Stump Debris Removal

Appeal Brief Appeal Letter

Appeal Brief

Disaster1539
ApplicantCity of Orlando
Appeal TypeSecond
PA ID#095-53000-00
PW ID#5147
Date Signed2007-11-27T05:00:00
Citation: FEMA-1539-DR-FL, City of Orlando, FL, PW 5147Stump Debris Removal

Cross Debris Removal; Stumps
Reference:

Summary: On May 31, 2005, the Federal Emergency Management Agency (FEMA) prepared PW 5147 for eligible stump removal costs incurred as a result of heavy rain and wind caused by Hurricane Charley. FEMA reduced the amount the City of Orlando (Applicant) requested by $843,098.70 because the costs were excessive.

In a letter dated November 14, 2005, the Applicant appealed FEMA’s denial of stump removal costs in the amount of $842,098.70. In a letter dated May 8, 2007, the Regional Administrator denied the Applicant’s first appeal stating a lack of substantiating documentation to verify $166,158.20 associated with the removal of stumps greater than 24 inches in diameter. The Regional Administrator also denied $675,940.50 for unit contract costs associated with the removal of stumps 24 inches or less in diameter based upon the memorandum dated May 13, 2005, from the former Director of Recovery. The memorandum stated that stumps 24 inches or less in diameter should be reimbursed at the cubic rate for regular vegetative debris rather than at a per stump removal rate.
The Applicant’s second appeal dated July 18, 2007, includes documentation to support $166,158.20 for costs associated with stumps greater than 24 inches in diameter. The Applicant reiterates its position that $675,940.50 for unit contract costs associated with the removal of stumps less than 24 inches in diameter are eligible based on the guidance that existed at the time the work was completed.
Issues: 1. Are costs associated with the removal of stumps 24 inches or greater in diameter eligible for Public Assistance funding?

2. Are unit contract costs associated with the removal of stumps 24 inches or less in diameter eligible for Public Assistance funding?

Findings: 1. Yes.

2. No.
Rationale: 44 CFR §206.202; 44 CFR §206.224.

Appeal Letter

November 27, 2007

Mr. W. Craig Fugate, Director
State of Florida Department of Community Affairs
Division of Emergency Management
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399

Re: Second Appeal – City of Orlando, PA ID 095-53000-00
Stump Debris Removal, FEMA-1539-DR-FL, Project Worksheet (PW) 5147

Dear Mr. Fugate:

This letter is in response to your letter dated August 1, 2007, which transmitted the referenced second appeal on behalf of the City of Orlando (Applicant). The Applicant is appealing the Federal Emergency Management Agency’s (FEMA) denial of $842,098.70 for stump removal costs.

On November 30, 2004, FEMA issued Disaster Specific Guidance (DSG) #17, Eligibility of Stump Removal Costs, to provide disaster specific guidance on stump removal eligibility. On May 13, 2005, the former Director of the Recovery Division issued a memorandum that clarified the applicability of DSG #17 and ambiguities in the guidance pertaining to stump excavation and removal. The memorandum provided specific guidance on stumps excavated and/or collected prior to November 30, 2004. In particular, it stated that FEMA would reimburse applicants on the basis of a cubic-yard conversion rate for the removal of eligible stumps with diameters of 24 inches or less. On May 31, 2005, FEMA prepared PW 5147 using unit costs for regular vegetative debris for stumps with diameters of 24 inches or less.

In a letter dated November 14, 2005, the Applicant appealed FEMA’s denial of stump removal costs of $842,098.70. The Applicant asserted that FEMA incorrectly issued and applied DSG #17 and the Recovery Division’s memorandum. In a letter dated May 8, 2007, the Regional Administrator denied the Applicant’s first appeal because the Applicant did not submit documentation to support the $166,158.20 associated with the removal of stumps greater than 24 inches in diameter. The Regional Administrator also denied $675,940.50 for unit contract costs (per stump) for the removal of stumps with a diameter of 24 inches or less based on the Recovery Division Director’s memorandum dated May 13, 2005.

In a letter dated July 18, 2007, the Applicant submitted its second appeal. The Applicant included documentation to support costs associated with stumps greater than 24 inches in diameter. The Applicant reiterated its position that costs associated with the removal of stumps less than 24 inches in diameter are eligible based on the guidance that existed at the time the work was completed. The Applicant claims that FEMA’s “retroactive decision” to reimburse costs associated with the removal of stumps 24 inches or less in diameter on the basis of cubic yard rate is not consistent with the congressional intent of the Stafford Act.

The Applicant has provided copies of load tickets for disallowed stumps greater than 24 inches in diameter. This information is sufficient to support the Applicant’s request for $166,158.20. Therefore, this portion of the appeal is approved. By copy of this letter, I am requesting that the Regional Administrator take the appropriate actions to implement this determination.

The Office of Management and Budget Circular A-87 requires that all Federal grant costs be reasonable. FEMA has determined that the reimbursement of the removal of stumps on a “per stump” basis is not reasonable. The former Director of the Recovery Division’s memorandum dated May 13, 2005, clarified existing FEMA guidance on eligibility of stump removal costs. It did not retroactively apply new guidance. After reviewing the information submitted with the appeal, I have determined that the Regional Administrator’s decision on the first appeal is consistent with program guidance. Therefore, the Applicant’s request for $675,940.50 for costs associated with the removal of stumps 24 inches or less in diameter is denied.

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: Major Phil May
Regional Administrator
FEMA Region IV
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