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Mud Debris Removal

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1731-DR
ApplicantLos Angeles Retarded Citizens’ Foundation
Appeal TypeSecond
PA ID#037-UXKB6-00
PW ID#486
Date Signed2009-12-16T05:00:00

SECOND APPEAL BRIEF
FEMA-1731-DR-CA
Los Angeles Retarded Citizens’ Foundation; PA ID 037-UXKB6-00
Mud Debris Removal; Project Worksheet (PW) 486

Citation:            FEMA-1731-DR-CA, Los Angeles Retarded Citizens’ Foundation,
Mud Debris Removal, Project Worksheet (PW) 486

Cross
Reference:
         Debris Removal
 
Summary:           On January 4, 2008, FEMA amended the wildfire declaration to expand the incident type for the disaster to include flooding, mudflows, and debris flows directly related to the wildfires.  The amendment stated that only those areas that the Federal Coordinating Officer (FCO) determined on a case-by-case basis were damaged or adversely affected would be eligible.  FEMA prepared PW 486 for the Los Angeles Retarded Citizens’ Foundation (Applicant) for $1,106 to remove debris from its irrigation system destroyed by the wildfires.  However, FEMA determined $38,894 associated with mud and debris flows ineligible.     

In its first appeal dated May 7, 2008, the Applicant argued that the removal of mudflow debris was a direct result of the wildfires.  The removal of the mudflow debris was necessary for safe access to its facility and necessary to protect its facility from further damage.  The Applicant asserted that it was not reasonable for FEMA to determine that only the La Jolla and Rincon Band of Luiseno Indians warranted inclusion under the amendment.  FEMA’s denial of mud removal costs caused severe financial hardship to its organization, which included a residential program that cared for developmentally challenged adults.  In a letter dated October 29, 2008, the Acting Regional Administrator denied the first appeal.  The Acting Regional Administrator determined that the Applicant did not provide sufficient documentation to establish that the event affected the Applicant to such an extent and intensity to warrant inclusion under the amendment. 

In a letter dated February 11, 2009, the Applicant submitted its second appeal stating that personnel changes in its management delayed its submittal of its second appeal and reiterates its request for mud debris removal costs. 
  
Issue:                Is the post-fire debris removal work that the Applicant performed eligible under the amended declaration for Public Assistance?

Finding:             No.

Rationale:         44 CFR §206.31-40; 44 CFR §206.223

Appeal Letter

 

December 16, 2009

 

  

Frank McCarton

Governor’s Authorized Representative

Office of the Secretary

California Emergency Management Agency

3650 Schriever Avenue

Mather, California 95655

 

Re:       Second Appeal–Los Angeles Retarded Citizens’ Foundation,

PA ID 037-UXKB6-00, Mud Debris Removal, FEMA-1731-DR-CA,

Project Worksheet (PW) 486

 

Dear Mr. McCarton:

 

This letter is in response to your letter dated April 9, 2009, which transmitted the referenced second appeal on behalf of the Los Angeles Retarded Citizens’ Foundation (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $38,894 for mud debris removal work.

Severe wildfires damaged and destroyed several hundred acres in San Diego County from October 2007 to January 2008.  The President declared a major disaster for the fires on October 24, 2007.  As a result of rainfall that occurred November 30, 2007, FEMA published Amendment Number Two to the declaration on January 4, 2008, to expand the incident type for the disaster to include flooding, mudflows, and debris flows directly related to the wildfires.  The amendment stated that the Federal Coordinating Officer (FCO) would determine on a case-by-case basis the areas that were eligible for assistance under the amendment.  FEMA initially prepared PW 486 for $40,000 to remove mudflow debris from a fire access road and two debris basins.  FEMA subsequently determined that the removal of debris from the debris basin was not eligible, and approved the PW for $1,106 to remove debris from the burned irrigation system.

In its first appeal dated May 7, 2008, the Applicant argued that the removal of mudflow debris was a direct result of the wildfires.  The removal of the mudflow debris was necessary for safe access to its facility and necessary to protect its facility from further damage.  The Applicant asserted that it was not reasonable for FEMA to determine that only the La Jolla and Rincon Band of Luiseno Indians warranted inclusion under the amendment.  The Applicant stated that FEMA’s denial of mud debris removal costs caused severe financial hardship to its organization, which included a residential program that cared for developmentally challenged adults.  In a letter dated October 29, 2008, the Acting Regional Administrator denied the first appeal because the Applicant did not provide sufficient documentation to establish that the event affected the Applicant to such an extent and intensity to warrant inclusion under the amendment. 

In a letter dated February 11, 2009, the Applicant submitted its second appeal, 42 days after the regulatory deadline.  The Applicant states that personnel changes in its management delayed submittal of its second appeal.  The Applicant reiterates its request for $38,894 it incurred to remove mudflow debris and states that the mudflow threatened the 300,000-gallon water tank that supports its residential facility. 

Amendment Number Two further provided the FCO with the authority to determine eligibility for those areas damaged or adversely affected as a direct result of the compromised watershed conditions on a case-by-case basis.  The Applicant has not provided sufficient documentation to establish that post-fire rain events impacted the Applicant to such an extent and intensity to warrant inclusion under the amendment.  In addition, the Applicant did not submit the appeal within the regulatory 60-day timeframe pursuant to 44 CFR §206.206, Appeals.  I have reviewed the information submitted with the appeal and have determined that the Acting 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

Assistant Administrator

Disaster Assistance Directorate

cc:   Nancy Ward

       Regional Administrator

       FEMA Region IX