Appeal Brief | Appeal Letter | Back
Second Appeal Letter
PA ID# 000-UTB7N-00; West Virginia Department of Enviornmental Protection
PW ID# Project Worksheets 488 and 489; Antaeus Gary Project
September 3, 2008
Jimmy J. Gianato
State of West Virginia
Department of Military Affairs and Public Safety
Division of Homeland Security and Emergency Management
Building 1, Room EB-80
1900 Kanawha Boulevard, East
Charleston, West Virginia 25305-0360
Re: Second AppealWest Virginia Department of Environmental Protection, 000-UTB7N-00 Antaeus Gary Project
, FEMA-1410-DR-WV, Project Worksheets (PW) 488 and 489
Dear Mr. Gianato:
This is in response to your letter dated Oct, 11, 2007, which transmitted the referenced second appeal on behalf of the West Virginia Department of Environmental Protection (Applicant). The Applicant is appealing the Department of Homeland Securitys Federal Emergency Management Agencys (FEMA) decision to deny funding for emergency work.
On May 3, 2002, heavy rains resulted in the failure of a decant pipe from a private impounding structure at the Antaeus Gary site, which caused sloughage and erosion on the face of a dam. FEMA prepared PWs 488 and 489 totaling $1,017,251 for emergency protective measures due to the downstream proximity of and the threat to the Town of Gary. FEMA subsequently de-obligated the PWs when it learned that the PWs would duplicate funding to which the Applicant was entitled to $7,645.862.
The State of West Virginias Department of Military Affairs and Public Safety submitted the Applicants first appeal on May 10, 2007, contesting the de-obligation action taken by FEMA. A bankruptcy settlement agreement with the private landowner established that the Applicant was due a total sum of $7,645,862 as reimbursement for the work done on private land. Based on applicable law and policy, the Regional Administrator believed that this constituted a duplication of disaster funding. The Applicant did not present adequate explanation of why this was not a duplication of benefits.
The Regional Administrator denied the appeal on August 13, 2007, because there had been no apparent effort by the Applicant to enforce the settlement agreement or to pursue legal remedies.
On October 11, 2007, the Applicant submitted its second appeal to FEMA reiterating the previous position presented in the first appeal to support its contention that there would not be a duplication of benefits. A good faith effort has not been made to pursue collection.
I have reviewed all information submitted with the appeal and have determined that the Regional Administrators decision in the first appeal is consistent with Public Assistance Program regulations and policies. Therefore, I deny the Applicants second appeal.
Please inform the Applicant of my decision. My determination constitutes the final decision on this matter pursuant to 44 CFR§ 206.206.
Carlos J. Castillo
Disaster Assistance Directorate
cc: Jonathan Sarubbi
FEMA Region III