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Antaeus Gary Project

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1410-DR
ApplicantWest Virginia Department of Enviornmental Protection
Appeal TypeSecond
PA ID#000-UTB7N-00
PW ID#Project Worksheets 488 and 489
Date Signed2008-09-03T04:00:00
Citation: FEMA-1410-DR-WV, West Virginia Department of Environmental Protection PWs 488 and 489
Cross-reference: Emergency Protective Measures

Summary: On May 3, 2002, heavy rains resulted in the failure of a decant pipe from an impounding structure in Gary, West Virginia. Consequently, there was significant sloughage and erosion on the face of a dam. Large quantities of black water entered the local waters. FEMA prepared PWs 488 and 489 totaling $1,017,251 for emergency protective measures due to the downstream proximity of and the threat to the Town of Gary.

The Applicant also was awarded a court settlement of $7,645,862 for work that included emergency protective measures. FEMA de-obligated PWs 488 and 489 to avoid duplication of benefits.

The Applicant appealed the de-obligation. The Regional Administrator denied the appeal on August 13, 2007, because there had been no apparent effort by the Applicant to enforce the settlement or to pursue legal remedies.

On October 11, 2007, the Applicant submitted its second appeal to FEMA reiterating the previous position presented in the first appeal to support its contention that there would not be a duplication of benefits. The Applicant continues to hold a Promissory Note and a Deed of Trust associated with the settlement agreement. The Applicant has not pursued collection.

Issues: May FEMA duplicate funding when the Applicant is entitled, but has not received, funding from another source?

Findings: No.

Rationale: 44 CFR§ 204.62(a), 44 CFR§ 206.226(a) (1)

Appeal Letter

September 3, 2008

Jimmy J. Gianato
Director
State of West Virginia
Department of Military Affairs and Public Safety
Division of Homeland Security and Emergency Management
Building 1, Room EB-80
1900 Kanawha Boulevard, East
Charleston, West Virginia 25305-0360

Re: Second Appeal–West Virginia Department of Environmental Protection, 000-UTB7N-00
Antaeus Gary Project, FEMA-1410-DR-WV, Project Worksheets (PW) 488 and 489

Dear Mr. Gianato:

This is in response to your letter dated Oct, 11, 2007, which transmitted the referenced second appeal on behalf of the West Virginia Department of Environmental Protection (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) decision to deny funding for emergency work.

On May 3, 2002, heavy rains resulted in the failure of a decant pipe from a private impounding structure at the Antaeus Gary site, which caused sloughage and erosion on the face of a dam. FEMA prepared PWs 488 and 489 totaling $1,017,251 for emergency protective measures due to the downstream proximity of and the threat to the Town of Gary. FEMA subsequently de-obligated the PWs when it learned that the PWs would duplicate funding to which the Applicant was entitled to $7,645.862.

The State of West Virginia’s Department of Military Affairs and Public Safety submitted the Applicants’ first appeal on May 10, 2007, contesting the de-obligation action taken by FEMA. A bankruptcy settlement agreement with the private landowner established that the Applicant was due a total sum of $7,645,862 as reimbursement for the work done on private land. Based on applicable law and policy, the Regional Administrator believed that this constituted a duplication of disaster funding. The Applicant did not present adequate explanation of why this was not a duplication of benefits.

The Regional Administrator denied the appeal on August 13, 2007, because there had been no apparent effort by the Applicant to enforce the settlement agreement or to pursue legal remedies.

On October 11, 2007, the Applicant submitted its second appeal to FEMA reiterating the previous position presented in the first appeal to support its contention that there would not be a duplication of benefits. A good faith effort has not been made to pursue collection.

I have reviewed all information submitted with the appeal and have determined that the Regional Administrator’s decision in the first appeal is consistent with Public Assistance Program regulations and policies. Therefore, I deny the Applicant’s second appeal.

Please inform the Applicant of my decision. My determination constitutes the final decision on this matter pursuant to 44 CFR§ 206.206.

Sincerely,
/s/
Carlos J. Castillo
Assistant Administrator
Disaster Assistance Directorate

cc: Jonathan Sarubbi
Regional Administrator
FEMA Region III