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Landfill Leachate Abatement and Collection
Appeal Brief
Appeal Letter
Appeal Analysis
Citation: Appeal Brief; Second Appeal; East Bay Regional Park District; FEMA-1046-DR-CA;
PA #001-91010
Cross -
Reference: DSRs 71422, 97443 and 97444; Debris Removal; Emergency Work; Permanent Repairs; Landfill Leachate Abatement; Maintenance Responsibility
Summary: 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 (District). Resulting damage to the park generally consisted of surface erosion and leachate flowing out of the closed landfill, discharging into the San Francisco Bay. The three above referenced damage survey reports (DSRs) were prepared for a total of $165,279 for debris removal, emergency work and permanent restoration. Upon review, FEMA determined each of the DSRs to be ineligible for funding, because the work was not the legal responsibility of the District. The State submitted three identical first appeals of the above DSRs on September 18, 1996. The State indicated that the District is the legal owner of the property and that the District is held responsible for damages to the Park (including threats to water quality from leachate seepage). The District contends that the California Regional Water Quality Control Board (Board) assessed the responsibility to the District and the previous site landfill operator, Waste Management of Alameda County, Inc. (WMI). On February 14, 1997, the Regional Director denied the first appeal. The Regional Director indicated that the District failed to submit any title documents, transfers, or operation or maintenance agreements that were in force prior to the date of the disaster, establishing the legal responsibility for remedying the leachate spill. On June 13, 1997, the State submitted the second appeal, including a copy of the grant deed dated December 8, 1992, and selected pages of Board Order Number 94-0187 dated December 14, 1994. The District contends that this documentation outlines the District's responsibility for maintenance and operation prior to the disaster, and identifies the District as the property owner.
Issues: Is the subgrantee legally responsible for the restoration of and damages from the old landfill site?
Findings: No. The provided documentation (Order Number 94-0187), which pre-dates the disaster, 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. However, correspondence from the District indicates that WMI has the responsibility for "anything below the surface related to depositing garbage or other wastes including water quality monitoring and any leachate or containment management necessary."
Rationale: In accordance with 44 CFR Section 206.223 (a)(3), to be eligible the subgrantee must be legally responsible for the work proposed by the DSRs. The subgrantee has not sufficiently documented that they are legally responsible to perform the work.
Severe winter storms of 1995 generated more than 150% of seasonal rainfall, causing flooding throughout the San Francisco Bay Area and 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 waste disposal facility reached capacity and was closed in 1980. Closure included a clay and soil cap, improvements to the perimeter confinement levee separating the site from San Francisco Bay, surface drainage improvements, and an approved post-closure monitoring program. In 1990, the East Bay Regional Park District (subgrantee) acquired the 240-acre site (except 40 acres dedicated to the operation of a waste transfer station). The site is continuously monitored by WMI, according to requirements specified by the California Regional Water Quality Control Board (Board) and includes monitoring of leachate elevations and water quality testing in specified wells located around the perimeter of the site. Monitoring reports have been submitted to the Board quarterly by WMI.
Because of the excessive amounts of rainfall, leachate well liquid elevations rose within the Park, resulting in a hydraulic head of sufficient pressure to force leachate through and over the former landfill containment dike. This action resulted in leachate streams that flowed into the San Francisco Bay. Suspected pools of leachate outside of the perimeter confinement levee were observed from March 29, 1995, until April 6, 1995, when actual leachate streams discharging to the bay were observed. The Board was notified within 24 hours of the observed discharge of leachate, and emergency efforts to prevent continued discharge of leachate were initiated by WMI.
FEMA prepared three damage survey reports (DSRs) as a result of the damage. DSR 97443 (category "A") was prepared for $71,681 to pump leachate into Baker tanks, and to scrape and grade the soil. DSR 97444 (category "B") was prepared for $67,842 to import clay to cap the perimeter levee to prevent flow leachate. DSR 71422 (category "G") was prepared for $25,756 to provide permanent repairs to help control contamination of the Bay. The DSRs also included costs for WMI staff to manage the remedial project including project review, management, and surveying. Upon review, FEMA determined that all three DSRs were ineligible and reduced the funding to $0, because the work was not the legal responsibility of the subgrantee. This determination was based on information provided by the subgrantee.
On April 19, 1996, the subgrantee submitted the first appeal to the California Governor's Office of Emergency Services (OES). The basis of the appeal was that the subgrantee is responsible for all work, because it is the legal property owner. The subgrantee contends that although WMI has obligations with respect to the property because of its prior operation as a landfill, as the current owner of the property, it is responsible for maintaining the property. This contention was supported by the Board, which is responsible for environmental issues related to the property. The Board has named the subgrantee as a responsible party relating to the property. On April 11, 1995, the Board sent notification to the subgrantee and WMI that failure to control the leachate could result in penalties of up to $10,000 per day and the Board requested a report be submitted by April 20,1995, detailing the actions taken. The subgrantee responded on April 20, 1995. In that letter, Mr. Burger, Stewardship Manager of the District, restated discussions with WMI staff relating to the Board's notification letter, which stated, "the District's long-standing position (as per consultation with District Counsel) that the Park District would be responsible for compliance issues associated with developing the surface of the site into a park, but WMI would continue to be responsible for anything below the surface related to depositing garbage or other wastes including water quality monitoring and any leachate or containment management necessary."
The State submitted the first appeal to the Regional Director on September 18, 1996. The State supported the subgrantee's position of its responsibility, stating that "although the subgrantee is legally responsible for the repairs, they enacted an agreement with WMI that outlines the work to be performed by each agency." The District and WMI took this action to remedy both the immediate and long-term problems caused by the landfill erosion. The Storm Damage Emergency Response and Repair Agreement (Agreement) between the subgrantee and WMI was signed on June 30, 1995, (post disaster). The subgrantee then passed the appropriate resolutions to apply for Federal disaster assistance from FEMA. It agreed to reimburse WMI for all remedial work it performed at the property "to the extent that it received funding for the work from FEMA." To be eligible for FEMA funding, a subgrantee's legal obligations on or before the date of the disaster must have been established. Accordingly, any legal obligations arising from post-disaster orders, legal actions or agreements have no relevance in determining the subgrantee's legal responsibility. The Regional Director denied the first appeal on February 14, 1997, because the subgrantee is not legally responsible for the work, as required by Title 44 of the Code of Federal Regulations (44 CFR) section 206.223 (a)(3).
On March 26, 1997, the subgrantee submitted a second appeal to OES. The subgrantee acknowledged that post-disaster agreements are not relevant and perhaps clouded the issue. Additionally, they submitted selected pages of Order No 94-0187 dated December 14, 1994, from the Board that identifies the subgrantee as owner of the park. The Order also states that the owner has "continuing responsibility" for "any problems" that might arise on the property. OES submitted the second appeal on June 13, 1997, including a copy of a grant deed dated December 8, 1982, which transferred ownership to the subgrantee.
DISCUSSION:
The issue in the second appeal is whether or not the District had the legal responsibility, at the time of the disaster, for repairs relating to the containment of leachate in the Park, a former landfill site.
The subgrantee has demonstrated that they are the legal owner of the property. FEMA does not dispute the issue of ownership. Deeds and other documentation presented clearly show that the subgrantee owns the park. However, since the park was previously a landfill, the landfill operator retained certain legal responsibilities. The responsibilities of the landfill operator and the subgrantee are not clearly identified. The Regional Director indicated in the February 14, 1997, first appeal response that additional documentation was required to support the position taken by the subgrantee. He specifically requested title documents or transfer (which were submitted), and operation or maintenance agreements that were in force prior to the date of the disaster. The latter was requested to demonstrate that the subgrantee was responsible for remedying the leachate spill at the date of the disaster. No operation or maintenance agreements were submitted.
The subgrantee submitted selected pages of Order No 94-187 from the Board that identifies waste discharge requirements for the District and WMI.
Paragraph 2 of the Order states, "Both parties, the Oyster Bay Regional Park and Waste Management of Alameda County, (hereinafter referred to collectively as the discharger) are responsible for any corrective action measures."
Paragraph 3 (purpose of the order update) states, "Additionally, this Order requires the discharger to develop and implement an acceptable leachate management plan. The implementation of such a plevff site."
Paragraph 13 of the Order identifies the subgrantee as responsible for future problems. "This Board considers the property owner to have a continuing responsibility for correcting any problems, which may arise in the future as a result of this waste discharge or related operations."
The Order establishes joint responsibility of the District, as owner of the Park, and WMI as the responsible party for the prevention of leachate migration from the site, as spelled out in Paragraph 3 and the requirement of a leachate-monitoring program. The April 20, 1995, letter from the District to the Board indicates the District's long standing position that WMI is responsible for management issues below the surface, such as leachate containment. In addition, the June 30, 1995, post-disaster agreement between the District and WMI indicates that the District will reimburse WMI for remedial work if it receives funding from FEMA. This substantiates WMI as the legally responsible party for the repairs.
CONCLUSION:
Based on review of the information submitted and consultation with FEMA's Office of Chief Counsel, we have determined that the District has not demonstrated that it had the legal responsibility for the leachate repairs. Clearly the District owns the site, but WMI was contracted to operate the landfill prior to closure in 1980 and continues to monitor its closed condition. The District did not provide any pre-disaster documentation that establishes its legal responsibility for maintenance of the landfill site, including leachate management. In fact, District correspondence (April 20, 1995, letter) and an agreement which post dated the disaster suggest that WMI has historically been the legally responsible party for leachate maintenance. Therefore, the appeal for DSRs 71422, 97443 and 97444 is denied, pursuant to 44 CFR 206.223 (a)(3), which states, "to be eligible for financial assistance, an item of work must be the legal responsibility of an eligible applicant."
Appeal Brief
| Desastre | FEMA-1046-DR |
| Applicant | East Bay Regional Park District |
| Appeal Type | Second |
| PA ID# | 001-91010 |
| PW ID# | 71422, 97443 and 97444 |
| Date Signed | 1997-12-19T05:00:00 |
PA #001-91010
Cross -
Reference: DSRs 71422, 97443 and 97444; Debris Removal; Emergency Work; Permanent Repairs; Landfill Leachate Abatement; Maintenance Responsibility
Summary: 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 (District). Resulting damage to the park generally consisted of surface erosion and leachate flowing out of the closed landfill, discharging into the San Francisco Bay. The three above referenced damage survey reports (DSRs) were prepared for a total of $165,279 for debris removal, emergency work and permanent restoration. Upon review, FEMA determined each of the DSRs to be ineligible for funding, because the work was not the legal responsibility of the District. The State submitted three identical first appeals of the above DSRs on September 18, 1996. The State indicated that the District is the legal owner of the property and that the District is held responsible for damages to the Park (including threats to water quality from leachate seepage). The District contends that the California Regional Water Quality Control Board (Board) assessed the responsibility to the District and the previous site landfill operator, Waste Management of Alameda County, Inc. (WMI). On February 14, 1997, the Regional Director denied the first appeal. The Regional Director indicated that the District failed to submit any title documents, transfers, or operation or maintenance agreements that were in force prior to the date of the disaster, establishing the legal responsibility for remedying the leachate spill. On June 13, 1997, the State submitted the second appeal, including a copy of the grant deed dated December 8, 1992, and selected pages of Board Order Number 94-0187 dated December 14, 1994. The District contends that this documentation outlines the District's responsibility for maintenance and operation prior to the disaster, and identifies the District as the property owner.
Issues: Is the subgrantee legally responsible for the restoration of and damages from the old landfill site?
Findings: No. The provided documentation (Order Number 94-0187), which pre-dates the disaster, 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. However, correspondence from the District indicates that WMI has the responsibility for "anything below the surface related to depositing garbage or other wastes including water quality monitoring and any leachate or containment management necessary."
Rationale: In accordance with 44 CFR Section 206.223 (a)(3), to be eligible the subgrantee must be legally responsible for the work proposed by the DSRs. The subgrantee has not sufficiently documented that they are legally responsible to perform the work.
Appeal Letter
December 19, 1997
Mr. D. A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
Post Office Box 239013
Sacramento, California 95823
Dear Mr. Christian:
This is in response to your letter dated June 13, 1997, to the Federal Emergency Management Agency (FEMA). With that letter, you forwarded a second appeal of damage survey reports 71422, 97443 and 97444 totaling $165,279 under FEMA-1046-DR-CA, on behalf of the East Bay Regional Park District (District). The subgrantee is requesting funding for leachate collection and abatement and damage repairs for Oyster Bay Regional Park.
We have carefully reviewed the information submitted with the second appeal and have determined that the District has not sufficiently demonstrated it was legally responsible for the repairs and restoration to the old landfill, now Oyster Bay Regional Park. The documentation submitted does not support its legal responsibility. Therefore, I am denying the second appeal, as further explained in the enclosed appeal analysis.
Please inform the applicant of my determination. The applicant may submit a third appeal to the Director of FEMA. This appeal must be submitted through your office and the Regional Director within 60 days of receipt of this determination.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Enclosure
cc: Ray Williams
Acting Regional Director
FEMA Region IX
Mr. D. A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
Post Office Box 239013
Sacramento, California 95823
Dear Mr. Christian:
This is in response to your letter dated June 13, 1997, to the Federal Emergency Management Agency (FEMA). With that letter, you forwarded a second appeal of damage survey reports 71422, 97443 and 97444 totaling $165,279 under FEMA-1046-DR-CA, on behalf of the East Bay Regional Park District (District). The subgrantee is requesting funding for leachate collection and abatement and damage repairs for Oyster Bay Regional Park.
We have carefully reviewed the information submitted with the second appeal and have determined that the District has not sufficiently demonstrated it was legally responsible for the repairs and restoration to the old landfill, now Oyster Bay Regional Park. The documentation submitted does not support its legal responsibility. Therefore, I am denying the second appeal, as further explained in the enclosed appeal analysis.
Please inform the applicant of my determination. The applicant may submit a third appeal to the Director of FEMA. This appeal must be submitted through your office and the Regional Director within 60 days of receipt of this determination.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Enclosure
cc: Ray Williams
Acting Regional Director
FEMA Region IX
Appeal Analysis
BACKGROUND:Severe winter storms of 1995 generated more than 150% of seasonal rainfall, causing flooding throughout the San Francisco Bay Area and 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 waste disposal facility reached capacity and was closed in 1980. Closure included a clay and soil cap, improvements to the perimeter confinement levee separating the site from San Francisco Bay, surface drainage improvements, and an approved post-closure monitoring program. In 1990, the East Bay Regional Park District (subgrantee) acquired the 240-acre site (except 40 acres dedicated to the operation of a waste transfer station). The site is continuously monitored by WMI, according to requirements specified by the California Regional Water Quality Control Board (Board) and includes monitoring of leachate elevations and water quality testing in specified wells located around the perimeter of the site. Monitoring reports have been submitted to the Board quarterly by WMI.
Because of the excessive amounts of rainfall, leachate well liquid elevations rose within the Park, resulting in a hydraulic head of sufficient pressure to force leachate through and over the former landfill containment dike. This action resulted in leachate streams that flowed into the San Francisco Bay. Suspected pools of leachate outside of the perimeter confinement levee were observed from March 29, 1995, until April 6, 1995, when actual leachate streams discharging to the bay were observed. The Board was notified within 24 hours of the observed discharge of leachate, and emergency efforts to prevent continued discharge of leachate were initiated by WMI.
FEMA prepared three damage survey reports (DSRs) as a result of the damage. DSR 97443 (category "A") was prepared for $71,681 to pump leachate into Baker tanks, and to scrape and grade the soil. DSR 97444 (category "B") was prepared for $67,842 to import clay to cap the perimeter levee to prevent flow leachate. DSR 71422 (category "G") was prepared for $25,756 to provide permanent repairs to help control contamination of the Bay. The DSRs also included costs for WMI staff to manage the remedial project including project review, management, and surveying. Upon review, FEMA determined that all three DSRs were ineligible and reduced the funding to $0, because the work was not the legal responsibility of the subgrantee. This determination was based on information provided by the subgrantee.
On April 19, 1996, the subgrantee submitted the first appeal to the California Governor's Office of Emergency Services (OES). The basis of the appeal was that the subgrantee is responsible for all work, because it is the legal property owner. The subgrantee contends that although WMI has obligations with respect to the property because of its prior operation as a landfill, as the current owner of the property, it is responsible for maintaining the property. This contention was supported by the Board, which is responsible for environmental issues related to the property. The Board has named the subgrantee as a responsible party relating to the property. On April 11, 1995, the Board sent notification to the subgrantee and WMI that failure to control the leachate could result in penalties of up to $10,000 per day and the Board requested a report be submitted by April 20,1995, detailing the actions taken. The subgrantee responded on April 20, 1995. In that letter, Mr. Burger, Stewardship Manager of the District, restated discussions with WMI staff relating to the Board's notification letter, which stated, "the District's long-standing position (as per consultation with District Counsel) that the Park District would be responsible for compliance issues associated with developing the surface of the site into a park, but WMI would continue to be responsible for anything below the surface related to depositing garbage or other wastes including water quality monitoring and any leachate or containment management necessary."
The State submitted the first appeal to the Regional Director on September 18, 1996. The State supported the subgrantee's position of its responsibility, stating that "although the subgrantee is legally responsible for the repairs, they enacted an agreement with WMI that outlines the work to be performed by each agency." The District and WMI took this action to remedy both the immediate and long-term problems caused by the landfill erosion. The Storm Damage Emergency Response and Repair Agreement (Agreement) between the subgrantee and WMI was signed on June 30, 1995, (post disaster). The subgrantee then passed the appropriate resolutions to apply for Federal disaster assistance from FEMA. It agreed to reimburse WMI for all remedial work it performed at the property "to the extent that it received funding for the work from FEMA." To be eligible for FEMA funding, a subgrantee's legal obligations on or before the date of the disaster must have been established. Accordingly, any legal obligations arising from post-disaster orders, legal actions or agreements have no relevance in determining the subgrantee's legal responsibility. The Regional Director denied the first appeal on February 14, 1997, because the subgrantee is not legally responsible for the work, as required by Title 44 of the Code of Federal Regulations (44 CFR) section 206.223 (a)(3).
On March 26, 1997, the subgrantee submitted a second appeal to OES. The subgrantee acknowledged that post-disaster agreements are not relevant and perhaps clouded the issue. Additionally, they submitted selected pages of Order No 94-0187 dated December 14, 1994, from the Board that identifies the subgrantee as owner of the park. The Order also states that the owner has "continuing responsibility" for "any problems" that might arise on the property. OES submitted the second appeal on June 13, 1997, including a copy of a grant deed dated December 8, 1982, which transferred ownership to the subgrantee.
DISCUSSION:
The issue in the second appeal is whether or not the District had the legal responsibility, at the time of the disaster, for repairs relating to the containment of leachate in the Park, a former landfill site.
The subgrantee has demonstrated that they are the legal owner of the property. FEMA does not dispute the issue of ownership. Deeds and other documentation presented clearly show that the subgrantee owns the park. However, since the park was previously a landfill, the landfill operator retained certain legal responsibilities. The responsibilities of the landfill operator and the subgrantee are not clearly identified. The Regional Director indicated in the February 14, 1997, first appeal response that additional documentation was required to support the position taken by the subgrantee. He specifically requested title documents or transfer (which were submitted), and operation or maintenance agreements that were in force prior to the date of the disaster. The latter was requested to demonstrate that the subgrantee was responsible for remedying the leachate spill at the date of the disaster. No operation or maintenance agreements were submitted.
The subgrantee submitted selected pages of Order No 94-187 from the Board that identifies waste discharge requirements for the District and WMI.
Paragraph 2 of the Order states, "Both parties, the Oyster Bay Regional Park and Waste Management of Alameda County, (hereinafter referred to collectively as the discharger) are responsible for any corrective action measures."
Paragraph 3 (purpose of the order update) states, "Additionally, this Order requires the discharger to develop and implement an acceptable leachate management plan. The implementation of such a plevff site."
Paragraph 13 of the Order identifies the subgrantee as responsible for future problems. "This Board considers the property owner to have a continuing responsibility for correcting any problems, which may arise in the future as a result of this waste discharge or related operations."
The Order establishes joint responsibility of the District, as owner of the Park, and WMI as the responsible party for the prevention of leachate migration from the site, as spelled out in Paragraph 3 and the requirement of a leachate-monitoring program. The April 20, 1995, letter from the District to the Board indicates the District's long standing position that WMI is responsible for management issues below the surface, such as leachate containment. In addition, the June 30, 1995, post-disaster agreement between the District and WMI indicates that the District will reimburse WMI for remedial work if it receives funding from FEMA. This substantiates WMI as the legally responsible party for the repairs.
CONCLUSION:
Based on review of the information submitted and consultation with FEMA's Office of Chief Counsel, we have determined that the District has not demonstrated that it had the legal responsibility for the leachate repairs. Clearly the District owns the site, but WMI was contracted to operate the landfill prior to closure in 1980 and continues to monitor its closed condition. The District did not provide any pre-disaster documentation that establishes its legal responsibility for maintenance of the landfill site, including leachate management. In fact, District correspondence (April 20, 1995, letter) and an agreement which post dated the disaster suggest that WMI has historically been the legally responsible party for leachate maintenance. Therefore, the appeal for DSRs 71422, 97443 and 97444 is denied, pursuant to 44 CFR 206.223 (a)(3), which states, "to be eligible for financial assistance, an item of work must be the legal responsibility of an eligible applicant."