Conclusion: The Applicant failed to substantiate that the soil remediation work is required as a result of the disaster. Additionally, the state codes and standards applicable to soil remediation work do not comply with the requirements of 44 C.F.R. § 206.226(d), as they do not apply to eligible work related to an element of Veteran’s Memorial Waterfront Park (Facility) that was damaged by the disaster and do not apply uniformly. Therefore, the second appeal is denied.
From October 26 to November 8, 2012, Hurricane Sandy damaged the Applicant’s Facility in Elizabeth, New Jersey. FEMA prepared Project Worksheet (PW) 3772, documenting $16,243,804.50 in repairs. In December 2013, the Applicant noticed signs of soil contamination at the Facility, which prompted remedial action required under state law. In a New Jersey Department of Environmental Protection (NJDEP) filing, the Applicant reported the discharge of soil contamination at the site on an unknown date from sources such as historic industrial operations and historic fill material (i.e., contaminated material deposited on a site to raise its topographic elevation). The Applicant submitted a Scope of Work (SOW) change request for $607,803.52 to include the soil remediation work, but FEMA denied that request deeming the work ineligible because the contamination predated the disaster. The Applicant subsequently sent a new accounting of the soil remediation costs totaling $635,572.74 to the State of New Jersey Office of Emergency Management (Grantee). In March 2015, the Grantee forwarded the Applicant’s new accounting of the soil remediation costs to FEMA. Thereafter, FEMA prepared a proposed PW amendment adding $630,531.93 for soil remediation, as documented in the Applicant’s new accounting, however this amendment was never approved, nor was it obligated. In May 2015, FEMA prepared PW 3772, Version 3, to include additional repair work but not soil remediation work. In June 2015, the Grantee informed the Applicant that FEMA had “rescinded its approval” of the soil remediation work. The Applicant appealed the denial of the SOW change request and the March 2015 proposed PW amendment that had not been approved, arguing: (1) the Facility had no previous recorded incidences of soil impacts; (2) the contamination was caused by disaster-related floods, debris, and eligible soil excavation work; and (3) the remediation work is an eligible code-mandated upgrade because eligible soil excavation work triggered NJDEP’s remediation standards. The Applicant attached an environmental consultant’s report to the appeal, which asserted: (1) the contamination did not predate the disaster because clean topsoil was added to the Facility in 1993; and (2) the disaster deposited debris in the topsoil and caused the groundwater table to rise bringing underground contamination up to the surface. FEMA’s Region II Regional Administrator denied the first appeal because: (1) the Applicant failed to demonstrate that the disaster or the performance of eligible work caused the contamination; (2) the contamination predated the disaster; and (3) the soil remediation work was not an eligible code-mandated upgrade because the codes and standards cited by the Applicant did not apply to any eligible work or disaster-related damage. On second appeal, the Applicant reiterates its arguments on first appeal claiming that the soil remediation work (1) is required as a direct result of the disaster and (2) is an eligible code-mandated upgrade.
Authorities and Second Appeals
- Stafford Act § 406.
- 44 C.F.R. §§ 206.223(a)(1), 206.226.
- DAP 9527.4, Construction Codes and Standards.
- Florida Department of Transportation, FEMA-0955-DR-FL, at 2 (Aug. 12, 1997).
- Clarksville Gas and Water, FEMA-1909-DR-TN, at 5 (July 25, 2016).
- Clarksville Gas and Water, FEMA-1909-DR-TN, at 5–6 (Apr. 21 2016).
- City of Petaluma, FEMA-1628-DR-CA, at 3 (Nov. 6, 2013).
- Newhall County Water District, FEMA-1008-DR-CA, at 5 (July 16, 2007).
- Under the Stafford Act § 406, as implemented by 44 C.F.R. §§ 206.223(a)(1) and 206.226, FEMA may reimburse eligible applicants for the repair, restoration, reconstruction, or replacement of a public facility required as a result of a major disaster to restore eligible facilities on the basis of the design of such facilities as they existed immediately prior to the disaster.
- The soil remediation work is ineligible because the Applicant failed to demonstrate that the work is required as a result of the disaster.
- FEMA may reimburse costs to meet federal, state, and local repair or replacement codes or standards, if the codes or standards satisfy all five prongs of 44 C.F.R. § 206.226(d).
- The soil remediation work is not an eligible code-mandated upgrade because the relevant codes and standards fail to meet all five prongs of 44 C.F.R. § 206.226(d), as they do not apply to eligible work to repair an element of the Facility that was damaged by the disaster and do not apply uniformly.