Debris Removal from Submerged Land

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1069-DR
ApplicantFlorida Department of Environmental Protection
Appeal TypeSecond
PA ID#000-92072
PW ID#61998,18638,60508,60514
Date Signed1998-10-13T04:00:00
Citation: FEMA-1069-DR-FL; Florida Department of Environmental Protection.

Cross Reference: Preliminary damage assessment; debris removal from submerged land; disaster-related damages

Summary: Following Hurricane Opal in October 1995, DSR 61998 was approved in February 1997 to map the debris, develop removal and disposal guidelines, and develop contract documents and progress reports for approximately 100 miles of total coastline in the amount of $87,949. In July 1997, DSR 18638 was prepared to de-obligate DSR 61998 on the basis that scope of work was for assessing damage. In October 1997, two years after the disaster, DSR 60514 was prepared as Category A to fund removal of debris from a three square mile area near Navarre Beach and Santa Rosa Sound during August through October 1997 in the amount of $408,539. DSR 60514 was determined ineligible due to the lack of response by the State for requests for discussion by FEMA. The January 1998 first appeal of FEMA's determination to not obligate funding for DSRs 61998 argued that hazards were documented in reported accidents involving collisions between vessels and disaster-related debris. Further, the subgrantee indicated that hazardous materials have been removed from marine waters. FEMA's March 1998 denial is based on the scope of work being for damage assessment that is funded under the statutory administrative costs. In February 1998 the subgrantee submitted a second appeal of FEMA's denial of funding for DSR 60514, a supplement to DSR 61998. The subgrantee states that Stafford Act provides for contributions for "the purpose of removing debris or wreckage resulting from a major disaster from publicly or privately owned land and waters." The State's second appeal letter is based on DSR 60514 being prepared for debris removal, not damage assessment. The State also asks that FEMA "reconsider the denial of eligibility of costs for . DSR 61998 and Supplemental DSRs."

Issues: Is DSR 60514 debris removal work eligible?

Findings: No. FEMA regulations allow 6 months from the date of the disaster (October 4, 1995) for debris clearance to which the Grantee may extend the deadline 6 months, for a total of 12 months. The debris removal activities did not begin until 22 months after the disaster.

Rationale:44 CFR 206.204(c)(1).

Appeal Letter

October 13, 1998

Mr. Joseph F. Myers
Governor's Authorized Representative
State of Florida Department of Community Affairs
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399

Dear Mr. Myers:

This letter is in response to your April 27, 1998, submittal of the Florida Department of Environmental Protection's second appeal of Damage Survey Report 60514 under FEMA-1069-DR-FL. The subgrantee is appealing FEMA's determination that the debris removal activities described in DSR 60514 are not eligible for disaster assistance funding.

As explained in the enclosed analysis, I have determined that the prior determination of ineligibility for debris removal is correct. However, the reason for my determination is the delay in the debris removal activities. The applicant began removing debris from Navarre Beach 22 months after the disaster. Title 44 of the Code of Federal Regulations, Section 206.204(c)(1), allows for 6 months from the date of the disaster (October 4, 1995) for debris clearance to which the Grantee may add 6 months, for a total of 12 months. Therefore, the work performed is not eligible for FEMA public assistance funding and the appeal is denied.

Please inform the applicant of my determination. In accordance with the appeal procedure governing appeal decisions made on or after May 8, 1998, my decision constitutes the final decision on this matter. The current appeal procedure was published as a final rule in the Federal Register on April 8, 1998. It amends 44 CFR 206.206.

Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate

Enclosure

cc: John B. Copenhaver
Regional Director
FEMA Region IV

Appeal Analysis

BACKGROUND
As a result of Hurricane Opal, heavy rains, high tides, and winds in October 1995, Damage Survey Report (DSR) 61998 was approved in February 1997 to map the debris, develop removal and disposal guidelines, and develop contract documents and progress reports (Phase I) for $87,949. The coastal area covered ranges from Escambia County to Franklin County, along the Florida Panhandle (100 miles of coastline). The scope of work was considered necessary to address hazards to water-craft, swimmers, divers, and contamination of the coastal waters. On July 21, 1997, however, DSR 18638 was prepared to de-obligate DSR 61998 on the basis that scope of work was for assessing damage which is covered by the administrative expense allowance.

In April 1997, DSR 60508 was prepared to fund Phase 2 which includes mapping debris in a larger area, obtaining permits, and developing contracts, specifications, and bid documents in the amount of $225,324. DSR 60508 was denied because no debris was identified which constituted a health and safety hazard.

In October 1997, two years after the disaster, DSR 60514 was prepared as Category A to fund removal of debris from a three square mile area near Navarre Beach and Santa Rosa Sound (a portion of the coast line described in the DSRs 61998 and 60508) in the amount of $408,539. At the time DSR 60514 was prepared, the work had been performed. DSR 60514 was found ineligible due to the State's lack of response to a request by FEMA for a meeting as documented in a June 1996 letter.

First Appeal
In January 1998, the State of Florida Department of Community Affairs (State) transmitted the subgrantee's first appeal of FEMA's determination to not obligate funding for DSRs 61998 and 60508. The subgrantee stated that DSR 61998 should be eligible because hazards were documented in reported accidents involving collisions between vessels and disaster-related debris. Further, the subgrantee indicated that hazardous materials (i.e., batteries) had been removed from marine waters. The State concurred with the subgrantee and stated that they were "unaware of any threshold of death, injury, or environmental harm" that would make the survey ineligible and that an immediate threat existed at the onset of the disaster declaration and remained outstanding. FEMA's March 1998 denial of the first appeal was based on the scope of work being for damage assessment that is funded under the statutory administrative costs.

Second Appeal
The State transmitted the subgrantee's February 1998 second appeal of FEMA's denial of funding for DSR 60514. The State's second appeal letter is based on DSR 60514 being prepared for debris removal, not damage assessment. Further, the subgrantee states that the Stafford Act provides for contributions for "the purpose of removing debris or wreckage resulting from a major disaster from publicly or privately owned land and waters." The subgrantee also cites FEMA policy FEMA Debris Removal and Disposal Guidelines for State and Local Officials (DR&R 15, December 1994) as indicating eligible damage "may include abandoned sunken boats and other debris that may inhibit navigation." The State concurs with the appeal and suggests that the eligibility of DSR 61998 be considered with the second appeal.

DISCUSSION
The subgrantee is appealing for funding for debris removal that occurred over 22 months after the declared disaster. Title 44 of the Code of Federal Regulations Section 206.204 (c) allows for 6 months from the date of the disaster (October 4, 1995) for debris clearance to which the Grantee may extend the deadline 6 months, for a total of 12 months. The intent of emergency work is to provide quick response to remove threats to health, safety, and property. FEMA regulations require that work be completed within 6 months, or 12 months where extensions are granted by the State, to respond to such threats. Requests for time extension are to be based on extenuating circumstances or unusual project conditions beyond the control of the subgrantee. The State made no requests for time extensions beyond the 12 months. The only known reasons for the delay were the dispute over which state or local agency would take legal responsibility for debris on submerged land and the assessment of the extent of debris. Therefore, the debris removal was performed beyond the permitted deadline for completion and is not eligible for funding.

CONCLUSION
Debris clearance began 22 months after the disaster without justification for the delay. Therefore, debris removal is not eligible and the appeal is denied.
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