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Second Appeal Letter
PA ID# 075-99075-00; Plaquemines Parish
PW ID# Project Worksheet 17086; Debris Removal
April 20, 2009
Colonel Thomas Kirkpatrick (Ret.)
State Coordinating Officer
Governors Office of Homeland Security and Emergency Preparedness
7667 Independence Boulevard
Baton Rouge, Louisiana 70806
Re: Second AppealPlaquemines Parish, PA ID 075-99075-00, Debris Removal
, FEMA-1603-DR-LA, Project Worksheet (PW) 17086
Dear Colonel Kirkpatrick:
This is in response to your letter dated November 25, 2008, which transmitted the referenced second appeal on behalf of Plaquemines Parish (Applicant). The Applicant is appealing the Department of Homeland Securitys Federal Emergency Management Agencys (FEMA) denial to reimburse its cost for debris removal totaling $350,000.
Following Hurricane Katrina, FEMA prepared PW 17086 to document work to be completed by the Applicant. Specifically, the PW was prepared to remove disaster-related debris from a portion of the Plaquemines Parish canal system traversing the Alvin Callender U.S. Naval Base. The Applicant entered into a contract with the U.S. Navy on December 19, 1955, where the Applicant became responsible for the maintenance of the canal system. FEMA determined that the drainage canal system located on the Naval Base was the primary and legal responsibility of the U.S. Navy. In accordance with 44 CFR §206.226(a), Restoration of damaged facilities
, Assistance under other Federal agency (OFA) programs
, FEMA determined the project was not eligible for Public Assistance.
On March 11, 2008, the Law Offices of Hurndon & Gaffney submitted a first appeal on behalf of the Applicant asserting that the Applicant is legally obligated to remove disaster-related debris from the drainage canal under the specific terms and conditions of the contract with the U.S. Navy, and that the Applicant must remove the debris to eliminate an immediate threat to public health, safety, and welfare of the people of Plaquemines Parish. The Applicant argued that FEMA did not conduct a responsible damage assessment, nor request records or other information because FEMA determined the debris removal was the responsibility of another Federal agency. The Applicant estimated there was 7,000 cubic yards of disaster-related debris to remove at a cost of $350,000. Support documentation included a copy of the original contract executed in 1955 with the U.S. Navy, as well as subsequent amendments to the contract. However, the Applicant did not present documentation demonstrating how it calculated the amount of disaster-related debris and the associated debris removal costs.
On July 25, 2008, the Regional Administrator denied the appeal because the Applicant did not establish primary responsibility for the work claimed, and because the land through which the drainage canal runs though is owned and operated by the U.S. Navy, making the debris removal the responsibility of another Federal authority.
The Law Offices of Hurndon & Gaffney filed a second appeal on October 14, 2008, on behalf of the Applicant, and reiterated its position presented in the first appeal. The appeal mentions that all of the debris removal work has been completed, but does not include any new supporting documentation for determining an eligible scope of work and cost. The Applicant challenges FEMAs interpretation of the contract stating that FEMA incorrectly interpreted page 6, paragraph 5(a), Contractors Facilities, by assigning responsibility for the drainage canal to the Naval Base. Specifically, paragraph 5(a) states, The Contractor, at its expense, shall furnish, install, operate and maintain all facilities exclusive of pumping plants required to provide drainage service hereunder to the point of delivery specified in the Service Specifications. Title to all such facilities shall be and remain in the Contractor and the Contractor shall be responsible for all loss of or damage to such facilities.
Pursuant to 44 CFR §206.223(a)(3), General work eligibility
, To be eligible for financial assistance, an item of work must be the legal responsibility of an eligible applicant. The language of the contract clearly indicates that the drainage canal is the legal responsibility of the Applicant.
Based on a review of all information submitted with the appeal, I have determined that the Applicant has established its legal responsibility to remove disaster-related debris from the canal drainage system traversing the Naval Base. Therefore, I am granting this appeal, but not a specific dollar amount. Accordingly, the Regional Administrator will review documentation submitted by the Applicant to determine eligible costs, and prepare a version of PW 17086 to provide reimbursement of those eligible costs for disaster-related debris removal from the drainage canal system that crosses through the Naval Base.
Please inform the Applicant of my decision. This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals
James A. Walke
Acting Assistant Administrator
Disaster Assistance Directorate
cc: Gary Jones
Acting Regional Administrator
FEMA Region VI
Louisiana Transitional Recovery OfficeSecond AppealPlaquemines Parish, FEMA-1603-DR-LA, Project Worksheet (PW) 17086