Appeal Summary | Appeal Letter | Appeal Analysis | Back
Second Appeal Summary
PA ID# 001-91010; East Bay Regional Park District
DSR ID# 71422, 97443 and 97444; Landfill Leachate Abatement and Collection
Citation: Appeal Brief; Second Appeal; East Bay Regional Park District; FEMA-1046-DR-CA;
Reference: DSRs 71422, 97443 and 97444; Debris Removal; Emergency Work; Permanent Repairs; Landfill Leachate Abatement; Maintenance Responsibility
Summary: The winter storms and rains of 1995 raised the groundwater level within the Oyster Bay Regional Park, which is owned by the East Bay Regional Park District (District). Resulting damage to the park generally consisted of surface erosion and leachate flowing out of the closed landfill, discharging into the San Francisco Bay. The three above referenced damage survey reports (DSRs) were prepared for a total of $165,279 for debris removal, emergency work and permanent restoration. Upon review, FEMA determined each of the DSRs to be ineligible for funding, because the work was not the legal responsibility of the District. The State submitted three identical first appeals of the above DSRs on September 18, 1996. The State indicated that the District is the legal owner of the property and that the District is held responsible for damages to the Park (including threats to water quality from leachate seepage). The District contends that the California Regional Water Quality Control Board (Board) assessed the responsibility to the District and the previous site landfill operator, Waste Management of Alameda County, Inc. (WMI). On February 14, 1997, the Regional Director denied the first appeal. The Regional Director indicated that the District failed to submit any title documents, transfers, or operation or maintenance agreements that were in force prior to the date of the disaster, establishing the legal responsibility for remedying the leachate spill. On June 13, 1997, the State submitted the second appeal, including a copy of the grant deed dated December 8, 1992, and selected pages of Board Order Number 94-0187 dated December 14, 1994. The District contends that this documentation outlines the District's responsibility for maintenance and operation prior to the disaster, and identifies the District as the property owner.
Issues: Is the subgrantee legally responsible for the restoration of and damages from the old landfill site?
Findings: No. The provided documentation (Order Number 94-0187), which pre-dates the disaster, refers to both the District and WMI collectively, as having responsibility for any corrective action measures. No pre-disaster agreement between the two parties, regarding corrective action measures was provided to demonstrate the responsibility of each party. However, correspondence from the District indicates that WMI has the responsibility for "anything below the surface related to depositing garbage or other wastes including water quality monitoring and any leachate or containment management necessary."
Rationale: In accordance with 44 CFR Section 206.223 (a)(3), to be eligible the subgrantee must be legally responsible for the work proposed by the DSRs. The subgrantee has not sufficiently documented that they are legally responsible to perform the work.