Appeal Brief | Appeal Letter | Back
Second Appeal Letter
PA ID# 011-14400-00; City of Coral Springs
PW ID# 5849,5869,3346,3460 and 65; Debris Removal
April 9, 2012
Florida Division of Emergency Management
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
Re: Second Appeal – City of Coral Springs, Private Roads Debris Removal, FEMA‑1545‑DR-FL, Project Worksheets (PWs) 5849 and 5869; FEMA-1561-DR-FL, PWs 3346 and 3460; and FEMA-1602-DR-FL, PW 65
Dear Mr. Koon:
This is in response to a letter from your office dated March 10, 2010, which transmitted the referenced second appeals on behalf of the City of Coral Springs (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $433,257 in funding for the removal of debris on private roads following Hurricanes Frances, Jeanne and Katrina.
In 2004 and 2005, the Applicant was impacted by Hurricanes Frances, Jeanne and Katrina. Following Hurricane Frances, FEMA prepared PWs 5849 and 5869 in the amounts of $110,058 and $120,776, respectively, for the removal of debris from private roads; after Hurricane Jeanne, FEMA prepared PWs 3346 and 3460 in the amounts of $90,896 and $90,164, respectively, for the removal of debris from private roads following; and after Hurricane Katrina FEMA prepared PW 65 for $155,762 for debris removal from public and private areas. FEMA denied reimbursement in full for all of the PWs, except for PW 65 which was reduced by $4,191. FEMA denied funding because removing the debris from the private roads was not the legal responsibility of the Applicant, nor did the debris pose a threat to the general public, and the costs were therefore ineligible for Public Assistance.
In its first appeals submitted on April 20, 2006, the Applicant asserted that it had legal responsibility to eliminate immediate threats to life, public health and safety. The Regional Administrator denied the appeals in letters dated November 13, 2006, and January 26, 2007, stating that the Applicant did not provide documentation to support its claim of legal responsibility nor had it demonstrated that the debris located on private roads was a threat to the public-at-large.
The Applicant requested final inspection and closeout of the actual costs in December 2008. Actual costs were determined to be: $95,671 and $120,776 for PW 5849 and 5869, respectively; $89,411 and $123,208 for PW 3346 and 3460, respectively; and $151,571 for PW 65. The closeout versions of the PWs were obligated for $0, based on the determination of the first appeal that found these costs to be ineligible. The Applicant submitted second appeals on August 13, 2009, and
January 7, 2010, following the closeouts that were performed in February 2009. The Applicant reasserted that it had the legal authority for removing the hurricane generated debris from the private roads based on its Comprehensive Emergency Management Plan (CEMP), Florida statutes, and its Ordinances and Resolutions from 2002 to 2008.
FEMA’s regulations at 44 CFR§ 206.206, Appeals, state that, “An eligible applicant, subgrantee, or grantee may appeal any determination previously made related to an application for the provision of Federal assistance…” FEMA’s regulations at 44 CFR§206.206 (c)(1), Appeals, Time Limits, further state that “(1) Appellants must file appeals within 60 days after receipt of a notice of the action that is being appealed.” The Applicant submitted its subsequent appeals more than two years after the Regional Director denied the first appeal on the issue of eligibility of the costs for debris removal from private roads. The determination to be appealed was the Regional Director’s first appeal denial. The project closeout process did not constitute a new determination that could be appealed, since the matter of eligibility of the debris removal costs on private roads was already determined and previously appealed. The most recent appeals are being considered second appeals of the determinations made by the Regional Director in November 2006 and January 2007. The appeals filed by the Applicant in August 2009 and January 2010 were submitted over two years after the regulatory requirement of 60-days.
Additionally, 44 CFR§206.223 (a)(3) General Work Eligibility, General, states that, “To be eligible for financial assistance, an item of work must: (3) Be the legal responsibility of an eligible applicant.” The documentation provided by the Applicant does not establish that it had legal responsibility to remove the debris from private roads at the time of the major disaster declarations.
I have reviewed the information submitted with the appeals and have determined that the Regional Administrator’s decisions in the first appeals are consistent with Public Assistance regulations and policy. Accordingly, I am denying the second appeals. Please inform the Applicant of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR§206.206, Appeals.
cc: Major P. May
FEMA Region IV