Debris Removal

May 19, 2009

Ruben Almaguer
Acting Director
Florida Division of Emergency Management
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100

Re: Second Appeal–Florida Department of Transportation, PA ID 000-U03E9-00,
Debris Removal, FEMA-1609-DR-FL, Project Worksheet (PW) 8877

Dear Mr. Almaguer:

This letter is in response to a your letter from your office dated June 13, 2008, which transmitted the referenced second appeal on behalf of the Florida Department of Transportation (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $9,032,464 in funding for debris removal activities.

Hurricane Wilma damaged Florida Power and Light’s (FP&L) facilities in South Florida. Following the disaster, FP&L requested the Applicant’s assistance to clear debris blocking access to FP&L’s facilities, such as transmission lines and substations. The Applicant contracted with a company to do the work. On June 14, 2006, FEMA prepared PW 8877 for $9,032,464, but denied funding because the Applicant performed the work for the benefit of FP&L, an ineligible entity.

The Applicant submitted a first appeal on October 4, 2006, arguing that Executive Order (EO) 05-219, issued by the Governor of the State of Florida on October 19, 2005, imposed a legal responsibility upon the Applicant to take action to protect lives and property and restore essential services in the greater public interest, including assisting in accelerating the restoration of power. The Applicant also asserted the debris removal was in the public interest, in that it was necessary to ensuring the economic and overall recovery from Hurricane Wilma. The Regional Administrator denied the first appeal on December 6, 2007, citing 44 CFR §206.224(c), Debris Removal, Assistance to individuals and private organizations, which states that assistance cannot be provided to an eligible applicant “for reimbursement of an individual or private organization, for the cost of removing debris from their own property.”

The Applicant filed a second appeal on March 12, 2008, maintaining the debris removal work was in the public interest and that the Applicant was legally responsible for performing the work. Specifically, the Applicant claimed all of the debris removal work was performed on public property or public rights-of-way, that the debris in those areas was removed to ensure the community’s economic recovery and remove an immediate threat and that under EO 05-176

and the State Emergency Management Plan, the Applicant had a responsibility to remove the debris to ensure public safety. The Applicant also included a copy of EO 05-176, FP&L customer request logs and maps, and a collection of articles relevant to FP&L’s recovery efforts.

In order to be eligible for reimbursement of debris removal costs, the Applicant must demonstrate, at a minimum, that the work it performed was in the public interest, consistent with 44 CFR §206.224(a), Debris Removal, Public interest, and was its legal responsibility, consistent with 44 CFR §206.223(a)(3), General work eligibility, General. The scope of services of the debris removal contract and associated documentation on work completed that the Applicant provided did not include sufficient detail to support the Applicant’s claim that the work was performed on public property, that the debris removal work addressed an immediate threat, or that it was necessary to ensure the economic recovery of the community-at-large. In addition, the Applicant stated in its second appeal that the basis for its responsibility for the work was EO 05-176 and the State Emergency Management Plan, which charged the Applicant with ensuring public safety of motorists along public roadways. However, since the Applicant submitted insufficient documentation on where debris removal activities occurred or the existence of an immediate threat to the public, there is no basis to conclude the Applicant had a legal responsibility to remove the debris in the interest of public safety. Therefore, it is FEMA’s determination that the Applicant did not demonstrate the work it performed was in the public interest, or that it was legally responsible for performing the work.

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

James A. Walke
Acting Assistant Administrator
Disaster Assistance Directorate

cc: Major P. May
Regional Administrator
FEMA Region IV