Low Pressure Pipe Sewage Systems
Appeal Brief
Appeal Letter
Appeal Analysis
Citation: FEMA-1134-DR-NC; Wake County - DSR 03615
Cross Reference: Immediate Threat, Permanent Restoration, Legal Responsibility
Summary: On behalf of Wake County and the North Carolina Utilities Commission, the State is requesting funding for damages incurred to ten Low Pressure Pipe sewage systems servicing residential neighborhoods in Wake County, reportedly damaged during Hurricane Fran in September of 1996. As these systems were found to be the legal responsibility of a private contractor at the time of the disaster, permanent restoration was determined to be ineligible. Eligible assistance was limited to a six-month duration of pump and haul operations to reduce a potential health threat. FEMA further required that applicable state laws be used to recoup the pump and haul expenses from the private property owners. The State is requesting that funding for the pump and haul activities be extended until permanent restoration is completed, and that debris be removed as it is posing a threat. The State asserts that the damaged systems are the legal responsibility of the North Carolina Utilities Commission and Wake County, and should therefore be eligible for permanent restoration. Additionally, the State disagrees with FEMA's requirement to recoup expenses from private property owners.
Issues:
Due to the severity of Hurricane Fran, which occurred in early September of 1996, the President declared parts of North Carolina major disaster areas. The hurricane caused damage to ten Low Pressure Pipe (LPP) sewage systems servicing various residential subdivisions in Wake County. Numerous trees had been uprooted and fallen within disposal fields and access roads of these systems, resulting in exposure of lines and destruction of piping. Due to the potential for surfacing and runoff of wastewater from the disposal fields, the Wake County Department of Health declared an imminent health hazard on September 13, 1996, advising the system operators to take (pump and haul) the wastewater to the City of Raleigh Neuse Treatment Plant until the damaged facilities could be assessed and necessary repairs made.
The damaged systems included Manchester, Banbury Woods, Hollybrook, Woods of Ashbury, River Oaks, Sheffield Manor, Woods of Tiffany, Stonebridge VI, Stone Creek, and Yates Mill Run. At the time of the disaster, each of these systems was owned and/or operated by Harrco Utility Corporation, a private contractor. For many of the systems, Harrco had been appointed the "emergency operator" of the system by the North Carolina Utilities Commission. Although Harrco is not reported as having owned these systems, it is understood that these systems were also not owned by an eligible applicant. For other systems, Harrco did own, as well as operate, the systems. However, it is understood that due to the magnitude of the damages resulting from the disaster, the owner of Harrco notified the Utilities Commission that he intended to resign as operator of the systems for which he had been appointed emergency operator, as well as relinquish his franchise for all systems operated by his company.
Wake County requested FEMA assistance for the cost of the "emergency" pumping and transport of the sewage, the removal of debris from the leaching fields, and the assessment and repair or restoration of the leaching field low pressure pipe systems. Wake County is requesting that FEMA fund the pump and haul operation until permanent connections for each facility are made to municipal type wastewater treatment plants, many of which will not be completed until August of 1998.
In a letter dated September 27, 1996, FEMA responded to this request for assistance, stating that because the LPP systems were privately owned and operated at the time of the disaster, permanent restoration was not eligible. Accordingly, FEMA could only assist with emergency protective measures for limited pump and haul activities. The existing debris did not "pose a threat" and therefore, its removal could not be considered eligible work. Additionally, FEMA determined that the damage assessment efforts ineligible for assistance. FEMA agreed to assist Wake County with the cost of pumping and hauling wastewater for the six months following the September 6, 1996, disaster declaration date. This funding was contingent upon the State and the applicant developing a plan to resolve the remaining repair items through recovery of insurance proceeds or other methods, and that the State, in conjunction with the applicant, would agree to use the applicable state law mechanism to recoup the pump and haul expenses and reimburse FEMA for the federal share of eligible funds. DSR 03615 was prepared to provide eligible funding in the amount of $687,478 for the scope of work described in this September 1996 letter.
First Appeal
On November 25, 1996, the State submitted a first appeal to FEMA's determination of limited eligibility for the LPP sewage system. The State requested that the pump and haul operation be extended until the permanent repairs are completed, asserted that the debris removal is necessary to reduce a threat, and that FEMA's requirement that the State recoup eligible FEMA funds through the applicable state mechanism is not supported by the Stafford Act.
The Regional Director denied that first appeal in a letter dated December 20, 1996. The Regional Director indicated that a time extension would be considered for the pump and haul operation on a case-by-case basis upon receipt of justification for such an extension and a time schedule for a permanent solution for each of the systems. Second, FEMA maintained that debris removal efforts are not eligible for funding as the purpose of this work was not necessary to reduce a threat to the public health and safety, but rather to facilitate the permanent repair of the systems. Finally, regarding the recoupment of funds, the Regional Director confirmed that such a process is consistent with State law when using public funds to abate an imminent hazard on private property.
Second Appeal
The State filed a second appeal on February 17, 1997, addressing the three issues as presented in the first appeal, and a fourth issue regarding legal responsibility for permanent repair. Regarding the first three issues, the State (1) provided a time schedule for the completion of the permanent repairs relative to defining the necessary pump and haul duration, (2) again asserted that the debris removal from the sewer systems will reduce the threat to the public health and safety, and (3) disagreed with FEMA's requirement to recoup federal funds from the property owners. No new documentation was provided in support of items 2 and 3. Additionally, the State asserted that after further investigation, they have determined that the systems are the legal responsibility of the North Carolina Utilities Commission and/or Wake County. Therefore, reimbursement of permanent repairs should be eligible for FEMA assistance.
DISCUSSION
Time Extension for Haul and Pump Operations
In a separate letter to the Region dated February 19, 1997, the State also requested a twelve- month extension for the pump and haul operations, providing justification for the request to extend the eligible duration of the pump and haul activities, and a time schedule for completion of the permanent repairs. The Region has prepared Supplemental DSR 45067 to provide funding in the amount of $888,055 for an additional six-month duration, through September 6, 1997.
Debris Removal
The State is requesting funding for the removal of debris, asserting that the removal of the fallen trees and other debris is necessary, in addition to the pump and haul activities, in order to reduce the threat. In support of their position, the State references various correspondence which indicate that the fallen trees have caused a public health hazard which must be alleviated. FEMA recognizes that the fallen and uprooted trees caused the damage to the sites, and that the resulting condition of the leaching fields and piping systems posed a potential health threat if use of the systems continued. However, the Wake County Department of Health attributed the actual threat to the potential for surfacing and runoff of the wastewater. FEMA has funded the pump and haul operations, thus eliminating the potential for this condition to occur. Removal of debris is not necessary to aid in this effort, and is not considered necessary to reduce the threat. Therefore, removal of the fallen trees and other debris from the leaching fields is not eligible for assistance.
Recouping of Funds
FEMA has required that efforts be taken by the State and Wake County to recoup pumping and hauling costs through applicable state mechanisms and reimburse FEMA for the Federal share of these funds. The State asserts that the Stafford Act and the applicable regulations do not appear to contain a requirement for the State or eligible applicants to use the lien and abatement process and bond forfeiture to recoup expenses to reimburse FEMA. The State contends temproceeds used to pay the lien, but as there would be no buyer for these damaged sewers, the abatement process would accomplish nothing.
As FEMA stated in the first appeal response, Section 130A-20 of the General Statutes of North Carolina authorizes the Secretary or the local health director to take any action necessary to abate an imminent health hazard on private property. The State used this authority to go onto the private properties to perform the pump and haul activities. Section 130A-20 further states "The Department or the local health department shall have a lien on the property for the cost of the abatement of the imminent hazard in the nature of a mechanic's and materialmen's lien as provided in Chapter 44A and the lien may be enforced as provided therein." The North Carolina Legislature has, through this statute, shown its intent that state money not be used to effect a benefit to private persons. FEMA has required that that this process also be applied to the Federal share of the funding.
The State asserts that this effort is not a requirement of the laws and regulations governing the Public Assistance program. However, FEMA notes that this mechanism to attempt to recoup such expenditures is an existing state law. Receipt of Federal funds does not alleviate the State or the applicants from adhering to a state law. Therefore, the State should attempt to use this lien as intended by the state legislature to prevent private gain from public funds. Should the State be successful, FEMA would be entitled to the Federal share of any funds recovered. Section 312(c) of the Stafford Act does provide FEMA the authority to recover its share of funds recouped through a lien or other process.
Legal Responsibility
The State has indicated that, upon further investigation, it has been determined that the North Carolina Utilities Commission and Wake County are legally responsible for the various LPP sewage systems. In support of this position, the State references Chapter 62 of the North Carolina General Statute indicating that the sewer systems are subject to regulation and supervision by the Utilities Commission. The State further refers to this Statute stating that the Utilities Commission, or an emergency operator appointed by the Utilities Commission, has the legal authority to undertake a remedy, both temporary or permanent, for the problems affecting the LPP sewer system. As the emergency operator, Harrco Corporation, abandoned the systems after the disaster, the State contends that the Utility Commission resumed responsibility for the operation of the systems and should therefore be eligible for permanent restoration assistance. Further, the State references "legislation" which resulted in Wake County creating six sewer districts for the purpose of connecting several of the various sewer systems to municipal sewer systems. The appeal letter indicates that Wake County has provided direction and funding toward this improvement to the systems.
Pursuant to 44 CFR 206.223, to be eligible for permanent restoration, such work must be the legal responsibility of an eligible applicant. Upon review of the information provided by the State, it is understood that the North Carolina Utilities Commission and Wake County have certain regulatory and supervisory responsibilities regarding the LPP systems. Additionally, it is understood that Wake County is participating in the funding of the proposed improvements to several of the systems. However, this documentation does not support that either of these entities had legal responsibility for operation and maintenance of the systems at the time of the disaster. Rather, the documentation continues to support that at the time of the disaster, Harrco Corporation, as owner and/or emergency operator of the systems, was legally responsible for the maintenance and operation of the facilities. As Harrco Corporation is a private contractor and not an eligible applicant, permanent restoration of the LPP systems is not eligible for FEMA assistance. The failure of the contractor to adequately repair these systems does not provide FEMA the authority to fund these repairs though the Utilities Commission or Wake County.
The second appeal letter also recommends that "one system which may still be owned by a private nonprofit organization" (PNP) be considered eligible for assistance. It is noted that in FEMA's September 27, 1996, first appeal response letter it was stated that eligibility of any PNP could not be made until a Notice Of Interest (NOI) was submitted. As of this date, no PNP has submitted an NOI. It is further noted, however, that the deadline to submit an NOI for consideration has expired.
Additionally, in support of their position that these various damages should be eligible for reimbursement, the State asserts that FEMA approved funding for private entities following Tropical Storm Alberto in 1994 in Georgia, apparently in response to requests regarding "threats." FEMA did provide certain assistance to Houston and Taylor Counties in Georgia after Tropical Storm Alberto (FEMA-1033) for repair of privately owned dams. However, review of those files indicate that the situations are not the same in that the dams, in all instances, are incorporated within other eligible facilities, including either County utility systems or roads that were eligible for repair. The private structures were only repaired to the extent necessary to restore the eligible facility. There is no eligible facility associated with this case.
CONCLUSION
The Regional Director has granted a six-month extension for the pump and haul operations. We maintain that removal of the debris is not necessary to alleviate an immediate threat to life and property, and is, therefore, not eligible for funding as Category A. We further find that at the time of the disaster, a private contractor was responsible for the operation and maintenance of the various LPP systems. Therefore, permanent restoration of the LPP systems, including debris removal efforts to aid in this repair, is not eligible for FEMA assistance. Finally, FEMA's request that the State attempt to recoup funds for the pump and haul activities and repay FEMA is consistent with the existing State law and the Stafford Act. Receipt of Federal funds does not alleviate the State or the applicants from adhering to a state law. Accordingly, the appeal is denied.
Appeal Brief
| Disaster | FEMA-1134-DR |
| Applicant | Wake County |
| Appeal Type | Second |
| PA ID# | 183-00000 |
| PW ID# | 03615 |
| Date Signed | 1997-08-21T04:00:00 |
Cross Reference: Immediate Threat, Permanent Restoration, Legal Responsibility
Summary: On behalf of Wake County and the North Carolina Utilities Commission, the State is requesting funding for damages incurred to ten Low Pressure Pipe sewage systems servicing residential neighborhoods in Wake County, reportedly damaged during Hurricane Fran in September of 1996. As these systems were found to be the legal responsibility of a private contractor at the time of the disaster, permanent restoration was determined to be ineligible. Eligible assistance was limited to a six-month duration of pump and haul operations to reduce a potential health threat. FEMA further required that applicable state laws be used to recoup the pump and haul expenses from the private property owners. The State is requesting that funding for the pump and haul activities be extended until permanent restoration is completed, and that debris be removed as it is posing a threat. The State asserts that the damaged systems are the legal responsibility of the North Carolina Utilities Commission and Wake County, and should therefore be eligible for permanent restoration. Additionally, the State disagrees with FEMA's requirement to recoup expenses from private property owners.
Issues:
- Are the LPP systems the legal responsibility of an eligible applicant?
- Is debris removal eligible?
- Are pump and haul operations eligible for an extended duration?
- Is FEMA's request to recoup funds reasonable?
- The documentation supports that a private contractor had legal responsibility for operation and maintenance of the systems at the time of the disaster. Permanent restoration is not eligible.
- It is found that the removal of debris is not necessary to reduce a threat and is, therefore, not eligible for funding as Category A.
- The Regional Director has granted a six-month extension for the pump and haul operations. This analysis concurs with the approval of funding, and the limitation to an additional six-month duration.
- Recoupment of funds for abatement of an imminent threat on private property is a State law and should be enforced.
Appeal Letter
August 21, 1997
Mr. Billy Ray Cameron
Division Director
State of North Carolina
Division of Emergency Management
3109 Capital Boulevard North
Raleigh, North Carolina 27603
Dear Mr. Cameron:
This letter is in response to the second appeal of damage survey report (DSR) 03615, submitted on behalf of the North Carolina Utilities Commission and Wake County, for funding associated with ten Low Pressure Pipe sewage systems in Wake County that were damaged during Hurricane Fran. Your letter dated February 17, 1997, forwarded this appeal to me.
Based on my review of all the documentation submitted, I have resolved this appeal as follows. I have determined that the documentation supports that a private contractor had legal responsibility for operation and maintenance of the systems at the time of the disaster. As such, permanent restoration is not eligible. I have also determined that the removal of debris is not necessary to reduce an immediate threat to life and property and is, therefore, not eligible for funding as Category A. The Regional Office has recently granted a six-month extension for the pump and haul operations. The requirement for recoupment of funds for abatement of an imminent threat on private property is consistent with State law and the Stafford Act and should be enforced for the emergency pump and haul activities. Accordingly, this appeal is denied. Please refer to the enclosed analysis for more detail.
In the event that the applicant does not agree with this determination, a third appeal may be submitted to the Director pursuant to 44 CFR 206.206(e).
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Enclosure
Mr. Billy Ray Cameron
Division Director
State of North Carolina
Division of Emergency Management
3109 Capital Boulevard North
Raleigh, North Carolina 27603
Dear Mr. Cameron:
This letter is in response to the second appeal of damage survey report (DSR) 03615, submitted on behalf of the North Carolina Utilities Commission and Wake County, for funding associated with ten Low Pressure Pipe sewage systems in Wake County that were damaged during Hurricane Fran. Your letter dated February 17, 1997, forwarded this appeal to me.
Based on my review of all the documentation submitted, I have resolved this appeal as follows. I have determined that the documentation supports that a private contractor had legal responsibility for operation and maintenance of the systems at the time of the disaster. As such, permanent restoration is not eligible. I have also determined that the removal of debris is not necessary to reduce an immediate threat to life and property and is, therefore, not eligible for funding as Category A. The Regional Office has recently granted a six-month extension for the pump and haul operations. The requirement for recoupment of funds for abatement of an imminent threat on private property is consistent with State law and the Stafford Act and should be enforced for the emergency pump and haul activities. Accordingly, this appeal is denied. Please refer to the enclosed analysis for more detail.
In the event that the applicant does not agree with this determination, a third appeal may be submitted to the Director pursuant to 44 CFR 206.206(e).
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Enclosure
Appeal Analysis
BACKGROUNDDue to the severity of Hurricane Fran, which occurred in early September of 1996, the President declared parts of North Carolina major disaster areas. The hurricane caused damage to ten Low Pressure Pipe (LPP) sewage systems servicing various residential subdivisions in Wake County. Numerous trees had been uprooted and fallen within disposal fields and access roads of these systems, resulting in exposure of lines and destruction of piping. Due to the potential for surfacing and runoff of wastewater from the disposal fields, the Wake County Department of Health declared an imminent health hazard on September 13, 1996, advising the system operators to take (pump and haul) the wastewater to the City of Raleigh Neuse Treatment Plant until the damaged facilities could be assessed and necessary repairs made.
The damaged systems included Manchester, Banbury Woods, Hollybrook, Woods of Ashbury, River Oaks, Sheffield Manor, Woods of Tiffany, Stonebridge VI, Stone Creek, and Yates Mill Run. At the time of the disaster, each of these systems was owned and/or operated by Harrco Utility Corporation, a private contractor. For many of the systems, Harrco had been appointed the "emergency operator" of the system by the North Carolina Utilities Commission. Although Harrco is not reported as having owned these systems, it is understood that these systems were also not owned by an eligible applicant. For other systems, Harrco did own, as well as operate, the systems. However, it is understood that due to the magnitude of the damages resulting from the disaster, the owner of Harrco notified the Utilities Commission that he intended to resign as operator of the systems for which he had been appointed emergency operator, as well as relinquish his franchise for all systems operated by his company.
Wake County requested FEMA assistance for the cost of the "emergency" pumping and transport of the sewage, the removal of debris from the leaching fields, and the assessment and repair or restoration of the leaching field low pressure pipe systems. Wake County is requesting that FEMA fund the pump and haul operation until permanent connections for each facility are made to municipal type wastewater treatment plants, many of which will not be completed until August of 1998.
In a letter dated September 27, 1996, FEMA responded to this request for assistance, stating that because the LPP systems were privately owned and operated at the time of the disaster, permanent restoration was not eligible. Accordingly, FEMA could only assist with emergency protective measures for limited pump and haul activities. The existing debris did not "pose a threat" and therefore, its removal could not be considered eligible work. Additionally, FEMA determined that the damage assessment efforts ineligible for assistance. FEMA agreed to assist Wake County with the cost of pumping and hauling wastewater for the six months following the September 6, 1996, disaster declaration date. This funding was contingent upon the State and the applicant developing a plan to resolve the remaining repair items through recovery of insurance proceeds or other methods, and that the State, in conjunction with the applicant, would agree to use the applicable state law mechanism to recoup the pump and haul expenses and reimburse FEMA for the federal share of eligible funds. DSR 03615 was prepared to provide eligible funding in the amount of $687,478 for the scope of work described in this September 1996 letter.
First Appeal
On November 25, 1996, the State submitted a first appeal to FEMA's determination of limited eligibility for the LPP sewage system. The State requested that the pump and haul operation be extended until the permanent repairs are completed, asserted that the debris removal is necessary to reduce a threat, and that FEMA's requirement that the State recoup eligible FEMA funds through the applicable state mechanism is not supported by the Stafford Act.
The Regional Director denied that first appeal in a letter dated December 20, 1996. The Regional Director indicated that a time extension would be considered for the pump and haul operation on a case-by-case basis upon receipt of justification for such an extension and a time schedule for a permanent solution for each of the systems. Second, FEMA maintained that debris removal efforts are not eligible for funding as the purpose of this work was not necessary to reduce a threat to the public health and safety, but rather to facilitate the permanent repair of the systems. Finally, regarding the recoupment of funds, the Regional Director confirmed that such a process is consistent with State law when using public funds to abate an imminent hazard on private property.
Second Appeal
The State filed a second appeal on February 17, 1997, addressing the three issues as presented in the first appeal, and a fourth issue regarding legal responsibility for permanent repair. Regarding the first three issues, the State (1) provided a time schedule for the completion of the permanent repairs relative to defining the necessary pump and haul duration, (2) again asserted that the debris removal from the sewer systems will reduce the threat to the public health and safety, and (3) disagreed with FEMA's requirement to recoup federal funds from the property owners. No new documentation was provided in support of items 2 and 3. Additionally, the State asserted that after further investigation, they have determined that the systems are the legal responsibility of the North Carolina Utilities Commission and/or Wake County. Therefore, reimbursement of permanent repairs should be eligible for FEMA assistance.
DISCUSSION
Time Extension for Haul and Pump Operations
In a separate letter to the Region dated February 19, 1997, the State also requested a twelve- month extension for the pump and haul operations, providing justification for the request to extend the eligible duration of the pump and haul activities, and a time schedule for completion of the permanent repairs. The Region has prepared Supplemental DSR 45067 to provide funding in the amount of $888,055 for an additional six-month duration, through September 6, 1997.
Debris Removal
The State is requesting funding for the removal of debris, asserting that the removal of the fallen trees and other debris is necessary, in addition to the pump and haul activities, in order to reduce the threat. In support of their position, the State references various correspondence which indicate that the fallen trees have caused a public health hazard which must be alleviated. FEMA recognizes that the fallen and uprooted trees caused the damage to the sites, and that the resulting condition of the leaching fields and piping systems posed a potential health threat if use of the systems continued. However, the Wake County Department of Health attributed the actual threat to the potential for surfacing and runoff of the wastewater. FEMA has funded the pump and haul operations, thus eliminating the potential for this condition to occur. Removal of debris is not necessary to aid in this effort, and is not considered necessary to reduce the threat. Therefore, removal of the fallen trees and other debris from the leaching fields is not eligible for assistance.
Recouping of Funds
FEMA has required that efforts be taken by the State and Wake County to recoup pumping and hauling costs through applicable state mechanisms and reimburse FEMA for the Federal share of these funds. The State asserts that the Stafford Act and the applicable regulations do not appear to contain a requirement for the State or eligible applicants to use the lien and abatement process and bond forfeiture to recoup expenses to reimburse FEMA. The State contends temproceeds used to pay the lien, but as there would be no buyer for these damaged sewers, the abatement process would accomplish nothing.
As FEMA stated in the first appeal response, Section 130A-20 of the General Statutes of North Carolina authorizes the Secretary or the local health director to take any action necessary to abate an imminent health hazard on private property. The State used this authority to go onto the private properties to perform the pump and haul activities. Section 130A-20 further states "The Department or the local health department shall have a lien on the property for the cost of the abatement of the imminent hazard in the nature of a mechanic's and materialmen's lien as provided in Chapter 44A and the lien may be enforced as provided therein." The North Carolina Legislature has, through this statute, shown its intent that state money not be used to effect a benefit to private persons. FEMA has required that that this process also be applied to the Federal share of the funding.
The State asserts that this effort is not a requirement of the laws and regulations governing the Public Assistance program. However, FEMA notes that this mechanism to attempt to recoup such expenditures is an existing state law. Receipt of Federal funds does not alleviate the State or the applicants from adhering to a state law. Therefore, the State should attempt to use this lien as intended by the state legislature to prevent private gain from public funds. Should the State be successful, FEMA would be entitled to the Federal share of any funds recovered. Section 312(c) of the Stafford Act does provide FEMA the authority to recover its share of funds recouped through a lien or other process.
Legal Responsibility
The State has indicated that, upon further investigation, it has been determined that the North Carolina Utilities Commission and Wake County are legally responsible for the various LPP sewage systems. In support of this position, the State references Chapter 62 of the North Carolina General Statute indicating that the sewer systems are subject to regulation and supervision by the Utilities Commission. The State further refers to this Statute stating that the Utilities Commission, or an emergency operator appointed by the Utilities Commission, has the legal authority to undertake a remedy, both temporary or permanent, for the problems affecting the LPP sewer system. As the emergency operator, Harrco Corporation, abandoned the systems after the disaster, the State contends that the Utility Commission resumed responsibility for the operation of the systems and should therefore be eligible for permanent restoration assistance. Further, the State references "legislation" which resulted in Wake County creating six sewer districts for the purpose of connecting several of the various sewer systems to municipal sewer systems. The appeal letter indicates that Wake County has provided direction and funding toward this improvement to the systems.
Pursuant to 44 CFR 206.223, to be eligible for permanent restoration, such work must be the legal responsibility of an eligible applicant. Upon review of the information provided by the State, it is understood that the North Carolina Utilities Commission and Wake County have certain regulatory and supervisory responsibilities regarding the LPP systems. Additionally, it is understood that Wake County is participating in the funding of the proposed improvements to several of the systems. However, this documentation does not support that either of these entities had legal responsibility for operation and maintenance of the systems at the time of the disaster. Rather, the documentation continues to support that at the time of the disaster, Harrco Corporation, as owner and/or emergency operator of the systems, was legally responsible for the maintenance and operation of the facilities. As Harrco Corporation is a private contractor and not an eligible applicant, permanent restoration of the LPP systems is not eligible for FEMA assistance. The failure of the contractor to adequately repair these systems does not provide FEMA the authority to fund these repairs though the Utilities Commission or Wake County.
The second appeal letter also recommends that "one system which may still be owned by a private nonprofit organization" (PNP) be considered eligible for assistance. It is noted that in FEMA's September 27, 1996, first appeal response letter it was stated that eligibility of any PNP could not be made until a Notice Of Interest (NOI) was submitted. As of this date, no PNP has submitted an NOI. It is further noted, however, that the deadline to submit an NOI for consideration has expired.
Additionally, in support of their position that these various damages should be eligible for reimbursement, the State asserts that FEMA approved funding for private entities following Tropical Storm Alberto in 1994 in Georgia, apparently in response to requests regarding "threats." FEMA did provide certain assistance to Houston and Taylor Counties in Georgia after Tropical Storm Alberto (FEMA-1033) for repair of privately owned dams. However, review of those files indicate that the situations are not the same in that the dams, in all instances, are incorporated within other eligible facilities, including either County utility systems or roads that were eligible for repair. The private structures were only repaired to the extent necessary to restore the eligible facility. There is no eligible facility associated with this case.
CONCLUSION
The Regional Director has granted a six-month extension for the pump and haul operations. We maintain that removal of the debris is not necessary to alleviate an immediate threat to life and property, and is, therefore, not eligible for funding as Category A. We further find that at the time of the disaster, a private contractor was responsible for the operation and maintenance of the various LPP systems. Therefore, permanent restoration of the LPP systems, including debris removal efforts to aid in this repair, is not eligible for FEMA assistance. Finally, FEMA's request that the State attempt to recoup funds for the pump and haul activities and repay FEMA is consistent with the existing State law and the Stafford Act. Receipt of Federal funds does not alleviate the State or the applicants from adhering to a state law. Accordingly, the appeal is denied.
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