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HomeMy WebLinkAboutA-1997-095AAGREEMEPBETWEEN THE COUNTY OF ORAL AND THE CITY OF SANTA ANA FOR THE IMPLEMENTATION OF UNIFIED PROGRAM ELEMENT REQUIREMENTS This Agreement is made and entered into on this ' day of �'' 1997, between the County of Orange, Health Care Agency, Environmental Health Division, hereinafter referred to as "County", and the City of Santa Ana hereinafter referred to as the "City". Recitals WHEREAS, the Health and Safety Code, hereinafter referred to as "H & S Code", Section 25404(c) mandates that the County establish a Unified Program to consolidate administration of the following requirements (collectively "program elements"): A. The Hazardous Waste Generator Program, H & S Code, Division 20, Chapter 6.5; B. The aboveground Storage Tan: Program Spill Prevention Control and Countermeasure Plan requirements, H & S Code, Division 20, Chapter 6.67, Section 25270.5(c); C. The Underground Storage Tank Program, H & S Code, Division 20, Chapter 6.7; D. The Hazardous Material Release Response Plans and Inventory Program, H & S Code, Division 20, Chapter 6.95, Article 1; E. The Risk Management Prevention Plan Program, applicable to acutely hazardous materials, H & S Code, Division 20, Chapter 6.95, Article 2; F. The Hazardous Materials Management Plan and the Hazardous Materials Inventory Statement requirements, Uniform Fire Code, Part 7, Article 80, Section 8001.3.2 and Section 8001.3.3, as adopted by the State Fire Marshal pursuant to H & S Code Section 13143.9; and WHEREAS, H & S Code Section 25404.1 (b)(1) requires that the County apply for state Certification as a CUPA to implement and operate the Unified Program throughout the unincorporated area of the County and in all cities within the County that have not been certified as CUPA; and WHEREAS, the County has been certified as a CUPA; and WHEREAS, the City of Santa Ana, the County and the CaUEPA disagree as to whether the City and County can both be CUPA's under Chapter 6.7 of the Health and Safety Code, Sections 25404, et seq.; and WHEREAS, the City, County and Cal/EPA all desire to provide a mechanism by which the City continues to operate its programs within the CUPA statutory framework, in order to avoid any disruption of the orderly administration and enforcement of environmental regulations AGREEMENT BETWEEN THERUNTY OF ORANGE AND THE • CITY OF SANTA ANA FOR THE INTERIM IMPLEMENTATION OF UNIFIED PROGRAM ELEMENT REQUIREMENTS while the City, County and CaVEPA work to resolve their differences informally or through legal action; and WHEREAS, all parties acknowledge that the community, including the business community, will encounter additional financial and practical burdens should the County or City take full control of all CUPA functions and a subsequent court decision issue that has the effect of re -transferring the duties between the County and City; WHEREAS, the City of Santa Ana is currently contesting the decision of the State of California Environmental Protection Agency to deny certification to the City as the Certified Unified Program Agency for the City of Santa Ana and is seeking, inter alia, a declaration of the court as to the meaning and intent of the CUPA legislation, in a complaint and petition for writ of mandate captioned City of Santa Ana r. State of California; California Environmental Protection Agency; James M. Strock, in his official capacity as Secretary; County of Orange and Orange County Health Care Agency as Real Parties in Interest, Case No. 781849, Orange County Superior Court, ("lawsuit"); and WHEREAS, H & S Code Section 25404.1(b)(3) authorizes a County to enter into formal agreements with other qualified public agencies to implement and enforce certain elements of the Unified Program, and WHEREAS, the County wishes to have the City, and the City wishes to continue to implement and enforce the following requirements in all territory within the jurisdiction of the City: H & S Code Division 20, Chapter 6.95, Articles 1 and 2; H & S Code Division 20, Chapter 6.7 and Subdivisions (b) and (c) of section 80.103 of the Uniform Fire Code, as adopted by the State Fire Marshall pursuant to section 13143.9 of the H & S Code; and NOW, THEREFORE, the parties hereto mutually agree as follows: AGREEMENT Nothing in this Agreement is intended to or will in any manner prevent or compromise the City's ability to move forward on its lawsuit to determine its right to be certified as the CUPA in the City of Santa Ana; nor to pursue certification as the CUPA in the City of Santa Ana through legislation or other means that may become available. Nor will the existence of this agreement be referred to, used, or commented upon by the parties or by the State, or the County in the above referenced lawsuit relating to CUPA issues, except as otherwise directed or ordered by the court. 2. Program Elements to be Administered by the County The County, acting as the CUPA, shall continue to administer the following program elements relating to the following facilities and operations in all territory with its jurisdiction. City Attorney Page 2 09/12/97 AGREEMENT BETWEEN THEOUNTY OF ORANGE AND THE • CITY OF SANTA ANA FOR THE INTERIM IMPLEMENTATION OF UNIFIED PROGRAM ELEMENT REQUIREMENTS A. The Hazardous Waste Generator Program, H & S Code, Division Chapter 6.5; B. The Aboveground Storage Tank Program Spill Prevention Control and Countermeasure Plan requirements, H & S Code, Division 20, Chapter 6.67, Section 25270.5(c); Program Elements to be Administered by the City The City, acting as a participating agency, shall continue to administer the following program elements relating to the following facilities and operations in all territory within its jurisdiction: A. The Hazardous Material Release Response Plans and Inventory Program, pursuant to H & S Code, Division 20, Chapter 6.95, Article 1; B. The Risk Management Prevention Plan Program, applicable to acutely hazardous materials, pursuant to H & S Code, Division 20, Chapter 6.95, Article 2; C. The Hazardous Materials Management Plan and the Hazardous Materials Inventory Statement requirements, pursuant to Uniform Fire Code, Part 7, Article 80, Section 8001.3.2 and Section 8001.3.3, as adopted by the State Fire Marshal pursuant to H & S Code Section 13143.9, to the extent implemented by the City; D. The Underground Storage Tank Program, H & S Code, Division 20, Chapter 6.7. County's Obligation In accordance with H & S Code Section 25404 et seq., and Title 27 of the California Code of Regulations Sections 15100 et seq., the County shall: A. Conduct, at a minimum, quarterly meetings of Participating Agencies for the purpose of establishing policies and procedures, resolving duplication and regulatory overlap issues, encouraging uniformity, and communicating enforcement actions, pursuant to 27CCR 15180(a)(7). B. Establish and implement Single Fee Billing System pursuant to H & S Code Section 25404.5(a) and 27 CCR 15210(a) and 15220, incorporating the following elements: (1) Fees and surcharges in an amount to cover the necessary and reasonable costs incurred by the County and Participating City Atlomey Page 3 09/12/97 AGREEMENT BETWEEN THERUNTY OF ORANGE AND THE CITY OF SANTA ANA FOR THE INTERIM IMPLEMENTATION OF UNIFIED PROGRAM ELEMENT REQUIREMENTS comply with such procedures prior to notifying the Secretary of Cal -EPA that a Participating Agency no longer meets the minimum qualifications, or fails to implement the Program Element. K. Comply with all statutory and regulatory requirements pursuant to H & S CODE Section 25404 et seq., and 27 CCR 15100 et seq. 5. The City's Obligations In accordance with H & S Code Section 25404 et seq., and Title 27 of the California Code of Regulations Sections 15100 et seq., the City shall: A. Attend and participate in all scheduled meetings, pursuant to CCR, title 27, Section 15180, with the County. B. Maintain adequate resources to implement its Program Elements, pursuant to 27 CCR 15170(1)(2). C. Maintain training records and make training records available to the County upon request pursuant to 27 CCR 15180(a)(2)(D). D. Institute procedures to respond to requests for information from the public, from government agencies, and from emergency responders, pursuant to 27 CCR 15180(a)(2)(D). E. Provide the County with all data required by the County to effectively manage the Unified Program. The data and information shall be submitted in a timely manner and according to a frequency agreed upon by the County and the City. The method of submittal will be agreed upon by the County and the City. F. Cooperate with the County in the development and implementation of a Single Fee System and comply with all provisions in the System. G. Establish and adopt fees for Program Elements administered by the City which reflect the necessary and reasonable costs of implementation, pursuant to 27 CCR 15230(a). H. Notify the County of the cost of Program Elements and fees, pursuant to 27 CCR 15210(a)(4) and 15230(b), within 30 days following a written request by the County. City Attomey Page 5 09/12/97 AGREEMENT BETWEEN THAUNTY OF ORANGE AND THE • CITY OF SANTA ANA FOR THE INTERIM IMPLEMENTATION OF UNIFIED PROGRAM ELEMENT REQUIREMENTS Agencies in implementing the Unified Program, including the state surcharge. (2) Methods for the collection and accounting of fees and surcharges. (3) Policies and procedures for the adjustment of fees and assignment of lost funds due to nonpayment. C. Implement a Fee Accountability Program, pursuant to H & S Code Section 25404.5(c) and 27 CCR 15210(b), to encourage efficient and cost effective operation of the Unified Program and annually review such Program. D. Collect fees for the City -administered program elements and disburse fees collected to the City within 45 days of collection, or as otherwise agreed to by the County and the City, pursuant to 27 CCR 15210(a)(4). E. Consolidate, coordinate and make consistent any local or regional regulations, ordinances, requirements or guidance documents related to the implementation of Program Elements in cooperation with the City, pursuant to H & S CODE Section 25404.2(a)(2). F. Develop and Implement a single, unified Inspection and Enforcement Plan in cooperation with the City and coordinate the Plan with inspection and enforcement programs of other federal, state, regional and local agencies, pursuant to H & S Code Section 25404.2(a)(3) and (4). G. Establish and implement a Dispute Resolution Process designed to resolve problems pursuant to 27 CCR 15180(a)(4) and 15210(a)(9), and a process for formal appeals from dispute resolution decisions. H. The County shall conduct a periodic review of the City's performance for inclusion within the County's annual self audit, pursuant to 27 CCR 15280(a) and 15290(b), or as necessary to maintain the Unified Program standards. Guidelines for content of the review shall be developed in cooperation with the City. I. Enter into a Program Improvement Agreement with the City, pursuant to 27 CCR 15180(a)(B)(D), if the City ceases to meet minimum qualifications or fails to implement its Program Elements. The Program Improvement Agreement shall specify the areas of improvement, minimum accomplishments necessary, and time frames which shall be met by the City. Establish procedures for removing or revoking Participating Agencies, containing, at a minimum: notice; a statement of causes; public comment; and appeal procedures, pursuant to H & S Code Section 25404.3(d)(1)(B). The County shall City Anomey Page 4 09/12/97 O AGREEMENT BETWEEN THE UNTY OF ORANGE AND THE • CITY OF SANTA ANA FOR THE INTERIM IMPLEMENTATION OF UNIFIED PROGRAM ELEMENT REQUIREMENTS I. Receive fees collected by the County for City -administered programs and advise the County of any discrepancies within 30 days of receipt of the fees. Both parties will work towards resolving any discrepancies. Determine any adjustment or waiver of fees that were erroneously charged or computed for City -administered programs, at the discretion of the City Council or as designated. K. Cooperate with the County in the consolidation of any local or regional regulations, ordinances, requirements or guidance documents related to the implementation of Program Elements. L. Consolidate all permits issued through the Unified Program. M. Cooperate with the County in the development of a single, unified Inspection and Enforcement Plan and comply with all provisions in the Plan. N. Abide by the procedures established in the Dispute Resolution Process. O. The City shall annually conduct a self audit and provide this information to the County for use in the County's annual evaluation of the City as a Participating Agency pursuant to 27 CCR, sections 15280 and 15290. P. Enter into a Program Improvement Agreement with the County if the City ceases to meet minimum qualifications or fails to implement its Program Elements, pursuant to 27 CCR 15180(a)(8)(D). The Program Improvement Agreement shall specify the areas of improvement, minimum accomplishments necessary and time frames that the City must meet. Q. Comply with all statutory and regulatory requirements pursuant to H & S Code 25404 et seq. and 27 CCR 15100 et seq. 6. Indemnification A. The City shall indemnify and hold the County, its officers, agents and employees free and harmless from any claim or liability whatsoever, based or asserted upon any act or omission of the City, its officers, agents and employees, for property damage, bodily injury or death or any other element of damage of any kind or nature, occurring as a direct result of the City's performance of this Agreement to the extent that such liability is imposed on the County by the provisions of Section 895.2 of the Government Code and the City shall defend, at its own expense, including attorney's fees, the County, its officers, agents and employees in any legal action or claim of any kind based upon such alleged acts or omissions. City Anomey Page 6 09/12/97 AGREEMENT BETWEEN THERUNTY OF ORANGE AND THE • CITY OF SANTA ANA FOR THE INTERIM IMPLEMENTATION OF UNIFIED PROGRAM ELEMENT REQUIREMENTS B. The County shall indemnify and hold the City, its officers, agents and employees free and harmless from any claim or liability whatsoever, based or asserted upon any act or omission of the County, its officers, agents and employees, for property damage, bodily injury or death or any other element of damage of any kind or nature, occurring as a direct result of the County's performance of this Agreement to the extent that such liability is imposed on the City by the provisions of Section 895.2 of the Government Code and the County shall defend, at its own expense, including attorney's fees, the City, its officers, agents and employees in any legal action or claim of any kind based upon such alleged acts or omissions. 7. Dispute Resolution In the event that a dispute arises between the County and the City, the following procedures will be followed in an effort to resolve the dispute. A. The County and the City will meet and discuss the issues in an effort to resolve the dispute. Both agencies shall respond to dispute inquiries in writing and in an expeditious fashion. B. If a satisfactory resolution cannot be reached, the County and the City will meet with representatives of Cal/EPA in an effort to resolve the dispute. C. If the previous measures have been unsuccessful in resolving the dispute, each agency, will state its positions and recommended resolutions, in writing. The County will submit both positions, without revisions, to Cal/EPA, following procedures established by Cal/EPA. The final decision of Cal/EPA is binding on both agencies. 8. Termination of Agreement Either party may terminate this Agreement under the following circumstances by giving the other party six (6) months notice, or a shorter time period as my be mutually agreed to in writing by the parties, and upon approval of the Secretary of Cal/EPA: A. The certification of the City as a CUPA. B. For cause in accordance with H & S Code 25404, et seq. and the CCR relating to CUPA administration. In addition, City may terminate this Agreement in the event no funds are appropriated by City in any fiscal year, provided City gives County at least ninety (90) days advance written notice of such non -appropriation. City Attorney Page 7 09/12/97 AGREEMENT BETWEEN THERUNTY OF ORANGE AND THE • CITY OF SANTA ANA FOR THE INTERIM IMPLEMENTATION OF UNIFIED PROGRAM ELEMENT REQUIREMENTS 9. Amendments This Agreement sets forth the entire Agreement between the parties and any modifications must be in the form of a written amendment agreed to and signed by both parties. 10. Severability Each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision shall be invalid under applicable law, it will be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement. 11. Notice All notices and other communications shall be in writing and shall be effective when deposited in the U.S. Mail, postage prepaid and addressed as follows: To the County: Jack Miller Director of Environmental Health Division Health Care Agency County of Orange 2009 E. Edinger Avenue Santa Ana, CA 92705 To City: Marc Martin Fire Chief City of Santa Ana Fire Department 1439 South Broadway Santa Ana, CA 92707 A party shall notify the other party of any change in its address. 12. This Agreement may be signed in counterparts. 13. This Agreement shall be effective on the date it is fully executed by all parties listed below. The following individuals declare under penalty of perjury that they have authority to sign this Agreement on behalf of the various Agencies represented as designated above. City Attorney Page 8 09/12/97 AGREEMENT BETWEEN THE COUNTY OF ORANGE AND THE CITY OF SANTA ANA Page 9 IN WITNESS WHEREOF, the parties hereto have executed this Agreement. s CITY O ANA %, BY: DATED: Miguel A. Pulido, Mayor ATTEST: 93 Clerk of the Counsel APPROVED AS TO FORM: CITY ATTORNEY Joseph W. Fletch , City Attorney J COUNTY OF ORANGE BY: 1, txzbc..,•,,.! G William Steiner Chairman, Board of Supervisors SIGNED AND CERTIFIED THAT A COPY OF THIS THIS DOCUMENT HAS BEEN DELIVERED TO THE CHAIRMAN OF THE BOARD: BY: _ L Darlene J. Bloom Clerk of the Board of Supervi of Orange County, Califor APPROVED AS TO FORM: COUNTY COUNSEL BY: Chris Miller County Counsel GrYSA.CUP4MM8 DATED: .:� pplf,owed as to c me C- City 1,1"'Raper DATED: DATED: DATED: SEP 3 0 1997 SEP, 3 0 1997 DATED: 7--19-9�/9-97