taking a different position than those federal facilities disputing the fees and <br /> surcharge, Cal/EPA has relied on the sovereign immunity waiver in the federal <br /> Resource Conservation and Recovery Act (RCRA), as well as on federal case law <br /> holding that federal agencies are subject to assessments if they can be properly <br /> characterized as state fees rather than state taxes. Representatives of the federal <br /> government and California EPA have met and discussed these issues, but at this time <br /> have not come to resolution. <br />