Item 5 - PH/Toxics RTK Fees - Laserfiche WebLink

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For 2003, the fee was $13.92 per FTE. For 2004, because of the $2,000 cap, the fee was $31.65 per FTE up to $2,000. Businesses with more than 63 FTE paid less than $31.65 per FTE, with the largest business, employing 1,207, paying $1.66 per FTE. Without the state fee cap, the recommended fee would have been $14.35 per FTE for all participating businesses. Polling of businesses for their 2004 FTE levels is now virtually complete for purposes of determining 2005 fees under a status quo scenario. That recommendation would be $30.30 per FTE, again up to the $2,000 cap. The City's current right-to-know program consists of elements that are required by the amendment, elements that are not required by the amendment (but are necessary for the program to be functional), and others that may or may not be Charter-mandated, depending on how certain provisions of the amendment are interpreted. Pursuant to Article VII, paragraph D of the amendment, only those elements that are required by the amendment must be paid for by "hazardous substance users" as that term is defined by the amendment. Any components of the current right-to-know program that are not required by the amendment can be paid for by businesses that do not fall within the amendment's definition of "hazardous substance users." As such, while revenues collected pursuant to the proposed ordinance can fund elements of the program not mandated by the amendment, the revenues cannot fund Charter-mandated elements of the program. Examples of Charter-mandated activities include audits of hazardous substance reports, public posting of reports (at the library and on the Internet), investigation of complaints, invoicing and collections, and at least some of the activities provided in direct support to the Toxics Board. Examples of non-Charter- mandated activities include providing assistance to reporting businesses (both by individual consultation and by annually issuing tracking and reporting instructions), legal work in response to litigation and other legal issues, responses to public and media inquiries, technological updates to the program's website and business reporting software, and supervision of program staff. The level of direct support to be provided to the Toxics Board is not specified in the Charter, which provides instead that "[t]he City Manager shall consult with the Toxics Board in order to jointly determine the appropriate support services that shall be provided..." Opponents of the proposed ordinance assert that the City cannot adopt the proposed ordinance because it "amends" the Charter. While the City cannot adopt an ordinance "amending" the Charter, as a home rule city with broad grant of authority under Section 4(2) of the Charter, the City may enact an ordinance requiring facilities to submit materials balance reports and pay a hazardous substance user fee so long as the ordinance does not conflict with State law (or some other part of the Charter). This broad authority to adopt an ordinance exists independent of the amendment. Thus, the City can expand the right-to-know program in any way it sees fit, so long as the expansion does not contradict the amendment or state law. Such an expansion of the right-to-know program does not create a "separate program;" rather, it consistently adds to the existing program that was established by the amendment. Since the amendment does not impose limitations on the council' s authority with respect to companies that fall outside the amendment's definition of"hazardous substance user," nothing in the amendment (or elsewhere in the Charter) constrains the council's authority. As such, the City can use its broad home rule authority to adopt an ordinance that requires companies that do not fall within the amendment's definition of"hazardous substance user" to fund the elements of the program that are not required by the amendment. L:\CMO\2005 Council Agendas\M050214\S0502145.doc