U.S. flag

An official website of the United States government

Dot gov

The .gov means it’s official.

Federal government websites often end in .gov or .mil. Before sharing sensitive information, make sure you’re on a federal government site.

Https

The site is secure.

The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely.

Temporary Relocation Facility

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1603-DR
ApplicantOrleans Parish Communication District
Appeal TypeSecond
PA ID#071-UBHYB
PW ID#9014
Date Signed2010-02-16T05:00:00

Citation:              FEMA-1603-DR-LA, Orleans Parish Communication District, Temporary Relocation Facility, PW 9014

Cross

Reference:          Environmental and Historical Preservation Compliance

Summary:              The Orleans Parish Communication District’s (Applicant) 9-11 administration operations office was flooded during Hurricane Katrina.  Because it was necessary for the city to have an emergency 9-11 operation, the Applicant proposed to construct a temporary facility on a piece of property it had leased prior to the disaster with the intention of building a permanent 9-11 administration facility.  FEMA, a FEMA historic preservation specialist, a State Historic Preservation Office (SHPO) representative, a State representative and the Applicant’s environmental consultant conducted a visit to the proposed site.  FEMA identified possible environmental concerns and historic preservation issues and conveyed these concerns to the Applicant’s environmental consultant and the State representative.  Prior to FEMA reviewing the project for environmental and historic compliance, the Applicant moved forward and erected temporary structures at the proposed site because the community needed an emergency call center.  The Applicant requested FEMA prepare a Category B PW to reimburse its expenses to construct the modular structures.  FEMA prepared PW 9014 and obligated it for $0 because the work at the site was performed prior to environmental and historical assessments.

In its first appeal transmitted to FEMA by the State on March 17, 2008, the Applicant submitted a Phase I Archeological Report to support its argument that there were no adverse environmental or historical effects as a result of the work at the site.  On July 8, 2008, FEMA’s Regional Administrator (RA) denied the appeal because the Applicant’s actions violated provisions of the National Environmental Policy Act (NEPA) and provisions of the National Historic Preservation Act (NHPA).  The RA also determined the documentation provided with the Applicant’s appeal did not provide justification to reverse FEMA’s prior decision to deny funding.

Issue:                     Did the project require consultation with a regulatory agency to demonstrate historical and environmental measures were in compliance with Federal or State law prior to commencing the work?

Finding:                  Yes.

Rationale:              Sections 106 and 110 of the National Historic Preservation Act of 1966(NHPA); National Environmental Policy Act (NEPA); 44 CFR §10.4, Environmental Considerations, Policy; Response and Recovery Policy 9560.1, Environmental Policy Memoranda; Response and Recovery Policy 9560.3, Programmatic Agreement–Historic Review

Appeal Letter

 

 

February 16, 2010

 

 

Mark DeBosier

Deputy Director

Recovery Division

Office of Homeland Security and Emergency Preparedness

7667 Independence Boulevard

Baton Rouge, LA 70806

 

Re:  Second Appeal–Orleans Parish Communication District–PA ID 071-UBHYB,

       Temporary Relocation Facility, FEMA-1603-DR-LA, Project Worksheet (PW) 9014

Dear Mr. DeBosier:

This is in response to a letter from your office dated March 17, 2009, which transmitted the referenced second appeal on behalf of Orleans Parish Communication District (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $3,000,000 to construct a temporary facility for its 911-call center. 

Background

Katrina destroyed the facility that the Applicant leased for its 911-call center operation.  The Applicant temporarily relocated its operations to a hotel for several months immediately after Katrina.  It subsequently constructed a temporary facility on property it owned adjacent to a cemetery.  FEMA and State Public Assistance and historic preservation staffs, and the Applicant’s environmental consultant visited the proposed site for the temporary facility on October 14, 2005.  The proposed site housed as many as six buildings at one time and four of these structures were over 50 years old.  Prior to FEMA’s visit, the Applicant demolished two buildings and began to demolish another.  Several of the buildings on the site were over 50 years old.  FEMA identified possible environmental concerns at the site that included large portions of contaminated soil with arsenic, pesticides, and possibly gasoline.  FEMA expressed concerns about the environmental and historic preservation issues to the Applicant’s environmental consultant and the State representatives during the visit.  During a second visit to the site in November 2005, FEMA and the State historic preservation staff observed archeological deposits scattered throughout two areas of the site, which raised concern about potential unmarked graves due to the site’s proximity to surrounding cemeteries.  (Unmarked graves had been discovered at similar areas that are adjacent to cemeteries.)  During this site visit, FEMA found that the Applicant had stripped, cleared, and leveled the property; it had excavated one area about 1.5 feet below grade.  No environmental assessment had been performed prior to the ground-disturbing activities.  In June 2006, FEMA denied the Applicant’s request for reimbursement for costs to build the temporary facility because the Applicant completed the work at the site prior to FEMA conducting environmental and historical assessments pursuant to the National Environmental Policy Act and the National Historic Preservation Act. 

First Appeal

On March 17, 2008, the Governor’s Office of Homeland Security and Emergency Preparedness (GOHSEP) submitted the Applicant’s first appeal to FEMA.  The Applicant acknowledged that its activities were performed without the necessary assessments, but argued that there were no adverse environmental or historic affects to the site, and therefore funding should be provided.

In a letter dated July 8, 2008, the Regional Administrator denied the first appeal as the Applicant’s actions violated provisions of the National Environments Policy Act (NEPA) and the National Historic Preservation Act (NHPA). 

Second Appeal

On March 17, 2009, GOHSEP submitted the Applicant’s second appeal to FEMA.  The Applicant provided additional information that it believes supports its position that no environmental or historic preservation laws were violated.  The Applicant requested an oral presentation of its second appeal.  GOHSEP supports the appeal and argues that the archeological report the Applicant prepared at FEMA’s request demonstrates the lack of historical importance of the site, that the SHPO did not review the site because its expert did not consider the site to be of historic importance, and that there was no FEMA undertaking to review.

On July 9, 2009, the Acting Deputy Assistant Administrator for the Disaster Assistance Directorate and the Acting Director of the Public Assistance Division met with the Applicant in Washington, D.C. to discuss the appeal.

Discussion

FEMA must evaluate the environmental and historic preservations impacts of a proposed project before approving funds to ensure that environmental and historic preservation consequences are considered in the decision-making process.  These requirements are clearly stated in sections 106 and 110 of the National Environmental Policy Act, the National Historic Preservation Act, Title 44 Code of Federal Regulations Part 10, Environmental Considerations, Response and Recovery Policy 9560.1, Environmental Policy Memoranda; and Response and Recovery Policy 9560.3, Programmatic Agreement – Historic Review.  The Applicant's actions foreclosed FEMA's opportunity to adequately consult with the State Historic Preservation Officer, interested Indian Tribes, and the President's Advisory Council on Historic Preservation, and carry out comprehensive identification and evaluation of historic properties within the area of potential effect and negotiate avoidance, minimization, or mitigation measures to treat any adverse effects to identified properties.

Conclusion

I have reviewed the information submitted with the appeal and determined that the Regional Administrator’s decision in the first appeal is consistent with Public Assistance regulations and policies. Therefore, I am denying the appeal.

Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals.

Sincerely,

/s/

Elizabeth A. Zimmerman

Assistant Administrator

Disaster Assistance Directorate

cc:  Gary Jones

      Acting Regional Administrator

      FEMA Region VI

Last updated February 4, 2020