Result of Declared Incident

Appeal Brief

Summary Paragraph

From September 4, 2020, through November 17, 2020, wildfires caused damage in California. Fresno County (Applicant) claimed damage to its Shaver Lake Wastewater Treatment Facility (Facility). FEMA created Grants Manager Project 172690 to document the Applicant’s claim. The Applicant stated the Facility was without power for over three weeks due to a power outage that was necessary because of the fire and the Facility’s aeration pumps stopped functioning and caused sludge to accumulate in Pond 1, an aeration pond. FEMA issued a Determination Memorandum which partially approved the Applicant’s project and concluded the Applicant did not verify how much of the current sludge resulted from the disaster and the work for Pond 2 was ineligible because the Applicant had not demonstrated the claimed damage to Pond 1 was eligible. The Applicant appealed FEMA’s denial and stated that prior to the disaster, Pond 1 did not require the removal of sludge and because of the power outage, the pumps did not function, which allowed sludge to be deposited. The Applicant stated that the removal of sludge from Pond 1 was not a routine maintenance activity and claimed that all sludge that was currently accumulated at the bottom of Pond 1 was from the disaster. The FEMA Region 9 Regional Administrator denied the appeal finding among other things that the Applicant was not able to quantify the damage and did not separate pre-existing damage from disaster related damage. The Applicant submitted a second appeal, expresses its belief that the first appeal decision demonstrates a misunderstanding of how aeration ponds work and reiterates its prior position that the routine removal of sludge is not necessary.

Authorities

• Stafford Act § 406 (a)(1)(A).
• 44 C.F.R. § 206.223(a)(1); 206.226(a).
• PAPPG, at 51-52, 63-64.

Headnotes

• To be eligible for PA funding, work must be required as a result of the disaster, and the applicant must demonstrate that the damage was directly caused by the incident. 
  • The Applicant did not demonstrate that the Facility was unable to treat wastewater within acceptable water quality ranges following the disaster because the effluent testing does not demonstrate that the levels measured were out of acceptable ranges. Further, the scope of work proposed by the Applicant includes work that would change the predisaster design of the Facility by making alterations to Pond 1 and Pond 2 that exceeds the predisaster size and capacity.

Conclusion

The Applicant has not demonstrated that the requested work is required as a result of the disaster. Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

From September 4, 2020, through November 17, 2020, wildfires caused damage in California.[1] Fresno County (Applicant) claimed damage to its Shaver Lake Wastewater Treatment Facility (Facility). FEMA created Grants Manager Project 172690 to document the Applicant’s claim. The Applicant stated the Facility was without power for more than three weeks due to a power outage that was necessary because of the fire. In the project, FEMA noted that because of the power outage, the Facility’s aeration pumps stopped functioning and caused sludge to accumulate in Pond 1, an aeration pond.[2] FEMA also noted that the Applicant stated after power was restored, the level of sludge in Pond 1 did not decrease and the pond no longer met water quality requirements. 

The Applicant requested $1,166,746.00 to remove sludge from Pond 1, which it stated required it to: (1) dewater Pond 1, remove and haul the sludge to a landfill, and install liners and baffle walls; (2) use Pond 2 for temporary water treatment during the time it was performing the work on Pond 1 (as that pond would not be able to function as an aeration pond during that time), which required alterations to Pond 2 such as increasing the depth and capacity of the pond; and (3) relocate aerators from Pond 2 back to Pond 1. The Applicant also requested $140,790.59 for the repair/replacement of disaster-damaged items including fencing, a gate, signs, a roof, and monitoring wells. 

FEMA issued three Requests for Information (RFI) seeking information regarding the pre-disaster condition of the Facility, evidence of the lack of water quality compliance for the Facility, and pre- and post-disaster effluent discharge records.[3] Additionally, FEMA requested information about the methods of repair, whether Pond 1 had a liner before the disaster, and copies of any engineering analyses.

In response to the RFIs, the Applicant explained that due to mandatory evacuation orders, staff were not able to operate and maintain the backup generators that would have powered the aeration pumps after the power was turned off. The Applicant clarified that predisaster maintenance records were not available for the routine pumping or cleaning of the ponds, ponds were pumped when necessary prior to the disaster, and the Applicant was not sure if Pond 1 was ever completely emptied of sludge. The Applicant confirmed that it was not issued a citation related to the water quality compliance requirements after the disaster. Regarding the effluent readings, the Applicant explained that effluent readings are only required at the end of the treatment process and were not taken from Pond 1, either before or after the disaster. Also, the Applicant stated that it was not possible to determine the amount of sludge that entered the plant, but that the amount that settled at the bottom of Pond 1 increased to such an extent that sludge started to push into pond 5A, causing four feet of solids to settle in Pond 5A.

FEMA issued a Determination Memorandum on February 14, 2023, which partially approved the Applicant’s project, approving $140,790.59 for repairs to the disaster-damaged items (i.e., fencing, gate, etc.). FEMA denied $1,166,746.00 for the requested repairs to Pond 1 and alterations to Pond 2. Related to Pond 1, FEMA found that the Applicant (1) did not document the predisaster condition of Pond 1 due to the lack of maintenance records; (2) could not document Pond 1 was cleaned prior to the disaster; (3) could not document it had a liner prior to the disaster; and (4) did not verify how much of the current sludge resulted from the disaster. Therefore, FEMA stated the Applicant did not demonstrate that the presence of sludge was the direct result of the declared event. Further, FEMA concluded the construction of a temporary facility for Pond 2 was ineligible because the Applicant had not demonstrated the claimed damage to Pond 1 was disaster-related and additionally, the work would constitute improvements to Pond 2 beyond what existed prior to the disaster. 

First Appeal

In a letter dated April 12, 2023, the Applicant appealed FEMA’s denial of $1,166,746.00. The Applicant stated that prior to the disaster, Pond 1 did not require the removal of sludge because when the treatment process operated correctly, sludge did not build up and therefore, no removal was necessary. The Applicant contended that because of the power outage, the pumps did not function, which allowed sludge to be deposited. The Applicant stated that the removal of sludge from Pond 1 was not a routine maintenance activity, and that was why the Applicant did not record the level of sludge in Pond 1 prior to the event. The Applicant claimed that all sludge that was currently accumulated at the bottom of Pond 1 was from the disaster. Also, the Applicant stated that Pond 1 was not cleaned because it was too difficult to clean the pond of sludge without causing a disruption to the treatment process.

In a letter dated May 30, 2023, the California Governor’s Office of Emergency Services (Recipient) forwarded the appeal to FEMA, reiterating the Applicant’s arguments and recommending approval. The Recipient clarified that within a few days of the start of the disaster, the utility company cut power to the town, including the Facility, as a safety measure. During firefighting efforts, the Facility’s staff were barred from approaching the Facility. Once access was permitted, the generators were activated on September 22, 2020. With the appeal, the Recipient provided a United States Environmental Protection Agency (EPA) Wastewater Treatment Fact Sheet that documented water treatment standards, including expected effluent ranges. 

In a letter dated August 3, 2023, the FEMA Region 9 Regional Administrator denied the appeal finding: (1) the Applicant conceded the power outage exacerbated a pre-existing issue of sludge buildup in Pond 1; (2) the Applicant was not able to quantify the damage and did not separate pre-existing damage from disaster-related damage; (3) the effluence readings were not sufficient to quantify the purported disaster-caused damages; and (4) the documentation provided by the Applicant indicated aeration ponds required routine maintenance and inspection, which the Applicant did not perform prior to the disaster. Therefore, FEMA found the requested work related to Pond 1 ineligible. FEMA consequently found the work to Pond 2 ineligible as well.[4] 

Second Appeal

In a letter dated October 3, 2023, the Applicant submitted a second appeal to the Recipient. The Applicant expresses its belief that the first appeal decision demonstrates a misunderstanding of how aeration ponds work. The Applicant reiterates its prior position that the routine removal of sludge is not necessary. With the appeal, the Applicant provides invoices for prior removal of sludge at the Facility.

In a letter dated November 28, 2023, the Recipient supports the Applicant’s appeal, reiterating the Applicant’s second appeal statements. The Recipient adds that the Applicant provided documentation, including effluent testing records, that demonstrates the Facility met water quality requirements immediately prior to the disaster, but afterwards, the water quality levels no longer met acceptable levels. The Recipient referenced a statement from an operator at the Facility who states he witnessed the sludge settling in Pond 1 as a direct result of the loss of power.[5]

Discussion

FEMA has the authority to provide assistance for the repair, restoration, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster based on pre-disaster design and function and in conformity with current applicable codes, specifications, and standards.[6] To be eligible for PA funding, work must be required as a result of the disaster, and the applicant must demonstrate that the damage was directly caused by the incident.[7] When necessary to validate damage, the Applicant may be required to provide documentation supporting the predisaster condition of the facility (e.g., facility maintenance records, inspection/safety reports).[8] If a facility was functioning prior to the disaster and the disaster caused damage that rendered the facility non-functional, the facility may be eligible provided the pre-disaster condition was not a significant contributing factor in the cause of the failure.[9] It is the applicant’s responsibility to provide documentation to substantiate its claim as eligible and to clearly explain how those records support its appeal.[10]

The Applicant has not provided documentation to demonstrate the amount of sludge present in Pond 1 prior to the disaster or the amount present after the disaster, to demonstrate an increase occurred as a result of the disaster. In response to FEMA requesting documentation of the predisaster condition of the Facility to validate damage, the Applicant clarified that predisaster maintenance records were not available and it was not sure if Pond 1 was ever completely emptied of sludge. 

Additionally, the Applicant has not established that the purported increase of sludge resulting from the disaster impacted the function of the Facility such that it requires the requested work. The Applicant provides documentation that demonstrates the effluent level returned to a normal range after power was restored to the Facility via generator on September 22, 2020. The Applicant’s effluent testing summary demonstrates that as of September 23, 2020, the effluent reached a level as high as 100 mg/l.[11] However, by November 3, 2020, the level decreased to 42 mg/l and by December 1, 2020, the level was 30 mg/l.[12] According to the EPA Wastewater Treatment Fact Sheet provided by the Recipient, effluent levels can range from 20 to 60 mg/l.[13]Therefore, the Applicant did not demonstrate that the Facility was unable to treat wastewater within acceptable water quality ranges following the disaster because the effluent testing does not demonstrate that the levels measured were out of acceptable ranges. Further, the scope of work proposed by the Applicant includes work that would change the predisaster design of the Facility by making alterations to Pond 1 and Pond 2 that exceeds the predisaster size and capacity.[14] 

Based on the above, the Applicant did not demonstrate that the work, including the removal of sludge from Pond 1 or the consequential improvements to Pond 2, is required as a result of the disaster. 

Conclusion

The Applicant has not demonstrated that the requested work is required as a result of the disaster. Therefore, this appeal is denied.