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Pre-existing Conditions

Appeal Brief Appeal Letter

Appeal Brief

DesastreFEMA-1046-DR
ApplicantCity of San Buenaventura
Appeal TypeSecond
PA ID#111-65042
PW ID#92973
Date Signed1997-11-04T05:00:00
B>Citation: Appeal Brief; Second Appeal; City of San Buenaventura; FEMA-1046-DR-CA; PA#111-65042

Cross-Reference: DSR 92973; Debris Removal; Category A

Summary: Following the winter storms of 1995, FEMA prepared damage survey report (DSR) 92973 for $177,745, as category "A" debris removal from the Ventura River shoreline. Upon review, FEMA reduced the DSR to $0 for the following reasons: 1) the debris was pre-existing, 2) the debris posed no immediate threat, and 3) the contracting procedures were not in accordance with Title 44 of the Code of Federal Regulations (CFR), section 13.36. The State forwarded the first appeal on June 13, 1996, and concurred with FEMA's eligibility determinations in the DSR. The basis of the first appeal was that the debris was not pre-existing, that it posed an immediate threat, and that the City did follow correct procurement procedures. The Regional Director determined that the debris from the homeless shelters within the river bottom area (an area not maintained by the City) was pre-existing. Therefore, the debris did not pose more of an immediate threat in the post-disaster condition than in the pre-disaster condition and emergency removal of the debris was not necessary to eliminate immediate threat to life, public health and safety. The Regional Director also determined that contracting procedures were not in accordance with 44 CFR 13.36 and denied the first appeal. The State submitted the second appeal on June 9, 1997. The basis of the appeal is that the emergency removal of the debris was necessary to eliminate immediate threat to life, public health and safety. Further, to demonstrate the threat to public health and safety, the City contends that the debris impacted four irrigation wells located within the Ventura River. The applicant has not provided any documentation to substantiate this contention.

Issue: Were the pre- and post-disaster conditions of the area the same?

Finding: Yes. The City did not maintain the area prior to the disaster. Because the debris was pre-existing, there were no changes in the pre- and post-conditions of the area and emergency debris removal was not necessary to eliminate an immediate threat.

Rationale: The City did not provide appropriate information to demonstrate that the pre- and post-disaster conditions of the area were not the same. Emergency removal of the debris was not necessary to eliminate an immediate threat to life, public health and safety, pursuant to 44 CFR 206.224 (a)(1).

Appeal Letter

November 4, 1997

Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
74 North Pasadena Avenue, West Annex, Third Floor
Pasadena, California 91103

Dear Mr. Najera:

This is in response to your June 9, 1997, letter to the Federal Emergency Management Agency (FEMA). With that letter, you forwarded a second appeal of damage survey report (DSR) 92973 under FEMA-1046-DR-CA, on behalf of the City of San Buenaventura (City). The City is requesting reimbursement of $177,745 for debris removal from the Ventura River shoreline.

Following the winter storms of 1995, FEMA prepared DSR 92973 for $177,745, for category A, emergency debris removal from the Ventura River shoreline in the area called the Ventura River Bottom. Upon review of the DSR, FEMA determined the work to be ineligible for the following reasons: 1) the debris was pre-existing, 2) the debris posed no immediate threat, and 3) the method of contract award did not comply with the requirements of Title 44 of the Code of Federal Regulations (CFR), section 13.36. On June 13, 1996, the State forwarded the first appeal. The basis of the appeal was that removal of the debris from the river was in the public interest and necessary to eliminate immediate threats to public health and safety and that the method of contracting was in accordance with procedures. In the first appeal response the Regional Director determined that the debris from the homeless shelters within the river bottom area (which was not maintained by the City) was pre-existing. Therefore, the debris did not pose more of an immediate threat in the post-disaster condition than in the pre-disaster condition and removal of the debris was not necessary to eliminate immediate threat to life, public health and safety, pursuant to 44 CFR 206.224. The Regional Director also determined that contracting procedures were not in accordance with 44 CFR 13.36, which requires that two responsive contractors bid the work, or a cost analysis and an explanation be otherwise provided. On December 20, 1996, the Regional Director denied the first appeal.

In the second appeal, the City is basically reiterating the first appeal and is requesting $177,745 for category A, emergency debris removal. The issue in this appeal is whether debris removal along the river shoreline was necessary to eliminate an immediate threat to public health and safety caused by the disaster. Prior to the event, homeless encampments, the source of the debris, were located in the river bottom area, an area that was not maintained by the City. Because the area was not maintained, the debris was pre-existing and the post-disaster condition was no worse than the pre-disaster condition of the area. The debris was not a direct result of the disaster. Therefore, the debris removal is not eligible for FEMA funding. Further, no documented justification was provided to support the contention that the emergency debris removal was necessary to eliminate an immediate threat to the irrigation wells, as required by 44 CFR 206.206. Therefore, I am denying the second appeal.

Please inform the subgrantee of my determination. The subgrantee may submit a third appeal to the Director of FEMA. The appeal must be submitted through your office and the Regional Director within 60 days of receipt of this determination.

Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate