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Second Appeal Letter
PA ID# 181-99181-00; City of Neosho
PW ID# 1853; General Work Eligibility
April 14, 2010
Alan J. Prenger
Disaster Section Manager
State of Missouri Emergency Management Agency
Department of Public Safety
Post Office Box 116
Jefferson City, MO 65102
Re: Second Appeal–City of Neosho, PA ID 181-99181-00, General Work Eligibility,
FEMA-1749-DR-MO, Project Worksheet (PW) 1853
Dear Mr. Prenger:
This letter is in response to your letter dated June 12, 2009, which transmitted the referenced second appeal on behalf of the City of Neosho (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of its request to include additional damage at Big Spring Park in its Project Worksheet because it was submitted after the established regulatory deadline.
The President declared a major disaster for portions of the State of Missouri on March 19, 2008, and authorized emergency protective measures (Category B), limited to direct federal assistance, under the Public Assistance Program. On April 9, 2008, the declaration was expanded to include all categories of Public Assistance. The Applicant submitted its Request for Public Assistance (RPA) April 7, 2008, and the Kickoff Meeting was held May 5, 2008. On August 18, 2008, FEMA prepared PW 1853 for damage in Morse Park, including repairs to parking lots, walking trails, and park benches. FEMA obligated PW 1853 on August 28, 2008, in the amount of $8,802. The PW did not include any damage at Big Spring Park.
On December 26, 2008, the Applicant notified the Missouri State Emergency Management Agency (SEMA) of additional damages that it claimed resulted from the disaster. The Applicant specifically requested funding to repair or replace a masonry culvert at Big Spring Park. The Applicant asserts that the flooding in March 2008 scoured material from the structure, but in such a manner that the damage was not apparent immediately following the flooding and the Kickoff Meeting. FEMA considered this argument in the first appeal. On January 28, 2009, FEMA denied the request to include this additional damage in the Applicant’s original PW 1853, stating that the damages were ineligible because they were not identified within 60 days of the first substantive meeting, pursuant to 44 CFR §206.202(d)(1)(ii), Project Worksheets.
The Applicant transmitted its second appeal on May 26, 2009. The Applicant is requesting that the 60-day deadline be extended to at least December 26, 2008, or approximately seven months past the Kickoff Meeting, so that additional damage may be eligible for PA funding. The Applicant asserts that the structural damage to the culvert is eligible because the disaster caused
the damage and it was not ascertainable within 60 days of the Kickoff Meeting. The Applicant submitted with both its first and second appeals a letter from the engineering firm that evaluated the damage, stating its opinion that: fill materials used to support the structure and sidewalks had been washed away as a result of scouring caused by recent flooding; that the structure should be replaced; and that the estimated cost for replacing the structure was $350,000. The Applicant also provided photographs of the damaged structure.
Title 44 CFR §206.202(d)(1)(ii), Project Worksheets, states that, “The applicant will have 60 days following its first substantive meeting with us to identify and to report damage to us.” Title 44 CFR §206.202(f)(2), Time limitations, provides an exception, stating that, “The Regional Director may extend the time limitations shown in paragraphs (c) and (d) of this section when the Grantee justifies and makes a request in writing. The justification must be based on extenuating circumstances beyond the Grantee’s or Subgrantee’s control.” The Applicant’s argument that the alleged disaster-related damages were not discovered until a sidewalk collapse seven months after the disaster event fails to satisfy the Subgrantee’s burden to demonstrate extenuating circumstances beyond its control. FEMA’s regulatory deadline to identify damages within 60 days following the Applicant’s first substantive meeting with FEMA provided the Applicant with the opportunity to inspect all of its facilities where damages may have occurred. Moreover, with such a significant passage of time, it is impossible to demonstrate the damages were, as required by 44 CFR 206.223(a)(1), the result of the major disaster event.
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.
Elizabeth A. Zimmerman
cc: Beth Freeman
FEMA Region VII