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Emergency Debris Clearance

Appeal Brief Appeal Letter

Appeal Brief

Disaster4019-DR-NC
ApplicantTown of St. James
Appeal TypeSecond
PA ID#019-58630-00
PW ID#239
Date Signed2013-11-20T00:00:00

Citation:  FEMA-4019-DR-NC, Town of St. James, Debris Removal, Project Worksheet (PW) 239

Cross-Reference:  Debris Removal

Summary:  Hurricane Irene made landfall along the North Carolina coastline causing significant wind damage and local flooding.  FEMA prepared PW 239 to document the clearance of storm-generated debris from the roads in the Town of St. James’s (Applicant’s) jurisdiction.  Upon review, FEMA determined the Applicant’s legal responsibility did not extend to roads maintained by North Carolina Department of Transportation (NCDOT) that are outside the gated community.  FEMA subtracted $288 in debris clearance costs, thereby reducing the eligible cost estimate below the $1,000 regulatory limit, rendering PW 239 ineligible for funding.

The Applicant’s first appeal claimed that the boundaries of the Applicant’s area of responsibility lies beyond the gates and submitted a local map and statements from local officials describing the jurisdictional boundaries.  In the response to the first appeal, the Regional Administrator did not dispute the boundaries of the Applicant’s jurisdiction; however, the Regional Administrator denied the appeal because the Applicant had not submitted a copy of a contract to justify the invoice from the St. James Volunteer Fire Department (VFD) for the debris clearance work.  In the second appeal, the Applicant claims that the VFD is legally responsible for debris clearance by virtue of a contract in the form of a 1999 agreement between the Applicant and the VFD which authorized the VFD to provide fire and first responder services to the community.  The Applicant also submitted its emergency management plan which identifies the Fire Chief as responsible for coordinating the clearance of roadways for emergency access.

Issues:   1. Has the Applicant provided documentation that establishes the legal responsibility of the VFD for the clearance of debris?

                2. Does the submitted documentation qualify as a properly procured contract that authorized the VFD to clear debris on the Applicant’s behalf and would allow the Applicant to reimburse the VFD with FEMA funding for emergency work costs?

Finding:  1. No.

                2. No.

Rationale:   Title 44 of the Code of Federal Regulations Part 13; 44 CFR § 206.223, General work eligibility


 

Appeal Letter

November 20, 2013

Michael Sprayberry
Director
North Carolina Division of Emergency Management
4713 Mail Service Center
Raleigh, North Carolina 27699-4713

Re: Second Appeal–Town of St. James, PA ID 019-58630-00, Emergency Debris Clearance, FEMA-4019-DR-NC, Project Worksheet (PW) 239

Dear Mr. Sprayberry:

This is in response to a letter from your office dated November 7, 2012, which transmitted the referenced second appeal on behalf of the Town of St. James (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $1,089 in funding for emergency debris clearance work associated with PW 239.

Background

In August 2011, Hurricane Irene made landfall along the North Carolina coastline causing significant wind damage and local flooding.  The St. James Volunteer Fire Department (VFD) cleared roads within the Applicant’s jurisdiction for the passage of emergency vehicles and traffic.  The VFD performed cutting and removing of trees from the public rights of way and tossing the debris to the roads’ clear zone, disconnecting propane, maintaining a mobile safety command and other related equipment use.  The VFD invoiced the Applicant for the debris clearing work.

FEMA prepared PW 239 to document the work and reimburse the Applicant the costs to clear the storm-generated debris from the roadways.  In addition to clearing debris from the roads within the gated community of St. James, the VFD also cleared debris from State Highway 211, located outside the boundaries of the gated area.  After review of PW 239, FEMA determined the Applicant’s legal responsibility did not extend to roads maintained by North Carolina Department of Transportation (NCDOT) and reduced the eligible cost estimate by $288.  The reduction caused the remaining total eligible amount to fall below the $1,000 minimum threshold established in Title 44 Code of Federal Regulation (44 CFR) §206.202 (d)(2), Application procedures, Project Worksheets, thereby rendering the entire PW 239 ineligible for funding.

First Appeal

In a first appeal, submitted on April 12, 2012, the Applicant claimed that FEMA was incorrect in assuming that that the boundaries of the Applicant’s jurisdiction were limited to the area within the gates of the community.  The Applicant asserted that its area of responsibility extended beyond the gated area, and submitted a local map, along with statements from local officials which described its jurisdictional boundaries.  The Applicant further stated that the claimed work was eligible since all of the debris clearance activity took place within its jurisdiction.

On July 20, 2012, the Regional Administrator denied the Applicant’s first appeal stating that the VFD is a nonprofit corporation that had no legal responsibility to perform debris clearance work.  The Regional Administrator stated that a review of the PW indicated that the Applicant “contracted” with the VFD for debris clearance services.  However, no documentation of such a contract has been presented.  Further, no documentation was presented to support that the Applicant incurred properly procured costs.  The letter responding to the appeal concluded that because the Applicant incurred no eligible costs for the emergency work, funding of the claimed costs is not eligible for Public Assistance.

Second Appeal

Along with its October 23, 2012, second appeal letter, the Applicant submitted a 1999 agreement between the Applicant and the VFD that authorized the VFD to provide fire and first responder services to the community.  In addition, the Applicant supplied a copy of its emergency management plan which identifies the actions to be taken before, during, and after a major incident.  The plan also defines the roles and responsibilities of individuals and entities engaged in coordinating the preparation for, response to, and recovery from such incidents.  The plan states that the Fire Chief “[p]rovides, within organizational capabilities, for clearance of roadways for emergency vehicle access.”  The Applicant claims that the two documents confer upon the VFD the legal responsibility to conduct debris clearance within the Applicant’s jurisdiction and requests that FEMA reimburse the Applicant $1,089 for the cost of the emergency work documented on PW 239.

Discussion

Pursuant to 44 CFR §206.223(a) General work eligibility “To be eligible for financial assistance, an item of work must… [b]e the legal responsibility of an eligible applicant.”  Page 30 of the Public Assistance Guide (FEMA 322) dated June 2007, notes that legal responsibility is most often demonstrated through ownership of the facility.  For the clearing of debris from the roads in the Applicant’s jurisdiction as documented on PW 239, the legal responsibility for the Applicant’s emergency work was the Applicant.  Neither the Applicant’s Emergency Plan nor the 1999 Agreement transfer the legal responsibility for the work.

When necessary, an applicant may enlist the services of another entity to accomplish eligible work on its behalf through mechanisms such as contracts or mutual aid agreements.  For FEMA to reimburse costs incurred through either of these mechanisms, the Applicant must provide documentation that demonstrates the services were properly procured and the incurred costs represent a reasonable cost for the eligible work performed.  In this case, the Applicant has not demonstrated that it procured the VFD’s services through proper competitive contracting procedures.  While the 1999 Agreement identifies the VFD as responsible for providing general fire and first responder service to the community, it does not qualify as a contract for debris services.  Not only does the Agreement not specify debris clearance as a services the VFD agreed to provide, but it does not identify the scope of the work to be performed and the associated costs as is required of a valid contract.  Therefore, the documentation does not support the claim that the VFD was authorized to clear the debris from the roads as the Applicant’s contracted agent.

Conclusion

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 constitutes the final decision on this matter pursuant to 44 CFR §206.206, Appeals.

Sincerely,

/s/

Deborah Ingram
Assistant Administrator
Recovery Directorate

cc:  Major P. May
      Regional Administrator
      FEMA Region IV