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Second Appeal Letter
PA ID# 045-78200-00; City of Waveland
PW ID# 5091 and 9972; Time Limitation
March 28, 2012
Mississippi Emergency Management Agency
Post Office Box 5644
Pearl, Mississippi 39208-5644
Re: Second Appeal- City of Waveland, PA ID 045-78200-00, Time Limitation, FEMA-1604-DR-MS, Project Worksheets (PWs) 5091 and 9972
Dear Mr. Latham:
This letter is in response to a letter from your office dated November 9, 2010, which transmitted the referenced second appeal on behalf of City of Waveland (Applicant). The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) de-obligation of $1,617,842 in funding for debris removal expenses.
Hurricane Katrina damaged and uprooted trees throughout the City of Waveland. This resulted in threats to public safety such as limbs hanging over public rights-of-way and on private property, leaning trees, and uprooted stumps. FEMA prepared and obligated PW 5091 in the amount of $3,143,100 to reimburse the Applicant for debris removal expenses and PW 9972 in the amount of $708,905 to reimburse the Applicant for debris monitoring expenses. In June 2006, FEMA conducted a field validation of the debris removal and found 58 percent of the debris removal expenses to be valid. FEMA de-obligated 42 percent of the actual debris removal expenses associated with PW 5091 ($1,320,102) and debris monitoring expenses associated with PW 9972 ($297,740).
The Applicant submitted its first appeal on September 29, 2009, requesting that FEMA reconsider the de-obligation of $1,320,102 from PW 5091 and $297,740 from PW 9972. The Applicant stated that FEMA’s field validation contained numerous errors, methodological flaws and that FEMA unilaterally invalidated eligible work. In addition, the Applicant stated that the impact of Hurricane Katrina presented a justified hardship that prevented the Applicant from preparing appeal documentation in a timely manner. The Regional Administrator denied the first appeal on July 22, 2010, because the Applicant’s appeal exceeded the 60-day time limitation for filing an appeal set forth in Section 423 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) and Title 44 Code of Federal Regulations (44 CFR) §206.206. The Applicant filed its appeal more than two years after receipt of the notice of FEMA’s action. The Regional Administrator noted that the Applicant had previously filed eight appeals disputing FEMA funding obligations. Each of these actions was filed within the administrative regulatory time-frame. The Applicant provided no compelling evidence as to why eight appeals were filed on time, and one appeal was submitted more than two years past the filing deadline.
The Applicant submitted a second appeal on September 24, 2010, in which it reiterates its first appeal position that the work performed in removing debris and monitoring the removal of debris was conducted in accordance with FEMA’s guidelines. The Applicant contends that delay in submitting the first appeal was due to the administrative burdens placed on the Applicant due to the disaster, and that FEMA should waive the deadline using the authority granted to FEMA in Section 301 of the Stafford Act. The Applicant then requests that after waiving this deadline, FEMA should review the data and discussion presented in the first appeal regarding field validation to reassess the de-obligation of funding. The Applicant requested a meeting with FEMA to discuss the second appeal and on July 11, 2011, met with the Acting Director of the Public Assistance program in Washington, DC to present additional information supporting their appeal.
The Applicant presented photo documentation of accumulated debris following the disaster. The photos did indicate accumulated debris throughout the City of Waveland. However, they did not adequately document the locations of the trees or the eligible work performed to remove the debris. In June 2006, FEMA performed a validation of the debris removal work and found 42 percent of the costs to be ineligible. The Applicant has not submitted any additional documentation to refute this determination.
During the meeting, the Applicant also requested a time extension for submittal for their first appeal. The Applicant’s first appeal was denied by FEMA because it was submitted after the
60-day time limitation expired. The Applicant maintained that administrative burdens incurred due to the effects of the disaster delayed the submission of the first appeal within the 60-day limitation. The Applicant has previously filed eight appeals disputing FEMA funding within the administrative time frame. The Applicant provides no new substantive evidence to support the extenuating circumstances which caused them to submit their first appeal more than two years after the 60-day requirement set forth in Section 423 of the Stafford Act and at 44 CFR §206.206.
The Applicant did not provide sufficient documentation to support its claim that all of their debris removal and monitoring costs were eligible under the FEMA Public Assistance Program. Further, the Applicant has not provided sufficient justification to warrant a time extension for submittal of their first appeal beyond the 60-day requirement.
I have reviewed the information submitted with the appeal and have determined that the 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.
Deputy Associate Administrator
Office of Response and Recovery
cc: Major P. May
FEMA Region IV