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Second Appeal Brief
PA ID# 079-85152-00; City of Wilkes-Barre
PW ID# 119; Scope of Work
Citation: FEMA-1684-DR-PA, City of Wilkes-Barre, Scope of Work, PW 119
Reference: Work Eligibility, Time Limitation, Net Small Project Overrun
Summary: As a result of the November 2006 flooding in the city of Wilkes-Barre (Applicant), FEMA prepared PW 119 to remove debris from Laurel Run and Mill Creek. The eligible disaster-related debris totaled 473 cubic yards (CY). PW 119 specifically identified locations where eligible debris was to be removed. The intent was not to remove all of the debris that was present, but to remove sufficient disaster-related debris to eliminate an immediate threat. The small project was obligated for $20,550.
In the first appeal submitted on October 17, 2008, the Applicant requested to change the Scope of Work (SOW). The Applicant provided information that additional disaster related debris costing $322,528 for 10,308 cubic yards (CY) of debris was removed. FEMA denied the appeal, concluding that PW 119 provided a reasonable allowance for disaster related debris removal that could constitute an immediate threat. It should be noted that PW 119 was approved on March 24, 2007. Regulations governing the submittal of appeals specifically allow up to 60 days from the grant award was approved. In this case, the Applicant is well over the timeframe for regulatory deadline.
As part of the second appeal, the Applicant provided the following: invoices and load sheets, maps referencing location, and a summary of cost for the additional debris removal. The Applicant did not provide adequate information to justify that the additional debris removal was necessary to eliminate an immediate threat.
Issues: 1. Did the Applicant establish that the additional debris removed was necessary to eliminate an immediate threat?
2. Did the Applicant submit its appeal within the regulatory timeline?
Findings: 1. No. The Applicant did not provide adequate documentation to prove that the additional work was necessary to eliminate an immediate threat.
2. No. The appeal was submitted over one year beyond the regulatory deadline.
Rationale: Stafford Act, Section 403 (a) (3) (A) (I), 44 CFR § 206.204 (e) (2) Project Performance, Cost Overrun, 44 CFR § 206.206 (c) Appeals, Time Limits, 44 CFR § 206.224 (a) (1) Debris Removal, August, 1999 FEMA Policy 9524.3, Rehabilitation Assistance for Levees and Other Flood Control Works