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Tapo Canyon Water Treatment Plant

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1008-DR
ApplicantCity of Simi Valley
Appeal TypeSecond
PA ID#111-72016
PW ID#DSRs 15379 and 36700
Date Signed2008-04-11T04:00:00
Citation: FEMA-1008-DR-CA, City of Simi Valley, Damage Survey Reports (DSRs) 15379 and 36700, Tapo Canyon Water Treatment Plant

Cross-reference: Time Limitations

Summary: In January 1994, the Northridge Earthquake damaged the Tapo Canyon Water Treatment Plant (TCWTP). A total of $509,087 was obligated for this project. In 2004, the City of Simi Valley (Applicant) was granted a time extension to December 31, 2006, to complete construction of its project. On October 19, 2006, the Applicant requested a time extension to December 31, 2007, to complete its impact analysis, modify design and specifications, secure permits, and award a construction contract. FEMA denied the request on December 1, 2006, because the Applicant had not made substantial progress toward completing its project. The Applicant submitted its first appeal on February 27, 2007, stating that it had continued efforts to complete its project and it requested an additional 16 months, to April 2009, to complete construction of its project. FEMA denied the first appeal on September 21, 2007, stating that there had been little, if any, sustained activity or substantive progress toward project completion. The Applicant submitted its second appeal on December 6, 2007. It provided a timeline from March 9, 2007, the date of the redesign report, to November 27, 2007, the date of the notice of award for the construction contract. As an extenuating circumstance causing delays, the Applicant cited the development of a Salts (boron, chloride, sulfate, and total dissolved solids) Total Maximum Daily Load (TMDL). The EPA was required to develop a Salts TMDL (among others) as a result of a lawsuit settled in 1999. The Applicant said that it had postponed constructing the TCWTP “because of the uncertainty during the Salts TMDL development period.” The Salts TMDL was approved in October 2007. Also in October 2007, the State granted Ventura County $25 million for its water projects, of which $1.5 million was intended for the TCWTP. Because nothing in the EPA settlement and no subsequent action from the California Regional Water Quality Control Board directly impacted the Applicant’s construction project, there is no extenuating circumstance beyond the Applicant’s control that justifies the time extension.
Issues: Has the Applicant provided justification for delays in project performance that warrant a time extension?

Findings: No.
Rationale: 44 CFR §206.204(d)(2)

Appeal Letter

April 11, 2008

Paul Jacks
Governor’s Authorized Representative
Governor’s Office of Emergency Services
Response and Recovery Division
3650 Schriever Avenue
Mather, CA 95655

Re: Second Appeal—City of Simi Valley, PA ID 111-72016, Tapo Canyon Water Treatment Plant, FEMA-1008-DR-CA, Damage Survey Reports (DSRs) 15379 and 36700
Dear Mr. Jacks:

This letter is in response to the referenced second appeal forwarded by your office on January 28, 2008. The City of Simi Valley (Applicant) is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of its request for time extension to April 2009 to complete construction of the Tapo Canyon Water Treatment Plant (TCWTP), which was damaged by the Northridge Earthquake in January 1994.
On April 22, 2004, the Applicant was granted a time extension to December 31, 2006, to complete construction of its project. On October 19, 2006, the Applicant requested a time extension to December 31, 2007, to complete its impact analysis, modify design and specifications, secure permits, and award a construction contract. FEMA denied the Applicant’s request on December 1, 2006, because the Applicant had not made substantial progress toward completing its project in the previous three-year period.
The Applicant submitted its first appeal on February 27, 2007, stating that it had continued efforts to complete its project during the three-year period. It also requested an additional 16 months, to April 2009, to complete construction of its project. FEMA denied the first appeal on September 21, 2007, stating that “the record appears to reflect that there was little, if any, sustained activity or substantive progress from the time plans were completed or since the Concerns [regarding quality of discharges] arose.”
The Applicant submitted its second appeal on December 6, 2007. It provided a timeline from March 9, 2007, the date of the redesign report, to November 27, 2007, the date of the notice of award for the construction contract. As an extenuating circumstance causing delays, the Applicant cited the Consent Decree between Heal the Bay et. al. and the U.S. Environmental
Protection Agency (EPA) (C98 4825, 1999), which required the development of a Salts (boron, chloride, sulfate, and total dissolved solids (TDS)) Total Maximum Daily Load (TMDL). The Applicant said that it had postponed constructing the TCWTP “because of the uncertainty during the Salts TMDL development period.” The Salts TMDL was adopted in October 2007. Also in October 2007, the State granted Ventura County $25 million for its water projects, of which $1.5 million was intended for the TCWTP.

The Consent Decree cited by the Applicant was the result of a settled lawsuit between Heal the Bay and a coalition of environmental groups, and the EPA. The Consent Decree required that the EPA develop enforceable plans to clean more than 150 polluted water bodies in Los Angeles and Ventura County. The California Regional Water Quality Control Board (RWQCB) agreed to develop TMDLs for many of the polluted waters and the EPA guaranteed that TMDLs for all identified pollutants and polluted water bodies would be established in the 13 years after the settlement. The TMDL process, in part, identifies needed pollution reductions.
The development of a Salts TMDL had no direct impact on the Applicant’s construction project. Nothing in the Consent Decree, and no action by the California RWQCB, caused the Applicant to delay construction. The Applicant has not shown that delays in project completion were caused by extenuating circumstances beyond its control. For this reason, the appeal is denied. No funding may be provided for projects that are not complete before the latest approved completion date, in accordance with 44 CFR §206.204(d)(2). In this case, that date was December 31, 2006.

Please inform the Applicant of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR §206.206.

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

cc: Nancy Ward
Regional Administrator
FEMA Region IX