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Second Appeal Letter
PA ID# 000-92260; California Department of Toxic Substances Control
DSR ID# 78630,78631,78632,15257; Hazardous Material Spills
April 7, 1999
Mr. D.A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
74 North Pasadena Avenue, North Annex, Second Floor
Pasadena, California 91103
Dear Mr. Christian:
This letter is written in response to the letter dated July 10, 1998, which transmitted an appeal from the California Department of Toxic Substances Control (DTSC) (FEMA-1008-DR-CA). The appeal pertains to Damage Survey Reports (DSRs) 78630, 78631, 78632, and 15257, which involve hazardous material spills.
DSRs 78630, 78631, and 78632 were determined ineligible for funding because DTSC had not demonstrated a good faith effort to recover cleanup costs from negligent parties. DTSC appealed this decision on July 30, 1997. The Regional Director subsequently determined that liability, not negligence, was at issue. The applicant did not prove it was legally responsible for the cleanup, as required by 44 CFR 206.223(a)(3). In addition, the DSRs were written for less than $1000 each, which makes them ineligible, pursuant to 44 CFR 206.202(d)(2). The Regional Director denied the appeal on May 4, 1998.
In DTSC's second appeal, it claims that because it received estimates from contractors for costs greater than $1000, DSRs 78630, 78631, and 78632 should be eligible for reimbursement. However, at the time the inspection team wrote the DSRs, DTSC had completed the work and had actual costs for the projects. The actual costs were correctly included in the DSRs consistent with FEMA policy and practice. Therefore, the appeal requesting reimbursement for DSRs 78630, 78631 and 78632 for hazardous material cleanup is denied.
DSR 15257, dated May 13, 1997, was determined ineligible for funding because no link could be established between the labor and travel costs submitted and the damage sites referenced in the DSR. Instead, the labor and travel costs relate to activities that took place at various locations in Los Angeles and Ventura Counties. These activities were classed as damage assessment, and deemed ineligible. On September 17, 1997, DTSC appealed this determination.
FEMA acknowledged in response to the first appeal that activities described by DTSC were safety inspections and/or safety evaluations, and not damage assessment. As such, this work is eligible emergency work, according to 44 CFR 206.225(a)(3)(i). However, DTSC failed to establish a relationship between the claimed costs and the eligible work. In addition, no relationship was established between the claimed costs and the six sites identified in DSR 15257. The Regional Director denied the first appeal.
DTSC included original timesheets, travel expense reports, the DSR and first appeal documentation with its second appeal. A July 19, 1995 letter from DTSC to the Governor's Office of Emergency Services describes the role of DTSC in responding to the Northridge Earthquake. A list of projects, labeled "Exhibit B," was included in this letter. Item 8 on this list cites work done at "various locations." This work was described as "assessing the hazardous nature and/or potentially hazardous nature of materials and containers found by local environmental health agency officials."
It must be stressed that not all "earthquake-related" work is necessarily eligible. For example, random site inspections would not be eligible (given no direct cause for concern). In this case, however, local environmental health agency officials were said to have found hazardous or potentially hazardous materials and containers that could threaten health and safety. DTSC responded by sending personnel to inspect and evaluate hazards at these locations in Los Angeles and Ventura counties. This is eligible emergency work.
Reimbursement of overtime labor and travel costs described in DSR 15257 is granted. However, the eligible amount has been determined to be $46,873.29, not $49,821.73 as claimed. The attachment shows the corrected figures. In addition, indirect costs of $13,669.67 cannot be reimbursed, as indirect costs are ineligible according to 44 CFR 206.228(b)(2). This regulation states, "No indirect costs of a subgrantee are separately eligible because the percentage allowance in paragraph (a)(2)(ii) of this section covers necessary costs of requesting, obtaining and administering Federal assistance."
Other issues raised in previous correspondence, particularly legal liability and the "act of God" defense have not been addressed. It has been determined that these issues are not relevant to these findings.
Please inform the applicant of my decision. By copy of this letter, I am also asking the Federal Coordinating Officer to prepare a DSR to implement this decision. In accordance with the appeal procedure governing appeal decisions made on or after May 8, 1998, my decision constitutes the final decision on this matter. The current appeal procedure was published as a final rule in the Federal Register on April 8, 1998. It amends 44 CFR 206.206, which constitutes the final level of appeal in accordance with 44 CFR 206.206(e).
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
cc: Christina Lopez
Federal Coordinating Officer
Northridge Long-Term Recovery Area Office