Category Archives: Disasters and Emergencies

Immediate Threat

Appeal Type: 
2nd
Report Type: 
PW
Appeal Categories: 
Applicant Name: 
Town of Bennington
Disaster Number: 
FEMA-4022-DR
DSR: 
3094
Date Signed: 
Tuesday, September 15, 2015
PA ID: 
003-08425-00
Summary/Brief: 

Conclusion: Sediment reworking and bank armoring are ineligible for funding as emergency protective measures because the work went beyond that which was required to lessen or eliminate immediate threats to nearby improved property.

Summary Paragraph

The Applicant is appealing FEMA’s determination in Project Worksheet (PW) 3094 that bank armoring, sediment reworking, and associated construction mobilization and engineering costs were ineligible for PA funding as emergency protective measures.  Heavy rains from Tropical Storm Irene (“Irene”) deposited large quantities of debris and sediment along the Roaring Branch of the Walloomsac River causing flooding, bank erosion, redirected flow, and compromised channel capacity.  The Applicant requested about $3.5 million for debris removal, bank armoring, and sediment reworking as emergency protective measures.  FEMA determined that sediment reworking and bank armoring were ineligible for funding as emergency protective measures because the work exceeded that which was necessary to lessen or eliminate immediate threats.  On first appeal, the Applicant contended that bank armoring and sediment reworking were essential to reduce immediate threats.  The FEMA Region I Regional Administrator found that bank armoring and sediment reworking were ineligible for funding both as emergency protective measures and as permanent work.  On second appeal, the Applicant maintains that sediment reworking and bank armoring were performed to reduce immediate threats.  FEMA subsequently requested that the Applicant provide additional support that the damage was directly caused by the declared disaster, given the occurrence of subsequent Tropical Storm Lee shortly after Irene, the work performed reduced immediate threats, including characterization of the 5-year flood event on Roaring Branch, and predisaster design and maintenance records for the armored banks.  The Applicant provided documents stating that (1) the damage was directly related to Irene and distinguished the work from that previously identified in a river corridor plan, (2) the work lessened immediate threats to nearby property from a 5-year flood event and Lee was only a 4.6-year flood event, and (3) prior bank armoring was not engineered.  On April 3, 2015, the Applicant presented the information at Headquarters. 

Authorities Discussed

  • Stafford Act § 403(a)(3)(I); § 403(c)(6)(B).

  • 44 CFR § 206.201(b).

  • 44 CFR § 206.221(c).

  • 44 CFR § 206.225(a)(3).

  • Public Assistance Guide, FEMA 322, at 66; 71 (June 2007).

Headnotes

  • Stafford Act § 403(a)(3)(I) permits FEMAto provide essential assistance to reduce immediate threats to life, property, and public health and safety.

  • 44 C.F.R. § 206.201(b) defines emergency work as work done immediately following a disaster to save lives and protect improved property, public health, and safety.

  • To be eligible, emergency protective measures must eliminate or lessen immediate threats to lives, public health or safety, or threats of significant additional damage to improved public or private property through cost effective measures. 44 C.F.R. § 206.225(a)(3), 44 C.F.R. § 206.221(c) and the PA Guide define an immediate threat as the threat of additional damage from an event which can reasonably be expected to occur within five years.

    • Rather than carrying out the approved scope of work to remove debris necessary to eliminate the immediate threat, the Applicant permanently engineered an unimproved river channel to address longstanding issues associated with being located in an alluvial fan.

Letter: 

09/15/2015

Mr. Joe Flynn
Director
Division of Emergency Management and Homeland Security
103 South Main Street    
Waterbury, Vermont 05671-2101

Re:   Second Appeal – Town of Bennington, PA ID 003-08425-00, FEMA-4022-DR-VT, Project Worksheet (PW) 3094

Dear Mr. Flynn:

This is in response to a letter from your office dated September 29, 2014, which transmitted the referenced second appeal on behalf of the Town of Bennington (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding for bank armoring and sediment reworking performed on the Roaring Branch river channel following Tropical Storm Irene. 

As explained in the enclosed analysis, I have determined that bank armoring and sediment reworking, as well as associated construction mobilization and engineering costs, were not eligible emergency protective measures under the FEMA Public Assistance program, performed in accordance with Stafford Act § 403(a)(3)(I) and 44.C.F.R. § 206.225(a)(3) to eliminate or lessen immediate threats to lives, public health or safety, or threats of significant additional damage to improved public or private property.  As such, 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 C.F.R. § 206.206 Appeals. 

   Sincerely,

   /c/

   Alex Amparo
   Assistant Administrator
   Recovery Directorate

 

Enclosure

cc: Paul Ford
     Acting Regional Administrator
     FEMA Region I

 

 

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         

 

 

Enclosure

 

cc:       Mr. Paul F. Ford

            Acting Regional Administrator

            FEMA Region I

Analysis: 

Background

Between August 27 and September 2, 2011, heavy rains from Tropical Storm Irene (“Irene”) deposited large quantities of debris and sediment along the Roaring Branch of the Walloomsac River in the Town of Bennington (Applicant), causing flooding.  The flood waters deposited woody debris, cobbles, and boulders, which eroded banks, redirected flow, and compromised channel capacity.  The Applicant commenced debris removal.  Thereafter, between September 7 and 11, 2011, Tropical Storm Lee (“Lee”), which, according to the Applicant’s expert, was a 4.6-year flood event, occurred.[1]  Subsequently, the Applicant completed debris removal operations and initiated bank armoring, channel realignment, and floodplain shaping, and requested $3,454,212.96 in Public Assistance (PA) funding for this work.  FEMA initially determined that the Natural Resources Conservation Service was responsible for funding the work.  Upon additional review, FEMA determined that elements of the work performed fell under FEMA’s PA program and informed the Applicant that its eligibility determination would be based on the degree to which the work completed addressed an immediate threat, in accordance with 44 CFR 206.225(a)(3). 

FEMA prepared Project Worksheet (PW) 3094, documenting damage caused by Irene.  Specifically, mounds of sediment and woody debris jams increased flood levels, causing significant bank and floodplain erosion.  As a result, some houses were damaged while others were washed away.[2] 

December 10, 2012 Request for Information (RFI)

The information available to FEMA at the time the PW was prepared indicated that the Irene flood was “largely contained within the portions of [the] river corridor addressed by this PW,”[3] bringing into question the Applicant’s assertion that the work performed was required to alleviate an immediate threat.  As a result, on December 10, 2012, FEMA sent an RFI to the Vermont Division of Emergency Management and Homeland Security (Grantee) requesting scope of work documentation to support the Applicant’s position that the work performed was required to alleviate an immediate threat from a 5-year flood event. 

The Applicant responded with a memorandum dated January 4, 2013, with technical documentation attached.  The memorandum stated that the town is located on an alluvial fan and that Irene caused massive sediment deposits, bank erosion, avulsions, and an immediate threat of significant damage to improved property from a 5-year flood event.[4]  Per the memorandum, the Applicant stated that it removed about 50 percent of the total sediment deposits to restore the river’s pre-flood capacity.  The Applicant chose to address the remaining sediment through sediment reworking, stating that it was a more cost-effective alternative to debris removal.  The Applicant also armored banks along the 1.3 mile stretch where it asserted immediate threats to adjacent improved property existed, in accordance with an engineer’s post-Irene assessment.  Over 90 percent of the armoring was performed to replace previous armoring.[5]  The memorandum stated that the engineers’ post-flood assessments reflected that Irene activated sediment upstream that would cause sediment deposits downstream for several years.  The Applicant claimed that all of the work performed, including sediment removal, bank armoring, and sediment reworking, was necessary to preserve nearby improved property worth approximately $93 million.[6]

February 5, 2013 RFI

Recognizing that the documents submitted were insufficient to demonstrate PA eligibility for reimbursement for all of the work performed, FEMA requested additional explanation of the type of immediate threats posed after Irene through a second RFI dated February 5, 2013.  The Applicant responded on February 15, 2013, providing no new documentation and reiterating the information provided in the January 4, 2013 memorandum.  The Applicant stated that FEMA was requesting information already contained in the PW and the memorandum.

FEMA reviewed the RFI responses as well as the original PW, site conditions, and hydrology study, and found that the Applicant “removed 304,600 cubic yards of sediment material from the river corridor, regraded/reshaped on the order of 43 acres of floodplain, armored 1.3 miles of banks at the edges of the river corridor, constructed a 2300-foot long berm, and removed standing forest from upwards of 14 acres of floodplain.”[7]  FEMA concluded that none of the work was eligible as permanent work because the portion of the Roaring Branch was not a facility for purposes of PA funding since the Applicant maintained it was an unimproved natural feature.  Consequently, “construction of permanent flood control facilities and restoration of natural features by the Town did not conform to FEMA’s limited authority to fund.”[8] 

FEMA also questioned characterization of the work as emergency protective measures because “elements of the work performed appeared to constitute an implementation of a Channel Management and River Corridor Protection Plan developed by the Town in 2007, which planned to mitigate flood and erosion hazards in the river corridor for flow events far in excess of a 5-year event.”[9]  Based on this information, FEMA found that the “long-term objectives and permanency of the plan” were not consistent with the “requirement that emergency protective measures must be temporary in nature to be eligible for reimbursement under the PA program.”[10]

Determination

FEMA sent a determination letter to the Applicant on May 2, 2013, finding sediment removal work eligible but denying funding for channel excavation, bank armoring, floodplain shaping, and channel realignment.  This work was found ineligible because it exceeded that which was necessary to lessen or eliminate immediate threats to life, public health, safety, or improved public or private property.[11] 

Regarding sediment removal, Irene deposited approximately 550,000 cubic yards (CY) of sediment.[12]  A quantity of 304,600CY of sediment—55 percent of the total deposits—was selected as the amount necessary to achieve the channel’s pre-flood safety levels.[13]  The Applicant subsequently removed 278,480CY—12,630CY of which fell under the Federal Highway Administration’s purview as it was removed near and around bridges.[14]  The Federal Coordinating Officer (FCO) determined that removal of the remaining 265,850CY was the necessary work required to accommodate a 5-year flood event, resulting in a channel measuring 2.7 miles long with a cross-sectional area of 500 square feet. 

The FCO then applied FEMA’s Cost Code for channel debris excavation and haul to estimate a unit cost of $5/CY.[15]  PW 3094 obligated $1,330,797.03,[16] using $5/CY as an estimated reasonable cost for sediment removal.  The following table illustrates sediment volumes and the amount initially awarded for sediment removal:

 

Total Sediment Deposits as a Result of Irene

550,000CY

Sediment Removal Required to Return Channel to Pre-flood Safety Level (55%)

304,600CY

Total Sediment Removed by Applicant

278,480CY

Sediment Removal Funded by Federal Highway Administration

(12,630 CY)

Remaining Sediment Removal Funded by FEMA

265,850CY

Estimated Unit Cost Based on FEMA Cost Code

$5/CY

Estimated Cost of Sediment Removal (@ $5/CY)

$1,329,250.00

Direct Administrative Costs

$1,547.03

Total Initially Awarded (excluding mobilization and engineering costs)

$1,330,797.03

 

Following this determination, on May 8, 2013, the Applicant sent a memorandum to the Grantee disputing the cost basis for sediment removal and requesting actual costs.  The Applicant alleged that FEMA should have obligated actual costs of $2,068,918.00 for sediment removal plus mobilization, engineering, and administrative costs.[17]  The Applicant also requested $198,000.00 for reworking sediment that remained in the channel, for a total requested amount of $2,298,952.00.

On October 16, 2013, the Applicant sent an additional letter to the Grantee requesting reimbursement for actual costs for sediment removal.  The Applicant reiterated its May 8, 2013 assertion that FEMA should have applied actual rather than estimated costs for sediment removal.  The Applicant also explained sediment reworking as the process by which sediment within the river channel is pushed and spread to level the riverbed.  According to the Applicant, sediment reworking was a cost effective alternative to sediment removal and should have been found eligible as FEMA already acknowledged that sediment in the river channel was a threat when it funded sediment removal.  The Applicant claimed that actual costs totaled $2,489,312.00.[18]  

First Appeal

The Applicant submitted its first appeal letter to the Grantee on November 24, 2013, requesting a total of $2,123,415.93,[19] consisting of the remaining actual costs for sediment removal—$1,158,515.00 and an additional $964,900.96 for bank armoring.  The Applicant averred that bank armoring and sediment reworking were essential to reduce immediate threats and had to be performed in concert to eliminate immediate threats to nearby improved property.  The Applicant also stated that sediment reworking in the channel’s upper reach for $198,000.00 was a cost effective method of improving channel conveyance without full sediment removal.  As such, the Applicant contended that sediment reworking should be reimbursed as part of the sediment removal PW.  The Grantee transmitted the first appeal to FEMA on December 2, 2013; the Grantee supported the appeal.

In accordance with agency procedures for processing PA appeals, FEMA sent a final RFI to the Applicant on March 31, 2014, explaining the likely basis for denial of the first appeal and providing the Applicant a final opportunity to supplement the record prior to issuance of the first appeal response.[20]  The final RFI indicated that the existing record did not support a finding that the work performed other than debris removal was reasonable and necessary to alleviate an immediate threat to life, public health, and safety.  In addition, the final RFI stated that the record was insufficient to show that bank armoring, channel realignment, and floodplain shaping repaired previously improved natural features.  As such, the RFI requested the Applicant submit relevant information to address those matters.

In response to the final RFI, the Applicant supplemented the record reaffirming the position that the town was situated in a high flood-risk area, that all work performed was necessary to provide the minimum amount of protection in the most cost-effective manner, and that sediment removal and bank armoring had to be performed in tandem to effectively protect the town from imminent threats.  The response did not provide documentation addressing whether the channel was an improved natural feature.

First Appeal Decision

In a first appeal decision dated July 29, 2014, the Region I Acting Regional Administrator (RA) partially granted the first appeal, reimbursing $2,111,240.51[21] in actual costs for sediment removal.   The RA upheld the denial of funding for additional channel excavation, stream bank armoring, and floodplain shaping as ineligible for funding, finding that the additional channel excavation (not the debris and sediment removal), bank armoring, floodplain shaping, and channel realignment activities performed by the Applicant do not meet FEMA’s definition of emergency protective measures under Stafford Act section 403.  The RA determined that the work performed was not temporary in nature and FEMA considers such work to be permanent.

The RA also determined that, once the channel had been cleared of the sediment, the imminent threat to the public had been adverted, requiring no further emergency protective measures.  The RA found that the additional channel excavation, bank armoring, floodplain shaping, and channel realignment activities went beyond the minimum necessary action to eliminate immediate threats as required by 44 C.F.R. § 206.63 and FEMA Recovery Policy (RP) 9523.5.

In addition, the RA found that the Applicant proffered no new information to establish that the channel, after clearance of debris, was insufficient to convey the water during a subsequent 5-year flood event.  The following chart shows the actual costs awarded on first appeal for sediment removal:

 

Actual Costs for Sediment Removal (265,850CY)

$2,068,917.60

Mobilization Costs (Sediment Removal)

$15,504.88

Engineering Costs (Sediment Removal)

$25,271.00

Administrative Costs (Previously Approved for Sediment Removal)

$1,547.03

Total Costs Awarded

$2,111,240.51

 

Second Appeal

In its second appeal, dated September 23, 2014, the Applicant reiterates its first appeal claim that sediment reworking and bank armoring were performed to reduce immediate threats to improved property.  The Applicant states that FEMA did not acknowledge the “dual threat of inundation and erosion” along the Roaring Branch after Irene, “requiring a two-part approach to emergency protective measures – sediment removal or pushing, and bank armoring.”[22]  The Applicant also alleges that FEMA improperly applied the criteria for emergency work by failing to base the eligibility determination and first appeal decision on fact. 

To support its contentions, the Applicant asserts that the eligibility determination disregards the previously provided factual record and lacks a rational basis, particularly a fact-based analysis of the Roaring Branch river system that flows through an alluvial fan.  The Applicant also states that Region I’s interpretation of statute and regulations unreasonably narrows eligibility criteria in contradiction to the intended meaning and purpose.  

The Applicant raised several issues for review, particularly that work by the Town of Bennington was reasonable and cost effective; that FEMA erroneously and arbitrarily determined that bank armoring and sediment reworking are ineligible work; that FEMA concluded without factual basis or law, that the Applicant’s work exceeded the threshold of preventing the immediate threat to life, health and property; and that FEMA failed to include eligible engineering and mobilization costs.

The Applicant requests the Administrator to: (1) determine the entire scope of work eligible; (2) properly apply emergency work policy and underlying regulations; (3) award actual costs for emergency work; and (4) apply actual costs to the entire PW.  The Applicant requests a total of $1,342,972.45 in additional funding.[23]

The Grantee transmitted the second appeal to FEMA Headquarters on September 29, 2014, supporting the appeal.  The Grantee requests that FEMA (1) reverse the determination not to fund the full scope of work and (2) draft a new version of PW 3094 awarding an additional $1,342,972.45.

February 4, 2015 RFI

FEMA subsequently sent an RFI to the Applicant requesting supporting documentation that (1) the damage was directly caused by Irene, (2) the work performed reduced immediate threats, including characterization of the 5-year flood event in light of subsequent Tropical Storm Lee, and (3) pre-disaster design and maintenance records for the armored banks.  The Applicant’s response stated (1) the damage was directly related to Irene and distinguished the work from that previously identified in the River Corridor Protection Plan developed by the Town in 2007 (“2007 River Protection Plan”), (2) the work lessened immediate threats to nearby property from a 5-year flood event and Lee was only a 4.6-year flood event, and (3) prior bank armoring was not engineered, consisting of various types of rocks.  On April 3, 2015, the Applicant presented the same information at a meeting with FEMA at FEMA Headquarters.

Discussion

The Stafford Act § 403(a) authorizes FEMA to provide assistance essential to meet immediate threats to life and property resulting from a major disaster, including work that “reduce[s] immediate threats to life, property, and public health and safety.”[24]  This work is categorized as emergency work, which the Stafford Act defines as work performed to clear and remove debris and wreckage and temporarily restore essential public facilities and services.[25]  Emergency work examples include several temporary measures such as temporary generators, temporary facilities for schools, activation of a State or local emergency operations center, sandbagging, and temporary dikes.[26] 

In 44 C.F.R. § 206.201(b), emergency work is defined as work which must be done immediately to save lives and to protect improved property and public health and safety, or to avert or lessen the threat of a major disaster.[27]  FEMA’s two emergency work categories are Category A – Debris Removal and Category B – Emergency Protective Measures.[28]  In comparison, permanent work, which is captured in Categories C-G, is work performed to repair, restore, and replace facilities damaged by a disaster and is addressed in separate sections of the Stafford Act.[29]  In this case, based on the Applicant’s assertion that the Roaring Branch is an unimproved natural feature and therefore not a facility for purposes of the Stafford Act, PW 3094 was drafted to provide funding for eligible Category B activities described in its scope of work.

Emergency protective measures are activities a community takes before, during, and following a disaster that are necessary to do one of the following: (1) eliminate or reduce an immediate threat to life, public health, or safety; or (2) eliminate or reduce an immediate threat of significant damage to improved public or private property through cost-effective measures.[30]  To be eligible, emergency protective measures must accomplish at least one of those two objectives.[31] 

“Immediate threat means the threat of additional damage or destruction from an event which can reasonably be expected to occur within five years.”[32]  FEMA interprets an “immediate threat” to be the threat of damage from an event that has a 20 percent chance of occurring each year (i.e., a 5-year flood event).[33]

 

The Applicant Failed to Demonstrate that an Immediate Threat Existed after the Debris was Removed such that Additional, Different Emergency Protective Measures were Warranted. 

FEMA interprets section 403 of the Stafford Act to authorize funding the minimal level of effort necessary to address immediate threats.  In this case, the Applicant failed to establish that an immediate threat, beyond the persistent threat created by the Town of Bennington’s location within an alluvial fan, existed after the debris was removed thereby warranting additional emergency protective measures – sediment reworking and bank armoring.  The FEMA Recovery Policy (RP) 9523.5, Debris Removal from Waterways, limits debris removal from waterways to the minimum effort required to eliminate an immediate threat to life, public health, and safety, or removal of debris immediately up or downstream of and in close proximity to improved property.  FEMA relied on RP 9523.5 to determine that the approved level of debris removal was the minimum action required to eliminate immediate threats to lives, property, and health.

The PW specifically identified 304,600 CY of debris, 55 percent of the total debris deposits,[34] as the debris needed to return the river to pre-flood level of safety.  The Applicant removed 278,480 CY of debris,[35] 265,850 CY of which was FEMA eligible.[36]  Nothing on the record supports a finding that debris removal beyond that identified in the PW was necessary to alleviate immediate threats.  Given the small difference between the debris identified in the PW and that removed, FEMA correctly found that additional work performed after the debris removal went beyond that required to reduce or eliminate immediate threats.

The Applicant does not explain why the approved scope of work—removal of 304,600 CY of debris—was inadequate to address the immediate threats.  Debris removal and sediment reworking are different types of work, even if in some ways they accomplish the same objective of increasing channel capacity.  FEMA funds Category A debris removal and Category B emergency protective measures, which require an Applicant to establish an immediate threat.[37]  FEMA does not dispute the presence of debris in the river channel.  Rather, FEMA finds no basis to conclude that the sediment left in the channel meets Category A or Category B requirements, such that sediment reworking alleviated an immediate threat. 

It is important to note that all of the work performed and decisions made with regard to assessment of immediacy of threat and the minimal actions necessary to address them were conducted prior to FEMA’s involvement with this project.  Consequently, FEMA bases this decision on the documents on record, primarily those proffered by the Applicant, as well as information presented at FEMA Headquarters by the Applicant.   

The Applicant has provided extensive documentation showing an increased risk of erosion, which, over time, could cause damage as well as detailed descriptions of the avulsion risk related to alluvial flooding.  However, based on the information provided, FEMA finds that a long term increased risk of erosion and avulsion associated with the town’s location in an alluvial fan flood plain does not equate to an immediate threat to surrounding property caused by Irene.  While FEMA recognizes that sediment in the channel increased the risk of avulsion and flooding, the lack of additional damage from Lee a few days after Irene is particularly relevant.  While Lee fell just short of reaching the level of a 5-year flood event, the absence of significant further damage from Lee,[38] coupled with the fact that the vast majority of work performed to address the immediate threat associated with Irene occurred after both storms, undercuts the assertion that the actions taken beyond the removal of sediment were necessary to address an immediate threat.

The Applicant, as the proponent of the relief sought, has the responsibility to provide the facts necessary to support eligibility.  FEMA correctly relied on the information provided by the Applicant, which was insufficient to show that, after sediment removal, an immediate threat that required sediment reworking and bank armoring existed. Based on the documentation submitted by the Applicant and the presentation provided by its expert, FEMA does not find that an immediate threat existed to warrant work beyond sediment removal. 

The Applicant asserts that its decision to study the river damage, opt to remove only half the sediment and debris, and stabilize only the high priority banks to protect lives and property was not only reasonable but cost effective.  FEMA recognizes the cost effectiveness of this approach, but the Applicant has not demonstrated that, after sediment removal, there remained an immediate threat to lives or property that required additional modifications to increase the channel’s capacity.  Again, unless the remaining sediment posed an immediate threat, its cost-effective alternative, sediment reworking, remains ineligible.

The Sediment Reworking Performed and Bank Armoring were not Emergency Work

Section 403 of the Stafford Act and 44 C.F.R. § 206.225 limit the emergency work for which an Applicant can receive reimbursement for temporary measures.  Emergency work, which reflects Category A and B work, is essential to meeting immediate threats to life and property resulting from a major disaster.  It is defined as that which is performed to temporarily restore essential public facilities and services.[39]  The Stafford Act further provides examples of emergency work performed to save lives and protect property, which include “construction of temporary bridges” and “provision of temporary facilities for schools and other essential community services.”[40]  In contrast, permanent work, which is covered in Categories C-G, is work performed to repair, restore, and replace facilities damaged by a disaster and is addressed in separate sections of the Stafford Act.[41]  In short, assuming an immediate threat existed to warrant emergency protective measures, an assessment of the minimal and temporary nature of such actions would have to be conducted to determine eligibility. 

The work performed to armor banks and rework sediment was not temporary but rather restorative and permanent, in nature.  According to supporting documents, the contracted work involved excavation of the channel to “move the main channel away from existing infrastructure,” with specific instruction for the “new channel” not to run straight. [42]  This work permanently changed the shape of the channel.  Also, the work performed on bank armoring, some of which pre-existed the event, permanently restored armoring, as stated by the Applicant.  The Applicant reengineered the Roaring Branch, creating a permanent, engineered facility where none existed.  The Applicant chose to perform permanent work to address an emergency, contrary to Stafford Act eligibility for essential assistance and the approved scope of work.   

Similarly, the Applicant charges that bank armoring is an emergency protective measure performed to reduce immediate threats.  In support of this argument, the Applicant asserts that full sediment removal was impossible on an emergency schedule; as a result, sediment reworking and sediment removal had to be performed in concert with bank armoring.  The Applicant decided to remove “only the minimum sediment” and armor only “high risk” eroded banks to reduce the risk of damage to improved property.[43]  However, the Applicant has not shown that, in restoring the channel to its pre-flood capacity, it only addressed bank armoring and sediment reworking associated with immediate threats to life and property resulting from Irene. 

Therefore, the Applicant has not adequately substantiated that bank armoring and sediment reworking were the minimal actions necessary to address immediate threats.  In addition, the work performed beyond sediment removal, which included excavation to create and shape new channels and channel realignment, amounted to permanent actions rather than emergency protective measures needed to address an immediate threat.  While FEMA does not dispute that sediment reworking and bank armoring helped reduce longstanding, persistent risk related to the town’s settlement within an alluvial fan and exacerbated by continued development, and was generally consistent with the engineering designs reflected in the town’s 2007 River Protection Plan, it does not find that those actions are eligible as emergency protective measures or emergency work under FEMA authority as they were neither the minimal action required to address the threat nor temporary in nature. 

Although some of the work performed in this instance was different from the 2007 River Protection Plan, it was clear that the work was necessary in large part because of long-standing hazards dating back decades.  The Applicant has failed to demonstrate which components of the work addressed threats from Irene rather than longstanding erosion risks.  Funding this work in its entirety would contravene the intent of the Stafford Act and FEMA’s regulations.

FEMA Included Eligible Engineering and Mobilization Costs

The Applicant seeks reimbursement for costs associated with the removal and pushing of sediment and bank armoring.  The Stafford Act authorizes the President to provide funding for work and services to save lives and protect property,[44] and to make contributions to repair, restore, or replace an eligible facility and associated expenses.[45]  Associated expenses are those expenses related to eligible work.[46]  Consequently, an applicant seeking reimbursement for associated costs must prove that the underlying work is eligible for funding.

To be eligible for funding, associated expenses must also be allowable.  The regulations provide that a grantee or subgrantee may use grant funds for allowable costs and, likewise, FEMA may reimburse those allowable costs once incurred.[47]  For subgrantees, costs of requesting, obtaining, and administering Federal disaster assistance subgrants are allowable costs.[48] 

The RA, in the first appeal decision, approved costs associated with eligible work based on invoices.  This second appeal decision finds sediment reworking and bank armoring ineligible for PA funding.  Accordingly, associated expenses for this work are ineligible. 

Conclusion

Sediment reworking and bank armoring went beyond minimal actions necessary to address an immediate threat.  Engineering and mobilization costs associated with sediment reworking and bank armoring are therefore, also ineligible.  For the foregoing reasons, the second appeal is denied.

 

 

[1] Memorandum in Response to Request for Information from Water Resource Scientist and Engineer, Milone & McBroom, Inc. to Public Assistance Appeals and Audits Branch Chief, FEMA (Feb. 24, 2015).

[2] Project Worksheet 3094, Town of Bennington, Version 1 (May 15, 2013).

[3] Id.

[4] Memorandum from Water Resource Scientist and Engineer, Milone & McBroom, Inc. to Recovery and Mitigation Section Chief, Vermont Emergency Management and Homeland Security, at 1 (Jan. 4, 2013) [hereinafter January 4 Memorandum].

[5]Id. at 2.  The Applicant has contended that despite the presence of this bank armoring before the storm and the re-armoring that took place afterwards, the pre-existing bank armoring was not engineered or maintained.  Had it been engineered, the portion of the Roaring Branch subject to this appeal would likely have been considered a facility for purposes of the PA program.  Moreover, the absence of maintenance records documenting its pre-disaster condition and upkeep would likely have disqualified reimbursement for the repair of the bank armoring under Stafford Act § 406.       

[6] Memorandum from Assistant Town Manager, Town of Bennington to Water Resource Scientist and Engineer, Milone & McBroom, Inc.  (Dec. 28, 2012).

[7] PW 3094, Town of Bennington (Version 1).

[8] Id.

[9] Id.

[10] Id.

[11] Public Assistance Eligibility Determination, Town of Bennington, FEMA-4022-DR-VT, at 5 (May 2, 2013) [hereinafter Eligibility Determination].

[12] PW 3094, Town of Bennington (Version 1).

[13] Id.

[14] Eligibility Determination, at 5.

[15] Id.

[16] This amount included $1,547.03 in direct administrative costs.

[17] Mobilization costs ($16,000.00), engineering costs ($14,487.00), and administrative costs ($1,547.00).  All figures were rounded.

[18] This amount consists of $2,068,918.00 in sediment removal costs, $198,000.00 for sediment reworking, $195,576.00 for mobilization costs, $25,271.00 for engineering costs, and $1,547.00 in administrative costs.  The Applicant had revised mobilization and engineering costs.

[19] The $0.03 difference is because direct administrative costs were $1,547.03.

[20] Recovery Directorate Manual, Public Assistance Program Appeal Procedures (Sep. 30, 2013).

[21] This consisted of actual sediment removal costs in the amount of $2,068,917.60 and appurtenant costs for mobilization ($15,504.88), engineering associated with sediment removal ($25,271.00), and administrative costs ($1,547.03).

[22] Second Appeal Letter from Assistant Town Manager, Town of Bennington to Governor’s Authorized Representative, State of Vermont Secretary of the Administration, at 1 (Sept. 23, 2014) [hereinafter Second Appeal Letter].

[23] Sediment reworking ($198,000.00), bank armoring ($930,786.28), and the outstanding balance of engineering and mobilization costs ($214,186.17).

[24] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 403(a), 42 U.S.C. § 5170b (2007).

[25] Stafford Act § 403(c)(6)(B).

[26] Public Assistance Guide, FEMA 322, at 71-74. (June 2007) [hereinafter PA Guide].

[27] 44 C.F.R. § 206.201(b) (2011).

[28] PA Guide, at 66.

[29] See Stafford Act § 406.

[30] 44 C.F.R. § 206.225(a)(3); PA Guide, at 71.

[31] 44 C.F.R. § 206.225(a)(3).

[32] 44 C.F.R. §206.221(c).

[33] PA Guide, at 66; FEMA Second Appeal Analysis, City of Wilkes-Barre, FEMA- 1684-DR-PA, at 2 (Jan. 11, 2010).

[34] PW 3094, Town of Bennington (Version 1); see January 4 Memorandum, at 2.  The Applicant states that it removed 278,480CY of material or “50% of the total sediment deposition.”

[35] January 4 Memorandum, at 2.

[36] The 12,630 CY difference was funded by the Federal Highway Administration.

[37] See Stafford Act § 403(a); 44 C.F.R. § 206.225.

[38] FEMA First Appeal Analysis, Town of Bennington, FEMA-4022-DR-VT, at 3 (July 29, 2014).

[39] Stafford Act § 403(c)(6)(B).

[40] Stafford Act § 403; PA Guide, at 79-87.

[41] See Stafford Act § 406.  As noted previously, the sediment reworking and bank armoring do not meet the criteria for eligibility for PA funding as permanent work as those activities are not being conducted on an improved natural or maintained feature that would qualify as a facility.  

[42] Contract for Construction Services, at 2 (Oct. 17, 2011).

[43] Second Appeal Letter, at 9.

[44] Stafford Act § 403.

[45] Stafford Act § 406(a).

[46] Id.

[47] 44 C.F.R. § 206.228; 44 C.F.R. § 13.22.

[48] 44 C.F.R. § 206.228(a)(2).

Documentation

Appeal Type: 
2nd
Report Type: 
PW
Appeal Categories: 
Applicant Name: 
Nashville-Davidson County
Disaster Number: 
FEMA-1909-DR
DSR: 
5523
Date Signed: 
Monday, August 31, 2015
PA ID: 
037-52004-00
Summary/Brief: 

Conclusion:  On second appeal, Nashville-Davidson County (Applicant) provided adequate documentation to support reimbursement of costs associated with resident engineering services.

Summary Paragraph

Between April 30, 2010 and May 18, 2010, severe rainstorms, tornadoes, and straight-line winds impacted Nashville-Davidson County (Applicant).  The rainstorms caused the Cumberland River to overflow and subsequently floodwaters damaged electrical and mechanical components in the generator building located at Applicant’s K.R. Harrington Water Treatment Plant.  FEMA subsequently prepared Project Worksheet (PW) 5523 documenting necessary repairs to these electrical and mechanical components.  The PW did not document resident engineering costs and disallowed direct administrative costs (DAC).  In a June 1, 2011 letter, the Applicant submitted its first appeal requesting $25,920.38 and arguing that FEMA made numerous scope and cost estimate errors.  More specifically, the Applicant argued that FEMA made errors in estimating the following costs: DAC, resident engineering costs, construction management costs, and costs to replace metal doors.  In a letter dated June 1, 2012, the FEMA Region IV Regional Administrator (RA) partially approved the appeal, granting the construction management costs and the costs to replace the metal doors but denying the request for DAC and resident engineering costs.  The RA based the denial of resident engineering costs on a lack of adequate documentation.  On August 10, 2012, the Applicant submitted its second appeal, requesting only resident engineering costs totaling $13,691.00.  Upon FEMA’s subsequent request for additional information, the Applicant provided additional documents describing resident engineer’s services. 

Authorities and Second Appeals

  • Stafford Act § 406 (a)(1)(A), 42 U.S.C. § 5172.

  • 44 C.F.R. § 13.22.

  • OMB Circular A-87 Attachment A (C)(1)(a),(j), 2 C.F.R. § 225 Appendix A (C)(1)(a),(j)

  • PA Digest, at 48.

  • PA Guide, at 40, 59.

Headnotes

  • OMB Circular A-87 provides that allowable costs must meet the cost principles of being necessary; allocable to Federal awards; and adequately documented.

    • The Applicant provided documentation to demonstrate that the resident engineering costs are necessary, allocable, and adequately documented for PW 5523.

  • PA Digest, at 48, provides that “[s]pecial services[,] which are not required on every restoration project, include engineering surveys, soil investigations, services of a resident engineer, and feasibility studies. These services must be specifically described and must be shown to be necessary for completing the eligible scope of work.”

    • This project is part of 19 separate PWs associated with flood recovery efforts of a complex nature, and could require the use of resident engineering services.

Letter: 

08/31/2015

David Purkey
Director
Tennessee Emergency Management Agency
3041 Sidco Drive, P.O. Box 41502
Nashville, Tennessee 37204-1502

Re:  Second Appeal – Nashville-Davidson County, PA ID 037-52004-00, FEMA-1909-DR-TN, Project Worksheets (PW) 5523 – Support Documentation

Dear Mr. Purkey:

This is in response to a letter from your office dated September 18, 2012, which transmitted the referenced second appeal on behalf of Nashville-Davidson County (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $13,691.00 for costs associated with resident engineering services. 

As explained in the enclosed analysis, I have determined that the Applicant provided adequate documentation to substantiate reimbursement of costs associated with resident engineering services.  Accordingly, I am granting this appeal.  By copy of this letter, I am requesting the Regional Administrator take appropriate action to implement this determination. 

Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.

 

Sincerely,

/s/

William W. Roche
Director
Public Assistance Division   

                                                                      

Enclosure

cc: Gracia Szczech
      Regional Administrator
      FEMA Region IV

Analysis: 

Background

Between April 30, 2010 and May 18, 2010, severe rainstorms, tornadoes, and straight-line winds impacted Nashville-Davidson County (Applicant).  The rainstorms caused the Cumberland River to overflow and submerge portions of the generator building located at the Applicant’s K.R. Harrington Water Treatment Plant, damaging electrical and mechanical components located inside.  FEMA subsequently prepared Project Worksheet (PW) 5523 documenting necessary repairs to these components.

First Appeal

The Applicant submitted a first appeal in a letter dated June 1, 2011, arguing that FEMA made numerous scope and cost estimate errors and requesting a total reimbursement of $25,920.38: $290.37 in direct administrative costs (DAC), $13,691.00 in costs associated with resident engineering services, $746.51 in construction management costs, and $11,192.50 to replace damaged metal doors. 

In a letter dated June 1, 2012, the Region IV Regional Administrator (RA) partially approved the appeal and granted $11,192.50 to replace metal doors and $335.78 for construction management costs but denied DAC and resident engineering costs.  The RA found the activities claimed as DAC actually involved procurement and payment activities, making them project management costs not DAC.  The RA acknowledged the appropriateness of special engineering services for this project and concluded it met the “large and complex” requirement.  However, he denied the request stating the documents provided did not highlight specific tasks on daily reports, nor specific daily hours of the personnel attributed to oversight of the facility.

Second Appeal

On August 10, 2012, the Applicant submitted its second appeal through the Tennessee Emergency Management Agency (Grantee) requesting only $13,691.00 in costs associated with resident engineering services.  The Grantee transmitted the appeal to FEMA on September 18, 2012.  The Applicant argues that it verified and supported each employee’s activities through daily timesheets.  Through its second appeal submission as well as a subsequent response to FEMA’s request for additional information, the Applicant provided more detailed summary sheets reflecting the work performed by resident engineers.

Discussion

Pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) § 406, FEMA is authorized to provide reimbursement for the associated expenses incurred by a local government during the repair, restoration, reconstruction, or replacement of a facility damaged as the result of a declared disaster.[1]  FEMA determines allowable costs in accordance with the Office of Management and Budget (OMB) cost principles.[2]  As a local government, the Applicant must follow the OMB Circular A-87[3] requirement that costs must be necessary for proper and efficient performance and administration of the Federal award.[4]  It also mandates that costs are adequately documented and allocable to the specific project completed with Public Assistance funds.[5]   Generally, costs that can be directly tied to the performance of eligible work are eligible for FEMA reimbursement.[6]  Further, FEMA policy provides that services of a resident engineer may be required for some projects, and that such services are estimated separately from standard engineering and design service costs.[7]

Adequately Documented and Allocable

As acknowledged previously, FEMA does not dispute that this project meets the complexity requirement necessary to reimburse costs associated with resident engineering services.[8]  Consequently, the only issue presented in this appeal is whether the Applicant provided adequate documentation to show the costs are allocable to PW 5523.

Before FEMA can reimburse resident engineering costs, any provided documentation must adequately show necessary work within the eligible scope of work.[9]  Submitted with its second appeal, the Applicant has sufficiently documented the daily activities performed by resident engineers.  Reports clearly demonstrate hours worked on various parts of the facility, the date the work was performed, the number of hours worked, and the rate billed for the work performed.  These reports also reference task codes describing the resident engineering services performed, which include the following: evaluating damaged equipment; tagging-out equipment for inspection, repair, and startup; inspecting equipment for cause of malfunction; preparing scope of work for facility repairs; monitoring contractor and vendors repair work for compliance with scope of work; coordinating contractor work schedules; assisting with testing and re-commissioning of the facility; and monitoring the installation of repaired equipment. 

The information submitted in conjunction with the second appeal adequately documents resident engineering services performed on the components and equipment in question at the K.R. Harrington Water Treatment Plant.  Therefore, the costs are eligible for reimbursement.    

Conclusion

The Applicant provided adequate documentation to support the incurred costs associated with resident engineering services.  Accordingly, this appeal is granted.

 

 


 

[1] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 406(a)(1)(A), 42 U.S.C. § 5172 (2007).

[2] Office of Mgmt. & Budget, Exec. Office of the President, OMB Circular A-87, Cost Principles for State, Local, and Indian Tribal Governments, Attachment A (C)(1)(j) (2004) (codified at 2 C.F.R. § 225, Appendix A (C)(1)(j)) [hereinafter OMB Circular A-87].

[3] 44 C.F.R. § 13.22 (2010). 

[4] OMB Circular A-87, Attachment (C)(1)(a) (codified at 2 C.F.R. Appendix A (C)(1)(a)).

[5] Id.; see also Public Assistance Digest, FEMA 321, at 48 (Jan. 2008).

[6] Public Assistance Guide, FEMA 322, at 40 (June 2007) [hereinafter PA Guide].

[7] Id. at 59.

[8] See id. at 57 (stating water treatment plants are projects of above-average complexity).

[9] OMB Circular A-87, Attachment A (C)(1)(j) (2004) (codified at 2 C.F.R. § 225, Appendix A (C)(1)(j)); see also Public Assistance Digest, FEMA 321, at 48 (Jan. 2008).

Debris Removal

Appeal Type: 
2nd
Report Type: 
PW
Appeal Categories: 
Applicant Name: 
City of Lake Mary
Disaster Number: 
FEMA-1539
DSR: 
192 and 7156
Date Signed: 
Monday, August 31, 2015
PA ID: 
117-38425-00
Summary/Brief: 

Conclusion: The City of Lake Mary (Applicant) did not file its appeal within the 60-day regulatory timeframe as required by 44 C.F.R. § 206.206(c). Timeliness aside, the Applicant has not demonstrated, pursuant to 44 C.F.R. §§ 206.223(a)(3) and 206.224(a)-(b) and eligibility requirements within FEMA Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities and the PA Guide, that work performed to remove disaster-related debris from private roads was eligible under the Public Assistance Program. 

Summary Paragraph

FEMA prepared Project Worksheets (PWs) 192 and 7156 to document contract work to remove, reduce and dispose of debris deposited by Hurricane Charley throughout the City of Lake Mary (City).  FEMA deducted $102,366.80 in costs from PW 192 on the basis that the Applicant failed to demonstrate legal responsibility for 5,118.34 cubic yards of debris removed from private property.  The Applicant appealed FEMA’s deobligation and asserted that the provisions of its solid waste ordinance require the City to provide waste removal services at prescribed rates to all residents, and as a result, endow it, solely, with legal responsibility for the removal of all waste, including disaster-generated debris from private property.  Moreover, the Applicant contended that previous FEMA second appeal determinations validated using a local government’s solid waste ordinance as a means to establish legal responsibility for disaster-debris removed from private property.  The FEMA Region IV Regional Administrator denied the appeal, concluding that (1) the Applicant did not submit its appeal within the 60-day period pursuant to 44 C.F.R. § 206.206(c), and (2) a service agreement providing for routine yet limited, waste removal does not convey legal responsibility for private property debris removal.

Authorities and Second Appeals

  • Stafford Act § 423.

  • 44 C

  • 44 C.F.R. § 206.223(a)(3).

  • 44 C.F.R. § 206.224(a)-(b).

  • FEMA Debris Removal from Roadways in Private or Gated Communities

  • PA Guide, at 46.

     

Headnotes

  • Stafford Act § 423 and 44 C.F.R.

    § 206.206(c) provide statutory and regulatory timeframes for submitting appeals.

  • The Applicant did not submit its appeals within the 60-day timeframe.

  • According to 44 C.F.R. § 206.223(a)(3) and FEMA Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities, an eligible applicant must be legally responsible for removing debris from private roads.

  • The Applicant did not sufficiently establish that it was legally responsible for removing debris from private roads.

  • Pursuant to44 C.F.R. § 206.224(a)-(b) and Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities and the PA Guide, FEMA may reimburse costs associated with debris removal when it is necessary to eliminate an immediate threat provided that the Federal government is held harmless and indemnified from claims resulting from the work performed.

    • The Applicant did not establish that the debris on private roads was removed to serve the community at large in eliminating an immediate threat to lives, public health and safety.

    • The Applicant failed to provide written hold harmless and indemnification information as required by Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities and the PA Guide.

Letter: 

Bryan W. Koon
Director
State of Florida Division of Emergency Management
2555 Shumard Oaks Boulevard
Tallahassee, Florida  32399-2100

Re: Second Appeal – City of Lake Mary, PA ID 117-38425-00, FEMA-1539-DR-FL, Project Worksheets (PWs) 192 and 7156 – Debris Removal – Private Property

 

Dear Mr. Koon:

This is in response to a letter from your office dated December 4, 2014, which transmitted the referenced second appeal on behalf of the City of Lake Mary (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $102,366.80 for removal of 5,118.34 cubic yards of debris from private roads.

As explained in the enclosed analysis, I have determined that the Applicant did not file its appeals within the 60-day timeframe as required by Title 44 Code of Federal Regulations (44 C.F.R.)

§ 206.206(c).  In addition, the Applicant has not provided sufficient information to demonstrate it was legally responsible for the removal of disaster-related debris from private roads within the City of Lake Mary in accordance with § 206.223(a)(3).  Finally, the Applicant did not demonstrate that the debris removed from private roads served the community at large in eliminating an immediate threat to lives, public health and safety, pursuant to § 206.224(a) and (b) and failed to provide hold harmless and indemnification information as required by FEMA Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities and the Public Assistance Guide.  Accordingly, I am denying the appeal. 

Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.
 

Sincerely,

/s/

William W. Roche
Director
Public Assistance Division

                                          

Enclosure

cc: Gracia Szczech
      Regional Administrator
      FEMA Region IV

Analysis: 

Background                                                         

From August 11 through August 30, 2004, Hurricane Charley generated large amounts of storm-related debris throughout the City of Lake Mary (Applicant).  Utilizing contract labor, the Applicant picked up, hauled and disposed of thousands of cubic yards (CY) of debris from both public rights of way and private property throughout its jurisdiction. 

FEMA prepared Project Worksheet (PW) 7156 to account for $197,660.00 of debris removal performed within a 72-hour period authorized at 100 percent Federal funding.  FEMA prepared PW 192 to account for debris removal work performed outside of the 72-hour period.  On August 29, 2005, in Version 9 of PW 192, FEMA deobligated $188,533.30 to address ineligible debris removal for various reasons including discrepancies with truck capacities and debris removal from private roads and Federal Aid roads.  Of this amount, $102,366.80 was related to 5,118.34 CY of debris removed from private roads.  In total, FEMA approved PW 192 for $1,867,346.80.  FEMA closed PW 192 on November 21, 2008.

Both the Florida Division of Emergency Management (Grantee) and the Applicant stated that FEMA initially funded debris removed from private roads in PW 7156 and later moved the costs to PW 192.  In actuality, FEMA funded the work in PW 192.[1]

First Appeal

In its letter dated January 17, 2011, the Applicant appealed FEMA’s deobligation of $102,366.80 for 5,118.34 CY of debris removed from private property.  The Applicant stated that, following closeout, it received an invoice for $161,719.33, which prompted it to conduct a reconciliation of all costs.  During this reconciliation, the Applicant realized FEMA had deobligated funding attributed to private property debris removal.  In addition, the Applicant asserted that, since 1985, it has provided an exclusive franchise for the collection of garbage, yard waste, and vegetative debris, and its citizens have no other legal means of having debris collected. 

In an April 15, 2011 letter, the Grantee forwarded the first appeal.[2]  The Grantee argued that Section 91.35 of the City of Lake Mary’s (City) Code of Ordinances (Code), which provides for the removal of solid waste, follows FEMA’s requirements for establishing an applicant’s legal responsibility for removing debris from private property as outlined in a previous second appeal determination, City of Winter Springs.[3]  The Grantee also asserted that the costs in question remained eligible until the closeout of PW 192.

In a letter dated November 10, 2011, the FEMA Region IV Regional Administrator (RA) denied the first appeal on the basis that the City (1) failed to demonstrate legal responsibility for debris removed from private property; and (2) did not submit its appeal within the 60-day period pursuant to Title 44 Code of Federal Regulations (44 C.F.R.) § 206.206(c).[4]  The RA stated that the Applicant’s provision of a service to remove limited household trash and yard waste does not establish legal responsibility to remove debris and that legal responsibility is defined as responsible for the property.  The RA acknowledged that the Applicant-provided Franchise Agreement[5] establishes a contractual relationship between the City and its contractor for solid waste removal services.  However, he found that Section 7.5, Extraordinary Collection Services, of the Franchise Agreement specifically excludes the cost of removal of large amounts of loose garden trash and special waste from the residential service rate, and moreover, identifies a mechanism to estimate removal costs using a “reasonable” yet separate commercial bulk collection rate for services.  The RA concluded that a “service agreement to provide household garbage and limited yard waste removal” does not endow the Applicant with clear, legal responsibility “to remove debris from private property.”  Finally, the RA determined that the Applicant missed the 60-day deadline to file its first appeal.

Second Appeal

On August 7, 2012, the Applicant submitted a second appeal.  In response to the issue of timeliness, the Applicant contends that it initially delayed filing its appeal until after project closeout based on the advice of FEMA field staff.  Upon closeout in 2008, the Applicant stated that the deobligation it had intended to appeal for the disallowance of debris removed from private property appeared to have been resolved.  Therefore, it did not submit an appeal at the time of closeout.  The Applicant contends further, that multiple other factors, such as several PW versions and the length of time that elapsed from project completion to closeout, caused confusion and contributed to its delay in submitting its appeal.

In response to the issue of legal responsibility, the Applicant asserts that its solid waste ordinance and the corresponding fees imposed on residents for solid waste collection services establish its legal responsibility to remove debris from private roads.  With its second appeal, the Applicant also submitted a copy of its Ordinance No. 1293, promulgated in 2008, which provides the City with specific responsibility for removing disaster-debris if shown to be an immediate threat to the community.[6]  Moreover, the Applicant claims that FEMA second appeal determinations for City of Winter Springs[7] and Martin County[8] provide precedent in establishing legal responsibility for removing debris from private roads through a local government’s solid waste ordinance, and argues that FEMA’s Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities[9] further supports its position that a City’s solid waste ordinance can establish legal responsibility.  Finally, the Applicant contends that its property maintenance code also establishes legal responsibility as a viable alternative to using its solid waste ordinance.

Discussion

Timeliness of Appeals

The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) § 423 holds that: “[a]ny decision regarding eligibility for, from, or amount of assistance under this title may be appealed within 60 days after the date on which the applicant for such assistance is notified of the award or denial of award of such assistance.”[10]  Title 44 C.F.R. § 206.206(c) outlines clear procedures for the filing of appeals within a prescribed period of time that is triggered by the date the appellant receives notice of an action.[11]  Neither the Stafford Act nor 44 C.F.R. provides FEMA with authority to grant time extensions for filing appeals.[12]  

The Applicant submitted its first appeal on January 17, 2011, approximately six years after FEMA deobligated the funds from PW 192, Version 9, on August 29, 2005; and two years after closeout of the PW on November 21, 2008.  In addition, the Applicant submitted the second appeal on August 7, 2012, nine months after FEMA’s first appeal decision was issued on November 10, 2011.  Two years later, on December 4, 2014, the Grantee forwarded the second appeal.  Consequently, the Applicant’s second appeal fails to meet the statutory requirements of Stafford Act § 423 and the procedural requirements of 44 C.F.R. § 206.206(c)(1) and (2), and is denied.  As explained below, the Applicant’s second appeal would otherwise be denied for failing to meet eligibility requirements.

Eligibility of Debris Removal from Private Roads

The Stafford Act authorizes FEMA to reimburse eligible applicants for debris removal from public and private lands when it is essential to saving lives, protecting the public health and safety, preserving property, or in the public interest.[13]  Applicable to Hurricane Charley, FEMA Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities, provides three specific criteria for determining the eligibility of removing debris from private property.  For each case, the Applicant must establish that (1) it was legally responsible for the work; (2) the work was necessary to eliminate an immediate threat to the community at large; and (3) the Federal government was held harmless and indemnified from claims arising from the work performed.[14] 

  1. Legal Responsibility

Title 44 C.F.R. § 206.223(a)(3) requires that work must be the legal responsibility of an eligible applicant in order to be eligible for funding.[15]  An applicant must demonstrate legal responsibility by providing the law, ordinance, or code that provides the legal process that establishes responsibility for removing debris from private property and show that it has taken steps under this legal process.[16]  The Applicant asserts that its solid waste collection Ordinance No. 236[17] establishes its legal responsibility to remove debris from private roads.  The Applicant’s primary contention centers on its belief that the City’s long-standing responsibility to provide routine waste collection and removal services by exclusive franchise and at a charge to residents endows the City with the legal responsibility to remove disaster-generated debris from private property.[18]  Although the City has authority to remove certain kinds of waste on a routine basis, there is no provision within Ordinance No. 236 that specifically accounts for the removal of disaster-debris or references to a mechanism or process that addresses an emergency or disaster.

With its second appeal, the Applicant submitted a second ordinance in support of its argument for legal responsibility: Ordinance No. 1293.[19]  According to the Applicant, the City promulgated Ordinance No. 1293 “to clarify the City’s responsibility of debris removal from private roads and gated communities in the event of an immediate threat to life, public health, and safety after a significant disaster.”[20]  However, the City did not pass this ordinance until July 24, 2008, almost four years after the event.  Thus, as Ordinance No. 1293 was not in effect at the time of the disaster, it has no direct bearing on FEMA’s consideration of whether the Applicant was legally responsible for the debris removal work performed during the event.[21]

In its second appeal letter, the Applicant states:

The City’s solid waste ordinance was the primary mechanism for determining legal responsibility.  However, had the City’s solid waste ordinance not established legal responsibility, the City could have used their property maintenance code which relates to the abatement of nuisances…The latter method would have hindered recovery efforts and the abatement of threats to public health and safety.[22]

The Lake Mary Property Maintenance Code (“Code”)[23] mandates minimum standards for the maintenance of property within the City.[24]  Within the Code, responsibility for property maintenance falls to the individual “mortgagee and/or property owner.”[25]  The City cannot declare a property to be a “public nuisance” and enforce abatement independently without following its own legal process to issue a citation or other notice of violation to the property owner.[26]  The City is not authorized to enter the property to “remedy, correct, or remove the violation”[27] until after it has provided the owner with the opportunity to address the violation.  Following that, the City can access the owner’s property to correct the violation; however, it still holds the property owner responsible for the costs of the remediation work it performed plus administrative charges by placing a lien against the property.[28] 

The Applicant failed to specify how the City’s Code and abatement of nuisance would apply to this particular case.  Other than the passage cited above and attaching a copy of the Code, the Applicant offered no specific analysis connecting the Code to its legal responsibility argument.  Regardless, the Code holds the individual owner responsible for property maintenance and the costs associated with nuisance abatement.  Consequently, it does not substantiate the Applicant’s assertion that it is legally responsible for removing the debris from private property.  

The Applicant believes that the second appeal amendments for City of Winter Springs[29] and Martin County[30] should persuade FEMA to accept the City’s position that its long-standing authority for providing for the exclusive removal of solid waste by ordinance is sufficient legal responsibility for removing disaster-debris from private roads. [31] At the time of the decision there was no binding precedent on how FEMA determined legal responsibility for private property debris removal, as each case presented unique circumstances and was determined on a case-by-case basis.[32]  Moreover and as discussed in the following subsections, the Applicant does not demonstrate how its own actions and ordinance satisfy the other requirements enumerated in Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities

  1. Immediate Threat

Pursuant to 44 C.F.R. § 206.224(a) and (b), FEMA is authorized to provide funding for debris removal from private property when it serves the public interest, such that it eliminates an immediate threat to lives, public health and safety, and improved property or ensures economic recovery of the affected community to the benefit of the community at large.[33]  In its second appeal letter, the Applicant states that “[t]he disaster debris presented a threat to public health and safety.”[34]  Ordinance No. 236 does not contain language defining criteria that the Applicant would follow to make a health and safety threat determination as required by FEMA’s guidance.[35]  The Applicant provided no information to explain how it determined that removing 5,118.34 CY of debris from private roads was in the interest of the greater public in eliminating an immediate threat to lives, public health and safety.  FEMA intended for the guidance to underscore the “distinction between public and private roads when acting to eliminate a threat to life, public health and safety.”[36] 

  1. Hold Harmless/Indemnification

Finally, as stated in Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities and the Public Assistance Guide, FEMA requires written documentation showing that it “was held harmless and indemnified for all claims of loss or damage resulting from the work.”[37]   Federal funding is contingent upon the applicant meeting this condition.[38]  In the information submitted with its second appeal, the Applicant did not include copies of records showing that the Federal government was held harmless and indemnified from claims of loss resulting from the debris removed from private roads, nor did it address this matter in its response letter.  Consequently, the Applicant failed to sufficiently demonstrate compliance with this requirement.

Conclusion

Pursuant to 44 C.F.R. § 206.206(c), the Applicant’s appeal is time barred because it was not filed within the 60-day regulatory timeframe.  In addition, the Applicant has not met all eligibility criteria pursuant to 44 C.F.R. §§ 206.223(a)(3) and 206.224(a)-(b), Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities and the PA Guide.  Accordingly, the Applicant’s cost of $102,366.80 associated with the removal of 5,118.34 CY of debris from private roads remains ineligible for FEMA reimbursement.

 

[1] See Project Worksheet 7156, City of Lake Mary, Version 3 (Nov. 25, 2008) (explaining in the scope of work that FEMA deducted $102,366.80 related to 5,118.34 CY of debris removed from private roads in a separate project – PW 192 Version 9).

[2] The Applicant attributes the delay in the first appeal submission to different correspondence between it, the Grantee, and FEMA.  This correspondence includes a February 25, 2011 memorandum from the Grantee to the FEMA Infrastructure Branch Director forwarding a copy of the Applicant’s first appeal and a March 17, 2011 letter from FEMA informing the Grantee that the first appeal should be properly submitted pursuant to 44 C.F.R. § 206.206(a), not to the leadership staff deployed to oversee Public Assistance Program field operations. 

[3] See FEMA Second Appeal Analysis, City of Winter Springs, FEMA-1539-DR-FL (Mar. 11. 2010) (amending a previous second appeal letter dated Mar. 1, 2007).

[4] See 44 C.F.R. § 206.206(c) (2003).

[5] See generally Franchise Agreement The City of Lake Mary and Waste Management, Inc. of Florida (Sept. 18, 2003) (providing for the collection of solid waste and recyclable materials).

[6] See generally Lake Mary, Fla., Code of Ordinances § 91A.01 (2008).

[7] See FEMA Second Appeal Analysis, City of Winter Springs, FEMA-1539-FL.

[8] See FEMA Second Appeal Analysis, Martin County, FEMA-1561-FL (Sept. 19, 2007) (amending a previous second appeal letter dated Jan. 24, 2007).

[9] See generally, Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities (Sep. 20, 2004).

[10] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 423, 42 U.S.C. § 5189a (2003).

[11] See 44 C.F.R. § 206.206(c)(1).

[12] See FEMA Second Appeal Analysis, Public Health Trust of Miami-Dade County, FEMA-3259-EM-FL, at 2

(Mar. 27, 2015); see also FEMA Second Appeal Analysis, Broward County School Board of Florida, FEMA-1609-DR-FL, at 2 (Sep. 4, 2014).

[13] See Stafford Act §§ 403 and 407.

[14] See Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities, at 2.

[15] See 44 C.F.R. § 206.223(a)(3); see also Public Assistance Guide, FEMA 322, at 45 (Oct. 1999) [hereinafter PA Guide].

[16] See id. at 2.

[17] See generally Lake Mary, Fla., Code of Ordinances § 91.30(A)-(B) (1985).

[18] See id. § 91.35(A)-(B) (1985) (stating that “[i]t shall be the responsibility of the City to make available Residential and Commercial Collection Service to all Residential and Commercial Improved Real Property under the terms and provisions of this ordinance”); see also Applicant’s Second Appeal, at 3 (stating that “[t]he City’s solid waste Ordinance No. 1312 that was in place during DR-1539 was provided in the first appeal.”  Ordinance No. 236 (Oct. 3, 1985) was amended by Ordinance No. 1312 (Feb. 5, 2009).  The Applicant provided copies of both ordinances with its first appeal package).

[19] See Lake Mary, Fla., Code of Ordinances § 91A.01 (2008).

[20] Letter from City Manager, City of Lake Mary, to Director, Florida Division of Emergency Management, at 3-4 (Aug. 7, 2012) [hereinafter Applicant’s Second Appeal].

[21] Although passed in 2008 and not applicable to this event, it is noteworthy that Ordinance No. 1293 appears to address the three eligibility criteria required by Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities.

[22] Applicant’s Second Appeal, at 5.

[23] See Lake Mary, Fla., Code of Ordinances §§ 91.70-91.99 (1988).

[24] See id. § 91.75(A) (1988).

[25] Id. § 91.75(D)(5).

[26] Id. § 91.75(D)(5)(E).

[27] Id. § 91.78(C).

[28] See id.

[29] See FEMA Second Appeal Analysis, City of Winter Springs, FEMA-1539-DR-FL (Mar. 1, 2007).

[30] See FEMA Second Appeal Analysis, Martin County, FEMA-1561-DR-FL (Sep. 19, 2007).

[31] See FEMA Second Appeal Analysis, City of Winter Springs, FEMA-1539-DR-FL and FEMA Second Appeal Analysis, Martin County, FEMA-1561-DR-FL. In the initial second appeal determinations for the City of Winter Springs and Martin County, FEMA contended that the Applicants failed to demonstrate clear and explicit legal responsibility for work performed on private property.  In subsequent amendments to both appeals, FEMA determined that the City and County Codes providing for solid waste collection services substantiated legal responsibility for private property debris removal; but see FEMA Second Appeal Analysis, Town of Juno Beach, FEMA-1545-FL (Feb. 13, 2007) (deciding, under Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities, that the Applicant did not establish legal responsibility for failing to show it was authorized to enter private property or follow due process procedures.  FEMA also determined that the Applicant’s solid waste and recycling ordinance giving contractors the right to enter gated communities did not sufficiently establish legal responsibility to enter private property to remove disaster-debris); and FEMA Second Appeal Analysis, City of Palm Beach Gardens, FEMA-1545-DR-FL (July 23, 2007) (deciding that the Applicant did not establish legal responsibility because its waste ordinance and related documentation provided for routine trash removal, but did not reference extraordinary circumstances like storm-generated debris.  In addition, the Applicant did not have the necessary right of entry/hold harmless agreements as required by Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities).

[32] See Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities, at 1 (stating that “[h]owever, in rare circumstances, an eligible applicant, such as the local government, may undertake removal of debris from private property.  In such cases, FEMA and the State will determine eligibility on a case-by-case basis”) (emphasis added).

[33] See 44 C.F.R. § 206.224(a)-(b).

[34] See Applicant’s Second Appeal, at 1.

[35] See Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities, at 2 (emphasizing that “[w]hen the language of the ordinance is vague, or does not set out criteria for a public health and safety threat determination, the eligible applicant claiming legal responsibility must demonstrate to the satisfaction of FEMA the method it used to determine the existence of a threat to life, public health and safety at the private or gated community sites from which it removed or intends to remove debris”).

[36] See Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities, at 1.

[37] Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities, at 2; see also PA Guide, at 46 (explaining that “[d]ebris removal from private property shall not take place until the State or local government has agreed in writing to indemnify FEMA from a claim arising from such removal and obtained unconditional authorization to remove the debris from the property”).

[38] See Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities, at 3.

Debris Removal

Appeal Type: 
2nd
Report Type: 
PW
Appeal Categories: 
Applicant Name: 
City of Boynton Beach
Disaster Number: 
FEMA-1545-DR
DSR: 
7884 and 7889
Date Signed: 
Monday, August 31, 2015
PA ID: 
099-07875-00
Summary/Brief: 

Conclusion:  Pursuant to the Stafford Act § 423 and 44 C.F.R. § 206.206, the Applicant’s second appeal is untimely.  Timeliness aside, the Applicant has not demonstrated that debris removal work performed on private roads is eligible for Public Assistance (PA) reimbursement pursuant to 44 C.F.R. §§ 206.223 and 206.224, and Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities.  

Summary Paragraph

Following Hurricane Frances, FEMA drafted Project Worksheets (PWs) 7884 and 7889 to address debris removal throughout the City of Boynton Beach (City).  During a review of the PWs, FEMA determined that the Applicant removed 7,337 cubic yards (CY) of debris and 16,766 CY of debris from private roads as documented in PW 7884 and PW 7889 respectively; however, at closeout, FEMA found that the Applicant was not legally responsible for removing debris from private roads.  As such, FEMA reduced costs associated with the work.  The Applicant appealed this determination, and in November 2006, FEMA Region IV issued a decision determining that the Applicant was not legally responsible for removing debris from private roads.  Following a 2010 FEMA second appeal determination for the City of Winter Springs, the Applicant again appealed the eligibility of work performed to remove debris from private roads, and FEMA Region IV again denied it on the basis of legal responsibility.  In its second appeal, submitted two years after the first appeal decision, the Applicant asserts that it is responsible for safeguarding the life and property of all of its citizens.  As evidence, the Applicant cites to Florida Statute 252-38 which it says authorizes it to “take whatever prudent action necessary to ensure the health, safety, and welfare of the community.”  In addition, the Applicant asserts that its solid waste ordinance provides legal responsibility for debris removal on private and public roads.  The Applicant argues that the City ordinance combined with the State law establishes legal responsibility; thus, the debris removed from private roads is eligible for Public Assistance (PA) funding. 

Authorities and Second Appeals

  • Stafford Act §§ 403(a)(3)(A), 407(a)(1), 423.

  • 44 C.F.R. §§ 206.206, 206.223(a)(3), 206.224(a)-(b).

  • Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities.

     

     

    Headnotes

  • Stafford Act § 423 and 44 C.F.R. § 206.206 provide statutory and regulatory timeframes for submitting appeals of FEMA determinations.

  • The Applicant and the Grantee were untimely when submitting the second appeal for PWs 7884 and 7889.

  • Pursuant to 44 C.F.R. § 206.223 and Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities, an eligible applicant must be legally responsible for removing debris from private roads.

  • The Applicant did not sufficiently establish that its City ordinance endowed it with clear, legal responsibility to remove disaster-related debris from private roads.

  • Pursuant to 44 C.F.R. § 206.224, as clarified in Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities, FEMA may reimburse costs associated with debris removal when it is necessary to eliminate an immediate threat to life or the debris is so widespread that public health and safety or the economic recovery of the community is threatened.

    • The Applicant did not establish that the debris on private roads created an immediate threat to life, public health and safety, or property.

  • Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities, provides that FEMA requires the state or local government to indemnify FEMA from a claim arising from such removal and obtain unconditional authorization to remove the debris from the proper.

The Applicant did not provide the required indemnification and hold harmless agreements for this project.

Letter: 

08/31/2015

Bryan W. Koon
Director
State of Florida Division of Emergency Management
2555 Shumard Oaks Boulevard
Tallahassee, Florida  32399-2100

Re: Second Appeal – City of Boynton Beach, PA ID 099-07875-00, FEMA-1545-DR-FL, Project Worksheets (PW) 7884 and 7889 – Debris Removal – Private Property

Dear Mr. Koon:

This is in response to a letter from your office dated August 22, 2014, which transmitted the referenced second appeal on behalf of the City of Boynton Beach (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $247,055.75 for debris removal from private roads. 

As explained in the enclosed analysis, I have determined that the second appeal was untimely pursuant to the Stafford Act § 423 and 44 C.F.R. § 206.206.  In addition, the Applicant failed to demonstrate it was legally responsible for removing disaster-related debris from private roads, nor did it demonstrate there was an immediate threat to life, public health and safety, or property.  Further, the Applicant did not provide rights-of-entry/hold harmless agreements from property owners or homeowners associations.  Accordingly, I am denying the appeal.

Please inform the Applicant of my decision.  This determination is the final Agency decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.
 

Sincerely,

/s/

William W. Roche
Director
Public Assistance Division                                                                       

Enclosure

cc: Gracia Szczech
     Regional Administrator
     FEMA Region IV

Analysis: 

Background

In September 2004, strong winds, heavy rains, and flooding from Hurricane Frances generated large amounts of storm-related debris throughout the City of Boynton Beach (Applicant).  The Applicant used force account and contracted labor to remove, haul, and dispose of a total of 274,974.4 cubic yards (CY) of debris.  FEMA addressed the debris removal in Project Worksheets (PWs) 7884 and 7889.  During a review of the PWs, FEMA determined that the Applicant removed of 7,337 CY debris and 16,766 CY of debris from private roads as documented in PW 7884 and PW 7889 respectively, and reduced costs accordingly. 

In January 2006, the Grantee forwarded a first appeal to FEMA Region IV.  In November 2006, FEMA Region IV issued a decision determining that the Applicant was not legally responsible for removing debris from private roads.  Therefore, pursuant to 44 C.F.R. § 206.224(c), the Applicant was not eligible for Public Assistance (PA) reimbursement for costs associated with such work.

In March 2010 FEMA issued a second appeal letter for the City of Winter Springs.[1]  In reconsidering that second appeal decision, FEMA amended its 2007 determination and found that the Applicant was legally responsible for the removal of disaster-related debris from private roads based on its local ordinance.  

First Appeal

Following the 2010 Winter Springs determination, the Applicant resubmitted its first appeal in a March 1, 2010 letter, by restating it was required to collect and transport refuse, garbage, and trash from residents.  In addition, the Applicant asserted it was responsible for providing and ensuring continuous access of “life safety services, water, and sewer operations” within its jurisdiction.  As evidence that it was legally responsible for debris removal on private roads, the Applicant cited to Section 10-22 of the City of Boynton Beach Code of Ordinances, which states, “[a]ll refuse, garbage, trash of all types, vegetative trash, recycling, construction and demolition material accumulated in the City shall be exclusively collected, conveyed, and disposed of by the City under supervision of the Director of Public Works.”  The Grantee forwarded the Applicant’s first appeal via an April 9, 2010 letter claiming that the City of Winter Springs appeal determination established binding precedent that when a local government holds the exclusive franchise for all trash/debris/garbage removal throughout the jurisdiction, legal responsibility is conferred upon the local government to remove disaster-related debris from private roads and private property. 

FEMA Region IV accepted the March 1, 2010 letter as a new first appeal.  In a September 22, 2010 letter, the Region IV Regional Administrator (RA) concluded that, while the Applicant demonstrated it had legal authority to provide refuse and trash services, it failed to demonstrate it was legally responsible for removing debris from private roads following Hurricane Frances.  In addition, the RA determined that the Applicant failed to show that the debris was so widespread it constituted a health and safety threat or that removal would benefit the general public, not just individuals.  As such, the appeal was denied. 

Second Appeal

In a second appeal dated May 29, 2013, the Applicant asserts that it is responsible for safeguarding the life and property of all of its citizens.  As evidence, the Applicant cites to Florida Statute 252-38 which it says authorizes it to “take whatever prudent action is necessary to ensure the health, safety, and welfare of the community.”  In addition, the Applicant asserts that its solid waste ordinance provides legal responsibility for debris removal on private and public roads.  The Applicant argues that the City ordinance combined with the State law establishes legal responsibility, and consequently, its use of contractors and force account labor to remove debris from private roads is eligible for PA funding. 

Discussion

Appeal Timeliness

The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) § 423 requires an Applicant to appeal a denial regarding eligibility for, from, or amount of Public Assistance within 60 days after the date on which it was notified of the denial.[2]  Pursuant to Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.206, the Grantee must submit appeals from an Applicant, with a written recommendation, to the Regional Administrator within 60 days of receipt.[3]   Neither the Stafford Act nor 44 C.F.R. provides FEMA with authority to grant time extensions for filing second appeals.[4]  

Here, FEMA issued a first appeal decision on September 22, 2010.  The Applicant’s second appeal is dated May 29, 2013 – two and a half years after FEMA’s decision.  The Grantee submitted the second appeal to FEMA in August 2014.  As such, the Applicant’s second appeal fails to meet the statutory requirements of Stafford Act § 423 and the procedural requirements of 44 C.F.R. § 206.206(c)(1) and (2), and consequently is denied.  Timeliness aside, as described below, the second appeal also is not compelling on the substantive issues and would otherwise be denied.  

Work Eligibility

The Stafford Act authorizes FEMA to reimburse eligible applicants for debris removal from public and private lands when it is essential to saving lives, protecting the public health and safety, preserving property, or in the public interest.[5]  Debris removal is deemed to be in the public interest when it eliminates an immediate threat to lives, public health, and safety, eliminates immediate threats of significant damage to improved public or private property, or ensures the economic recovery of the affected community to the benefit of the community at large.[6]  While debris removal from public land is always deemed to be in the public interest, FEMA treats debris removal from private land differently.[7]  If debris on private land is so widespread that public health, safety, or the economic recovery of the community is threatened, the actual removal of debris from the private property may be eligible.[8]  FEMA determines eligibility of debris removal from private roads by analyzing whether the applicant is legally responsible for such work, the work reduced an immediate threat to life, public health and safety, and the applicant provided to FEMA rights-of-entry and hold harmless agreements from the private property owners or Homeowners’ Associations (HOAs), as a condition of receiving Federal funding.[9]  It is important to note that there is no global determination or binding precedent on private property debris removal.[10]  As such, FEMA determines whether debris removal from private land is eligible for PA reimbursement on a case-by-case basis.[11] 

Pursuant to 44 C.F.R. § 206.223, an item of work is eligible for PA funding if it is the legal responsibility of an eligible applicant.[12]  Regarding debris removal from private property, an eligible applicant must also show FEMA its legal process for taking responsibility for debris removal on private property (i.e., the applicable State or local law, ordinance, or code) and demonstrate how it followed that process.[13]

The Applicant argues that Article II of the City of Boynton Beach Code of Ordinances establishes its legal responsibility to remove disaster-related debris.  In part, Article II reads, “[a]ll refuse, garbage, trash of all types, vegetative trash, recycling, construction and demolition material… shall be exclusively collected, conveyed and disposed of by the City under the supervision of the Director of Public Works.”[14]  Article II defines “refuse,” “garbage,” “recycling,” and “construction and demolition material.”[15]  Article II does not define “trash of all types,” but it defines each type of trash individually (i.e., yard trash, bulk trash, and noncombustible trash).  None of the definitions provided in Article II appear to include disaster-related debris.  Moreover, in Section 10-24 of the ordinance, “placement of household garbage in a loose and uncontained manner on the roadside, swale, or other locations adjacent to the roadway with expectation of collection” is strictly prohibited.[16]  Refuse of all kinds must be placed in containers approved by the Director of Public Works in order to be collected.[17]  Article II further mandates that material intended for disposal must be placed in the container with the lid of the container closed, and the container must be placed within three feet of the curb or edge of the pavement.[18]  These requirements imply the City only collected and removed refuse that was contained in a City-approved container in a fixed location, not debris scattered onto private roads by a disaster. 

The Applicant also asserts that Florida Statute 252-38[19] authorizes it to “take whatever prudent action is necessary to ensure the health, safety, and welfare of the community.”  The Applicant argues that, read with Article II, this statute provides the necessary legal responsibility to remove disaster-related debris from private roads.  However, as stated in the first appeal decision, Article II only gives the Applicant authority to collect and transport refuse under specific circumstances.  Article II does not give the Applicant legal responsibility to enter private property for the purpose of removing disaster-related debris, as required by FEMA policy guidance.[20]  In addition, Article II does not provide a process by which the Applicant would legally enter private property to remove debris, nor has the Applicant demonstrated how it followed any such process.[21]  Therefore, even when read with Florida Statute 252-38, Article II, which pertains strictly to trash collection, does not provide the requisite criteria to establish legal responsibility under the PA Program based on FEMA policy guidance.   

Pursuant to 44 C.F.R. § 206.224, debris removal from privately owned land is eligible for PA funding when it is in the public interest, which means the work: eliminated an immediate threat to life, public health, and safety; eliminated an immediate threat of significant damage to improved public or private property; or ensured economic recovery of the affected community to the benefit of the community-at-large.[22]  To be eligible for PA funding, FEMA requires that debris on private property be so widespread that public health, safety, or the economic recovery of the community is threatened.[23]

In its second appeal, the Applicant argues that it is responsible for safeguarding the life and property of all its citizens.  The Applicant further states that its responsibility is greatest during and following a disaster event.  In addition, the Grantee asserts that debris removal was necessary because “emergency response services are hindered by scattered debris which can cause delay times or a total inability for emergency services to reach certain locations.”[24]   The Grantee supports this assertion with an undated memo from the City of Boynton Beach’s Fire Chief, which states,

[d]uring any hurricane event… we have many communities that quickly become isolated due to downed power lines, fallen trees, and… debris that cut off our access points such as… private roads…. It is extremely important that the City put in place a post storm response plan that includes immediate… post storm debris clearance… regardless of who owns them or who is responsible for their maintenance .…[25]

The Applicant and Grantee provide very broad statements about the Applicant’s responsibility to its citizens following disasters.  However, the Applicant and Grantee fail to identify what immediate threat was present during or following Hurricane Frances that required debris removal from private roads.  In addition, neither the Applicant nor the Grantee demonstrate how debris removal from private roads was in the public interest, not just for the benefit of a limited group of individuals. 

Finally, prior to removing debris from private roads, FEMA requires the state or local government to agree in writing to indemnify FEMA from a claim arising from such removal and obtain unconditional authorization to remove the debris from the property.[26]  With its second appeal, the Applicant provided extensive documentation supporting its claim, but did not include  proof of hold harmless or indemnification records with its submittal.  Regardless of whether the Applicant met the other eligibility requirements, without such records, by FEMA policy guidance that applies to this case, FEMA will not approve costs associated with the work.   

Conclusion

The Applicant’s second appeal was untimely pursuant to the Stafford Act § 423 and 44 C.F.R. § 206.206.  In addition, the debris removal work in PWs 7884 and 7889 does not meet the requirements for PA eligibility pursuant to 44 C.F.R. §§ 206.223 and 206.224, and  Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities.  Accordingly, the appeal is denied.   

 

[1] FEMA Second Appeal Letter, City of Winter Springs, FEMA-1539-DR-FL (Mar. 11, 2010).

[2] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 423, 42 U.S.C. § 5189a (2003).

[3] 44 C.F.R. § 206.206(c)(2) (2003).

[4] See FEMA Second Appeal Analysis, Public Health Trust of Miami-Dade County, FEMA-3259-EM-FL, at 2 (Mar. 27, 2015) ; see also FEMA Second Appeal Analysis, Broward County School Board of Florida, FEMA-1609-DR-FL, at 2 (Sep. 4, 2014).

[5] See Stafford Act §§ 403 and 407.

[6] 44 C.F.R. § 206.224(a).

[7] Public Assistance Guide, FEMA 322, at 46 (Oct. 1999) [hereinafter PA Guide].

[8] Id.

[9] See generally, Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities (Sep. 20, 2004). 

[10] Id. at 2.

[11] Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities, at 1; see City of Winter Springs, FEMA-1539-DR-FL, at 1 (determining that once the Applicant required all property owners to use its solid waste services, imposed a fee for such services, and did not limit the amount of waste to be picked up, the Applicant was legally responsible for removing debris located on the curb of private roads); see also, FEMA Second Appeal Analysis, City of Maitland, FEMA-1539-DR-FL, at 2 (Sep. 13, 2012) (finding that the Applicant sufficiently demonstrated legal responsibility because its ordinance required all property owners to use solid waste services provided by the Applicant, imposed a fee, and did not prescribe any limit or maximum amount of material that would be removed); but see, FEMA Second Appeal Analysis, San Diego County, FEMA-1498-DR-CA, at 4 (Sep. 27, 2005) (determining that legal responsibility must be established by condemnation or nuisance abatement ordinances, not merely insurance documents or a hold harmless agreement), and FEMA Second Appeal Analysis, City of Palm Beach Gardens, FEMA-1545-DR-FL, at 2 (July 23, 2007) (determining that the Applicant was not legally responsible for debris removal from private roads because the local ordinance addressed routine garden and trash removal, but did not reference extraordinary circumstances, like storm-generated debris), and FEMA Second Appeal Analysis, City of Plantation, FEMA-1545-DR-FL, at 2-3 (Oct. 23, 2007) (determining that the Applicant did not establish legal responsibility for debris removal, nor did it follow its own legal process to gain legal responsibility), and FEMA Second Appeal Analysis, Dare County, FEMA-4019-DR-NC, at 2 (Nov. 20, 2013) (finding that a general State statute addressed disposal of solid waste, but did not establish legal responsibility for debris removal from private, gated communities).

[12] 44 C.F.R. § 206.223(a)(3).

[13] Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities, at 2.

[14] Boynton Beach, Fla. Ordinance 82-29, § 1 (1982); Boynton Beach, Fla. Ordinance 04-030, § 2 (2004). 

[15] See id. at § 10-23 (defining “refuse” as “any or all of the following: garbage, noncombustible trash, vegetative trash, contaminated yard trash, bulk trash, construction and demolition materials, hazardous, industrial waste, infectious waste, and recycling material”; “garbage” as “every accumulation of animal, fruit, or vegetable matter that attends the preparation, use, cooking and dealing in or storage of meats, fish, fowl, fruit or vegetables …”; “yard trash” as “vegetative matter resulting from gardening, including accumulation of lawn, grass, shrubbery cuttings, … small tree branches not to exceed four inches in diameter or four feet in length”; “bulk trash” as “large objects and items, … washers, dryers, furniture, rugs, cabinets, and other types of household items not exceeding one cubic yard”; “recycling” as “newspapers, aluminum, plastic containers, glass bottles and jars, milk and juice cartons, aseptic containers, corrugated cardboard, brown paper bags, mixed paper, tin, and ferrous cans, and household dry-cell batteries”; and “construction and demolition materials” as “any byproduct material from either the construction or demolition, or remodeling, or repair of any type of building, structure, or roadway”). 

[16] Id. at § 10-24(a)(1).

[17] Id.

[18] Id.

[19] Fla. Stat. § 252-38 (2004).

[20] Unless otherwise stipulated, “FEMA policy guidance” refers to Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities.

[21] Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities, at 2.  In fact, the only process outlined in Article II restricts the Applicant’s ability to pick up refuse placed in a City-approved container located within three feet of the curb or edge of the pavement and, at minimum, three feet from any obstruction that may interfere with routine collection.  As such, the intent of the ordinance seemingly restricts the Applicant’s responsibility to enter private property to remove disaster-related debris.   

[22] See 44 C.F.R. § 206.224(b); see also Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities, at 2.

[23] PA Guide, at 46.

[24] Grantee Second Appeal Letter, City of Boynton Beach, FEMA-1545-DR-FL (Aug. 22, 2014) (emphasis added).

[25] Letter from Fire Chief, City of Boynton Beach, to Risk Manager, City of Boynton Beach (undated).

[26] See PA Guide, at 46; see also Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities, at 3.

Documentation

Appeal Type: 
2nd
Report Type: 
PW
Appeal Categories: 
Applicant Name: 
Nashville-Davidson County
Disaster Number: 
FEMA-1909-DR
DSR: 
5524
Date Signed: 
Monday, August 31, 2015
PA ID: 
037-52004-00
Summary/Brief: 

Conclusion:  On second appeal, Nashville-Davidson County (Applicant) failed to provide sufficient documentation to show resident engineers were necessary to complete work on the hot house.  

Summary Paragraph Between April 30, 2010 and May 18, 2010, severe rainstorms, tornadoes, and straight-line winds impacted Nashville-Davidson County.  The rainstorms caused the Cumberland River to overflow and submerge the hot house building located at the Applicant’s Metropolitan Water Services Biosolids Facility.  Floodwaters submerged the building, damaging electrical components found in and near the building.  FEMA subsequently prepared Project Worksheet (PW) 5524 documenting necessary repairs to a transformer, an instrument panel, two variable frequency drives, and a second transformer located outside the building.  The PW did not document resident engineering costs and partially disallowed Direct Administrative Costs (DAC).  On June 3, 2011, the Applicant submitted its first appeal requesting $18,161.18 and arguing FEMA made errors in estimating DAC and resident engineering costs.  In a letter dated May 2, 2012, the FEMA Region IV Regional Administrator (RA) denied the appeal, finding that the the work associated with the hot house did not need the services of resident engineers, and the activities claimed as DAC actually involved procurement and payment activities that amounted to project management costs not DAC.  On July 24, 2012, the Applicant submitted a second appeal based solely on resident engineering costs.  The documentation provided with the Applicant’s second appeal submission was insufficient to show the services of resident engineers were necessary to complete work on the hot house.  

Authorities and Second Appeals

  • Stafford Act § 406 (a)(1)(A), 42 U.S.C. § 5172.

  • PA Digest, at 48.

  • PA Guide, at 57.

Headnotes

  • PA Digest, at 48, provides that “[s]pecial services[,] which are not required on every restoration project, include engineering surveys, soil investigations, services of a resident engineer, and feasibility studies. These services must be specifically described and must be shown to be necessary for completing the eligible scope of work.”

    • The Applicant did not provide sufficient documentation to show the services of resident engineers were necessary.

Letter: 

08/31/2015

David Purkey
Director
Tennessee Emergency Management Agency
3041 Sidco Drive, P.O. Box 41502
Nashville, Tennessee 37204-1502

Re:  Second Appeal – Nashville-Davidson County, PA ID 037-52004-00, FEMA-1909-DR-TN, Project Worksheets (PW) 5524 – Support Documentation

Dear Mr. Purkey:

This is in response to a letter from your office dated September 18, 2012, which transmitted the referenced second appeal on behalf of Nashville-Davidson County (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $17,531.00 for costs associated with resident engineering services. 

As explained in the enclosed analysis, I have determined that the Applicant failed to provide sufficient documentation to substantiate reimbursement of costs associated with resident engineering services.  Accordingly, I am denying the appeal.   

Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.

Sincerely,

/s/

William W. Roche
Director
Public Assistance Division                                                                

 

Enclosure

cc: Gracia Szczech
     Regional Administrator
     FEMA Region IV

Analysis: 

Background

Between April 30, 2010 and May 18, 2010, severe rainstorms, tornadoes, and straight-line winds impacted Nashville-Davidson County (Applicant).  The rainstorms caused the Cumberland River to overflow, and the resulting floodwaters damaged the Applicant’s Central Waste Water Treatment Plant as well as different buildings at the Applicant’s Metropolitan Water Services Biosolids Facility (Biosolids Facility), part of the Waste Water Treatment Plant. 

At the time of the weather event, floodwaters submerged the Biosolid Facility’s effluent pump station—also known as the hot house building.  The floodwaters damaged electrical components found in and near the building.  FEMA subsequently prepared Project Worksheet (PW) 5524 documenting necessary repairs to a transformer, an instrument panel, two variable frequency drives, and a second transformer located outside the building.  The PW did not document resident engineering costs and partially disallowed Direct Administrative costs (DAC).

First Appeal

The Applicant submitted a first appeal by letter dated June 3, 2011, arguing that FEMA made scope and cost estimate errors and requesting a total reimbursement of $18,161.18.  The Applicant sought additional DAC funding for costs it asserted were incurred in completing tasks associated with the PW, and costs it would incur at project closeout. The Applicant also requested resident engineering funding for activities it asserted were necessary to complete the project. 

In a letter dated May 2, 2012, the FEMA Region IV Regional Administrator (RA) denied the appeal in its entirety, making the following determinations: the activities claimed as DAC actually involved procurement and payment activities not DAC; and the replacement and/or repair of electrical components was not complex and did not require the services of a resident engineer.

Second Appeal

In a July 24, 2012 second appeal letter, the Applicant requests $17,531.00 in costs associated with resident engineering services.  The Grantee transmitted the appeal to FEMA on September 18, 2012.  The Applicant argues the documents provided with its submission reflect a direct relationship between timesheets and specific tasks on daily reports.

Discussion

Pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) § 406, FEMA is authorized to provide reimbursement for the associated expenses incurred by a local government during the repair, restoration, reconstruction, or replacement of a facility damaged as the result of a declared disaster.[1]  Generally, the costs of basic engineering and design services normally performed by an architectural-engineering firm on complex construction projects are eligible for reimbursement.[2]  Some projects require special engineering services in addition to basic engineering services.  The services of a resident engineer qualify as special engineering services and are estimated separately and apart from engineering and design service curves.  Special services are not required on all projects and these services must be shown to be necessary for completing the eligible scope of work.[3]

The RA in his response to the first appeal stated, “the replacement and/or repair of electrical components in this facility [was] not complex and [was] not a major component of the waste facilities overall.”  The RA also pointed out the PW’s costs, excluding DAC and construction management, totaled $19,253.70, while the Applicant is requesting $17,345 in resident engineering costs.

The Applicant’s second appeal submission fails to argue for or provide documents showing the necessity of resident engineering services—in fact, the submission incorrectly asserts that FEMA, in response to the first appeal, agreed the hot house required resident engineering services.  The RA concluded the exact opposite, determining the work on the hot house did not require special engineering services.  On second appeal, the Applicant did not address the RA’s conclusion.  Rather, the Applicant submitted documentation to demonstrate a relationship between the resident engineer’s time sheets and tasks completed.   The Applicant’s argument speaks only to a cost allocation documentation issue, not the threshold issue of whether resident engineering services were necessary. 

The provided documents, even though intended for another purpose, fail to reflect the necessity of resident engineering services.  These documents, by design, only address the relationship between resident engineer’s timesheets and tasks completed—they are essentially the same documents provided to the RA at first appeal, with the exception of new interlineations describing resident engineer’s services.   The new interlineations are not relevant and do not demonstrate resident engineers are necessary.

Conclusion

In conclusion, the Applicant failed to provide sufficient documentation to show resident engineers were necessary to complete work on the hot house.  Therefore, FEMA denies this appeal.

 

[1] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 406(a)(1)(A), 42 U.S.C. § 5172 (2007).

[2] Public Assistance Guide, FEMA 322, at 56 (June 2007). [hereinafter PA Guide]

[3] Public Assistance Digest, FEMA 321, at 48 (Jan. 2008); PA Guide, FEMA 322, at 59 (June 2007).

Eligibility

Appeal Type: 
2nd
Report Type: 
PW
Appeal Categories: 
Applicant Name: 
Town of Herkimer
Disaster Number: 
FEMA- 4031
DSR: 
2531
Date Signed: 
Monday, August 17, 2015
PA ID: 
043-34132-00
Summary/Brief: 

Conclusion: The Applicant did not provide sufficient information to establish that the damage to the roadway and the retaining wall was a direct result of the declared disaster.

Summary Paragraph

After severe storms and heavy rainfall from Tropical Storm Lee, the Applicant reported that high river flows in West Canada Creek damaged the East German Street Extension.  FEMA conducted a site visit and identified a 170-foot long section of the road with damage consisting of alligator cracks, stress cracks, and ground subsidence.  FEMA also noted that the adjacent retaining wall did not sustain any observable damage as the result of flooding.  Based on the field observations, FEMA found the road damage to be a result of pre-existing conditions and obligated PW 2531 for zero dollars.  In its first appeal, the Applicant claimed that the damage was a direct result of the disaster, contending that the road and the retaining wall had no history of subsidence-related damage, and requested an estimated repair cost of $140,000.  Upon review, the Regional Administrator denied the first appeal, finding that the road damage was not a direct result of the disaster. In its second appeal, the Applicant revises the funding request to a range between $500,000 and $1,000,000 and argues that all damage was a direct result of the disaster.  

Authorities and Second Appeals

  • 44 C.F.R. § 206.223(a)(1).

  • PA Guide, at 29-30.

Headnotes

  • 44 C.F.R. § 206.223(a)(1) states that an item of work must be required as the result of the emergency or disaster to be eligible for Public Assistance.The PA Guide further provides that work must be required as a direct result of the declared major disaster or emergency.

  • The damage on East German Street Extension and the adjacent retaining wall cannot be directly tied to the declared disaster.Accordingly, all the work performed to repair the damage is ineligible for Public Assistance.

  • The Applicant documented that the road failure was detected at some point after the disaster, outside of the incident period.However, the Applicant did not provide any documentation demonstrating that the damage, or its underlying cause, was absent prior to the disaster, or that the damage was a direct result of the disaster.Therefore, the work required to address the damage is ineligible.

Letter: 

08/17/2015

Mr. Andrew X. Feeney
Alternate Governor’s Authorized Representative
New York State Office of Emergency Management
1220 Washington Avenue, Building 7A, Suite 710
Albany, New York 12242  

Re: Second Appeal – Town of Herkimer, PA ID 043-34132-00, FEMA-4031-DR-NY, Project Worksheet (PW) 2531, Direct Result of Disaster

Dear Mr. Feeney:

This is in response to your letter dated May 7, 2014, which transmitted the referenced second appeal on behalf of the Town of Herkimer (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding of $140,000 as an estimated cost to repair the East German Street Extension road in PW 2531.  The Applicant adds that the initial estimate has been revised to an as-yet-undetermined final cost in the range of $500,000 to $1,000,000.

As explained in the enclosed analysis, I have determined that the Applicant did not provide sufficient information to establish that the damage to the roadway and the retaining wall was a direct result of the declared disaster.  Therefore, I am denying this appeal. 

Please inform the Applicant of my decision.  This determination constitutes the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.

Sincerely,

/s/

Alex Amparo
Assistant Administrator
Recovery Directorate

Enclosure

cc: Jerome Hatfield
     Regional Administrator
     FEMA Region II

Analysis: 

Background

During the incident period of September 7 to 9, 2011, severe storms and heavy rainfall from Tropical Storm Lee caused high river flows in West Canada Creek, which flows through the Town of Herkimer (Applicant).  This storm closely followed Hurricane Irene, another major disaster with an incident period of August 26, 2011 to September 5, 2011.  The Town of Herkimer is located in Herkimer County, which was included in both disaster declarations.[1]   The Applicant reported that high river flows during the disaster damaged the East German Street Extension, a 25-foot wide asphalt-paved dead-end road running along West Canada Creek, and caused significant settlement.  The damage required a road closure and traffic detour for residents with homes on the impacted section of the road.

In July 2012, FEMA conducted a field inspection and identified a 170-foot long damaged roadway section.  The damage consisted of a 45-foot long, 6-foot wide semi-oval section of asphalt with ground subsidence, stress cracks, and erosion of crusher run underneath it.  By this time, the Applicant had performed temporary repairs to patch the damaged section with cement slurry, asphalt, and crusher run, in order to provide residents access to their homes.  The Applicant also indicated that the entire road had subsided over time and needed more comprehensive permanent repairs.  FEMA’s July 20, 2012 geotechnical report documented field inspection observations including widespread visible alligator and longitudinal cracking, road settlement over time in comparison to auxiliary structures, and the lack of any observable flooding-related damage to the adjacent retaining wall, which served as a buttress for the soil underlying the road and protected it from West Canada Creek.  The report concluded that the road settlement had been ongoing prior to the disaster and, thus, was not a direct result of the high river flows during the declared disaster. 

FEMA prepared Project Worksheet (PW) 2531 to document the road damage and the scope of work.  The PW included the temporary work completed ($5,070.24) and a geotechnical subsurface investigation as work to be completed (cost estimated at $7,187.60) to determine the actual nature and cause of the damage.  FEMA deemed the PW scope of work ineligible because, based on the field observations and report conclusions, the road damage appeared to be pre-existing conditions, not a direct result of the disaster. [2]  FEMA notified the New York State Office of Emergency Management (Grantee) of the ineligibility determination on November 14, 2012.

First Appeal

With a letter dated January 10, 2013, the Applicant submitted its first appeal and requested that FEMA reconsider its decision that the road damage was ineligible.  The Applicant indicated that it contracted with Hogan Engineering to provide additional information to support its appeal request.  The Grantee transmitted the Applicant’s first appeal to FEMA Region II with supporting documentation on June 14, 2013.  The documentation provided consisted of a 1904 design plan for the retaining wall, a February 13, 2013 leak detection study on the pressurized water lines in the area, a February 12, 2013 geotechnical investigation report prepared for the Applicant, and the Grantee’s analysis and recommendation.

In its analysis, the Grantee stated that its engineers and the Applicant’s consultants investigated the road site conditions and concluded that the high river flows in West Canada Creek during the declared disaster caused the road damage.  The Grantee explained that the road subsidence began in late April 2012 and progressed rapidly, necessitating a road closure with a detour for the nearby residents.  While the Grantee concurred with FEMA’s field observations documented in the geotechnical report, it disagreed with FEMA’s conclusion that the road failure was a slow, long term failure.  Instead, the Grantee claimed that the road failure was sudden, but not due to a broken water or sewer main (as FEMA speculated), since the leak detection study results disproved this theory.

As to the potential cause of the road failure, the Grantee proffered  the following: over the more than one hundred years since the retaining wall was built, a filter cake had developed on the inside of the wall preventing silt and sand behind the wall from migrating through the wall even in areas where original grout had been displaced (due to wear and tear); the high river flows in West Canada Creek during Tropical Storm Lee penetrated through the wall and destroyed this filter cake, allowing sand and silt to flow through; sufficient water in the sand and silt prior to the winter freeze cycle allowed only a minimum amount of material to flow through the wall during the fall of 2011; and when the sand and silt dried up in the spring of 2012, the material flowed freely through the wall, causing rapid subsidence of the roadway.  The Grantee stated that there is evidence at the base of the wall that sand and silt had recently been flowing through the wall.

The Grantee asserted that neither the retaining wall nor the road had a past history of subsidence, and claimed that the scenario presented above supports a sudden failure mechanism for the road subsidence.  Moreover, the Grantee informed FEMA that the Applicant had an engineer’s estimate of $140,000 to repair the road and install measures to prevent future migration of sand and silt material through the retaining wall. 

The FEMA Region II Regional Administrator (RA) denied the first appeal on
November 15, 2013.  Upon review of all available supporting documentation presented with the first appeal, the RA found that the timeline of the road failure could not be conclusively associated with the declared disaster.  The RA stated that the observations made at the damage site, as supported by the Applicant’s own geotechnical and leak detection investigations, indicated that road settlement had been occurring over time.  In accordance with Title 44 of the Code of Federal Regulations (C.F.R.) Section 206.223, the RA determined that the work associated with the road damage was ineligible because it was not the result of the emergency or major disaster event.[3]

Second Appeal

On May 7, 2014, the Grantee transmitted the Applicant’s second appeal letter dated January 20, 2014, indicating its support of the appeal.  Hogan Engineering prepared and signed the second appeal letter on behalf of the Applicant.  In the second appeal, the Applicant contends that FEMA did not consider and analyze all pre-event facts and post-event damages before denying the first appeal.  The Applicant clarifies that it interprets the statement “over time, the road has settled” to mean the time from the disaster event to current day.[4]  Furthermore, the Applicant revises the initial estimate of $140,000 to repair the roadway damage to a range between $500,000 and $1,000,000.  Finally, the Applicant provides several reasons to support its assertion of work eligibility and dispute FEMA’s first appeal determination and accompanying analysis.

First, the Applicant agrees that the alligator and longitudinal cracking had been ongoing, but claims that it is the result of traffic loading over a poorly supported asphalt pavement, which is common on many roadways, and outside the damaged roadway section impacted by the event.  The Applicant maintains that, although the alligator cracks along the shoulder were evident throughout the entire roadway prior to the disaster event, the diagonal and stress separation did not occur until after the event.  The Applicant also disagrees with FEMA’s July 20, 2012 geotechnical report, wherein FEMA indicated the retaining wall supporting the roadway appeared to be intact with no apparent cracks or deformation.  The Applicant contends that a new investigation report prepared by CME Engineering Group (CEG), submitted with the second appeal, indicates contradictory evidence.

Second, the Applicant refers to the Grantee’s first appeal analysis[5] and asserts that, prior to the disaster event, neither sand nor silt flowed through the wall, no retaining wall settlement occurred, and no wall movement was observed.  The Applicant also points out that the roadway and the retaining wall have been in service since the early 1900s and there has been no documentation or eye witness account of retaining wall settlement or movement in the area.

Third, the Applicant suggests that FEMA misinterpreted the leak detection report and the geotechnical investigation report submitted with the first appeal.  The Applicant also argues that the fact that the damage did not occur immediately after the disaster in September 2011 does not mean it was not caused by the event, because the incident period for a flood event could be weeks or months later; in this case, the upstate New York winter months may have extended the saturated state of the soil until the following spring 2012.

In addition to disputing FEMA’s first appeal analysis, the Applicant describes the emergency repair work performed on the roadway during August 2013.  During the repair work, the Applicant discovered expanded horizontal and vertical construction joint separations of the monolithic sections of the retaining wall.  The Applicant alleges that these construction joints were not observed prior to August 2013 due to the vegetation covering the face of the wall.  The Applicant presumes that these joint separations acted as the conduit for the rising river water getting through and behind the wall, saturating the soil under the roadway, leading to roadway subsidence.

Finally, the Applicant refers to the December 6, 2013 investigation report from CEG, whom it contracted to investigate and comment on the cause of the surface fractures, both within the roadway and on the surface of the retaining wall.  CEG determined that the roadway and the adjacent retaining wall were stable from a global slope stability stand point prior to the declared disaster in September 2011.  CEG also confirmed that the emergency repair work performed in August 2013 did not stabilize the wall and the slope, which will continue to move and lead to a possible catastrophic failure. 

During its evaluation of the second appeal, FEMA issued a Request for Information (RFI) for any pre-disaster maintenance records of the East German Street Extension as well as any records demonstrating the pre-disaster condition of sewer lines in the area.  The Applicant responded that it has no maintenance documentation for the road, because no repairs relating to road subsidence, sub-base failure, or retaining wall failure were necessary on this road over the last 40 years.  However, the Applicant attested that all town roads are inspected at least once a month, and generally resurfaced with stone and oil every three to five years.  The Applicant also confirmed that there are no sewer lines in the area.

Discussion

Pursuant to 44 C.F.R. § 206.223(a)(1), an item of work must be required as the result of the emergency or  disaster to be eligible for Public Assistance (PA).[6]  Additionally, the Public Assistance Guide (PA Guide) specifies that work must be required as a direct result of the declared major disaster or emergency.[7]  The PA Guide further provides that damage that results from a cause other than the designated event, such as a pre- or post-disaster damaging event, or work to correct inadequacies that existed prior to the disaster, is not eligible.[8]  Damage that occurs during the incident period, or damage that is the direct result of events that occurred during the incident period, is eligible; furthermore, damage that occurs after the close of an incident period that can be tied directly to the declared event may also be eligible.[9]

In this case, the Applicant concedes that the alligator and longitudinal cracking is a pre-disaster condition, but asserts that this is common on many roadways and outside the damaged roadway area.  The Applicant argues that the roadway failure is a direct result of the disaster, largely based on the fact that the road and the retaining wall protecting it had not experienced any similar damage or failure in nearly 110 years.  However, the absence of similar damage in nearly 110 years does not, in and of itself, and in consideration with the other assertions made by the Applicant, establish that the subject damage is a result of the declared disaster. Similarly, the age of the retaining wall alone does not substantiate its pre-disaster stability.   

The Applicant’s second appeal states that, prior to August 2013 (when the Applicant performed emergency repair work), neither FEMA nor the Grantee observed the construction joint separations on the monolithic sections of the wall during any site visits because of vegetation covering the face of the wall.  However, the inability to observe the damage on the wall prior to August 2013 neither precludes the possibility of pre-disaster damage nor establishes that the damage occurred as a direct result of the disaster.

To support its position that the damage was a direct result of the disaster, the Applicant presents geotechnical reports that document field observations made in 2012 and 2013, and discuss numerous damages ranging from longitudinal cracks in the roadway to separated construction joints in the retaining wall.  However, the Applicant did not provide any documentation that allows comparison of the retaining wall’s pre- and post-disaster structural conditions.  Without any photographs, inspection records, or any other maintenance records to account for the pre-disaster condition, FEMA cannot find that the damage is the direct result of the disaster.

The January 2013 report prepared by Hogan Engineering cited a U.S. Geological Survey data collected over the past 90 years and stated that the average daily discharge of water of the West Canada Creek at Kast Bridge, located 1.57 miles upstream from East German Road Extension, was 1,381 cubic feet per second (cfs).  The report also indicated that the average daily discharge of water exceeded the 90-year average six times since 2004.[10]  Although 2011 (the year of Tropical Storm Lee) represented the year with the highest discharge, there were five other years between 2004 and 2011 in which discharges exceeded the 90-year average.  This data suggests that while the flows from Tropical Storm Lee disaster event may have been the highest, they closely followed several other above-average rain events with high flows that also could have damaged the retaining wall prior to the declared disaster, leading to the gradual failure of the roadway.

CEG’s December 2013 report described its observations during the field site visit on October 22, 2013, explained its slope stability analysis, and expressed its professional opinion that a classical global slope failure occurred at the damage site at some point after the disaster event in 2011.[11]  Noting such, it must be recognized that CEG made certain assumptions regarding the site conditions in developing its slope stability analysis.[12]  First, the report’s conclusion that a global slope failure occurred at some point after the disaster event does not definitively establish the failure as a direct result of the disaster because pre-disaster damage conditions could have caused a failure occurring after the disaster.  Second, the findings of the slope stability analysis were based on unsubstantiated best-case-scenario assumptions. Using a pre-flood model based on undocumented stability indicator assumptions (i.e., no scour at the toe, consistent rip-rap levels, and the peak effective internal friction angles), the report concluded that the East German Street Extension site was stable from a global slope stability stand point prior to the disaster, and the global slope failure occurred after the disaster.  The results of a model based on unsubstantiated assumptions are inadequate to demonstrate that the damage to the retaining wall is a direct result of the disaster.

Further, it should be noted that the damage did not occur during the disaster incident period, but began several months afterwards and continued to worsen over the following years.  In accordance with the requirement set forth in the PA Guide, damage that occurs after the close of an incident period must be tied directly to the declared disaster to be considered eligible.[13]  The Applicant presents several investigation reports claiming that the damage was a direct result of the disaster.  However, based on a thorough review and analysis of all submitted information, FEMA does not find that the documentation demonstrates the damage was caused as a direct result of the disaster.

Conclusion

The Applicant did not provide sufficient documentation to demonstrate the damage to the roadway and the adjacent retaining wall was a direct result of the disaster.  Although the Applicant presented studies and analysis reports claiming the damage occurred at some point after the disaster, the documentation provided did not establish the pre-disaster condition of the roadway and the wall, nor did it show that the damage was not present before the disaster.  Rather, it only demonstrated that the Applicant documented the damage at some point after the disaster, which is insufficient to meet the regulatory requirement that the damage be a direct result of the disaster.  Therefore, any work required to address the damage is ineligible for PA assistance.

 


 

[1] Due to the closeness of incident periods for Hurricane Irene and Tropical Storm Lee, all damage to the Applicant’s facilities resulting from either or both disasters was documented in Project Worksheets prepared under Tropical Storm Lee (DR-4031).  For the purposes of this second appeal analysis, the “declared disaster” or “disaster” refers to Tropical Storm Lee.

[2] In PW 2531, FEMA noted that a long-term leaking water or sewer line eroding soil from under the roadway was one possible source of the road failure.

[3] 44 C.F.R. § 206.223 (2010).

[4] In reference to PW 2531, FEMA’s first appeal determination stated: “it was reported that the Applicant stated that ‘over time, the road has settled.’”  The exact language included in PW 2531 is: “the [A]pplicant states that the entire road has subsided over time.”

[5] First Appeal Analysis, FEMA-4031-DR-NY Town of Herkimer PW 2531, New York State Office of Emergency Management, at 1 (June 7, 2013) (stating the Grantee’s position that high velocity flows during the event penetrated through the wall, allowing sand and silt to flow through the wall).

[6] 44 C.F.R. § 206.223(a)(1).

[7] PA Guide, FEMA 322, at 29 (June 2007).

[8] Id.

[9] Id. at 30.

[10] Site Assessment, East German Street Extension, Town of Herkimer, New York, Hogan Engineering, at 1–2 (Jan. 2013).

[11] Investigation and Slope Stability Analysis Report, East German Street Extension Project, CME Engineering Group, at 7 (Dec. 6, 2013).

[12] Id. at 4 (stating: “This model represents conditions assumed to have existed prior to road failure, when the existing retaining wall was in-service and performed satisfactorily.  River level was assumed at elevation 407.  No scour was assumed to exist at the toe, and the rip-rap slope below the water line was assumed to be same as that above the water line.  Effective cohesion was used for the Silty Clay soil, and peak effective internal friction angle was used for all granular soils, for effective stress analysis.”).

[13] PA Guide, FEMA 322, at 30.