Appeal Brief | Appeal Letter | Back
Second Appeal Letter
PA ID# 000-00142-01; Iowa Department of Corrections
PW ID# 1717; Documentation
October 26, 2010
Iowa Homeland Security and Emergency Management Division
7105 NW 70th Avenue
Camp Dodge—Bldg. W-4
Johnston, IA 50131-1824
Re: Second Appeal–Iowa Department of Corrections, PA ID 000-00142-01, Documentation,
FEMA-1763-DR-IA, Project Worksheet (PW) 1717
Dear Mr. Miller:
This letter is in response to the letter from your office dated November 4, 2009, which transmitted the referenced second appeal on behalf of the Iowa Department of Corrections—Anamosa State Penitentiary (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) amount obligated for repair work on a waste monitoring station.
From May 25, 2008, to August 13, 2008, severe storms and flooding impacted Lee County, Iowa. The Applicant’s grounds were inundated with contaminated floodwaters from the Mississippi River. The Applicant’s waste monitoring station, consisting of waste flow monitoring equipment and a shelter house, was damaged by the flooding. The Applicant contracted with Keokuk Contractors Inc. for $24,600 to remove the existing shelter house, install a new weatherproof enclosure on the existing slab, furnish and install new waste flow monitoring equipment, and reconnect the electrical service. FEMA prepared PW 1717 for this work, but deducted the contract cost of $24,600 as anticipated insurance proceeds. This was because the Applicant’s facility is located in a Special Flood Hazard Area (SFHA), and the State of Iowa is self insured for flood damage in a SFHA as defined in 44 CFR Part 75. FEMA approved a Hazard Mitigation Proposal (HMP) to elevate the station, which was included in PW 1717. FEMA obligated PW 1717 on September 18, 2008, for $18,873: $17,895 for the HMP and $978 for the administrative costs.
The Applicant submitted its first appeal on February 20, 2009, the State received it on March 10, 2009, and the State forwarded it to FEMA on May 4, 2009. The Applicant appealed FEMA’s determination that costs to replace equipment were ineligible, and stated that because the waste flow monitoring equipment was located below ground level, it was not insurable. The Applicant requested $25,089 for this equipment. In a letter dated September 16, 2009, FEMA denied the appeal stating that the Applicant did not submit it within 60 days of being notified of the action being appealed. FEMA obligated PW 1717 on September 18, 2008, and the Applicant did not submit its appeal until February 20, 2009, or five months later.
The Applicant submitted its second appeal on October 26, 2009, and the State forwarded it to FEMA on November 4, 2009. In its second appeal, the Applicant stated that the total cost was $23,485, and requested $4,625 to cover the difference from the obligated $18,873 for the Hazard Mitigation Proposal and the total cost. The Applicant did not provide additional information indicating the reason for the increased costs, and did not repeat its request for $25,089 for equipment from its first appeal. The State again asserted that the Applicant’s self insurance was not correctly applied and that regardless of the Applicant submitting its appeal beyond the regulatory timeframe, the appeal should be granted. The State claimed that the Applicant should not be subject to an insurance deduction for damage that is not covered under the Applicant’s policy.
Pursuant to 44 CFR §206.206(a), Format and Content, “The appeal shall contain documented justification supporting the appellant’s position…” The Applicant has not provided documentation to substantiate the increased cost, nor has it adequately described the work performed or the costs incurred. Additionally, pursuant to 44 CFR §206.206(c)(1), Time Limits, “Appellants must file appeals within 60 days after receipt of a notice of the action that is being appealed.” In this case, the Applicant filed its first appeal five months after PW 1717 was obligated. The State was notified on September 18, 2008, on the date that funds were obligated for PW 1717. The Applicant did not file its first appeal until February 20, 2009. Finally, pursuant to 44 CFR §206.204(e)(2), “FEMA will not normally review an overrun for an individual small project.” The normal procedure for small projects is that an Applicant may submit an appeal for additional funds when there is a significant overrun related to the total final cost for all of the Applicant’s small projects. For these reasons, the Applicant’s second appeal is denied.
I have reviewed the information submitted with the appeal and have determined that the Acting Regional Administrator’s decision in the first appeal is consistent with Public Assistance regulations and policy. Accordingly, I am denying the second appeal.
Please inform the Applicant of my decision. This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals.
Acting Assistant Administrator
cc: Beth Freeman
FEMA Region VII