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Second Appeal Analysis
PA ID# 061-00000; Municipality of Guaynabo
PW ID# 15705; Pressure Wash Amelia Ward Sewer System
Hurricane Georges passed over Puerto Rico on September 21, 1998, damaging infrastructure throughout much of the island. In accordance with the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5121, et seq., FEMA-1247-DR-PR was declared on September 24, 1998. All 78 municipalities were eligible for federal disaster assistance under the Federal Emergency Management Agencys (FEMAs) Individual Assistance and Public Assistance Programs.
The hurricane caused electrical power outages throughout most of the island, including storm/sewer system pumps in Amelia Ward. The Puerto Rico Electric and Power Authority restored the power to the three Amelia Ward sewer system pumps by October 1, 1998. The Municipality of Guaynabo (Municipality) claimed that while the three pumps in Amelia Ward were inoperable, sewage backed up and produced severe flooding in the area. The Municipality tasked the contractor, Guaynabo Destape, to clean out the Amelia Ward storm/sewer system. The Municipality had signed a contract with Guaynabo Destape in June 1998 for sewer system cleaning services at a price of $12.00 per linear foot (LF). The work was performed during October, November, and December 1998. The Municipality requested reimbursement of the costs associated with cleaning the storm sewer system.
FEMA prepared Project Worksheet (PW) #15705 on March 23, 1999, to fund the project, but upon review found the work to be ineligible. The four reasons for the determination were contained in a letter dated July 28, 2000, and are as follows:
- The Municipality did not submit sufficient evidence to prove that the hurricane produced excessive sewage that backed up when the pumps did not operate or that a public health threat existed.
- The Municipality failed to submit a copy of an internal audit report.
- The Municipality did not submit receipts for the sewage suctioning, transportation, and disposal costs.
- The price the Municipality paid to its contractor was unreasonably high because it was two and a half times more than FEMA's cost codes.
The Municipality filed a first appeal letter, dated October 19, 2000, which the Office of the Governor's Authorized Representative (OGAR) forwarded to FEMA on August 17, 2001. The Municipality asserted that a letter dated January 26, 2000, from Secretary of Health Carmen Feliciano de Melecio, of Puerto Rico's Department of Health established that stagnant floodwater could pose a threat to life, health and safety. While the Municipality agreed that the contract rate of $12/LF was higher than the FEMA rate, it believes that it was a reasonable rate as it was awarded under a competitive bid process.
The Disaster Recovery Manager (DRM) denied the Municipalitys first appeal on September 21, 2001, for the reason that the work was ineligible because the Municipality failed to establish that excessive sewage backed up due to the Hurricane or that a public health threat existed in Amelia Ward. He stated that the Secretary of the Department of Public Health did not certify the presence of a public health threat in Amelia Ward; rather, the Secretary's letter was generic and only served as a certification that each municipality has the legal authority and responsibility for cleaning and maintaining the storm drainage systems to protect the public health. He informed the Municipality that without a letter from the Secretary of Health, the documentation submitted was insufficient to establish the presence of extraordinary sewage or an immediate threat to the public health.
The DRM also questioned why the Municipality claimed costs for water pressure cleaning for October, November, and December, representing three to four months after the hurricane had passed and the pumps were operable. The DRM added that even if the work was eligible the rate of $12/LF was unreasonably high. He stated that FEMA had recently received price quotes ranging from $2-$8 per LF for pressure cleaning pipes.
On January 25, 2002, OGAR forwarded the Municipalitys November 26, 2001, second appeal letter, and recommended reevaluation of the case. In the second appeal letter, the Municipality reiterated that cleaning of the storm sewer system was an eligible emergency protective measure necessary to protect lives and public health and safety while ensuring the continuation of an essential public service. Included with the second appeal the Municipality submitted 118 photographs that it believes demonstrate an immediate threat to public health and safety. The Municipality denied that the work claimed constitutes routine pipe cleaning and submitted maintenance invoices to demonstrate that the work performed during the disaster exceeded the scope of its regular maintenance schedule. Furthermore, the Municipality reasserted that the rate billed by Guaynabo Destape represents a reasonable cost as it was awarded as part of a competitive bid and was the rate used for non-disaster work.
An applicant may be eligible for reimbursement of the cost to do maintenance and cleaning of storm sewer systems if the work required by the disaster exceeds the scope of the existing maintenance plan and the accumulated sewage creates an immediate threat to the public health and safety. In this case, the Municipality has not presented proof that either situation exists.
In the second appeal, the Municipality provided maintenance invoices to demonstrate the maintenance costs under normal circumstances and how they purportedly escalated due to the disaster. However, all of the invoices represent maintenance work done either one or two years before the disaster, or a few months after the disaster. With the exception of two invoices for early 1998, the Municipality did not submit any invoices for maintenance work done immediately before the hurricane in September 1998. Therefore, a meaningful comparison of what the Municipality's maintenance costs before the hurricane with the costs it incurred immediately after the hurricane cannot be performed.
Included with the second appeal was an album of photographs apparently taken after the hurricane had passed. Nearly all of the photographs depict normal maintenance and sewage cleaning conditions and do not demonstrate a dangerous condition at the site or excessive sewage back up. Furthermore, the Municipality provided no narrative description of how the photos support its claim.
The Disaster Recovery Managers decision on the first appeal is correct. The Municipality has not submitted documentation that would establish that a threat to public health and safety existed. Furthermore, the Municipality has not demonstrated that the work performed exceeded the scope of the existing maintenance plan. Rather, the work seems to have been routine maintenance. Accordingly, this appeal is denied.