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Second Appeal Letter
PA ID# 095-42575-00; City of Maitland
PW ID# 34, 1161 & 1172; Debris Removal from Private Roads
September 13, 2012
Florida Division of Emergency Management
2555 Shumard Oak Blvd.
Tallahassee, FL 32399-2100
RE: Second Appeal–City of Maitland, FL, PA ID 095-42575-00, Debris Removal from Private Property, FEMA-1539-DR-FL, Project Worksheets (PW) 34, 1161 & 1172
Dear Mr. Koon:
This is in response to the letter from your office dated November 23, 2011, which transmitted the referenced second appeal on behalf of the City of Maitland (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) reduction of the debris removal volume by three percent to account for debris removed from private roads following Hurricane Charley in 2004. The Applicant is also appealing FEMA’s decision to reduce funding by fifteen percent for debris trucks claimed at one hundred percent full; however, this issue will be addressed by the Regional Administrator because a first appeal determination has not yet been rendered.
In August 2004, the impact of Hurricane Charley resulted in large quantities debris throughout the City of Maitland. On August 28, 2005, FEMA held a kickoff meeting with the Applicant and provided information regarding the documentation necessary to establish eligibility of debris removal in gated communities. The Applicant disclosed that it had a contract with Industrial Waste Services (Contractor) for normal solid waste pick-ups within the city limits including gated communities. The Contractor also performed disaster-related debris removal from streets and right-of-ways throughout the City, including private roads and gated communities. FEMA prepared PWs 34, 1161 & 1172 for the reimbursement of debris removal costs. At final review, FEMA deducted three percent from the total debris volume collected to account for debris that was removed from within gated communities.
In its first appeal submitted on December 23, 2005, the Applicant disputed the three percent reduction taken by FEMA on PWs 34, 1161, and 1172. The Applicant claimed that the private roads in the gated communities were within the city limits and due to the Maitland Code of Ordinances (Code), it had legal responsibility for the work. The Applicant also stated that the removal of solid waste from private roads within the City had been standard practice since the execution of City Ordinance 819 in September 1993. The Regional Administrator denied the first appeal on June 20, 2006, stating that the Applicant was not legally responsible for
maintenance of the roads within the gated communities. The Regional Administrator cited Title 44 Code of Federal Regulations (44 CFR) §206.223(a)(3), General work eligibility, which states that an item of work must “[b]e 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 represented an immediate threat to life, public health and safety or improved property.
The Applicant submitted a second appeal in a letter dated September 19, 2011, which the Grantee forwarded to FEMA on November 23, 2011. The Applicant reiterated its position from the first appeal. Although the second appeal was submitted five years after the first appeal decision, FEMA advised the Applicant that the appeal issue would be resolved at closeout. The Grantee informed the Applicant of FEMA’s closeout of the PWs by letters dated July 11 and 26, 2011. No additional funding was provided at closeout for the cost of debris removal from gated communities. In the second appeal, the Applicant insists that it had legal responsibility to remove debris from gated communities per its city ordinance. Moreover, the Applicant states that it had to enter the gated subdivisions to remove debris to eliminate immediate threats to life, public health and safety.
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. The Applicant removed the debris from the gated communities after obtaining the documentation outlined at the kick-off meeting. Although the Applicant does not maintain the roads within the gated communities, it does utilize the roads to provide public safety services to the residents. Therefore, the removal of debris from the gated communities was in the public interest.
Section 7-24 of the Code requires all property owners to use solid waste services that the Applicant provides and it imposes a fee for providing the service. The Code does not prescribe any limit or maximum amount of material that the City will remove from the curb. Once the Applicant imposes the assessments, it is legally responsible for removing all trash, garbage, and debris, including disaster-related debris that is placed on the curb of public and private roads. The Applicant has sufficiently demonstrated legal responsibility for the removal of disaster-related debris from private roads within the gated communities.
I have reviewed the information submitted with the appeal and have determined that the Applicant is legally responsible for removing debris from private roads in gated communities and the debris removal cost is eligible for funding. Therefore, I approve the Applicant’s second appeal in the amount of $62,437:
By this letter, I am requesting that the Regional Administrator take appropriate action to implement this determination.
Please inform the Applicant of my decision. This determination is the final decision on this matter pursuant to 44 §CFR 206.206 Appeals.
cc: Major P. May
FEMA Region IV