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Debris Removal

Appeal Brief Appeal Letter

Appeal Brief

DesastreFEMA-1545-DR
ApplicantLake County
Appeal TypeSecond
PA ID#069-99069-00
PW ID#Project Worksheets 5997 and 6003
Date Signed2008-11-21T05:00:00
Citation: FEMA-1545-DR-FL, Lake County, Debris Removal, Project Worksheets (PWs) 5997 and 6003

Cross-reference: Debris Removal, Reasonable Cost
Summary: FEMA prepared PWs 5997 and 6003 to document eligible costs for the removal of stumps from public rights-of-way prior to November 30, 2004, in Lake County (Applicant) during debris operations in the aftermath of Hurricane Frances. The first appeal dated January 30, 2006, contended that FEMA applied Disaster Specific Guidance (DSG) 17, Eligibility of Stump Removal Costs, and the former Director of Recovery Division’s memorandum retroactively after its contracted work was completed. The Applicant also asserted that FEMA denied stumps removed from Federal Aid roads. In response to the first appeal, FEMA denied the Applicant’s request for removing stumps with 24-inch diameter or less on a per-stump basis. The Regional Administrator determined that the Applicant did not submit sufficient documentation to support the eligibility of its stump removal costs and that the per-stump unit costs were unreasonable.

The second appeal submitted on March 28, 2008, does not contest the Federal Aid road issue, but maintains that costs of $486,520 associated with the removal of stumps 24 inches in diameter or less are eligible based on the guidance that existed at the time the work was completed. The Applicant asserts that FEMA 325, Debris Management Guide, dated April 1999, makes no reference to a requirement for volumetric conversion of stumps 24 inches or less in diameter or the reimbursement for removal cost at cubic-yard rates instead of premium prices per individual stump. The Applicant claims that the reference to Appendix F of FEMA 325, Debris Management Guide, dated April 1999, which mentions treating stumps 24 inches or less in diameter as vegetative debris is labeled “Example,” and cannot be interpreted as official FEMA policy by communities.

Issues: Is the Applicant eligible for reimbursement for removing stumps 24 inches or less in diameter on a per-stump basis?
Findings: No.

Rationale: Office of Management and Budget Circular A-87; 44 CFR §13.36(f); FEMA 325 Debris Management Guide (April 1999), Appendix F

Appeal Letter

November 21, 2008

W. Craig Fugate
Director
Florida Division of Emergency Management
2555 Schumard Oak Boulevard
Tallahassee, Florida 32399-2100

Re: Second Appeal–Lake County, PA ID 069-99069-00, Debris Removal,
FEMA-1545-DR-FL, Project Worksheets (PWs) 5997 and 6003

Dear Mr. Fugate:

This is in response to your letter dated May 15, 2008, which transmitted the referenced second appeal on behalf of Lake County (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $486,520 for stump removal costs.

FEMA prepared PWs 5997 and 6003 to document eligible costs for the removal of stumps from public rights-of-way during debris operations in the aftermath of Hurricane Frances prior to November 30, 2004. On November 30, 2004, FEMA issued Disaster Specific Guidance (DSG) 17, Eligibility of Stump Removal Costs, to provide disaster specific guidance on stump removal eligibility. On May 13, 2005, the former Director of the Recovery Division issued a memorandum that clarified the applicability of DSG 17 and ambiguities in the guidance pertaining to stump excavation and removal. In particular, it stated that FEMA would reimburse applicants on the basis of a cubic-yard conversion rate for the removal of eligible stumps with diameters of 24 inches or less.
In a letter dated January 30, 2006, the Applicant submitted its first appeal requesting that FEMA reimburse $573,398 for stump removal contract costs. The Applicant contended that FEMA applied DSG 17 and the former Director of Recovery Division’s memorandum retroactively after its contracted work was completed. The Applicant also asserted that FEMA denied stumps removed from Federal Aid roads. In a letter dated December 7, 2007, the Regional Administrator denied the Applicant’s first appeal because the Applicant did not submit sufficient documentation to support the eligibility of its stump removal costs and because the per-stump unit costs were determined to be unreasonable.

In a letter dated March 28, 2008, the Applicant submitted its second appeal. The Applicant did not contest the Federal Aid road issue, but maintained its position that costs of $486,520
associated with the removal of stumps 24 inches in diameter or less are eligible based on the guidance that existed at the time the work was completed. The Applicant asserted that FEMA 325, Debris Management Guide, dated April 1999, makes no reference to a requirement for volumetric conversion of stumps 24 inches or less in diameter or the reimbursement for removal cost at cubic-yard rates instead of premium prices per individual stump. The Applicant also asserted that the reference to Appendix F of FEMA 325, Debris Management Guide, dated April 1999, which mentions treating stumps 24 inches or less in diameter as vegetative debris is labeled “Example,” and cannot be interpreted as official FEMA policy by communities.
The Office of Management and Budget Circular A-87, Cost Principles for State, Local and Tribal Governments, requires that all Federal grant costs be reasonable. FEMA has determined that the reimbursement of costs for removal of stumps with diameters of 24 inches or less on a per-stump basis is not reasonable. FEMA historical practice and policy is to reimburse for removing stumps with diameters of 24 inches or less on an equivalent cubic-yard basis because the removal of these stumps does not require special equipment. The former Director of Recovery Division’s memorandum dated May 13, 2005, clarified existing FEMA guidance on eligibility of stump removal costs. It did not retroactively apply new guidance. Furthermore, the Applicant filed its second appeal on March 28, 2008, well beyond the 60-day regulatory deadline. After reviewing the information submitted with the appeal, I have determined that the Regional Administrator’s decision on the first appeal is consistent with Public Assistance Program guidance. Accordingly, the appeal is denied.
Please inform the Applicant of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR §206.206.

Sincerely,
/s/
Carlos J. Castillo
Assistant Administrator
Disaster Assistance Directorate

cc: Major Phil May
Regional Administrator
FEMA Region IV