McKean Road
Appeal Brief
Appeal Letter
Appeal Analysis
Citation: FEMA-1155-DR-CA, P.A. 085-68000, City of San Jos?, DSR 75900
Cross Reference: Federal Highway Administration, Federal-aid road
Summary: Winter storms in January1997 caused a slide that covered McKean Road in the City of San Jos?. Damage Survey Report (DSR) 75900 was prepared on May 2, 1997, for $52,993 to cover the actual costs of force account labor, equipment, materials and contract work required to clear the slide and stabilize the hillside. The site was identified as a Federal-aid road, and therefore, potentially eligible for funding through the Emergency Relief (ER) program of the Federal Highway Administration (FHWA). On June 4, 1997, the DSR was suspended pending a decision on whether FHWA or FEMA would reimburse the City. The City applied for FHWA ER funding on October 27, 1997. CalTrans denied the City's request on November 6, 1997, because the City had missed the June 30, 1997, application deadline. On February 2, 1998, FEMA obligated DSR 75900 for $0 because the project was potentially eligible for FHWA ER funding. The City submitted its first appeal on July 7, 1998. It claimed that the work was necessary emergency work. On March 12, 1999, FEMA denied the appeal because the City had not acted diligently to obtain the appropriate funding from FHWA. The City submitted its second appeal on March 23, 1999. It cites pages 42 and 51 of the Public Assistance Guide (FEMA/286, February 1996), which states that FEMA may assist with debris clearance on Federal-aid roads for portions of roads that are not eligible for FHWA ER funding.
Issues: 1) Is debris removal from a Federal-aid road eligible for reimbursement from FEMA's Public Assistance program?
Findings: 1) Yes, FEMA may fund debris removal on Federal-aid roads on a case-by-case basis.
Rationale: 44 CFR 206.224(a)
Winter storms in January 1997 caused a slide that covered McKean Road along the Calero Reservoir in the City of San Jos?. An inspection team visited the site on May 2, 1997. At that time, all debris had been removed by the City and Damage Survey Report (DSR) 75900 was prepared for $52,993 to cover actual costs of force account labor, equipment, materials and contract work. The site was identified as an "other principal arterial" according to the Federal Highway Administration (FHWA) functional classification program, and therefore, potentially eligible for funding through FHWA's Emergency Relief (ER) program. On June 4, 1997, the DSR was suspended pending a decision on whether FHWA or FEMA would reimburse the City. By letter dated August 20, 1997, FEMA asked the City to seek FHWA funding for this project.
On October 27, 1997, City applied for FHWA ER funding. The State of California Department of Transportation (CalTrans) denied the request on November 6, 1997. CalTrans stated: "we have reviewed your request and concluded that your project does not qualify for the 1997 storm damage emergency relief funds because your request came after the deadline of June 30, 1997." DSR 75900 was signed on February 2, 1998. It obligated $0 because the "applicant has applied to CalTrans as an FHWA system road, therefore FEMA is precluded from participating in funding the project."
FIRST APPEAL
The City submitted its first appeal on July 7, 1998. It stated that as a result of heavy rains, a slide blocked McKean Road and an additional portion of the hillside was subject to failure. The slide was removed and the hillside was stabilized with the removal of additional dirt. The City claimed that the response minimized the risk to public safety and public cost. Because the original FEMA inspector had recommended that the DSR be approved, the City said that it was "surprised to see that this DSR was on a list asking the City to seek FHWA funding."
FEMA denied the appeal on March 12, 1999. The Regional Director determined that the City was not eligible for FEMA funding, as the road may have been eligible for FHWA funding if the City had submitted its application prior to the June 30, 1997, deadline. In cases when another Federal agency with authority for certain disaster-related work does not provide funding, FEMA may fund only emergency work. However, in this case, the Regional Director determined that the City did not act diligently to receive appropriate funding.
SECOND APPEAL
The City submitted its second appeal on March 23, 1999. It cites page 42 of the Public Assistance Guide (FEMA/286, February 1996), which says, "even when the ER program is activated for an area, FHWA assistance is granted only for portions of the road actually damaged by the disaster." It also quotes page 51 of the same guide: "FEMA may assist with limited emergency repairs and debris clearance on Federal-aid roads for emergency access on a case-by-case basis. This assistance may be necessary if there is no ER program activated for the event or a particular road has no damage eligible for ER funding." The City claims that the ER program was not activated for this disaster and there was no damage to the road. It also contends that FEMA was responsible for its late application for FHWA funding.
DISCUSSION
FHWA did activate the ER program and make ER funds available during this disaster. On January 6, 1997, CalTrans reported that it had filed a request with FHWA asking for $50 million in Federal disaster relief funds. FHWA approved the request and eventually declared a total of 48 counties eligible for ER funding. This information was recently confirmed by Ray Okinaga, an ER coordinator in FHWA's Sacramento Division Office.
A FEMA inspector visited the McKean Road site, although the ER program had been activated. It is normal practice for FEMA to make inspections even if eligibility is in question. At the time of the inspection, the site was identified as a Federal-aid road, therefore, potentially eligible for ER funding. However, because the DSR was prepared for debris removal only, the FEMA inspector recommended that the DSR be approved for FEMA funding. Eventually the DSR was suspended pending a decision on whether FEMA or FHWA would pay for the project.
It should be noted that comments made by inspectors on DSRs are recommendations, and do not signify Federal approval of a project. Each DSR must be evaluated and approved by either the Disaster Recovery Manager or the Regional Director before Federal funding is granted. This procedure is explained on page 22 of the Public Assistance Guide (FEMA 286/September 1996).
In its second appeal, the City cited two sections of FEMA's Public Assistance Guide that address FEMA funding of Federal-aid roads. These sections say that FEMA may approve debris removal on Federal-aid roads. For example, page 42 says that debris on undamaged sections of highway (those not being repaired by the ER program) may be eligible for FEMA assistance. This statement and those on page 51 were written to allow FEMA to fund emergency debris removal on Federal-aid roads when the ER program was not activated or when those roads were not otherwise damaged. It has been FEMA's understanding that the FHWA ER program would not fund debris removal that was unrelated to other repairs. However, in future disasters, if Federal-aid roads require debris removal or other repairs, the City should first and immediately seek funding from FHWA. It is the City's responsibility to know which roads are Federal-aid roads and apply for appropriate remuneration if emergency funds are available.
CONCLUSION
In this case, the suspension of this DSR and information from FEMA may have jeopardized the City's ability to obtain ER funding. In addition, 44 CFR 206.224(a) allows FEMA to fund emergency debris removal when it is in the public interest. Therefore, in this case, the appeal is granted. The Regional Director will prepare a DSR to approve $52,993.
Appeal Brief
| Disaster | FEMA-1155-DR |
| Applicant | City of San Jose |
| Appeal Type | Second |
| PA ID# | 085-68000 |
| PW ID# | 75900 |
| Date Signed | 1999-10-15T04:00:00 |
Cross Reference: Federal Highway Administration, Federal-aid road
Summary: Winter storms in January1997 caused a slide that covered McKean Road in the City of San Jos?. Damage Survey Report (DSR) 75900 was prepared on May 2, 1997, for $52,993 to cover the actual costs of force account labor, equipment, materials and contract work required to clear the slide and stabilize the hillside. The site was identified as a Federal-aid road, and therefore, potentially eligible for funding through the Emergency Relief (ER) program of the Federal Highway Administration (FHWA). On June 4, 1997, the DSR was suspended pending a decision on whether FHWA or FEMA would reimburse the City. The City applied for FHWA ER funding on October 27, 1997. CalTrans denied the City's request on November 6, 1997, because the City had missed the June 30, 1997, application deadline. On February 2, 1998, FEMA obligated DSR 75900 for $0 because the project was potentially eligible for FHWA ER funding. The City submitted its first appeal on July 7, 1998. It claimed that the work was necessary emergency work. On March 12, 1999, FEMA denied the appeal because the City had not acted diligently to obtain the appropriate funding from FHWA. The City submitted its second appeal on March 23, 1999. It cites pages 42 and 51 of the Public Assistance Guide (FEMA/286, February 1996), which states that FEMA may assist with debris clearance on Federal-aid roads for portions of roads that are not eligible for FHWA ER funding.
Issues: 1) Is debris removal from a Federal-aid road eligible for reimbursement from FEMA's Public Assistance program?
Findings: 1) Yes, FEMA may fund debris removal on Federal-aid roads on a case-by-case basis.
Rationale: 44 CFR 206.224(a)
Appeal Letter
October 15, 1999
Mr. D.A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
Post Office Box 419023
Rancho Cordova, CA 95741-9023
Re: Second Appeal - The City of San Jos ?, McKean Road, FEMA-1155-DR-CA, DSR 75900
Dear Mr. Christian:
This is in response to the referenced second appeal forwarded by your office on April 13, 1999. Winter storms in 1997 caused a slide that covered McKean Road along the Calero Reservoir in the City of San Jos ?. Damage Survey Report (DSR) 75900 was prepared on May 2, 1997, for the actual expense of force account labor, equipment, materials, and contract work to remove the slide and stabilize the hillside. The DSR was obligated for $0 because the road is a Federal-aid road, and the project was potentially eligible for reimbursement through the Emergency Relief (ER) program of the Federal Highway Administration (FHWA).
The City submitted its first appeal on July 7, 1998. FEMA denied the appeal on March 12, 1999. On March 23, 1999, the City submitted its second appeal. It claimed that FEMA's policy guidance allows for debris removal on Federal-aid roads that are not otherwise damaged. In addition, 44 CFR 206.224(a) allows FEMA to reimburse for emergency debris removal without regard to other Federal agencies on a case-by-case basis. For these reasons, the appeal is granted. By copy of this letter I am asking the Regional Director to prepare a DSR for $52,993.
Please inform the applicant of my decision. In accordance with the appeal procedure governing appeal decisions made on or after May 8, 1998, my decision constitutes the final decision on this matter. The current appeal procedure was published as a final rule in the Federal Register on April 8, 1998. It amends 44 CFR 206.206.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
cc: Martha Whetstone
Regional Director
FEMA Region IX
Mr. D.A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
Post Office Box 419023
Rancho Cordova, CA 95741-9023
Re: Second Appeal - The City of San Jos ?, McKean Road, FEMA-1155-DR-CA, DSR 75900
Dear Mr. Christian:
This is in response to the referenced second appeal forwarded by your office on April 13, 1999. Winter storms in 1997 caused a slide that covered McKean Road along the Calero Reservoir in the City of San Jos ?. Damage Survey Report (DSR) 75900 was prepared on May 2, 1997, for the actual expense of force account labor, equipment, materials, and contract work to remove the slide and stabilize the hillside. The DSR was obligated for $0 because the road is a Federal-aid road, and the project was potentially eligible for reimbursement through the Emergency Relief (ER) program of the Federal Highway Administration (FHWA).
The City submitted its first appeal on July 7, 1998. FEMA denied the appeal on March 12, 1999. On March 23, 1999, the City submitted its second appeal. It claimed that FEMA's policy guidance allows for debris removal on Federal-aid roads that are not otherwise damaged. In addition, 44 CFR 206.224(a) allows FEMA to reimburse for emergency debris removal without regard to other Federal agencies on a case-by-case basis. For these reasons, the appeal is granted. By copy of this letter I am asking the Regional Director to prepare a DSR for $52,993.
Please inform the applicant of my decision. In accordance with the appeal procedure governing appeal decisions made on or after May 8, 1998, my decision constitutes the final decision on this matter. The current appeal procedure was published as a final rule in the Federal Register on April 8, 1998. It amends 44 CFR 206.206.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
cc: Martha Whetstone
Regional Director
FEMA Region IX
Appeal Analysis
BACKGROUNDWinter storms in January 1997 caused a slide that covered McKean Road along the Calero Reservoir in the City of San Jos?. An inspection team visited the site on May 2, 1997. At that time, all debris had been removed by the City and Damage Survey Report (DSR) 75900 was prepared for $52,993 to cover actual costs of force account labor, equipment, materials and contract work. The site was identified as an "other principal arterial" according to the Federal Highway Administration (FHWA) functional classification program, and therefore, potentially eligible for funding through FHWA's Emergency Relief (ER) program. On June 4, 1997, the DSR was suspended pending a decision on whether FHWA or FEMA would reimburse the City. By letter dated August 20, 1997, FEMA asked the City to seek FHWA funding for this project.
On October 27, 1997, City applied for FHWA ER funding. The State of California Department of Transportation (CalTrans) denied the request on November 6, 1997. CalTrans stated: "we have reviewed your request and concluded that your project does not qualify for the 1997 storm damage emergency relief funds because your request came after the deadline of June 30, 1997." DSR 75900 was signed on February 2, 1998. It obligated $0 because the "applicant has applied to CalTrans as an FHWA system road, therefore FEMA is precluded from participating in funding the project."
FIRST APPEAL
The City submitted its first appeal on July 7, 1998. It stated that as a result of heavy rains, a slide blocked McKean Road and an additional portion of the hillside was subject to failure. The slide was removed and the hillside was stabilized with the removal of additional dirt. The City claimed that the response minimized the risk to public safety and public cost. Because the original FEMA inspector had recommended that the DSR be approved, the City said that it was "surprised to see that this DSR was on a list asking the City to seek FHWA funding."
FEMA denied the appeal on March 12, 1999. The Regional Director determined that the City was not eligible for FEMA funding, as the road may have been eligible for FHWA funding if the City had submitted its application prior to the June 30, 1997, deadline. In cases when another Federal agency with authority for certain disaster-related work does not provide funding, FEMA may fund only emergency work. However, in this case, the Regional Director determined that the City did not act diligently to receive appropriate funding.
SECOND APPEAL
The City submitted its second appeal on March 23, 1999. It cites page 42 of the Public Assistance Guide (FEMA/286, February 1996), which says, "even when the ER program is activated for an area, FHWA assistance is granted only for portions of the road actually damaged by the disaster." It also quotes page 51 of the same guide: "FEMA may assist with limited emergency repairs and debris clearance on Federal-aid roads for emergency access on a case-by-case basis. This assistance may be necessary if there is no ER program activated for the event or a particular road has no damage eligible for ER funding." The City claims that the ER program was not activated for this disaster and there was no damage to the road. It also contends that FEMA was responsible for its late application for FHWA funding.
DISCUSSION
FHWA did activate the ER program and make ER funds available during this disaster. On January 6, 1997, CalTrans reported that it had filed a request with FHWA asking for $50 million in Federal disaster relief funds. FHWA approved the request and eventually declared a total of 48 counties eligible for ER funding. This information was recently confirmed by Ray Okinaga, an ER coordinator in FHWA's Sacramento Division Office.
A FEMA inspector visited the McKean Road site, although the ER program had been activated. It is normal practice for FEMA to make inspections even if eligibility is in question. At the time of the inspection, the site was identified as a Federal-aid road, therefore, potentially eligible for ER funding. However, because the DSR was prepared for debris removal only, the FEMA inspector recommended that the DSR be approved for FEMA funding. Eventually the DSR was suspended pending a decision on whether FEMA or FHWA would pay for the project.
It should be noted that comments made by inspectors on DSRs are recommendations, and do not signify Federal approval of a project. Each DSR must be evaluated and approved by either the Disaster Recovery Manager or the Regional Director before Federal funding is granted. This procedure is explained on page 22 of the Public Assistance Guide (FEMA 286/September 1996).
In its second appeal, the City cited two sections of FEMA's Public Assistance Guide that address FEMA funding of Federal-aid roads. These sections say that FEMA may approve debris removal on Federal-aid roads. For example, page 42 says that debris on undamaged sections of highway (those not being repaired by the ER program) may be eligible for FEMA assistance. This statement and those on page 51 were written to allow FEMA to fund emergency debris removal on Federal-aid roads when the ER program was not activated or when those roads were not otherwise damaged. It has been FEMA's understanding that the FHWA ER program would not fund debris removal that was unrelated to other repairs. However, in future disasters, if Federal-aid roads require debris removal or other repairs, the City should first and immediately seek funding from FHWA. It is the City's responsibility to know which roads are Federal-aid roads and apply for appropriate remuneration if emergency funds are available.
CONCLUSION
In this case, the suspension of this DSR and information from FEMA may have jeopardized the City's ability to obtain ER funding. In addition, 44 CFR 206.224(a) allows FEMA to fund emergency debris removal when it is in the public interest. Therefore, in this case, the appeal is granted. The Regional Director will prepare a DSR to approve $52,993.
Last updated