404 Hazard Mitigation Buyout
Appeal Brief
Appeal Letter
Citation: Second Appeal; Commonwealth of Kentucky; FEMA-1163-DR-KY
Cross Reference: 404 Hazard Mitigation Buyout Program; Public Assistance (PA) Role; Demolition
Summary: On February 5, 1998, the Commonwealth of Kentucky submitted a letter, treated as a first appeal, to the Regional Director. The State claimed that decisions were reached during DFO operations to provide public assistance funds for demolition and removal in approved buyout projects and FEMA pulled back from their commitment. They contended that FEMA took the position that PA funding and eligibility would be limited to demolition and removal of dwellings above grade and appurtenant structures attached to the building and above grade, and non-dwelling structures would not be eligible. The State also requested written policy from FEMA, citing FEMA regulation, legislative authority and other guidance, on these questions. The Regional Director responded on March 6, 1998, that in a memo dated March 30, 1995, the FEMA National Office had clarified its position stating that Section 403 funds can be used to demolish structures (1) if the structures are determined to be unsafe and pose an immediate danger to the public; and (2) if 50 percent or more of the structures included a FEMA funded buyout/relocation program are substantially damaged, all structures in the specific project are eligible for demolition. In addition, 44 CFR 206.224 and 206.225 both state that in order to be eligible, the work must eliminate or lessen immediate threats (1) to life, public health, and safety; or (2) of significant damage to improved public or private property. Therefore, the PA Program would fund the costs associated with the removal of the structure, not to include the slab. On March 26, 1998, the State submitted a letter to FEMA, treated as a second appeal, requesting that FEMA reconsider the policy clarification regarding the role of the PA Program in providing assistance for demolition costs associated with the Hazard Mitigation Buyout Program. The State contended that according to 44 CFR 206.224(a)(3), the work might be eligible if it will ensure economic recovery of the affected community to the benefit of the community-at-large and that PA funds should be made available to "return to green spaces" properties acquired under the Hazard Mitigation Grant Program relocation policy.
Issue: Is part of the demolition work, which is not of an immediate threat, eligible for PA?
Findings: No. That part of the demolition work which is not of an immediate threat may not be funded through the PA Program.
Rationale: Stafford Act, Section 403; 44 CFR 206.224 and 206.225; FEMA Memo dated March 30, 1995 (Demolition of Flood Damaged Structures Under Section 403)
Appeal Brief
| Disaster | FEMA-1163-DR |
| Applicant | Commonwealth of Kentucky |
| Appeal Type | Second |
| PA ID# | 000-00000 |
| PW ID# | N/A |
| Date Signed | 1999-06-07T04:00:00 |
Cross Reference: 404 Hazard Mitigation Buyout Program; Public Assistance (PA) Role; Demolition
Summary: On February 5, 1998, the Commonwealth of Kentucky submitted a letter, treated as a first appeal, to the Regional Director. The State claimed that decisions were reached during DFO operations to provide public assistance funds for demolition and removal in approved buyout projects and FEMA pulled back from their commitment. They contended that FEMA took the position that PA funding and eligibility would be limited to demolition and removal of dwellings above grade and appurtenant structures attached to the building and above grade, and non-dwelling structures would not be eligible. The State also requested written policy from FEMA, citing FEMA regulation, legislative authority and other guidance, on these questions. The Regional Director responded on March 6, 1998, that in a memo dated March 30, 1995, the FEMA National Office had clarified its position stating that Section 403 funds can be used to demolish structures (1) if the structures are determined to be unsafe and pose an immediate danger to the public; and (2) if 50 percent or more of the structures included a FEMA funded buyout/relocation program are substantially damaged, all structures in the specific project are eligible for demolition. In addition, 44 CFR 206.224 and 206.225 both state that in order to be eligible, the work must eliminate or lessen immediate threats (1) to life, public health, and safety; or (2) of significant damage to improved public or private property. Therefore, the PA Program would fund the costs associated with the removal of the structure, not to include the slab. On March 26, 1998, the State submitted a letter to FEMA, treated as a second appeal, requesting that FEMA reconsider the policy clarification regarding the role of the PA Program in providing assistance for demolition costs associated with the Hazard Mitigation Buyout Program. The State contended that according to 44 CFR 206.224(a)(3), the work might be eligible if it will ensure economic recovery of the affected community to the benefit of the community-at-large and that PA funds should be made available to "return to green spaces" properties acquired under the Hazard Mitigation Grant Program relocation policy.
Issue: Is part of the demolition work, which is not of an immediate threat, eligible for PA?
Findings: No. That part of the demolition work which is not of an immediate threat may not be funded through the PA Program.
Rationale: Stafford Act, Section 403; 44 CFR 206.224 and 206.225; FEMA Memo dated March 30, 1995 (Demolition of Flood Damaged Structures Under Section 403)
Appeal Letter
June 7, 1999
Mr. W. R. Padgett
Executive Director
Commonwealth of Kentucky
Department Of Military Affairs
Division of Disaster and Emergency Services
592 East Main Street
Frankfort, Kentucky 40601
RE: Second Appeal-Kentucky Division of Emergency Services-Demolition
of Buyout Properties, FEMA-1163-DR-KY
Dear Mr. Padgett:
This is in response to your March 26, 1998, letter to the Federal Emergency Management Agency (FEMA). Your letter, treated as a second appeal, is requesting FEMA to reconsider the policy clarification regarding the role of the Public Assistance Program in providing assistance for demolition costs associated with the Hazard Mitigation Buyout Program.
On February 5, 1998, the Commonwealth of Kentucky submitted a letter, treated as a first appeal, to the Regional Director. The State contended that a potentially significant disagreement has developed between Kentucky's Public Assistance staff and FEMA personnel concerning the extent to which Public Assistance funding will be available to support buyout projects. The State claimed that decisions were reached during DFO operations to provide Public Assistance funds for demolition and removal in approved buyout projects and FEMA pulled back from its commitment. You contended that FEMA took the position that Public Assistance funding and eligibility would be limited to demolition and removal of dwellings above grade and appurtenant structures attached to the building and above grade, and non-dwelling structures would not be eligible. The State also requested written policy from FEMA, citing FEMA regulation, legislative authority and other guidance, on these questions. The Regional Director responded on
March 6, 1998, that after the Midwest floods, it was decided that the Public Assistance Program would fund some of the costs associated with the demolition of structures that were part of the Buyout Program, pursuant to Section 403(a)(3) of the Stafford Act. However, in a memo dated
March 30, 1995 (enclosed), the FEMA National Office clarified its position stating that Section 403 funds can be used to demolish structures (1) if the structures are determined to be unsafe and pose an immediate danger to the public; and (2) if 50 percent or more of the structures included in a FEMA funded buyout/relocation program are substantially damaged, all structures in the specific project are eligible for demolition. In addition, 44 CFR 206.224 and 206.225 both state that in order to be eligible, the work must eliminate or lessen immediate threats (1) to life, public health, and safety; or (2) of significant damage to improved public or private property.
Therefore, the Public Assistance Program will fund the costs associated with the removal of the structure, not to include the slab. Any underground tank or septic system, if not exposed, will be capped. If exposed, the costs associated with either removing or filling will be eligible, whichever is lesser. Filling of basements will be eligible.
Your March 26, 1998, letter to FEMA also claimed that according to 44 CFR 206.224(a)(3), the work might be eligible if it will ensure economic recovery of the affected community to the benefit of the community-at-large and that Public Assistance funds should be made available to "return to green spaces" properties acquired under the Hazard Mitigation Grant Program relocation policy. The referenced section is applicable only to removal of debris created by the disaster while the structures involved in this work are debris created only by the buyout program.
The enclosed memo from FEMA, (Demolition of Flood Damaged Structures Under Section 403 of the Stafford Act), dated March 30, 1995, supersedes the prior FEMA memo dated January 21, 1994, which would have allowed Federal disaster funding for demolition of all of the properties in a buyout project. However, the March 30, 1995, memo represents FEMA policy applicable to this disaster, and as explained by the Regional Director in the first appeal response (enclosed), the work performed in the demolition process, which is not of an immediate threat, may not be funded through the Public Assistance Program unless it meets the criteria of the March 30, 1995 memorandum. Since the demolition work in question is primarily to facilitate the use of the areas in the future as parkland, it is more appropriately funded as part of the 404 Hazard Mitigation Grant Program. We have determined the Regional Director correctly assessed the information provided in the first appeal, and made the proper determination. Therefore, I am denying the second appeal.
Please inform the applicant of my determination. 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
Enclosures
cc: John B. Copenhaver
Regional Director
FEMA Region IV
Mr. W. R. Padgett
Executive Director
Commonwealth of Kentucky
Department Of Military Affairs
Division of Disaster and Emergency Services
592 East Main Street
Frankfort, Kentucky 40601
RE: Second Appeal-Kentucky Division of Emergency Services-Demolition
of Buyout Properties, FEMA-1163-DR-KY
Dear Mr. Padgett:
This is in response to your March 26, 1998, letter to the Federal Emergency Management Agency (FEMA). Your letter, treated as a second appeal, is requesting FEMA to reconsider the policy clarification regarding the role of the Public Assistance Program in providing assistance for demolition costs associated with the Hazard Mitigation Buyout Program.
On February 5, 1998, the Commonwealth of Kentucky submitted a letter, treated as a first appeal, to the Regional Director. The State contended that a potentially significant disagreement has developed between Kentucky's Public Assistance staff and FEMA personnel concerning the extent to which Public Assistance funding will be available to support buyout projects. The State claimed that decisions were reached during DFO operations to provide Public Assistance funds for demolition and removal in approved buyout projects and FEMA pulled back from its commitment. You contended that FEMA took the position that Public Assistance funding and eligibility would be limited to demolition and removal of dwellings above grade and appurtenant structures attached to the building and above grade, and non-dwelling structures would not be eligible. The State also requested written policy from FEMA, citing FEMA regulation, legislative authority and other guidance, on these questions. The Regional Director responded on
March 6, 1998, that after the Midwest floods, it was decided that the Public Assistance Program would fund some of the costs associated with the demolition of structures that were part of the Buyout Program, pursuant to Section 403(a)(3) of the Stafford Act. However, in a memo dated
March 30, 1995 (enclosed), the FEMA National Office clarified its position stating that Section 403 funds can be used to demolish structures (1) if the structures are determined to be unsafe and pose an immediate danger to the public; and (2) if 50 percent or more of the structures included in a FEMA funded buyout/relocation program are substantially damaged, all structures in the specific project are eligible for demolition. In addition, 44 CFR 206.224 and 206.225 both state that in order to be eligible, the work must eliminate or lessen immediate threats (1) to life, public health, and safety; or (2) of significant damage to improved public or private property.
Therefore, the Public Assistance Program will fund the costs associated with the removal of the structure, not to include the slab. Any underground tank or septic system, if not exposed, will be capped. If exposed, the costs associated with either removing or filling will be eligible, whichever is lesser. Filling of basements will be eligible.
Your March 26, 1998, letter to FEMA also claimed that according to 44 CFR 206.224(a)(3), the work might be eligible if it will ensure economic recovery of the affected community to the benefit of the community-at-large and that Public Assistance funds should be made available to "return to green spaces" properties acquired under the Hazard Mitigation Grant Program relocation policy. The referenced section is applicable only to removal of debris created by the disaster while the structures involved in this work are debris created only by the buyout program.
The enclosed memo from FEMA, (Demolition of Flood Damaged Structures Under Section 403 of the Stafford Act), dated March 30, 1995, supersedes the prior FEMA memo dated January 21, 1994, which would have allowed Federal disaster funding for demolition of all of the properties in a buyout project. However, the March 30, 1995, memo represents FEMA policy applicable to this disaster, and as explained by the Regional Director in the first appeal response (enclosed), the work performed in the demolition process, which is not of an immediate threat, may not be funded through the Public Assistance Program unless it meets the criteria of the March 30, 1995 memorandum. Since the demolition work in question is primarily to facilitate the use of the areas in the future as parkland, it is more appropriately funded as part of the 404 Hazard Mitigation Grant Program. We have determined the Regional Director correctly assessed the information provided in the first appeal, and made the proper determination. Therefore, I am denying the second appeal.
Please inform the applicant of my determination. 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
Enclosures
cc: John B. Copenhaver
Regional Director
FEMA Region IV
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