Oyster Bay Regional Park
|Applicant||East Bay Regional Park District|
PURPOSE: To obtain signature on a letter responding to the East Bay Regional Park District's third appeal.
DISCUSSION: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 (EBRPD), resulting in surface erosion and leachate flowing out of the closed landfill, discharging into the San Francisco Bay. FEMA prepared three ineligible DSRs for $165,279 for leachate collection, abatement and permanent restoration. FEMA determined each of the DSRs to be ineligible for funding, because the work was not the legal responsibility of the EBPRD but that of the previous site landfill operator, Waste Management of Alameda County, Inc. (WMI). In the first appeal, the EBRPD contended that the California Regional Water Quality Control Board assessed the responsibility to the EBRPD and WMI. FEMA denied the first appeal because EBRPD failed to submit any documents that were in force prior to the date of the disaster, which established the legal responsibility for remedying the leachate spill. In the second appeal EBRPD supplied selected pages of Board Order Number 94-0187, and contended that the document outlined EBRPD's responsibility for maintenance and operation prior to the disaster. The Executive Associate Director denied the second appeal because the provided documentation 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. In the third appeal EBRPD repeats the same arguments and attached a copy of a lawsuit WMI has filed against them because WMI has funded all remedial measures. To date the applicant has not incurred any disaster-related costs. The applicant is not responsible for the work performed as a result of the disaster and is therefore not eligible to receive federal disaster assistance for these projects.
RECOMMENDED ACTION: Sign the letter denying the subgrantee's third appeal.
June 7, 1999
Mr. D. A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
Post Office Box 239013
Sacramento, California 95823
Re: Third Appeal - East Bay Regional Park District, Oyster Bay Regional Park,
FEMA-1046-DR-CA, DSRs 71422, 97443, & 97444
Dear Mr. Christian:
This is in response to your April 17, 1998, letter forwarding the referenced appeal to the Federal Emergency Management Agency (FEMA). FEMA prepared three ineligible Damage Survey Reports (DSRs) totaling $165,279 for leachate collection and abatement from the Oyster Bay Regional Park (Park), the former site of a solid waste disposal facility operated by Waste Management of Alameda County, Inc. (WMI). The subgrantee, East Bay Regional Park District (EBRPD), claims expenditures of $397,685.87 for debris removal, emergency work and permanent repairs within the Park. However, the documentation submitted with the DSRs, including purchase orders, invoices, and billing statements, identify WMI as having incurred these costs.
In the third appeal, EBRPD restates arguments from the first and second appeals that, as the legal owner of the property it is legally responsible for leachate collection and abatement. The applicant states that the California Regional Water Quality Control Board's (Board's) Order Number 94-0187, dated December 14, 1994, established that, collectively (as discharger), EBRPD and WMI are responsible for corrective action measures taken at the site. The Board also determined that as property owner, EBRPD has continuing responsibility for correcting any problems which arise from waste discharge or related operations.
FEMA has previously addressed this document in the second appeal analysis (see enclosure) and accurately reached the conclusion that EBRPD's April 20, 1995, letter to the Board demonstrated EBRPD's long-standing position that WMI was responsible for leachate management, collection, containment, and abatement at the site. Furthermore, WMI has performed all remedial work at the site and incurred all costs; thereby implying the liability for waste impacts at a closed landfill as staying with the waste generator. WMI and EBRPD signed a post-disaster agreement wherein EBRPD agreed to reimburse WMI for expenses if EBRPD received funds from FEMA. Pursuant to regulations implementing the Robert T. Stafford Disaster Relief and Emergency Assistance Act (P.L.93-288 as amended) at 44 CFR 206.223 (a) (3), FEMA may not reimburse an applicant for work 1) that is not the legal responsibility of an eligible applicant and 2) for which the eligible applicant has not incurred any eligible costs.
The applicant disputes FEMA's opinion that WMI is legally responsible for the repair work, and submitted a copy of a lawsuit WMI has filed against EBRPD with the third appeal. Among other complaints, WMI asserts that EBRPD is responsible for all disaster related costs, including leachate containment and abatement. This case is scheduled to go to trial in November 1999.
I have carefully reviewed the information submitted with the third appeal and have determined that the District has not sufficiently demonstrated it was legally responsible for the repairs and restoration to Park. The documentation submitted does not provide sufficient justification to reverse the Executive Associate Director's determination. Therefore, I am denying the third appeal. Please inform the applicant of my decision, which constitutes the final level of appeal in accordance with 44 CFR 206.206(e).
James L. Witt
cc: Martha Z. Whetstone
FEMA Region IX