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Second Appeal Brief
PA ID# 000-006AE-00; Kiamichi Electric Cooperative
PW ID# PWs 916, 920, 921, 922, 924 & 1035; Collateral Damage
Citation: FEMA-1678-DR-OK; Kiamichi Electric Cooperative PWs 916, 920, 921, 922, 924, and 1035
Reference: Office of the Inspector General Audit; Collateral Damage
Summary: In January 2007, a severe winter storm caused significant damage throughout the State of Oklahoma. FEMA provided funding to the Applicant, including for the cost of emergency protective measures it performed as a result of the storm. The DHS Office of Inspector General (OIG) audited the Public Assistance funding provided to the Applicant. On June 23, 2009, the OIG issued an audit report (Number DD-09-12) that questioned the cost to repair rut damage on private property on the basis that the work did not constitute an eligible emergency protective measure. Subsequently, FEMA de-obligated $303,253 in previously funded for the repair of rut damage. As indicated in the Public Assistance Policy Digest (FEMA-321), which the OIG cited in its audit report, “Private property is not eligible for permanent restoration under the Public Assistance Program.” The Fact Sheet that FEMA issued in 2009 (DAP9580.6) clarified, albeit after this major disaster was declared, that restoration of collateral damage caused during the conduct of otherwise work may also be eligible for assistance, specifically where an eligible applicant has secured private property easements. The provision in the Public Assistance Policy Digest, in place at the time of the disaster, does not preclude the eligibility of such costs. FEMA has reviewed the information submitted with the appeal and determined that the Applicant has demonstrated the legal responsibility for the repair in the form of a written or statutory easement with an express legal responsibility to repair the damage. Since the damage was caused during the performance of eligible repair work, it is eligible for reimbursement under the Public Assistance Program.
Issue: Did the Applicant establish that it had the legal authority and responsibility to repair the damage?
Rationale: 44 CFR §206.223(3) General Work Eligibility.