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Debris Removal from Private Roads

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1545-DR
ApplicantCity of West Palm Beach
Appeal TypeSecond
PA ID#099-76600-00
PW ID#1270 and 1276
Date Signed2008-02-05T05:00:00
Citation: FEMA-1545-DR-FL; City of Wes-

Summary: The City of West Palm Beach (Applicant) sustained damages associated with downed trees and debris on public and private property as a result of Hurricane Frances (FEMA-1545-DR-FL, September 4, 2004). FEMA prepared Project Worksheets totaling $4,860,924.50 for debris removal from public rights-of-way. FEMA de-obligated funds for ineligible work, including $101,558.48 for 5,284 cubic yards of debris removed from private roads including gated communities, as the work did not meet eligibility criteria as stated in 44 CFR §206.224 and
44 CFR §206.223. The Applicant submitted its first appeal to FEMA on August 14, 2006, stating that the debris removal from private roads in gated communities was necessary to eliminate immediate threat to life, public health and safety and was the legal responsibility of the local government as established by its solid waste ordinances and city codes. The Regional Director denied the Applicant’s appeal stating that the Applicant had not provided the documentation necessary to demonstrate it had the legal responsibility to remove debris from private roads. The Applicant submitted its second appeal on
May 16, 2007. The Applicant’s second appeal includes information from the City’s solid waste collection ordinances and emergency powers included in State statute which it claims confer legal responsibility for debris removal from private roads to the Applicant.

Issues: 1. Has the Applicant demonstrated that it had the legal responsibility to remove debris from private roads?
Findings: 1. Yes.


Rationale: 44 CFR §206.223

Appeal Letter

February 5, 2008

W. Craig Fugate, Director
Division of Emergency Management
Department of Community Affairs, State of Florida
2555 Shumard Oak Blvd.

Tallahassee, FL 32399-2100

Re: Second Appeal – City of West Palm Beach, FL, PA ID 099-76600-00, Debris Removal from Private Roads, FEMA-1545-DR-FL, Project Worksheets (PWs) 1270 and 1276

Dear Mr. Fugate:

This letter is in response to a letter from your office dated May 16, 2007, transmitting the referenced second appeal on behalf of the City of West Palm Beach (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of reimbursement for costs associated with debris removal from private roads in gated communities following Hurricane Frances.

The Applicant is appealing the de-obligation of $101,558.48 from PWs 1270 and 1276 for debris removed from private roads in gated communities. FEMA determined that the Applicant did not demonstrate that it had legal responsibility to perform the work as required by 44 CFR §206.223. This position was affirmed in the first appeal response dated November 8, 2006, in which the Regional Director denied the Applicant’s appeal citing 44 CFR §206.223(a)(3), which states, “To be eligible for financial assistance, an item of work must:…be the legal responsibility of an eligible applicant.” The response from the Regional Director stated that the Applicant had not provided the documentation necessary to demonstrate that it had the legal responsibility to remove debris from private property.

In a letter dated May 16, 2007, the Florida State Department of Community Affairs, Division of Emergency Management forwarded the Applicant’s second appeal to FEMA. The Applicant’s second appeal includes its Solid Waste Collection and Disposal ordinance. Pursuant to
Sec 74-31 of the Code of Ordinance of the City of West Palm Beach, each owner or occupant of improved residential property is charged a regular fee for the collection and disposal of residential solid waste. A letter from the Applicant’s Finance Director dated October 28, 2005, states that there is no distinction between private communities and other communities in the City as it relates to residential solid waste collection services. Pursuant to Sec. 74-33 of the ordinance, “residential yard or garden waste may be collected at such other times as are necessary to prepare for, or clean up from, a hurricane or other severe storm or emergency.”

Based on a review of all information submitted with the appeal, I have determined that the solid waste ordinance establishes the Applicant’s legal responsibility to remove disaster-related debris from private roads in the city. Therefore, I approve the Applicant’s second appeal. By copy of this letter, I request that the Regional Administrator take appropriate action to implement this determination.

Please inform the Applicant of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR § 206.206.

Sincerely,

/s/

Carlos J. Castillo
Assistant Administrator
Disaster Assistance Directorate

cc: Major Phil May
Regional Administrator
FEMA Region IV