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Third Appeal Letter
PA ID# 059-91108; Orange County Sanitation District
DSR ID# 98522; Ocean Outfall Treatment Plants
January 18, 1999
Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
74 North Pasadena Avenue, West Annex, Second Floor
Pasadena, California 91103-3678
Dear Mr. Najera:
This letter is in response to your May 21, 1998, transmittal of the Orange County Sanitation District's (subgrantee's) third appeal of Damage Survey Report (DSR) 98522 to the Federal Emergency Management Agency (FEMA) under FEMA-1044-DR-CA. The subgrantee is requesting Public Assistance funding for increased chemical treatment of wastewater that occurred during the winter storms of early 1995.
Following the storms, high flow rates entered the Orange County wastewater treatment plant. The high flow rates damaged the flapgate at the end of the ocean outfall diffuser pipe and the treated wastewater escaped at the end of the pipe and may not have been properly diffused along the length of the pipe. To ensure sufficient suspended solids removal from the effluent, the subgrantee increased the chemical treatment dosage to the incoming wastewater.
On November 3, 1995, FEMA prepared DSR 98522 to reimburse the subgrantee for the costs of the increased chemical dosage. Upon review, FEMA suspended the DSR on the basis that the additional treatment chemicals were an increased cost to provide a utility service. On July 22, 1996, and June 20, 1997, your office submitted the subgrantee's first and second appeals to the Regional Director and the Executive Associate Director. In the appeals, the subgrantee contended that the increased chemical dosage was necessary to eliminate a threat to public health and safety, as sufficient diffusion of the wastewater did not occur after the outfall pipe flapgate was damaged. Both the Regional Director and the Executive Associate Director upheld the Regional staff's determination that the increased chemical usage was an increased operating expense and was not eligible for reimbursement.
On May 21, 1998, your office submitted the subgrantee's third appeal which also contends that the increased chemical dosage was necessary to eliminate a threat to public health and safety. In the transmittal letter, you state that a plume of maltreated effluent that may have contained life-threatening viruses was discovered at the surface of the ocean and could have been carried to public beaches. As such, you assert that subgrantee "acted with a reasonable expectation that a threat to public health and safety existed" and the additional chemical costs should be eligible for reimbursement from FEMA.
Based on a review of the information provided, I can not overturn the determinations made by the Regional Director and the Executive Associate Director. My staff contacted the subgrantee's representative, Mr. Daniel E. Tunnicliff, P.E. and requested information to verify that maltreated effluent was present in the area of the outfall pipe. Mr. Tunnicliff stated that no information was available to verify that maltreated effluent was present in the area where the outfall pipe was damaged. Thus, there is no evidence that a threat to public health and safety existed. Furthermore, the increased chemical dosage did not replace the function of the diffuser pipe which dilutes the treated effluent with ocean water. As such, the increased chemical treatment was not necessary to address the dilution of the treated wastewater, but rather, necessary to treat the increased flows of wastewater into the subgrantee's treatment facility. Therefore, the increased chemical dosage can not be considered an action to eliminate the threat to public health and safety caused by the damage to the outfall flapgate. In addition, it was the subgrantee's responsibility to meet the requirement of the National Pollution Discharge Elimination System permit to increase the chemical treatment as the inflow of wastewater into the treatment plant increased. Therefore, I must agree with the Regional Director and Executive Associate Director that the increased chemical dosage was an increase in utility operating expenses. Furthermore, DSRs 98651 and 98652 were prepared to provide temporary and permanent repairs to the outfall pipe which were appropriate measures to address any threat to public health and safety created by the damage to the pipe.
The appeal is denied. Please inform the applicant of my decision which constitutes the final level of appeal in accordance with 44 CFR