Summary: In January 1995, winter storms led to increased flows in the Orange County Sanitation District (District) wastewater treatment system's two plants which both discharge to an ocean outfall located five miles off-shore (200-foot depth). Increased pumping pressure caused the outfall flap gate to fail, allowing semi-treated wastewater to discharge directly into the ocean rather than through a mile-long diffuser pipe. During the 20 days this flap gate was open, chemical addition had to be increased to raise primary solids removal required by their National Pollution Discharge Elimination System (NPDES) permit. In addition, the higher pumping rates caused increased energy costs for the two plants. On September 17, 1995, damage survey reports (DSRs) 98522 and 91654 were prepared in the amount of $70,529 and $33,982, respectively for the chemicals and energy costs. Both DSRs were ruled ineligible by FEMA Region IX, because both items were considered to be increased utility operating costs rather than emergency protective measures. (Note: FEMA funded the repair of the ocean flap gate under DSR 98651 for $113,004) The first appeals (initially separate) were submitted by the applicant claiming that the excess chemicals used and extra energy costs were a result of the District attempting to protect public health and the environment. The first appeals were denied by Region IX because the costs were for increased expenses required to operate a utility, not for emergency protective measures, and thus were not eligible for FEMA funding. In its second appeal, the District is reiterating its original argument that the increased costs were the result of the District protecting human health and the environment.
Was excess chemical usage and energy consumption the result of an immediate threat to life and property, as required to be eligible as emergency protective measures?
Are increased operating costs of a utility eligible for FEMA reimbursement if they are the direct result of a declared disaster?
No. The outfall flap gate repair was eligible and was funded, but the increased costs for chemicals and energy were a result of the District maintaining compliance with its permit during a period of higher flow.
No. The Public Assistance Guide clearly states that under category F work, "increases in operating expenses, even if a result of the disaster, are not eligible for funding."
Rationale: Although the discharge of partially untreated wastewater to the ocean, five miles out, is of environmental concern, it does not constitute an immediate threat to life, public safety, or improved property, as required for emergency measures to be eligible. The increased chemicals and energy consumption are clearly increased operating expenses required to maintain compliance with the NPDES permit.