Appeal Timeliness

 

In September 2008, Hurricane Ike’s storm surge waters flooded and damaged the athletic field at the South Cameron K-12 School owned by the Applicant.  In July 2009, FEMA approved and obligated Project Worksheet (PW) 232 to repair damage to the athletic field.  On September 13, 2013, the Applicant requested a version to reimburse costs for additional items outside of the scope of work (SOW), which included costs related to a sprinkler and a sound system.  FEMA obligated Version 1 to the PW and found that the work related to the sprinkler and sound system were not disaster-related and are therefore ineligible.  The Applicant appealed FEMA’s ineligibility determinations  in a letter dated November 1, 2016 arguing that the work to the sprinkler and sound system was disaster related because of its proximity to items that were within the approved SOW.  FEMA issued a first appeal decision on September 19, 2017 and confirmed via certified mail that the Applicant received the decision on October 2, 2017.  The RA found that the Applicant had not demonstrated through documentation or other supporting information that the work completed for the sprinkler and sound system was required as a direct result of the disaster.  The Applicant filed a second appeal in response to the determination via a letter dated December 7, 2017.  Federal regulations afford the Applicant 60 days to submit a second appeal.  The Applicant submitted its second appeal 6 days after the regulatory 60-day timeframe.  Therefore, this appeal is denied as untimely.

 

In September 2008, Hurricane Ike’s storm surge waters flooded and damaged the athletic field at the South Cameron K-12 School owned by the Cameron School Board Office (Applicant).  In July 2009, FEMA approved and obligated Project Worksheet (PW) 232 to repair damage to the athletic field.  The scope of work (SOW) included repairs to damaged fencing, gates, bleachers, and a clogged drainage system, and demolition of a storage building.

 

On September 13, 2013, the Applicant requested an amendment to PW 232 to reimburse costs for additional items of work outside of the initial SOW.  The additional items of work included a press box, light pole, sprinkler system, and sound system for which the Applicant submitted invoices in support of the request for reimbursement.  FEMA prepared PW 232 Version 1 on July 28, 2016 in response to the Applicant’s request.  FEMA was able to verify, through an engineering report, that the work associated with the press box and light pole were disaster related and found them to be eligible.  However, FEMA found that the work related to the sprinkler and sound system were not disaster-related and therefore ineligible.  FEMA noted in Version 1 of the PW:

 

Sprinkler – Work for the water service to the sprinkler, including controls is not included in the scope as no justification has been provided to how the damages were caused to this system…Per the [Pesson Invoice dated 8/26/09], it notes that the area around the valve was filling with water. “That area of the field is a low area due to water surge from the past hurricanes.” This item is not eligible as the damages are not attributed to Hurricane Ike.

 

Sound System – Two invoices were submitted for the installation of a sound system one from the electrical contractor and one from Sylvan Special Systems. There is not an adequate description of damages to replace what appears to be a complete sound system.[1]

 

FEMA obligated funding for the eligible work described in PW 232 Version 1 on September 13, 2016.  The State of Louisiana Governor’s Office of Homeland Security and Emergency Preparedness (Grantee) notified the Applicant of this decision by way of a letter dated September 21, 2016.

 

 

The Applicant appealed FEMA’s ineligibility determinations in a letter dated November 1, 2016.[2]  The Applicant argued that all damages were not discoverable until the appropriate personnel (i.e. Licensed Electrical Contractor, Professional Architect/Engineer) were available to complete an inspection.  The Applicant argued that the sound system should be eligible for reimbursement because it was located at the top of the bleachers, which were documented as damaged in the initial approved SOW.  The Applicant stated that costs associated with the sprinkler system should be eligible because the athletic field drainage system was also included within the initial approved SOW and the water line services which feed the irrigation system and restroom are a vital function of the athletic field.  The Applicant also stated that the sprinkler system’s low-voltage wiring serves a vital function of the athletic field and that these functions are related and dependent upon one another.

 

The Grantee argued further that the National Electrical Manufacturers Association requires electrical items to be replaced when exposed to water.[3]  It explained that the Applicant’s facility was submerged under four feet of brackish flood water which exposed the systems to saltwater and other contaminants.[4]  The Grantee requested that FEMA provide the Applicant the opportunity to provide additional information to substantiate its request for funding.[5]

 

FEMA sent the Applicant a final request for information (Final RFI) by letter dated March 21, 2017, requesting additional documentation demonstrating that the work in question is required as a direct result of the disaster.  It further requested the Applicant provide any additional information and supplemental evidence supportive of its request for eligibility.  The Final RFI stated the administrative record would close upon issuance of the first appeal determination.  The Applicant responded to FEMA’s request in a letter dated April 26, 2017, reiterating its initial claim that the sound system and sprinkler system were repaired in response to Hurricane Ike.  In support of its claim, the Applicant submitted a photograph of the South Cameron High School Athletic Field to demonstrate that hurricane water “covered the field and damaged the already existing systems in question.”^[6]

 

FEMA Region VI issued a first appeal decision on September 19, 2017, and confirmed via certified mail that the Applicant received the decision on October 2, 2017.  The first appeal response letter informed the Applicant that “[a] second appeal must be submitted to the Grantee by the Applicant within 60 days of the Applicant’s receipt of this letter.”  The Regional Administrator (RA) cited to Stafford Act § 406 and 44 C.F.R. § 206.223(a) which provide that an item of work must be required as a result of a major disaster event to be eligible for PA funding.  Furthermore, damage that results from a cause other than the designated event, such as pre-disaster damaging event, post-disaster damaging event, or work to correct inadequacies that existed prior to the disaster is not eligible.^[7]  The RA reasoned that the Applicant’s only evidence in support of its claim were self-declared statements that the work was due to disaster damage and a photo of the flooded field with neither the sound system nor sprinkler system pictured.  In contrast, the invoices for the sprinkler system indicated that the Applicant installed a new water line and that some of the claimed work was due to a maintenance-related issue.  The invoices for the sound system work indicated the Applicant installed a new sound system and there is no further documentation showing that such a system was damaged during Hurricane Ike.  Accordingly, the RA found that the Applicant had not sufficiently demonstrated that the work in question was required as a direct result of the disaster.

 

 

The Applicant filed a second appeal via letter dated December 7, 2017, restating its arguments from the first appeal.[8]  The Applicant also provided additional photos of the athletic field in its condition immediately following Hurricane Ike and in the few weeks following the disaster.^[9]  The Grantee forwarded the Applicant’s second appeal in a letter dated February 2, 2018, arguing that the Applicant has sufficiently demonstrated that the work on the sprinkler and sound system was required as a result of the disaster because the systems were connected to other items included in the approved SOW and because they were exposed to brackish flood water contaminants.  The Grantee also contended that the Applicant’s sprinkler and sound system are eligible for funding because they were damaged by the effects of the high velocity windblown rains and floodwaters during the hurricane incident period.

 

 

The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 (Stafford Act) provides that “[a]ny decision regarding eligibility for, from, or amount of assistance under this title may be appealed within 60 days after the date on which the applicant for such assistance is notified of the award or denial of award of such assistance.”[10]  FEMA’s implementing regulations require applicants to file an appeal with the grantee within 60 days after receipt of notice of the action that is to be appealed, at which point the grantee must forward the appeal, along with a written recommendation, to the RA within 60 days.[11]  Failure by either the applicant or the grantee to comply with these requirements renders the appeal untimely and the applicant’s appeal rights lapse.[12]   

 

Here, the RA issued the first appeal decision on September 19, 2017, and confirmed through a certified mail receipt that the Applicant received it on October 2, 2017.  The response letter advised the Applicant that it had 60 days from receipt of the first appeal decision to file a second appeal.  The Applicant, however, did not file its second appeal until December 7, 2017, 6 days after the regulatory timeframe stipulated by 44 C.F.R. § 206.206(c)(1).  Therefore, the appeal is untimely.

 

 

 

The Applicant’s second appeal was untimely submitted.  Accordingly, it is denied.