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Second Appeal Brief
PA ID# 113-99113-00; Linn County
PW ID# 10549; Debris Removal – Private Property
Conclusion: The Applicant has not provided sufficient evidence to show that the five foundations were a threat to public health and safety, but the Applicant has provided sufficient documentation demonstrating the costs associated with the removal of eligible non-concrete demolition material.
From May 25 through August 13, 2008, floodwaters damaged five structures located on private property in Linn County (Applicant). During project closeout, FEMA denied costs for the demolition and disposal of five foundations. In a first appeal letter, the Applicant referred to a State of Iowa Department of Natural Resources authorization that waived the requirement for an asbestos inspection prior to demolition if the structure was structurally unsound and in danger of imminent collapse. The Grantee forwarded the appeal, citing 40 C.F.R. § 61.145(a)(3), which they interpreted to provide an exception for the testing of asbestos in a structure to be demolished under an order of a State or local government agency. The FEMA Region VII Regional Administrator denied the first appeal and de-obligated all costs, stating that the Applicant did not provide documentation, such as testing reports, demonstrating that the concrete posed an immediate threat to public health and safety. Furthermore, the Applicant did not sufficiently document the amount of eligible demolition material removed. On second appeal, the Applicant is contesting FEMA’s denial of all demolition and removal costs. The Applicant emphasizes that it was not able to test for asbestos because the structures were deemed unsafe to enter.
Authorities and Second Appeals
- DAP 9523.4, Demolition of Private Structures at 4.
- 40 C.F.R. § 61.145(a)(3).
- 44 C.F.R. § 13.36(f)(3).
- DAP 9523.4 states that “Ineligible costs associated with demolition of private structures may include removal of slabs or foundations, except in very unusual circumstances, such as … an immediate public health and safety threat.”
- The Applicant was not able to demonstrate an immediate public health and safety threat.
- 40 C.F.R. § 61.145(a)(3) excepts the Applicant from certain notification requirements if the facility is being demolished under a State or local government order due to the facility being structurally unsound and in danger of imminent collapse, but does not relieve the Applicant from taking some action to inspect the facility for asbestos.
- The Applicant has not provided the results of an asbestos inspection.
- 44 C.F.R. § 13.36(f)(3) allows for FEMA to reimburse contract costs based on estimates as long as they are consistent with federal cost principles as established in 44 C.F.R. § 13.22 and OMB Circular A-87.
- The Applicant has provided sufficient documentation demonstrating that costs are consistent with federal cost principles.