Debris Removal

Appeal Brief

From June 1 through August 31, 2010, Warren County Secondary Roads (Applicant) experienced severe storms, tornadoes, and flooding which deposited silt on Arthur Street.  FEMA obligated PW 1852 to remove silt from the road and ditches.  The emergency work completion deadline was January 29, 2011, but the Applicant did not start work until August 24, 2011 and completed work on January 9, 2012.  The Applicant submitted a time extension request on December 27, 2011, but the Grantee misplaced it.  The Applicant submitted another time extension request on February 8, 2013, which Region VII denied.  In a first appeal letter submitted June 7, 2013, the Applicant challenged the denial of the time extension request.  The Grantee cited a sequence of events that were out of the control of the Applicant.  The FEMA Region VII Regional Administrator (RA) determined that the Applicant did not present documentation demonstrating extenuating circumstances which prevented it from completing the work within the time allowed and denied the first appeal on September 9, 2013.  The Applicant’s second appeal letter, dated September 27, 2013, reiterated the same arguments as the first appeal.

Authorities and Second Appeals

• 44 C.F.R. § 206.204(d)(2),

• 44 C.F.R. § 206.204(c)(2)(ii)

• Town of Fairfax, FEMA-1046-DR-CA  (June 7, 1999).

• Harding University, FEMA-1472-DR-AR (Dec. 7, 2004).

Headnotes

• 44 C.F.R. § 206.204(d)(2) provides the authority for the Regional Administrator to grant or deny time extension requests.  44 C.F.R. § 206.204(c)(2)(ii) indicates that the Grantee can grant a time extension request if the applicant shows “extenuating circumstances or unusual project requirements beyond the control of the subgrantee.”

• Second Appeal, Town of Fairfax, FEMA-1046-DR-CA:  The Applicant submitted a request for a net small project overrun, but the Grantee never received it or forwarded it to FEMA.  The Applicant claimed there was a “breakdown in the system.”  FEMA denied the appeal since the request was not received by the deadline.

  • Warren County argued that extenuating circumstances existed because the Grantee misplaced its time extension request.  FEMA does not recognize lost or misplaced documents as an extenuating circumstance.

• Second Appeal, Harding University, FEMA-1472-DR-AR:   The Applicant cited misinformation and a lack of understanding of the FEMA Public Assistance program as a reason for a late RPA submittal.  FEMA denied the appeal.

  • Warren County argued that extenuating circumstances existed because of errors in the Grantee’s quarterly report.  FEMA doesn’t recognize misinformation as an extenuating circumstance.

Appeal Letter

Appeal Analysis

Background

From June 1 through August 31, 2010, Warren County Secondary Roads (Applicant) experienced severe storms, tornadoes, and flooding which deposited silt on Arthur Street.  On October 18, 2010, FEMA obligated Version 0 for $119,964 to remove silt from the road and ditches.  The emergency work completion deadline was January 29, 2011, but the Applicant did not start work until August 24, 2011 and completed work on January 9, 2012.  The Applicant submitted a time extension request on December 27, 2011, but it was misplaced by the Grantee.  The Applicant submitted another time extension request on February 8, 2013, which was denied by Region VII.  The Applicant requested a Large Project Closeout for $29,166 in actual debris removal costs on September 23, 2013. 

First Appeal

In a first appeal letter submitted June 7, 2013, the Applicant challenged the denial of the time extension request.  The Applicant noted that the PW was not obligated until after the January 29, 2011 emergency work deadline, that their initial time extension request was never received by FEMA, and explained how an incorrect quarterly report from the Grantee led to the decision to remove debris in conjunction with permanent repairs to Arthur Street.  The quarterly report indicated that the PW was category C and listed the work completion deadline as the permanent work deadline instead of the emergency work deadline.  The Grantee forwarded the appeal, citing a sequence of events that were beyond the control of the Applicant.  The Grantee noted that their quarterly report was incorrect and that they misplaced the initial time extension request.

The FEMA Region VII Regional Administrator (RA) denied the first appeal on September 9, 2013 and limited costs to those incurred by the Applicant prior to January 29, 2011. The RA determined that the Applicant did not present documentation demonstrating extenuating circumstances which prevented it from completing the work within the time allowed.

Second Appeal

The Applicant’s second appeal letter, dated September 27, 2013, reiterates the first appeal and adds that a Right of Entry required for the disposal of the silt on private property took “a couple of months” to obtain.  The Grantee forwarded the second appeal endorsing the Applicant’s points.

Discussion

Pursuant to Title 44 Code of Federal Regulations (C.F.R.) § 206.204(d)(2), a grantee can grant a time extension request if the applicant demonstrates “extenuating circumstances or unusual project requirements beyond the control of the subgrantee.”  The Regional Administrator is afforded the authority under 44 C.F.R. § 206.204(c)(2)(ii) to grant or deny time extension requests beyond that provided by the grantee.  Traditionally, second appeals have upheld the Regional Administrator’s exercise of this discretion.[1]  As detailed below, the arguments raised in this appeal do not provide a compelling reason to do otherwise.

PW Obligation after January 29, 2011 emergency work deadline

The Applicant attended an Applicant Briefing on August 6, 2010, during which the emergency work deadline would have been discussed.  FEMA also conducted a Kickoff Meeting with the Applicant on August 26, 2010 during which the emergency work deadline was mentioned.[2]  Therefore, the Applicant was aware of the emergency work deadline, even if they had not received the PW at the time.

Grantee Misplacing Original Time Extension Request

In a second appeal decision dated June 7, 1999, the Town of Fairfax submitted a request for a net small project overrun, but the Grantee never received it or forwarded it to FEMA.[3]  The Applicant claimed that there was a “breakdown in the system.”[4]  In that case, which is analogous to this one, FEMA denied the appeal since the request was not received by the deadline.

Obtaining Right of Entry

The Right of Entry agreement was signed on March 1, 2011, which was approximately a month after the emergency work completion deadline.  The Applicant had six months to procure the Right of Entry agreement and complete the work, which is more than enough time.  The Applicant also could have requested a Scope of Work (SOW) change to deposit the debris in another approved location.

Grantee Quarterly Report Deadlines for Completing Work. 

Similar to this case, in a second appeal decision dated December 7, 2004, Harding University cited misinformation and a lack of understanding of the FEMA Public Assistance program as a reason for a late RPA submittal.[5]  The University stated that it was not aware of the RPA deadline.  Unpersuaded by that argument, FEMA denied the appeal.

Conclusion

The Applicant has not demonstrated a compelling reason to reverse the Regional Administrator’s exercise of her discretion under 44 C.F.R. § 206.204(d)(2).  Therefore, the time extension request second appeal is denied.