GP2-052-PA Pilot-Right of Ways

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1786-DR
ApplicantEast Feliciana Parish Police Jury
Appeal TypeSecond
PA ID#037-99037-00
PW ID#235v3
Date Signed2012-06-19T04:00:00

Citation:     FEMA-1786-DR-LA, East Feliciana Parish Police Jury (Applicant), GP2-052-PA Pilot-Right of Ways, Project Worksheet 235v3
Cross-
Reference:    Applicant Eligibility, Debris Removal, Work Eligibility
Summary:      The Applicant was denied $75,075.00 for the cost incurred for removing 128 stumps because of insufficient documentation to establish eligibility.  The Applicant’s first appeal questioned whether FEMA has a reasonable basis to determine the stumps ineligible.  Based on what was submitted in the first appeal, the Region denied the appeal because the information provided did not support a different determination from that made by FEMA field staff.  Specifically, the Applicant did not provide any evidence to support the eligibility of the removed stumps. 
In the second appeal, the Applicant submitted two (2) binders containing stump tickets and photographs for each ineligible stump identified by FEMA field staff.  The Applicant claims that an additional 117 stumps should be found eligible, and, in doing so, make the cost incurred for 100 percent of stump removal eligible in accordance with FEMA Fact Sheet 9580.204.
Issue:       Whether the Applicant claim that more than 80 percent of the removed stumps under PW 235v3 meet FEMA’s eligibility criteria, thereby making the entirety of the claim eligible for FEMA grant assistance?
Findings:    1.  The Applicants claim that more than 80 percent of the removed stumps under PW 235v3 meet FEMA’s eligibility criteria is not proven. 
                    2.  The Applicant statement, “While the photograph do not indicate that the root ball was exposed, they do not indicate that it was not exposed” which was provided to refute the decision regarding those stumps that lacked photographic or other evidence to demonstrate eligibility, is insufficient to overturn the decision that 68 stumps did not meet the criteria for removal.
                     3. Of the remaining 49 stumps identified in the appeal, 35 lacked sufficient evidence to overrule the eligibility determination and 14 were already identified as eligible in the PW.
Rationale:    In accordance with Disaster Assistance Program DAP9523.11, Hazardous Stump Extraction and Removal Eligibility, if it is necessary to remove an uprooted stump before it can be inspected by FEMA, then the applicant must submit documentation that establishes the stump’s location on public property, the threat, stump diameter, etc.  The burden of proof is on the Applicant.  In this case, the Applicant has not provided sufficient evidence to support its claim that the stumps removed was consistent with FEMA’s eligibility criteria.

Appeal Letter

June 19, 2012

Mr. Kevin Davis

Director

State of Louisiana

Governor’s Office of Homeland Security and Emergency Preparedness (GOHSEP)

7667 Independence Blvd.

Baton Rouge, Louisiana 70802

Re:  Second Appeal-East Feliciana Parish Police Jury (FIPS 037-99037-00), GP2-052-PA Pilot-Right of Ways– FEMA-1786-DR-LA, Project Worksheet 235v3

Dear Mr. Davis,

This letter is in response to your letter dated May 19, 2011, which transmitted the referenced second appeal on behalf of the East Feliciana Parish Police Jury (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding in the amount of $75,075.00 for the cost incurred by the Applicant for stump removal.

Background

From September 1, 2008, through, September 11, 2008, severe winds and heavy rains from Hurricane Gustav damaged and downed trees throughout East Feliciana Parish.  The magnitude of the damages and the widespread impact of the hurricane statewide resulted in a major disaster declaration on September 2, 2008.  The Applicant submitted a Project Worksheet (PW) 235v3 for the cost incurred for the removal and disposal of hazardous leaning trees, hangers, and stumps.  FEMA determined that all leaning trees and hangers were eligible and only 188 of the 312 removed stumps (or 60 percent) were eligible.  The other 124 stumps removed in East Feliciana Parish were ineligible for various reasons; this determination resulted in a reduction of $75,075.00.

First Appeal

On September 28, 2010, the Applicant submitted its first appeal to GOHSEP and it was forwarded to FEMA Region VI on November 24, 2010.  To support its claim of eligibility, the Applicant submitted a copy of its Subgrant Application.  In the transmittal letter to FEMA, GOHSEP stated that the Applicant believed that FEMA’s determination of a 40 percent reduction in the number of eligible stumps was unreasonable.  During the appeal review, FEMA

determined the Applicant should have been considered eligible for the PA Pilot Program because they had provided a debris management plan with pre-qualified debris contractors in accordance with the Pilot Program criteria; as a result of this finding, an additional five percent federal cost share was added to the PW.  On January 10, 2011, FEMA Region VI informed the State of the amendment to the PW as being eligible under the PA Pilot Program cost adjustment. FEMA also informed them that the ineligible stump removal cost were denied because the Applicant had not provided new information that would support a different determination from that made in version three (3) of the PW.

Second Appeal

The Applicant submitted a second appeal on March 24, 2011 to GOHSEP appealing the FEMA January 10, 2011 denial of the first appeal.  On May 19, 2011, GOHSEP transmitted the Applicant’s second appeal to the FEMA Region VI Administrator.  The Region forwarded this appeal to FEMA Headquarters on June 2, 2011.  In the second appeal, as evidence, the Applicant submitted two (2) binders containing landfill tickets and photographs for each ineligible stump identified by FEMA.  The Applicant claimed that an additional 117 stumps should be found eligible, and, in doing so, make the cost incurred for 100 percent of stump removal eligible in accordance with FEMA Fact Sheet 9580.204.

Discussion

The Applicant based the second appeal on a “Stump Validation Spreadsheet”, dated January 22, 2010.  The origin of this document is unclear and is not incorporated in PW 235v3.  Eligibility determinations are based on documentation attached to the PW, which includes a spreadsheet dated May 11, 2010.  As a result, some of the appeal positions taken by the applicant do not correlate to eligibility determinations outlined in the PW; nonetheless, a comprehensive review of all the documentation was done to determine if there is sufficient reason to overturn the initial and first appeal decision that 124 stumps removed in East Feliciana Parish under
PW 235v3 were ineligible.

In accordance with Disaster Assistance Program DAP9523.11, Hazardous Stump Extraction and Removal Eligibility, if it is necessary to remove an uprooted stump before it can be inspected by FEMA, then the applicant must submit documentation that establishes the stump’s location on public property, the threat, stump diameter, etc.  A review of the documentation submitted by the Applicant with the second appeal for PW 235v3 showed, out of the 117 stumps the Applicant claimed should be eligible for reimbursement, that: 

·         68 had photographs submitted with the second appeal and the photograph of the stumps lacked evidence showing that all or part (50 percent) of the tree’s root ball was exposed;

·         4 had no supporting documentation submitted with the second appeal; and

·         7 had photographs submitted with the second appeal; however the .jpg number on the supporting photograph did not correspond to the numbers on stump ticket;

·         14 were already identified as eligible in PW 235v3; and

·         24 stumps lack sufficient evidence to overrule the eligibility determination outline in
PW 235v3.

To be considered as an immediate threat to public health and safety and potentially eligible for reimbursement under DAP 9523.11, an uprooted tree must have all or at least 50 percent of the root ball exposed.  When photograph or other evidence fails to demonstrate that a stump meets FEMA’s eligibility criteria, funding for that item of work is not eligible.  The Applicant has not provided sufficient evidence to support the claim that the stumps removed were consistent with FEMA’s eligibility criteria.

Conclusion

I have reviewed the documentation submitted with the second 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.

Sincerely,

/s/

Elizabeth A. Zimmerman

Deputy Associate Administrator

Office of Response and Recovery

cc:  Tony Russell

       Regional Administrator

       FEMA Region VI

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