Arbitrator could hear Livingston debris claims from Hurricane Gustav

Livingston seeks cleanup funding

Livingston Parish will seek arbitration after an audit of the Federal Emergency Management Agency’s denial of millions of dollars for Hurricane Gustav debris removal found that the federal agency failed to meet its deadlines in responding to the parish’s appeals.

The Office of Inspector General of the Department of Homeland Security did not address whether FEMA was correct in determining $63 million worth of work in Livingston Parish was ineligible for reimbursement.

Instead, the audit focused on three instances in which FEMA took longer than its regulations allow to respond to Livingston’s appeals on monitoring work, leaners and hangers, and waterways.

Federal regulations require the agency to respond within 90 days of an appeal, but in those cases, FEMA took 171, 241 and 655 days, respectively, according to the audit released Thursday.

In addition, FEMA’s response to the parish’s second waterways appeal said only the agency had stopped reviewing the parish’s claims because of the Inspector General audit.

This effectively denied the parish’s claim without following federal regulations, the audit found.

Livingston Parish President Layton Ricks said Monday the audit findings give the parish an opportunity to seek arbitration over the unpaid claims.

The parish has a 15-day window from the report’s issuance to file the necessary paperwork.

After that, a panel of judges will decide when to schedule the arbitration, Ricks said.

“It could be 30 days. It could be six months,” he said.

Ricks stressed the opportunity for arbitration does not guarantee the parish will win reimbursement.

“We don’t want people jumping up and down thinking we have our money. We don’t,” Ricks said. “But this does give us another chance we didn’t have.”

FEMA disagreed with the audit’s focus, arguing that the inspector general should have addressed the eligibility issues.

“We believe the law requires the OIG to examine FEMA’s eligibility decisions with respect to Livingston Parish debris removal (of which there are many) and issue findings with respect to whether or not those decisions appropriately comported with FEMA rules and regulations,” Associate Administrator Joseph Nimmich said in the agency’s written response to the audit.

“The OIG’s failure to perform such an audit, and its reliance instead on the procedural issue of the timing of FEMA’s decisions, punts the substantive eligibility issues to the Civilian Board of Contract Appeals, denying the CBCA the benefit of any findings from the OIG,” Nimmich said.

The inspector general said assessing the correctness of FEMA’s eligibility determinations was not part of its charge.

Federal law dictatest the OIG “shall determine whether the Federal Emergency Management Agency correctly applied its rules and regulations to determine eligibility of the applicant’s claim.”

However, nearly all of FEMA’s rules and regulations are directed toward applicants, not the agency, the inspector general said in the audit.

Although some regulations provide criteria for FEMA to use in determining eligibility of debris, the rules do not explicitly state how FEMA must consider those criteria, according to the audit.

“Our audits of debris removal generally assess whether applicants followed federal procurement standards in contracting for the debris-related work and maintained documentation to validate and support the costs for the amounts of debris the applicants claimed,” the inspector general said.

“However, unless the records indicate otherwise, we generally rely on FEMA’s expertise to assess the eligibility of the debris itself.”

The inspector general also noted that, while a review of paperwork years later can often prove that debris was not eligible, it can seldom prove that debris was eligible.