Weaverville Landfill Cap

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1044-DR
ApplicantTrinity County
Appeal TypeSecond
PA ID#105-00000
PW ID#51752
Date Signed1997-11-24T05:00:00
Citation: Appeal Brief; Second Appeal; Trinity County; FEMA-1044-DR-CA; PA 105-00000

Cross-Reference: DSR 51752; Weaverville Landfill Cap

Summary: Following the winter storms in 1995, FEMA prepared DSR 51752 for $801,510 for Weaverville Landfill in Trinity County (County), California to repair a damaged landfill soil cap, provide temporary cover, restore access roads and loading area to the pre-disaster condition, increase leachate tank storage, and provide temporary trash hauling. Upon review, FEMA determined the cap repair to be ineligible because the cap needed repair due to inattention prior to the disaster and the work would constitute a substantial improvement over the pre-disaster condition. Accordingly, the DSR was reduced to $46,039 to fund emergency protective measures, including $10,906 for temporary landfill cover. On February 20, 1996, the State submitted the first appeal requesting reinstatement of $755,471 for the cap repair. The basis of the first appeal was that the cap replacement did not constitute an improvement of the pre-disaster condition, because it replaced what existed prior to the storm. The County further contended the repair was eligible because the runoff of leachate into two watercourses created an immediate threat to public health and safety. On October 1, 1996, the Regional Director denied the first appeal because the new design represents an improvement of the pre-disaster condition and the appeal lacked supporting documentation that the repair was mandated by current codes and standards. In addition, the Regional Director determined the restoration of the cap is considered to be permanent work and not of an emergency nature. The State forwarded the second appeal on April 7, 1997, again requesting funding to return the landfill cap to its pre-disaster condition with a new DSR, as category "F" work. The County is also requesting $47,044 for landfill cap repairs. The County argues that the repairs do not constitute an improvement over the pre-disaster condition of the landfill cap and refers to a statement made in the Regional Director's response to the first appeal that "a separate DSR should have been prepared to document proposed restorative measures." The Regional Director's memorandum transmitting the second appeal explained that the referenced statement does not mean that the work should be eligible even if a separate DSR was prepared. Documentation provided indicates the post-disaster design represents a significant improvement over the pre-disaster condition.

Issue: Do the landfill cap repairs constitute a significant improvement of the pre-disaster condition?

Findings: Yes. The DSR narrative, the ENCOM, Inc. report, and a California Regional Water Quality Control Board letter indicate the post-disaster design represents a significant improvement over the pre-disaster condition.

Rationale: The appeal did not meet the requirements of 44 CFR 206.226 that authorizes restoration work only to the extent necessary to return a facility to its pre-disaster condition.

Appeal Letter

November 24, 1997

Ms. Nancy Ward
Governor's Authorized Representative
Governor's Office of Emergency Services
Disaster Assistance Branch
P. O. Box 239013
Sacramento, California 95823

Dear Ms. Ward

This letter is in response to your April 7, 1997, transmittal of the Trinity County's (County) second appeal of damage survey report (DSR) 51752 under FEMA 1044-DR-CA to the Federal Emergency Management Agency (FEMA). The County is requesting funding to repair the landfill soil cap at the Weaverville Landfill.

In January and February of 1995, heavy rains damaged the Weaverville Landfill. In February 1995, FEMA prepared DSR 51752 for $801,510 to restore the landfill cap, repair access roads, to provide temporary cover material, to provide increased leachate storage and for temporary trash hauling. Upon review, the work involved in replacing the cap over the inactive unit of the landfill for $755,471 was determined to be ineligible because the new cap would be a substantial improvement over the pre-disaster condition of the cap. The DSR was, in turn, reduced to $46,039. In February 1996, the State forwarded the first appeal requesting reinstatement of the $755,471 for the landfill cap repair. The basis of the appeal was that the replacement cap was required by Title 40 of the Code of Federal Regulations (CFR) Part 258 and did not constitute an improvement, because it replaced what existed prior to the storm. The County further contended the cap repair was eligible under 44 CFR 206.225, as an emergency protective measure to eliminate an immediate threat from runoff leachate to the water supply of a downstream community. The first appeal was denied for three reasons. The Regional Director explained that 44 CFR 206.226 authorizes restoration work only to the extent necessary to return a facility to its pre-disaster condition and that the documentation indicated the new cap design did contain significant improvements over the pre-disaster design and function. Second, DSR 51752 accounted for and funded emergency protective measures to eliminate an immediate threat, including temporary cover material, restoration of access roads, increased storage tanks and temporary hauling costs. Third, the Regional Director explained that 40 CFR 258 outlines Federal closure criteria for landfills; however, it does not specify requirements for landfill caps and the subgrantee did not provide documentation to otherwise support the contention that current codes and standards mandate the extensive repair.

In the second appeal, which requests a new DSR be developed as category "F" work to cover permanent soil cap replacement, the County makes reference to the statement in the Regional Director's response to the first appeal that "a separate DSR should have been prepared to document proposed restorative measures." As explained by the Regional Director's first appeal response, the design of the soil cap replacement included four feet of cover, high density polyethylene vapor barrier, and an additional layer of soil capable of supporting vegetation, and 800 bales of straw to curtail erosion. This design is a significant improvement over the pre-disaster cap design. In addition, the ENCOM, Inc. report, which post-dates the disaster, indicates that areas of the landfill were in different stages of closure and that the limits of waste placement were not clearly defined. The report further states that areas of the landfill the County considers to be closed, were closed without an approved construction quality assurance plan and that additional documentation of the condition of the cap would likely be necessary to gain regulatory closure acceptance. This suggests that the pre-disaster condition of the landfill has not been established or documented. As such, the landfill cap repairs represent an improvement of the facility over its pre-disaster condition and are not eligible for funding, pursuant to 44 CFR 206.226.

In this appeal, the County also requests $47,044 for reimbursement of landfill cap repair expenses. It is not clear what landfill cap repair work is associated with this funding request. However, we have determined that eligible emergency protective measures were covered by the other items in the original DSR, including $10,906 for temporary cover material. We have carefully reviewed the information submitted with the second appeal and have determined that the Regional Director's decision is consistent with program statute and regulations. Therefore, I am denying the second appeal.

Please inform the applicant of my determination. The applicant may submit a third appeal to the Director of FEMA. The appeal must be submitted through your office and the Regional Director within 60 days of receipt of this determination.

Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate

cc: Ray Williams
Acting Regional Director
Region IX
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