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Time Limitation

Appeal Brief Appeal Letter

Appeal Brief

Disaster1604-DR-MS
ApplicantCity of Waveland
Appeal TypeSecond
PA ID#045-78200-00
PW ID#5091 and 9972
Date Signed2012-03-28T04:00:00

Citation:         FEMA-1604-DR-MS, City of Waveland, Time limitation

Cross-

Reference:     Time limitation, Debris removal

Summary:       Hurricane Katrina damaged and uprooted trees throughout the City of Waveland.  FEMA prepared PW 5091 for $3,143,100 and PW 9972 for $708,905 for debris removal expenses. In June 2006, FEMA conducted a field validation of the debris clean up. As a result of the validation, FEMA reduced eligible costs for PW 5091 by $1,320,102 and PW 9972 by $297,740, a total reduction of 42 percent.  In the first appeal dated September 29, 2009, the Applicant claimed that that the devastating impact of Hurricane Katrina was a justified hardship preventing the Applicant from preparing the appeal documentation in a timely manner. The Applicant also requests that FEMA waive the time limitation for filing the appeal based upon Section 301 of Robert T. Stafford Act, which allows FEMA to modify or waive administrative conditions.  The Applicant claims that that FEMA’s field validation contained numerous errors and methodological flaws and that FEMA unilaterally invalidated eligible work. The Applicant requests that FEMA re-obligate the 42 percent of the costs disallowed on both PWs. The Regional Administrator denied the appeal on July 22, 2010, stating that the Applicant exceeded the 60 day time limitation for filing an appeal set forth in section 423 of the Stafford Act and at 44 Code of Federal Regulations (44 CFR) §206.206.  The Applicant failed to file its appeal for more than two years after receipt of the notice of FEMA’s action. The Applicant provides no compelling evidence as to why they previously filed eight appeals on time, but the Applicant was more than two years outside the filing deadline for this appeal.

Issue:              Did the Applicant demonstrate extenuating circumstances to warrant waiving the 60-day time limitation for filing an appeal?

Finding:          No.

Rationale:       Sections 423(a) and 301 of the Stafford Act; 44 CFR§206.206

Appeal Letter

March 28, 2012

Robert Latham

Executive Director

Mississippi Emergency Management Agency

Post Office Box 5644

Pearl, Mississippi 39208-5644

Re:    Second Appeal- City of Waveland, PA ID 045-78200-00, Time LimitationFEMA-1604-DR-MS, Project Worksheets (PWs) 5091 and 9972

Dear Mr. Latham:

This letter is in response to a letter from your office dated November 9, 2010, which transmitted the referenced second appeal on behalf of City of Waveland (Applicant). The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) de-obligation of $1,617,842 in funding for debris removal expenses.

Background

Hurricane Katrina damaged and uprooted trees throughout the City of Waveland. This resulted in threats to public safety such as limbs hanging over public rights-of-way and on private property, leaning trees, and uprooted stumps.  FEMA prepared and obligated PW 5091 in the amount of $3,143,100 to reimburse the Applicant for debris removal expenses and PW 9972 in the amount of $708,905 to reimburse the Applicant for debris monitoring expenses.  In June 2006, FEMA conducted a field validation of the debris removal and found 58 percent of the debris removal expenses to be valid.  FEMA de-obligated 42 percent of the actual debris removal expenses associated with PW 5091 ($1,320,102) and debris monitoring expenses associated with PW 9972 ($297,740).

First Appeal

The Applicant submitted its first appeal on September 29, 2009, requesting that FEMA reconsider the de-obligation of $1,320,102 from PW 5091 and $297,740 from PW 9972.  The Applicant stated that FEMA’s field validation contained numerous errors, methodological flaws and that FEMA unilaterally invalidated eligible work.  In addition, the Applicant stated that the impact of Hurricane Katrina presented a justified hardship that prevented the Applicant from preparing appeal documentation in a timely manner.  The Regional Administrator denied the first appeal on July 22, 2010, because the Applicant’s appeal exceeded the 60-day time limitation for filing an appeal set forth in Section 423 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) and Title 44 Code of Federal Regulations (44 CFR) §206.206.  The Applicant filed its appeal more than two years after receipt of the notice of FEMA’s action.  The Regional Administrator noted that the Applicant had previously filed eight appeals disputing FEMA funding obligations.  Each of these actions was filed within the administrative regulatory time-frame.  The Applicant provided no compelling evidence as to why eight appeals were filed on time, and one appeal was submitted more than two years past the filing deadline.

Second Appeal

The Applicant submitted a second appeal on September 24, 2010, in which it reiterates its first appeal position that the work performed in removing debris and monitoring the removal of debris was conducted in accordance with FEMA’s guidelines.  The Applicant contends that delay in submitting the first appeal was due to the administrative burdens placed on the Applicant due to the disaster, and that FEMA should waive the deadline using the authority granted to FEMA in Section 301 of the Stafford Act.  The Applicant then requests that after waiving this deadline, FEMA should review the data and discussion presented in the first appeal regarding field validation to reassess the de-obligation of funding.  The Applicant requested a meeting with FEMA to discuss the second appeal and on July 11, 2011, met with the Acting Director of the Public Assistance program in Washington, DC to present additional information supporting their appeal.

Discussion

The Applicant presented photo documentation of accumulated debris following the disaster.  The photos did indicate accumulated debris throughout the City of Waveland.  However, they did not adequately document the locations of the trees or the eligible work performed to remove the debris.  In June 2006, FEMA performed a validation of the debris removal work and found 42 percent of the costs to be ineligible. The Applicant has not submitted any additional documentation to refute this determination.

During the meeting, the Applicant also requested a time extension for submittal for their first appeal.  The Applicant’s first appeal was denied by FEMA because it was submitted after the

60-day time limitation expired. The Applicant maintained that administrative burdens incurred due to the effects of the disaster delayed the submission of the first appeal within the 60-day limitation.  The Applicant has previously filed eight appeals disputing FEMA funding within the administrative time frame. The Applicant provides no new substantive evidence to support the extenuating circumstances which caused them to submit their first appeal more than two years after the 60-day requirement set forth in Section 423 of the Stafford Act and at 44 CFR §206.206.

The Applicant did not provide sufficient documentation to support its claim that all of their debris removal and monitoring costs were eligible under the FEMA Public Assistance Program.  Further, the Applicant has not provided sufficient justification to warrant a time extension for submittal of their first appeal beyond the 60-day requirement.

Conclusion

I have reviewed the information submitted with the 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 Zimmerman

Deputy Associate Administrator

Office of Response and Recovery

cc:   Major P. May

        Regional Administrator

        FEMA Region IV