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Second Appeal Letter
PA ID# 059-53520-00; City of Ocean Springs
PW ID# 8116; Debris Removal
May 10, 2012
Robert R. Latham Jr.
State of Mississippi Emergency Management Agency
Post Office Box 5644
Pearl, Mississippi 39208-5644
Re: Second Appeal–City of Ocean Springs, PA ID 059-53520-00, Private Property Debris Removal, FEMA-1604-DR-MS, Project Worksheet (PW) 8116
Dear Mr. Latham:
This letter is in response to a letter from the City of Ocean Springs (Applicant) dated November 3, 2010. The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) decision to deny $67,794 in debris removal costs from the Shearwater Pottery site.
Following Hurricane Katrina, the Applicant entered into a Mutual Aid Agreement (MAA) with the City of Albemarle, North Carolina to remove debris from Shearwater Pottery, a commercial private property of historical and cultural significance to the Mississippi Gulf Coast. On April 13, 2006, FEMA prepared PW 8116 for zero dollars to document the Applicant’s request for debris removal from Shearwater Pottery. FEMA determined that PW 8116 was ineligible because Shearwater Pottery was a commercial property that was not on FEMA’s list of commercial properties approved for private property debris removal.
On May 2, 2006, the Applicant wrote a letter to the Mississippi Emergency Management Agency (MEMA) stating that it disagreed with the Public Assistance Coordinator’s finding that the removal of debris from Shearwater Pottery was not eligible for reimbursement. In an August 30, 2006, letter, the Federal Coordinating Officer explained that the requested debris removal costs were not eligible for reimbursement under FEMA’s Public Assistance (PA) Program because the work was not the responsibility of an eligible applicant; the commercial property at Shearwater Pottery was not authorized for debris removal; the salvage of artifacts and artwork do not constitute eligible debris removal; and the Applicant did not provide documentation demonstrating the presence or appropriate disposal of hazardous debris. After conducting a final inspection and closeout review, FEMA closed PW 8116 on March 30, 2010.
In a first appeal submitted on May 5, 2010, the Applicant claimed that Recovery Policy (RP) 9523.13, Debris Removal from Private Property, issued by FEMA on September 7, 2005, imposed a legal responsibility upon the Applicant to take action to protect lives and property and restore essential services in the greater public interest. The Applicant asserted that debris removal from Shearwater Pottery was in the public interest, because it was necessary to ensure the economic and overall recovery from Hurricane Katrina. FEMA denied the first appeal on September 2, 2010, because Title 44 of the Code of Federal Regulations (44 CFR) §206.223(a), General work eligibility, requires work to be the legal responsibility of an eligible applicant in order to be eligible for funding. Furthermore, FEMA determined that the Applicant had not demonstrated that the debris at Shearwater Pottery represented an immediate threat to life, public health and safety or improved property. The responding letter also noted that the Applicant’s appeal was submitted nearly four years after receipt of the initial notice of the obligation of PW 8116 on June 30, 2006.
The Applicant submitted a second appeal on November 3, 2010, and reiterated its position from the first appeal. It insists that it was responsible for removing any public health and safety threats. In addition, the Applicant maintains that it was responsible for removing debris from the Shearwater Pottery property due to the site’s historical significance and economic importance to the citizens of Ocean Springs. The Applicant also contends that it submitted its appeal within the regulatory time frame following the final inspection and closeout actions.
Pursuant to 44 CFR §206.224(a), Debris Removal, FEMA may provide funding for debris removal from private property in a major disaster when it is in the public interest, such that it eliminates an immediate threat to lives, public health and safety, and improved property or ensures economic recovery of the affected community to the benefit of the community at large. RP9523.13 Debris Removal from Private Property further explains that debris removal from private property must be approved by the Federal Coordinating Officer (FCO) prior to initiation of work.
Notwithstanding the absence of prior approval by the FCO, the Applicant claims that the presence of hazardous materials constituted an immediate threat to the health and safety of the general public at Shearwater Pottery; however, the Applicant has submitted no documentation demonstrating that any hazardous materials were disposed in accordance with the state and federal regulations. There is no indication in the documentation provided by the Applicant that appropriate protocols were followed by the Applicant or the MAA personnel. Finally, the Applicant has not demonstrated that the removal of debris from the Shearwater Pottery site was necessary to ensure the economic recovery of the affected community.
I have reviewed all of the information submitted with the appeal and determined that the first appeal decision was consistent with program statute and regulations. Accordingly, I am denying this appeal.
Please inform the Applicant of my decision. This determination constitutes the final decision on this matter pursuant to 44 CFR §206.206, Appeals.
Elizabeth A. Zimmerman
Deputy Associate Administrator
Office of Response and Recovery
cc: Major P. May
FEMA Region IV