Debris Removal
Appeal Brief
Appeal Letter
Appeal Analysis
Citation: FEMA 1355-DR-OK, McCurtain County, Debris Removal, Various PWs.
Cross-reference: Debris Removal, Private Property, Ineligible Debris, Overcapacity
Summary: The president declared a major disaster for the state of Oklahoma on January 5, 2001, as a result of a severe ice storm that affected Arkansas, Oklahoma and Texas in late December 2000. The federal share for the disaster was initially 75% but was increased to 100% on March 13, 2001. McCurtain County was particularly hard hit. McCurtain County awarded a contract to DRC on January 18, 2001 to remove the debris. Debris removal operations continued until July 6, 2001. The County requested reimbursement of $13.99 million for debris removal. FEMA approved only $12.18 million because it determined that the part of the Countys claim was for removing ineligible debris. The Regional Director approved an additional $22,320 on first appeal. The County requests reimbursement of $1.3 million in the second appeal. The State supports the Countys appeal.
Issues: Is the County eligible for additional reimbursement for debris removal activities?
Findings: Yes. The County is eligible for an additional $718,878.
Rationale: 44 CFR 206.224
The State and FEMA conducted an Applicants Briefing for McCurtain County applicants on January 10, 2001. FEMA conducted a Kick-off Meeting with County Commissioners on January 29, 2001. At the meeting, FEMA stressed that only debris on public rights-of-way was eligible, that debris on private property was not eligible for reimbursement, and that the County had to monitor all contractor crews. The Public Assistance Coordinator (PAC) conducted a follow-up meeting with the County Commissioners on February 5, 2001, after a few days of monitoring the debris removal operations. The purpose of the meeting was to reiterate eligibility guidelines and the need for monitoring and to develop a strategy for debris removal operations. The County published the MCCURTAIN COUNTY COMMISSION GUIDELINES FOR THE REMOVAL OF ELIGIBLE ICE STORM DEBRIS (Guidelines) on February 22, 2001. The Guidelines included debris eligibility requirements and the County inspectors (monitors) responsibilities. The County and FEMA agreed in March that both would provide monitors for each work crew to ensure that only eligible debris was removed. Most of FEMA monitors were equipped with global positioning systems and digital cameras to document debris removal activities. Starting in March, FEMA and County officials met daily to assign work crews and monitors throughout the County. The County Commissioners attended the meetings initially, although they attended less frequently later in the recovery process.
Early in the debris removal process FEMA monitors observed contractors removing debris from outside the County rights-of-way, from private property, and removing otherwise ineligible debris. Pursuant to the Guidelines, FEMA monitors did not direct any of the contractors efforts. When the FEMA monitors observed contractors removing ineligible debris, they would document the location where the activity was performed and the estimated amount of the ineligible debris removed in their daily reports. They would inform the County monitors and the PAC assigned to the County, who then would inform the County Commissioners. FEMA made every effort to address and resolve potentially ineligible activities as soon as possible. FEMA subsequently subtracted the amount of ineligible debris from the Countys invoices.
FEMA held discussions with County Commissioners in late February about ineligible debris included in the Countys invoices. On February 21, 2001, Commissioner Thompson visited with Moises Dugan, Deputy Federal Coordinating Officer (FCO), in the Disaster Field Office (DFO) in Oklahoma City to discuss the FEMAs reduction of several hundred cubic yards of debris from a County invoice. FEMA, State and County officials conducted a number of meetings between February and July to discuss questionable claims that the County submitted. In May, the Countys contractor provided FEMA with a database containing all debris load tickets, dates, quantities, locations, etc. FEMA worked with County representatives during the following several weeks to resolve discrepancies between the database and information FEMA had collected.
A meeting was held on June 29, 2001, at the DFO to discuss the comprehensive list of disputed items as contained in the debris database. The meeting was attended by Federal Coordinating Officer (FCO) Joe Bray and other FEMA staff; State Coordinating Officer (SCO) Fred Liebe and other State staff; Commissioners Steve Jordan and Aubrey Thompson and other County representatives; and Art Deakle and other representtives of DRC, the debris contractor. FEMA provided a spreadsheet that summarized questionable costs related to the Countys claims for reimbursement. The questionable costs were separated into the following categories in the debris database: (1) # Ineligible, (2) Overcapacity, (3) Private Roads, (4) Weyerhaeuser Roads, (5) Duplicate Tickets, (6) Major Collectors, (7) Non-Eligible Debris, (8) Affidavit Ineligible, and (9) Ineligible per Monitor. The questionable costs totaled over $1.787 million (over 144,151 cubic yards of debris). Many of the attendees participated in a site visit on July 3, 2001, to various areas of the County to resolve disputed eligibility of debris removed from those areas. A telephone conference call among the same parties was conducted on July 23, 2001. The parties reached agreement on some of the Overcapacity items, and some of the debris removed from Federal- aid roads was transferred to the Federal Highway Administration. The majority of the items were unresolved.
The County submitted a first appeal to the State on October 25, 2001, requesting reinstatement of $1.787 million. In a letter dated November 9, 2001, the State requested backup information on the appeal from FEMA to assist in its evaluation of the appeal. FEMA provided the requested information in a letter dated December 4, 2001. The information included three 3-ring binders of backup materials, including FEMA debris monitors reports, digital photographs, and information from the database that explained the reductions FEMA made to the County invoices. The State endorsed and transmitted the first appeal to FEMA in a letter dated April 22, 2002. The Regional Director approved $22,320 of the Countys request, and denied $1.67 million in a letter dated July 22, 2002. The basis for the denial was contained in the first appeal report. To provide the County a forum to discuss the first appeal decision prior to submitting its second appeal, FEMA regional and headquarters staff, State, County, and contractor representatives met in Oklahoma City on August 28, 2002. The County and contractor presented information that they claimed supported their request for reimbursement of an additional $1.67 million. The County also requested that FEMA provide information that was used in the first appeal analysis so that it could prepare its second appeal. FEMA provided the requested information to the State in a letter dated September 10, 2002. The County submitted a second appeal, which the State transmitted to FEMA by letter dated October 24, 2002. The County requests reimbursement for 106,477 cubic yards of debris ($1,320,315) as follows: (1) Ineligible Debris 17,934 cubic yards ($222,382); Overcapacity - 1,385 cubic yards ($17,174); Private Roads 5,689 cubic yards ($70,544); Weyerhaeuser Roads 18,661 cubic yards ($231,396); Major Collectors 8,503 cubic yards ($105,437); Non-Eligible Debris 18,922 cubic yards ($234,633); Ineligible Per Monitor 35,383 cubic yards ($438,749). The County did not appeal 26,397 cubic yards of debris ($327,323) for Affidavit Ineligible debris. FEMA regioteff, State, County and Contractor representatives met in Oklahoma City on June 24, 2003, to discuss the appeal. The County, through its attorney, submitted to FEMA on July 22, 2003, several affidavits from the County Commissioners and local citizens related to the County maintaining certain roads in the County. Each of these items is discussed below.
Ineligible Debris
The DFO staff denied the Countys request for reimbursement for 17,934 cubic yards of debris because the County did not provide documentation that the debris was eligible or because the County removed debris after FEMA advised it that certain debris was ineligible. A large portion of this debris (9,425 cubic yards) was removed from Area 15 and from areas of unknown locations (6,051 cubic yards). Debris load tickets from Area 15 did not identify specific location where the debris was removed in accordance with the Countys Guidelines. In the latter case, the County monitors did not provide sufficient information to determine if the debris was removed from County roads.
The County argues in its second appeal that FEMA guidance documents do not specify the level of detail required in the location block on the load tickets. Accordingly, the County believes that reference to Area 15 as the location where the debris was removed is sufficient and that FEMA should restore the 9,425 cubic yards to the Countys claim.
The County issued its Guidelines on February 22, 2001. The document gives County monitors and contractors specific instructions on debris eligibility and appropriate monitoring procedures. County monitors wrote thousands of trip tickets during the 6-month debris operation. The overwhelming majority of the tickets included specific pickup locations, for example Gilbert Street. Only those written for Area 15 did not comply with the requirement.
Although we expect the name of streets from which debris was removed to be shown in the location block of the load ticket, our guidance on this subject can be more specific. The County has presented load tickets for debris removed from Area 15. Therefore, we will reinstate funding for debris removed from Area 15.
The County asked that FEMA restore 867 cubic yards of debris removed from schools and a fire station and 677 cubic yards of debris from Shinewell Park Complex. The County asserts that the FCO approved its request to remove debris from rural schools in the County. The County removed the debris from three school properties in late June and early July 2001. This was about six months after the disaster, and after the schools were closed for the year. Since the school officials did not request reimbursement for removing debris while the schools were in session, and the County did so after the schools were closed, our staff determined that the debris at these sites did not pose an immediate health and safety threat to the public.
We have reviewed all information submitted with the appeal and determined that the removal of debris from school property is eligible for reimbursement. Therefore, we will restore funding for debris removed from this area.
The County requests reimbursement for 677 cubic yards of debris that it removed from the Shinewell Park Complex, stating that it removed the debris within six month of the disaster declaration. It submitted a written statement dated August 27, 2002, from the Shinewell Volunteer Fire Department stating that the County removed debris from the Shinewell Park Complex, not from the fire department property. The County also submitted a written statement dated September 12, 2002, from the Tom Senior Citizen Center, which is located in Shinewell Park, stating that it asked the County to remove the debris from its property.
Debris removal from public parks may be eligible if the debris is in the improved parts of the park and presents a health and safety threat to the public. There are no monitoring records for this area and nothing to indicate that the debris was not removed from improved areas of the park. Therefore, the removal of debris from the park is eligible.
The DFO staff denied the Countys request for reimbursement for 6,051 cubic yards of debris because staff could not discern if locations shown on the trip tickets were county or private roads. The County contends that the County monitors were lifelong residents of the county, who did not always know the exact names of roads where debris was removed. However, they were certain that the roads were County roads and not private roads. It further states that County has verified that all roads in question were County roads, although no information was submitted to support this claim.
Early in the debris removal operation, there was confusion about which map to use to identify County roads. In early April, the FCO, State and County agreed that only roads shown of the McCurtain County General Highway Map dated January 1986 and updated July 10, 2000, would be the official source to determine if a road was a County road and thus eligible for debris removal. FEMA learned in early May 2001, that the County Commissioners had adopted an additional 151 miles of roads into the Countys inventory on December 18, 2000. Approximately 120 miles of these new roads were located in District 1 in the northern part of the County. FEMA and ODOT inspected some of the roads and determined that some of the roads were not County roads, but were private gated roads. FEMA agreed to recognize some of the roads adopted by the County on December 18, 2000, as eligible County roads. In an attempt to resolve discrepancies regarding roads for which the County was responsible, two County representatives (Blake Cox of District 2 and Clint Bray of District 3) spent over two weeks in July 2001, working with FEMA staff at the DFO to reconcile any discrepancy in County road designations. The combined efforts of County and FEMA staff verified that some of the roads in question were in fact County roads, but others were not.
Although the County Commissioners have signed an affidavit stating that the County maintains all public roads in the County, County and FEMA staff could not discern if the roads in question were public or private roads. Therefore, there is no basis for reinstating funding for this item.
The last item in this category relates to 914 cubic yards requested on 26 load tickets that did not have a location on them describing where the debris was removed. The County said it could determine the locations the debris was removed by arranging the tickets in numerical order. Originally, there were over 500 load tickets that did not have locations on them. County representatives Clint Bray and Blake Clark spent several weeks in the DFO assisting FEMA staff in identifying locations for the disputed tickets. The staff was able to identify locations for all but 26 load tickets. The County stated that it issued load tickets in bundles that contained consecutively numbered tickets. Therefore, it should be easy to identify the location of the tickets in question. Messrs. Bray and Clark used this procedure during their review of the tickets, but were unable to reconcile the 26 tickets. The County did not submit any information with the second appeal that warrants changing the original determination on this issue.
Over Capacity
FEMA denied the Countys request for 1,385 cubic yards of debris because of discrepancies in the capacities of certain trucks. The County stated in the second appeal that FEMA initially measured the truck and asked why FEMA questioned its own measurements. FEMA assisted the County in measuring and verifying the capacities of over 400 trucks before the trucks were put in service. Throughout the debris removal operation FEMA monitors randomly selected trucks and re-measurss. found, the volume of truck and the amount of debris hauled were revised accordingly.
We have reviewed the first appeal analysis and the Countys second appeal, and we find no basis for revising the first appeal decision on this issue.
Private Roads
FEMA denied the Countys request for 5,689 cubic yards of debris removed from Carol Road (AKA Carols Road); Story (S.E. of Haskel Road); Rex Road (AKA Jones Road); Roy Roberts Road (AKA RR Road); and Whoa Road. These roads were not on the McCurtain County General Highway Map dated January 1986 and updated July 10, 2000, or included in roads the County adopted on December 18, 2000. The County stated in a letter dated October 5, 2001, that these roads were public roads maintained by the County.
The County Commissioners submitted an affidavit dated October 5, 2001, to FEMA stating that the County maintained the roads in questions. It also stated that Oklahoma law gives the County authority to maintain all public roads in the county.
FEMA regulation 44 CFR 206.223 states that an item of work must be the legal responsibility of an eligible applicant. The Oklahoma Attorney General opined on October 5, 1982 (Opinion No. 82-236) that the County may maintain a road that is not shown on the official ODOT map and that the County Board of Commissioners does not have to accept a road before the County can maintain it. Oklahoma statute gives County Commissioners broad discretion in determining which roads it maintains. The County Commissioners have submitted an affidavit attesting to the fact that the County maintains the roads in question. Therefore, the County has demonstrated that it is responsible for removing debris from the affected roads. Accordingly, we will restore funding for this item of work.
Weyerhaeuser Roads
FEMA denied the Countys request for reimbursement for 18,661 cubic yards of debris removed from roads on property owned by Weyerhaeuser Company. The affected roads were not shown on the McCurtain County General Highway Map dated January 1986 and updated on July 10, 2000. The County states that the affected roads meet all criteria established by Oklahoma State law to be declared a county road. The County submitted affidavits from the County Commissioners (September 9, 2002), the district Attorney and Weyerhaeuser Kiamichi Tree Farm Area Manager (May 7, 2001) to support its claim that the roads are County roads.
Our response to this issue is that same as our response to the previous issue regarding private roads. Therefore, recognizing the broad authority that the Oklahoma statute grants to Count y Commissioners for maintaining county roads, we will reinstate funding for debris removal activities in the Weyerhaeuser area.
Major Collectors
FEMA denied the Countys request for reimbursement for debris removal from the town of Valliant (3,733 cubic yards) and from major collectors (4,770 cubic yards). The County states that Oklahoma law provides that, Board of County Commissioners of any county shall, by agreement with the governing body of a municipality having a population less than 2,500, construct, improve, repair, and maintain any of the streets of the municipality. The County asserts that this supports the Countys claim that it is legally responsible for removing debris from the town of Valliant. The County submitted an affidavit from the Town (February 7, 2002) to support its claim. Based on the cited Oklahoma statute and the affidavit from the Town, we will reimburse the County for removing debris from the Town of Valliant.
FEMA also denied the Countys request for reimbursement for (4,770 cubic yards) because the County removed debris from major collector roads that are under the auspices of the FHWA. The County has not submitted any information that refutes this determination. Therefore, we agree with the Regional Directors decision on this issue.
Non-Eligible Debris
FEMA denied the Countys request for 18,922 cubic yards of debris removed from the area north of Highway 3 because there was little damage in the area and FEMA could not verify that the debris was removed from County rights-of-way. The affected roads were: Alikchi School Road, Ark Line Road, B. Williamson Loop, Burton Road, and Cram Road, Moran Loop, North of Wheelock, Walter Johnson Road, Wheelock and Wheelock Church Road.
The County submits that the area North of Highway 3 was affected by the ice storm and that the County monitored the debris removal operations in that area. Therefore, debris removed from that area should be eligible. Further, the County states that FEMA monitors were not required to be with every crew to ensure eligibility.
The FCO, SCO, County Commissioners and representatives of the FHWA visited this area on July 26, 2000, and observed that there was no evidence that the requested amount of debris was removed from the rights-of-way. The FCO and SCO estimated that approximately 500 cubic yards of debris was removed from the affected area. FEMA subsequently reimbursed the County for 500 cubic yards of debris for this area. Our staff stated that it received information from the National Weather Service indicating that the area north of Highway 3 was minimally impacted by the ice storm.
The majority of debris was removed from the area north of Highway 3 during March and April, 2001. The County has load tickets for the debris removed from the affected area. FEMA, State and County officials visited the site on June 26, 2001, about two months after the debris was removed. It is difficult to estimate with any degree of accuracy the amount of debris removed from the area more that two months later. Because the County submitted load tickets for debris removed from the area, we will reinstate funding for this area.
Ineligible Per Monitors
FEMA denied the County request for 35,383 cy of debris because the debris was removed from outside the rights-of-way or from private property or was otherwise ineligible. In its second appeal, the County comments on the qualifications of FEMA monitors and how the monitoring was conducted. The County also states, Since FEMA monitors refused to interact with County monitors, they sat in their vehicles day after day for months watching and allowing the County to continue in a manner that was unacceptable to them; all the while writing secret reports deobligating the activities of the county monitors .The contractor did not remove any debris from outside the designated right-of-way or from private property. The information in our files does not support these statements. FEMA monitors documented ineligible debris removal activities (clear cutting rights-of-way and removing debris from private property) as early as January 30, 2001. This information was routinely shared with State and County officials, including County Commissioners. In addition, FEMA provided comprehensive set of data to the State on December 4, 2001, that described in detail the reasons for denying some of the Countys claims for reimbursement. The County has not provided any substantive information that supports its assertion that FEMAs denial of assistance for ineligible debris removal was inappropriate. Therefore, we agree that the Regional Director decision on this issue is correct.
CONCLUSION
Base on our review of information submitted with the second appeal, the County is eligible to receive an additional $718,878. Therefore, I am partially approving the appeal for this amount.
Appeal Brief
| Disaster | FEMA-1355-DR |
| Applicant | McCurtain County |
| Appeal Type | Second |
| PA ID# | XXX-XXXXX |
| PW ID# | N/A |
| Date Signed | 2003-08-19T04:00:00 |
Appeal Letter
August 19, 2003
Mr. Albert Ashwood
Director
Oklahoma Department of Civil Emergency Management
2401 North Lincoln (Will Rogers Building Tunnel)
Oklahoma City, OK 73105
Re: Second Appeal- McCurtain County, Debris Removal, FEMA-1355-DR-OK, Various Projects Worksheets
Dear Mr. Ashwood:
This is in response to your letter dated October 24, 2002, which transmitted the referenced second appeal on behalf of McCurtain County. The Federal Emergency Management Agency reimbursed the County $12.2 million for debris removal activities following the devastating ice storm in late December 2000 and early January 2001. The County is requesting reimbursement of an additional $1.3 million for debris removal.
As explained in the enclosed appeal analysis, I have determined that the County is eligible for an additional $718,878. Therefore, I am partially approving the appeal.
Please inform the County of my determination. My determination is the final decision on this matter in accordance with 44 CFR §202.206.
Sincerely,
/S/
Laurence W. Zensinger
Acting Director, Recovery Division
Emergency Preparedness & Response Directorate
Department of Homeland Security
Enclosure
cc: Gary Jones
Acting Regional Director
FEMA Region VI
Mr. Albert Ashwood
Director
Oklahoma Department of Civil Emergency Management
2401 North Lincoln (Will Rogers Building Tunnel)
Oklahoma City, OK 73105
Re: Second Appeal- McCurtain County, Debris Removal, FEMA-1355-DR-OK, Various Projects Worksheets
Dear Mr. Ashwood:
This is in response to your letter dated October 24, 2002, which transmitted the referenced second appeal on behalf of McCurtain County. The Federal Emergency Management Agency reimbursed the County $12.2 million for debris removal activities following the devastating ice storm in late December 2000 and early January 2001. The County is requesting reimbursement of an additional $1.3 million for debris removal.
As explained in the enclosed appeal analysis, I have determined that the County is eligible for an additional $718,878. Therefore, I am partially approving the appeal.
Please inform the County of my determination. My determination is the final decision on this matter in accordance with 44 CFR §202.206.
Sincerely,
/S/
Laurence W. Zensinger
Acting Director, Recovery Division
Emergency Preparedness & Response Directorate
Department of Homeland Security
Enclosure
cc: Gary Jones
Acting Regional Director
FEMA Region VI
Appeal Analysis
McCurtain County is located in southeastern Oklahoma, bordering the state of Arkansas on the east and the state of Texas on the south. The county covers approximately 1,900 square miles and has a population of 33,400 (2000 census). Weyerhaeuser, a wood products company, is the largest employer in the County. The Ice Storm of December 2000 hit McCurtain County particularly hard. The president declared a major disaster for Oklahoma on January 5, 2001, making federal funds available to assist State and local officials with debris removal operations. The Federal share for this disaster was initially 75%, but increased to 100% on March 13, 2001. The 100% Federal cost share was effective until July 6, 2001. If debris operations were conducted beyond July 6, 2001, the Federal cost share would revert back to 75%. McCurtain County awarded a contract to DRC to remove and dispose of eligible debris at $12.40 per cubic yard on January 18, 2001. DRC contracted with a number of local haulers to accomplish much of the work. Debris removal operations were conducted from January 18, 2001, to July 6, 2001. The County requested $13,969,852 for debris removal activities. FEMA approved $12,182.900. The amount in dispute was $1,786,952.The State and FEMA conducted an Applicants Briefing for McCurtain County applicants on January 10, 2001. FEMA conducted a Kick-off Meeting with County Commissioners on January 29, 2001. At the meeting, FEMA stressed that only debris on public rights-of-way was eligible, that debris on private property was not eligible for reimbursement, and that the County had to monitor all contractor crews. The Public Assistance Coordinator (PAC) conducted a follow-up meeting with the County Commissioners on February 5, 2001, after a few days of monitoring the debris removal operations. The purpose of the meeting was to reiterate eligibility guidelines and the need for monitoring and to develop a strategy for debris removal operations. The County published the MCCURTAIN COUNTY COMMISSION GUIDELINES FOR THE REMOVAL OF ELIGIBLE ICE STORM DEBRIS (Guidelines) on February 22, 2001. The Guidelines included debris eligibility requirements and the County inspectors (monitors) responsibilities. The County and FEMA agreed in March that both would provide monitors for each work crew to ensure that only eligible debris was removed. Most of FEMA monitors were equipped with global positioning systems and digital cameras to document debris removal activities. Starting in March, FEMA and County officials met daily to assign work crews and monitors throughout the County. The County Commissioners attended the meetings initially, although they attended less frequently later in the recovery process.
Early in the debris removal process FEMA monitors observed contractors removing debris from outside the County rights-of-way, from private property, and removing otherwise ineligible debris. Pursuant to the Guidelines, FEMA monitors did not direct any of the contractors efforts. When the FEMA monitors observed contractors removing ineligible debris, they would document the location where the activity was performed and the estimated amount of the ineligible debris removed in their daily reports. They would inform the County monitors and the PAC assigned to the County, who then would inform the County Commissioners. FEMA made every effort to address and resolve potentially ineligible activities as soon as possible. FEMA subsequently subtracted the amount of ineligible debris from the Countys invoices.
FEMA held discussions with County Commissioners in late February about ineligible debris included in the Countys invoices. On February 21, 2001, Commissioner Thompson visited with Moises Dugan, Deputy Federal Coordinating Officer (FCO), in the Disaster Field Office (DFO) in Oklahoma City to discuss the FEMAs reduction of several hundred cubic yards of debris from a County invoice. FEMA, State and County officials conducted a number of meetings between February and July to discuss questionable claims that the County submitted. In May, the Countys contractor provided FEMA with a database containing all debris load tickets, dates, quantities, locations, etc. FEMA worked with County representatives during the following several weeks to resolve discrepancies between the database and information FEMA had collected.
A meeting was held on June 29, 2001, at the DFO to discuss the comprehensive list of disputed items as contained in the debris database. The meeting was attended by Federal Coordinating Officer (FCO) Joe Bray and other FEMA staff; State Coordinating Officer (SCO) Fred Liebe and other State staff; Commissioners Steve Jordan and Aubrey Thompson and other County representatives; and Art Deakle and other representtives of DRC, the debris contractor. FEMA provided a spreadsheet that summarized questionable costs related to the Countys claims for reimbursement. The questionable costs were separated into the following categories in the debris database: (1) # Ineligible, (2) Overcapacity, (3) Private Roads, (4) Weyerhaeuser Roads, (5) Duplicate Tickets, (6) Major Collectors, (7) Non-Eligible Debris, (8) Affidavit Ineligible, and (9) Ineligible per Monitor. The questionable costs totaled over $1.787 million (over 144,151 cubic yards of debris). Many of the attendees participated in a site visit on July 3, 2001, to various areas of the County to resolve disputed eligibility of debris removed from those areas. A telephone conference call among the same parties was conducted on July 23, 2001. The parties reached agreement on some of the Overcapacity items, and some of the debris removed from Federal- aid roads was transferred to the Federal Highway Administration. The majority of the items were unresolved.
The County submitted a first appeal to the State on October 25, 2001, requesting reinstatement of $1.787 million. In a letter dated November 9, 2001, the State requested backup information on the appeal from FEMA to assist in its evaluation of the appeal. FEMA provided the requested information in a letter dated December 4, 2001. The information included three 3-ring binders of backup materials, including FEMA debris monitors reports, digital photographs, and information from the database that explained the reductions FEMA made to the County invoices. The State endorsed and transmitted the first appeal to FEMA in a letter dated April 22, 2002. The Regional Director approved $22,320 of the Countys request, and denied $1.67 million in a letter dated July 22, 2002. The basis for the denial was contained in the first appeal report. To provide the County a forum to discuss the first appeal decision prior to submitting its second appeal, FEMA regional and headquarters staff, State, County, and contractor representatives met in Oklahoma City on August 28, 2002. The County and contractor presented information that they claimed supported their request for reimbursement of an additional $1.67 million. The County also requested that FEMA provide information that was used in the first appeal analysis so that it could prepare its second appeal. FEMA provided the requested information to the State in a letter dated September 10, 2002. The County submitted a second appeal, which the State transmitted to FEMA by letter dated October 24, 2002. The County requests reimbursement for 106,477 cubic yards of debris ($1,320,315) as follows: (1) Ineligible Debris 17,934 cubic yards ($222,382); Overcapacity - 1,385 cubic yards ($17,174); Private Roads 5,689 cubic yards ($70,544); Weyerhaeuser Roads 18,661 cubic yards ($231,396); Major Collectors 8,503 cubic yards ($105,437); Non-Eligible Debris 18,922 cubic yards ($234,633); Ineligible Per Monitor 35,383 cubic yards ($438,749). The County did not appeal 26,397 cubic yards of debris ($327,323) for Affidavit Ineligible debris. FEMA regioteff, State, County and Contractor representatives met in Oklahoma City on June 24, 2003, to discuss the appeal. The County, through its attorney, submitted to FEMA on July 22, 2003, several affidavits from the County Commissioners and local citizens related to the County maintaining certain roads in the County. Each of these items is discussed below.
Ineligible Debris
The DFO staff denied the Countys request for reimbursement for 17,934 cubic yards of debris because the County did not provide documentation that the debris was eligible or because the County removed debris after FEMA advised it that certain debris was ineligible. A large portion of this debris (9,425 cubic yards) was removed from Area 15 and from areas of unknown locations (6,051 cubic yards). Debris load tickets from Area 15 did not identify specific location where the debris was removed in accordance with the Countys Guidelines. In the latter case, the County monitors did not provide sufficient information to determine if the debris was removed from County roads.
The County argues in its second appeal that FEMA guidance documents do not specify the level of detail required in the location block on the load tickets. Accordingly, the County believes that reference to Area 15 as the location where the debris was removed is sufficient and that FEMA should restore the 9,425 cubic yards to the Countys claim.
The County issued its Guidelines on February 22, 2001. The document gives County monitors and contractors specific instructions on debris eligibility and appropriate monitoring procedures. County monitors wrote thousands of trip tickets during the 6-month debris operation. The overwhelming majority of the tickets included specific pickup locations, for example Gilbert Street. Only those written for Area 15 did not comply with the requirement.
Although we expect the name of streets from which debris was removed to be shown in the location block of the load ticket, our guidance on this subject can be more specific. The County has presented load tickets for debris removed from Area 15. Therefore, we will reinstate funding for debris removed from Area 15.
The County asked that FEMA restore 867 cubic yards of debris removed from schools and a fire station and 677 cubic yards of debris from Shinewell Park Complex. The County asserts that the FCO approved its request to remove debris from rural schools in the County. The County removed the debris from three school properties in late June and early July 2001. This was about six months after the disaster, and after the schools were closed for the year. Since the school officials did not request reimbursement for removing debris while the schools were in session, and the County did so after the schools were closed, our staff determined that the debris at these sites did not pose an immediate health and safety threat to the public.
We have reviewed all information submitted with the appeal and determined that the removal of debris from school property is eligible for reimbursement. Therefore, we will restore funding for debris removed from this area.
The County requests reimbursement for 677 cubic yards of debris that it removed from the Shinewell Park Complex, stating that it removed the debris within six month of the disaster declaration. It submitted a written statement dated August 27, 2002, from the Shinewell Volunteer Fire Department stating that the County removed debris from the Shinewell Park Complex, not from the fire department property. The County also submitted a written statement dated September 12, 2002, from the Tom Senior Citizen Center, which is located in Shinewell Park, stating that it asked the County to remove the debris from its property.
Debris removal from public parks may be eligible if the debris is in the improved parts of the park and presents a health and safety threat to the public. There are no monitoring records for this area and nothing to indicate that the debris was not removed from improved areas of the park. Therefore, the removal of debris from the park is eligible.
The DFO staff denied the Countys request for reimbursement for 6,051 cubic yards of debris because staff could not discern if locations shown on the trip tickets were county or private roads. The County contends that the County monitors were lifelong residents of the county, who did not always know the exact names of roads where debris was removed. However, they were certain that the roads were County roads and not private roads. It further states that County has verified that all roads in question were County roads, although no information was submitted to support this claim.
Early in the debris removal operation, there was confusion about which map to use to identify County roads. In early April, the FCO, State and County agreed that only roads shown of the McCurtain County General Highway Map dated January 1986 and updated July 10, 2000, would be the official source to determine if a road was a County road and thus eligible for debris removal. FEMA learned in early May 2001, that the County Commissioners had adopted an additional 151 miles of roads into the Countys inventory on December 18, 2000. Approximately 120 miles of these new roads were located in District 1 in the northern part of the County. FEMA and ODOT inspected some of the roads and determined that some of the roads were not County roads, but were private gated roads. FEMA agreed to recognize some of the roads adopted by the County on December 18, 2000, as eligible County roads. In an attempt to resolve discrepancies regarding roads for which the County was responsible, two County representatives (Blake Cox of District 2 and Clint Bray of District 3) spent over two weeks in July 2001, working with FEMA staff at the DFO to reconcile any discrepancy in County road designations. The combined efforts of County and FEMA staff verified that some of the roads in question were in fact County roads, but others were not.
Although the County Commissioners have signed an affidavit stating that the County maintains all public roads in the County, County and FEMA staff could not discern if the roads in question were public or private roads. Therefore, there is no basis for reinstating funding for this item.
The last item in this category relates to 914 cubic yards requested on 26 load tickets that did not have a location on them describing where the debris was removed. The County said it could determine the locations the debris was removed by arranging the tickets in numerical order. Originally, there were over 500 load tickets that did not have locations on them. County representatives Clint Bray and Blake Clark spent several weeks in the DFO assisting FEMA staff in identifying locations for the disputed tickets. The staff was able to identify locations for all but 26 load tickets. The County stated that it issued load tickets in bundles that contained consecutively numbered tickets. Therefore, it should be easy to identify the location of the tickets in question. Messrs. Bray and Clark used this procedure during their review of the tickets, but were unable to reconcile the 26 tickets. The County did not submit any information with the second appeal that warrants changing the original determination on this issue.
Over Capacity
FEMA denied the Countys request for 1,385 cubic yards of debris because of discrepancies in the capacities of certain trucks. The County stated in the second appeal that FEMA initially measured the truck and asked why FEMA questioned its own measurements. FEMA assisted the County in measuring and verifying the capacities of over 400 trucks before the trucks were put in service. Throughout the debris removal operation FEMA monitors randomly selected trucks and re-measurss. found, the volume of truck and the amount of debris hauled were revised accordingly.
We have reviewed the first appeal analysis and the Countys second appeal, and we find no basis for revising the first appeal decision on this issue.
Private Roads
FEMA denied the Countys request for 5,689 cubic yards of debris removed from Carol Road (AKA Carols Road); Story (S.E. of Haskel Road); Rex Road (AKA Jones Road); Roy Roberts Road (AKA RR Road); and Whoa Road. These roads were not on the McCurtain County General Highway Map dated January 1986 and updated July 10, 2000, or included in roads the County adopted on December 18, 2000. The County stated in a letter dated October 5, 2001, that these roads were public roads maintained by the County.
The County Commissioners submitted an affidavit dated October 5, 2001, to FEMA stating that the County maintained the roads in questions. It also stated that Oklahoma law gives the County authority to maintain all public roads in the county.
FEMA regulation 44 CFR 206.223 states that an item of work must be the legal responsibility of an eligible applicant. The Oklahoma Attorney General opined on October 5, 1982 (Opinion No. 82-236) that the County may maintain a road that is not shown on the official ODOT map and that the County Board of Commissioners does not have to accept a road before the County can maintain it. Oklahoma statute gives County Commissioners broad discretion in determining which roads it maintains. The County Commissioners have submitted an affidavit attesting to the fact that the County maintains the roads in question. Therefore, the County has demonstrated that it is responsible for removing debris from the affected roads. Accordingly, we will restore funding for this item of work.
Weyerhaeuser Roads
FEMA denied the Countys request for reimbursement for 18,661 cubic yards of debris removed from roads on property owned by Weyerhaeuser Company. The affected roads were not shown on the McCurtain County General Highway Map dated January 1986 and updated on July 10, 2000. The County states that the affected roads meet all criteria established by Oklahoma State law to be declared a county road. The County submitted affidavits from the County Commissioners (September 9, 2002), the district Attorney and Weyerhaeuser Kiamichi Tree Farm Area Manager (May 7, 2001) to support its claim that the roads are County roads.
Our response to this issue is that same as our response to the previous issue regarding private roads. Therefore, recognizing the broad authority that the Oklahoma statute grants to Count y Commissioners for maintaining county roads, we will reinstate funding for debris removal activities in the Weyerhaeuser area.
Major Collectors
FEMA denied the Countys request for reimbursement for debris removal from the town of Valliant (3,733 cubic yards) and from major collectors (4,770 cubic yards). The County states that Oklahoma law provides that, Board of County Commissioners of any county shall, by agreement with the governing body of a municipality having a population less than 2,500, construct, improve, repair, and maintain any of the streets of the municipality. The County asserts that this supports the Countys claim that it is legally responsible for removing debris from the town of Valliant. The County submitted an affidavit from the Town (February 7, 2002) to support its claim. Based on the cited Oklahoma statute and the affidavit from the Town, we will reimburse the County for removing debris from the Town of Valliant.
FEMA also denied the Countys request for reimbursement for (4,770 cubic yards) because the County removed debris from major collector roads that are under the auspices of the FHWA. The County has not submitted any information that refutes this determination. Therefore, we agree with the Regional Directors decision on this issue.
Non-Eligible Debris
FEMA denied the Countys request for 18,922 cubic yards of debris removed from the area north of Highway 3 because there was little damage in the area and FEMA could not verify that the debris was removed from County rights-of-way. The affected roads were: Alikchi School Road, Ark Line Road, B. Williamson Loop, Burton Road, and Cram Road, Moran Loop, North of Wheelock, Walter Johnson Road, Wheelock and Wheelock Church Road.
The County submits that the area North of Highway 3 was affected by the ice storm and that the County monitored the debris removal operations in that area. Therefore, debris removed from that area should be eligible. Further, the County states that FEMA monitors were not required to be with every crew to ensure eligibility.
The FCO, SCO, County Commissioners and representatives of the FHWA visited this area on July 26, 2000, and observed that there was no evidence that the requested amount of debris was removed from the rights-of-way. The FCO and SCO estimated that approximately 500 cubic yards of debris was removed from the affected area. FEMA subsequently reimbursed the County for 500 cubic yards of debris for this area. Our staff stated that it received information from the National Weather Service indicating that the area north of Highway 3 was minimally impacted by the ice storm.
The majority of debris was removed from the area north of Highway 3 during March and April, 2001. The County has load tickets for the debris removed from the affected area. FEMA, State and County officials visited the site on June 26, 2001, about two months after the debris was removed. It is difficult to estimate with any degree of accuracy the amount of debris removed from the area more that two months later. Because the County submitted load tickets for debris removed from the area, we will reinstate funding for this area.
Ineligible Per Monitors
FEMA denied the County request for 35,383 cy of debris because the debris was removed from outside the rights-of-way or from private property or was otherwise ineligible. In its second appeal, the County comments on the qualifications of FEMA monitors and how the monitoring was conducted. The County also states, Since FEMA monitors refused to interact with County monitors, they sat in their vehicles day after day for months watching and allowing the County to continue in a manner that was unacceptable to them; all the while writing secret reports deobligating the activities of the county monitors .The contractor did not remove any debris from outside the designated right-of-way or from private property. The information in our files does not support these statements. FEMA monitors documented ineligible debris removal activities (clear cutting rights-of-way and removing debris from private property) as early as January 30, 2001. This information was routinely shared with State and County officials, including County Commissioners. In addition, FEMA provided comprehensive set of data to the State on December 4, 2001, that described in detail the reasons for denying some of the Countys claims for reimbursement. The County has not provided any substantive information that supports its assertion that FEMAs denial of assistance for ineligible debris removal was inappropriate. Therefore, we agree that the Regional Director decision on this issue is correct.
CONCLUSION
Base on our review of information submitted with the second appeal, the County is eligible to receive an additional $718,878. Therefore, I am partially approving the appeal for this amount.
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