Landfill Leachate Disposal

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1608-DR
ApplicantNew Hanover County
Appeal TypeSecond
PA ID#129-00129-00
PW ID#Project Worksheet 216
Date Signed2007-11-06T05:00:00
Citation: FEMA-1608-DR-NC; New Hanover County; Landfill Leachate Disposal

Cross-reference: Increased Operating Costs

Summary: As a result of Hurricane Ophelia (FEMA-1608-DR-NC, September 12, 2005), rainfall overtaxed New Hanover County’s (Applicant) landfill capability to collect and process the entire volume of storm-related leachate. As a result, the Applicant was required to incur additional costs to collect, transport, and dispose of the excess leachate at the City of Wilmington’s wastewater treatment plant. FEMA prepared PW 216 on November 4, 2005, but obligated it at zero dollars because the Applicant had not documented its costs for the work. The Applicant filed a first appeal on February 3, 2006, requesting $725,909 in estimated costs for hauling and disposing of the leachate. FEMA denied the Applicant’s first appeal on April 28, 2006, citing an engineering report dated April 20, 2006, documenting that rain from the disaster event had not reached the landfill’s permitted capacity and, further, that the landfill had not been operating at its design capacity at the time of the disaster. On September 22, 2006, the Applicant filed a second appeal, which was transmitted to FEMA by the State on September 26, 2006. In the appeal, the Applicant argued that the question of FEMA eligibility should not be decided on the basis of the landfill’s capacity to handle leachate, but rather on the excess costs it incurred for processing the additional leachate, which should be eligible because it was the direct result of a declared disaster.



Issues: (1) Are the costs of collecting, transporting, and disposing the excess leachate caused by the storm associated with an eligible item of work?

Findings: (1) No. The work was not required to address an “immediate threat” or to repair a damaged facility, and the associated costs.

Rationale: FEMA does not reimburse increased operating costs even if they are a result of a declared disaster. Public Assistance Guide, FEMA-322, October 1999, page 58.

Appeal Letter

November 6, 2007

Ms. Mary L. Canty
Public Assistance Section Manager
North Carolina Division of Emergency Management
4713 Mail Service Center
Raleigh, NC 27699-4713

Re: Second Appeal – New Hanover County, PA ID 129-00129-00
Landfill Leachate Disposal, FEMA-1608-DR-NC, Project Worksheet 216

Dear Ms. Canty:

This letter is in response to the referenced second appeal by New Hanover County (Applicant), dated September 22, 2006, and transmitted by your office to FEMA on September 26, 2006. The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding for the removal and disposal of leachate resulting from Hurricane Ophelia (FEMA-1608-DR-NC) from the Applicant’s landfill.


Due to the volume of rainfall that occurred during the event, the landfill’s leachate management systems were incapable of collecting and processing all leachate resulting from the storm. As a remedial measure, the Applicant arranged to haul and dispose of excess leachate at the City of Wilmington’s wastewater treatment plant.


On November 4, 2005, FEMA prepared Project Worksheet (PW) 216 for the Applicant’s cost of collecting, transporting, and disposing of the excess leachate at the City of Wilmington’s wastewater treatment plant. However, because the Applicant had not documented those costs, FEMA obligated PW 216 at zero dollars ($0).


The Applicant filed a first appeal with FEMA dated February 3, 2006, which was transmitted to FEMA by the State in a letter dated February 13, 2006. The Applicant requested that FEMA obligate $725,909 of estimated costs for the disposal of the excess leachate, but provided no further documentation supporting this claim. FEMA denied the Applicant’s first appeal in a letter dated April 28, 2006, citing an engineering report dated April 20, 2006, that determined that precipitation from Hurricane Ophelia had not exceeded the landfill’s permitted capacity to collect and process leachate.


With its second appeal, dated September 22, 2006, the Applicant provided documentation for $662,927 of costs to transport and dispose of leachate at the City of Wilmington’s wastewater
treatment plant. In the appeal, the Applicant argued that the question of FEMA eligibility should not be decided on the basis of the landfill’s capacity to handle leachate, but rather on the excess costs it incurred for processing the additional leachate, which should be eligible because it was the direct result of a declared disaster.


Under FEMA’s authorities, there are three general types of work that may be eligible for Public Assistance: (1) debris removal, (2) emergency protective measures, and (3) permanent restoration of eligible facilities. According to the April 20, 2006, engineering report, the New Hanover County Landfill was operating at a capacity well below the requirements of Section 1624 of the North Carolina Department of Environment and Natural Resources regulations. In addition, the study determined that the amount of storm-related rainfall had not reached the design capacity required by its permit. For these reasons, the cost of disposing of excess leachate at another facility cannot be deemed to be debris removal or emergency protective measures, both of which require a determination that the work is necessary to eliminate or lessen an immediate threat to life, public health, or safety in accordance with Title 44 of the Code of Federal Regulations (44 CFR) §206.224 and §206.225. Finally, since the work was not related in any way to the restoration of a damaged public facility, it cannot be eligible as permanent work in accordance with 44 CFR §206.226.

For these reasons, I have determined that the Applicant’s costs for transporting and disposing of excess leachate that it could not process in its own facility, are not related to eligible work but constitute increased operating costs. FEMA does not provide funding for increased operating costs resulting from a disaster. Therefore, the Applicant’s second appeal is denied.


Please inform the Applicant of my decision. This determination constitutes the final decision in this matter pursuant to 44 CFR §206.206.


Sincerely,
/s/
Carlos J. Castillo
Assistant Administrator
Disaster Assistance Directorate

cc: Major Phillip May
Regional Administrator
FEMA Region IV
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