Appeal Brief | Appeal Letter | Appeal Analysis | Back
Second Appeal Brief
PA ID# 125-U00B3-00; Clarksville Gas and Water
PW ID# 2418; Legal Responsibility
Conclusion: Pursuant to 44 C.F.R. § 206.223(a), the Applicant sufficiently demonstrated that it was legally responsible for two exterior high-voltage transformers and related switches located within its wastewater treatment plant at the time of the disaster. Accordingly, the cost associated with replacing the transformers and related switches is eligible for PA funding.
Beginning on April 30, 2010, severe storms, tornadoes, heavy rains, high winds, flooding, and flash flooding affected the City of Clarksville. FEMA prepared PW 2418 to document damage to the Administration, Laboratory, and Mechanical Building (Facility) within the Applicant’s wastewater treatment plant. FEMA denied funding for the Facility because, using GPS coordinates, it determined that the Facility was found to be within the boundaries of a United States Army Corps of Engineers (USACE) easement. In the first appeal, the Applicant asserted that the easement did not contain an indemnification provision in favor of the United States. In addition, the Applicant asserted that two transformers and related switches were excluded from the scope of work in PW 2418, but were eligible for PA funding. As such, the Applicant requested an additional $82,000.00 in funding for the cost of the transformers and related switches. The Regional Administrator (RA) partially approved PW 2418 for $3,005,187.90 for replacement of the Facility. However, the RA determined that the Applicant was not legally responsible for the transformers and related switches and denied funding associated with their replacement. In the Applicant’s second appeal, it asserts that it owned the transformers; thus, it is legally responsible for them.
Authorities and Second Appeals
- Stafford Act § 406, 42 U.S.C. § 5172.
- 44 C.F.R. § 206.223(a).
- OMB Circular A-87, 2 C.F.R. § 225.
- PA Guide, at 23, 30-31.
- Pursuant to 44 C.F.R. § 206.223(a), an eligible item of work must be the legal responsibility of the Applicant.
- In addition, the PA Guide provides that legal responsibility can be conveyed through a lease or other legal instrument.
- Based on a signed and notarized affidavit and other supporting documents, the Applicant demonstrated that it was legally responsible for the replacement of the transformers and related switches.
- Pursuant to OMB Circular A-87, allowable costs must be, among other things, reasonable.
- Using RS Means, FEMA established that the Applicant’s request for $82,000.00 to replace two high-voltage transformers and related switches is reasonable.