Debris Removal
Appeal Brief
Appeal Letter
Appeal Analysis
Citation: FEMA-1549-DR-AL; City of Foley, Debris Removal, PW 626
Cross-reference: Debris Removal, Immediate Threat, Improved Property
Summary: High winds caused the generation of vegetative debris in Wolf Bay Park and the Foley Industrial Park areas. The quantity of debris removed from these areas was 15,205 cubic yards at a cost of $235,679. FEMA prepared Project Worksheet (PW) 626 to capture eligible citywide debris removal costs but found that the debris removed from these sites was ineligible because the sites were unimproved land. PW 626 was obligated on March 6, 2005 in the amount of $1,732,147.25. The Applicant submitted a first appeal purporting that the debris removal was necessary to prevent remaining trees from being infested by beetles, to eliminate an immediate threat to public health and safety, and to ensure the economic recovery of the community. The Applicant also contended it was not advised of the ineligibility of debris removal costs at the site in a timely manner. The Acting Regional Director denied the first appeal citing that the debris was removed from a natural, unimproved area. The Applicants second appeal made the same request as the first appeal and included no additional supporting documentation.
Issues: (1) Does preventing beetle infestation on remaining trees meet the eligible criteria for debris removal?
(2) Was the debris removal necessary to eliminate an immediate threat to life and property?
(3) Was the debris removal necessary to ensure the economic recovery of the affected area to the benefit of the community at large?
Findings: (1) No, damage to remaining trees as a result of beetle infestation does not constitute an immediate threat to life, public health and safety, or damage to improved public or private property.
(2)
(3) No, the Applicant has not demonstrated that the debris was located in improved areas or that it presented an immediate threat.
(4)
(5) No, there is no indication that the community at large would have suffered economically from the presence of the debris.
Rationale: 44 CFR §206.224
As a result of high winds associated with Hurricane Ivan (FEMA-1549-DR-AL, declared September 15, 2004), the City of Foley (Applicant) sustained damage to Wolf Bay Park and the Foley Industrial Park areas (sites). Damage at the sites consists of 15,205 cubic yards of downed and hanging trees and limbs. The Applicant requested assistance from the Federal Emergency Management Agency (FEMA) for the debris removal operation from these sites and citywide.
Wolf Bay Park was purchased by the Applicant on June 8, 2004, to be developed as a nature preserve. The Foley Industrial Park is an old naval airstrip with partially developed roads and improvements now serving as a police shooting range, a storage area, and a National Guard training area. The Applicant stated that vegetative debris was removed from the sites to provide access to another park, to return the area to its pre-disaster condition, and to protect the public from hanging trees and limbs. Removal of the debris was also required to help reduce the spread, or decrease the chances of infestation, of the Southern Pine Beetle, based on advice from the Alabama Forestry Commission.
The sites were visited by representatives of FEMA, the Alabama Emergency Management Agency (AEMA), the U.S. Army Corps of Engineers (USACE), and the Applicants contractor, IED, Inc., on October 21, 2004. The purpose of the meeting was to discuss any potential debris eligibility issues as they related to the City of Foleys debris removal operation. During the meeting it was verified that 15,205 cubic yards of vegetative debris was removed from these sites between October 1, 2004 and October 15, 2004. However, the FEMA Public Assistance Officer determined that the debris was within unimproved property and, therefore, was ineligible for reimbursement through the Public Assistance Program. IED stated that costs totaling $235,679.05 for ineligible debris removal would not be billed to the Applicant.
FEMA prepared and obligated Project Worksheet (PW) 626 in the amount of $1,732,147.25 to reimburse the City of Foleys costs associated with citywide Category A debris removal, excluding the costs associated with these sites.
First Appeal
On January 18, 2005, the Applicant submitted a first appeal letter to the State, which was forwarded by the State to FEMA Region IV on the same day. The Applicant stated that the removal of the vegetative debris was required to prevent beetle infestation in its remaining trees and the trees on neighboring property. The Applicant contends that the debris removal is eligible because having fallen trees and partially downed trees and limbs in areas where people were likely to be present posed an immediate threat to public health and safety, and to improved public or private property. In addition, the Applicant asserted the debris removal was necessary to ensure the economic recovery of the affected community because public agencies were using the site for their storage, training, and work. The Applicant also stated that it was not advised of the ineligibility of debris removal from this site in a timely manner. The Applicant requested that the ineligibility determination of debris removal costs totaling $235,679.05 be reversed.
On May 9, 2005, the Acting Regional Director denied the first appeal, stating that FEMAs policy is to provide assistance for the removal of eligible debris such as trees, sand, gravel, vehicles, and buildings to eliminate immediate threat to lives, improved public or private property, and public health and safety. In accordance with Title 44 of the Code of Federal Regulations (44 CFR) §206.224 and the FEMA Public Assistance Policy Digest, FEMA 321, Debris Removal, page 28, ineligible activities would be the removal of trees, limbs, and trunks from natural (unimproved) wilderness areas.
Second Appeal
The Applicant, through its legal representative, Helmsing, Leach, Herlong, Newman & Rouse, submitted a second appeal of FEMAs determination to the State on June 30, 2005, transmitted by the State in a letter dated August 5, 2005. In its second appeal, the Applicant repeats the same position presented in its first appeal and provides no additional supporting documentation.
DISCUSSION
The Applicants appeal centers on the eligibility of debris removed from Wolf Bay Park, a nature preserve, and the Foley Industrial Park, a partially developed industrial park. In particular, the Applicant contends that the debris removal costs are eligible because they were:
Preventing their remaining trees, and those on neighboring property, from being infested by beetles,
Eliminating an immediate threat to public health and safety in Wolf Bay Park due to downed and hanging trees and limbs in areas where people were likely to be present,
Eliminating an immediate threat in the Foley Industrial Park by re-establishing the loss of access by the public agencies using the area for their storage, training, and work,
Ensuring the economic recovery of their community by clearing the site that was being used for storage, training, and work by public agencies, and
Not advised of the ineligibility of debris removal costs at the site in a timely manner.
In accordance with 44 CFR §206.224(a), debris removal may be eligible only when it:
Eliminates immediate threats to lives, public health and safety,
Eliminates immediate threats of significant damage to improved public or private property, and/or
Ensures economic recovery of the affected areas to the benefit of the community at large.
Evaluation of Eligibility Based on Beetle Infestation
The Alabama Forestry Commission indicates that the weakening of trees by windstorms, such as Hurricane Ivan, commonly precedes outbreaks of the Southern Pine Beetle. Mitigating the outbreak of beetles by removing trees that were weakened by the disaster does not meet eligibility criteria because it does not constitute an immediate threat to life, public health and safety, or damage to improved public or private property. The potential outbreak presents a threat to the trees, which are natural features, not improved property.
Evaluation of Eligibility Based on an Immediate Threat to the Public
The site where the debris in question was removed includes a nature preserve and a partially developed industrial park. The nature preserve is a wilderness area. As stated on Page 28 of the FEMA Public Assistance Policy Digest, FEMA 321, ineligible activities include the removal of debris, such as tree limbs and trunks, from natural (unimproved) wilderness areas. The industrial park is being used intermittently for training and storage. Although the industrial park is partially developed with roads, the Applicant provides no indication that an immediate threat to life, public health and safety, or damage to improved public or private property exists. The appeal references the loss of access to the area; however, no immediate threat was caused by this loss of access.
Evaluation of Eligibility Based on Ensuring the Economic Recovery of the Community
The Applicants appeal does not include any supporting documentation showing how the community at large would have suffered economically from the presence of the debris.
Evaluation of Eligibility Based on the Applicant Not Being Advised of the Ineligibility Determination in a Timely Manner
The majority of the debris in question was removed from the site between October 1, 2004 and October 8, 2004, with no debris being removed after October 15, 2004. During a meeting at the site on October 21, 2004, the FEMA Public Assistance Officer determined the debris removed from the site was ineligible ft The Applicant asserts that it was not advised that there was, or might be, a problem with the eligibility of the debris until after the operation had concluded. In its appeal, the Applicant states that when debris monitors were asked if there was a problem during the removal operation, the monitors indicated there was no problem.
Debris monitors are responsible for monitoring the contractor and making sure the contract provisions are followed. Monitors are not responsible for, or have the authority to make eligibility determinations.
CONCLUSION
Based on a review of the documentation provided in the Applicants second appeal, it is concluded that the debris removal from the site is ineligible for funding. The Wolf Bay Park is an unimproved wilderness area. Further, the Applicant has not provided any information that supports its claim that the debris was removed from the Foley Industrial Park in order to eliminate an immediate threat to life and property or to ensure recovery of the affected area to the benefit of the community at large. The Applicants appeal is denied.
Appeal Brief
| Disaster | FEMA-1549-DR |
| Applicant | City of Foley |
| Appeal Type | Second |
| PA ID# | 003-26992-00 |
| PW ID# | 626 |
| Date Signed | 2006-03-31T05:00:00 |
(2) Was the debris removal necessary to eliminate an immediate threat to life and property?
(3) Was the debris removal necessary to ensure the economic recovery of the affected area to the benefit of the community at large?
(2)
(3) No, the Applicant has not demonstrated that the debris was located in improved areas or that it presented an immediate threat.
(4)
(5) No, there is no indication that the community at large would have suffered economically from the presence of the debris.
Appeal Letter
March 31, 2006
Mr. Jeff Byard
State Public Assistance Officer
Recovery Branch Chief
State of Alabama Emergency Management Agency
P.O. Drawer 2160
Clanton, AL 35046-2495
RE: Second Appeal City of Foley, PA ID 003-26992-00
Debris Removal, FEMA-1549-DR-AL, Project Worksheet 626
Dear Mr. Byard:
This is in response to your letter dated August 5, 2005, regarding the referenced second appeal. In its appeal, the City of Foley (Applicant) disputes the basis of the Federal Emergency Management Agencys eligibility determination regarding the debris removal from Wolf Bay Park and the Foley Industrial Park areas.
As explained in the enclosed appeal analysis, I have determined that the debris removal was not necessary to eliminate an immediate threat to lives, public health and safety, or damage to improved property, nor to ensure the economic recovery of the community at large, and is therefore not eligible. The Applicants appeal is denied.
Please inform the Applicant of my decision. My determination constitutes a final decision of this matter pursuant to 44 CFR § 206.206.
Sincerely,
/S/
David Garratt
Acting Director of Recovery
Federal Emergency Management Agency
Enclosure
cc: Kenneth Burris
Regional Director
FEMA, Region IV
Mr. Jeff Byard
State Public Assistance Officer
Recovery Branch Chief
State of Alabama Emergency Management Agency
P.O. Drawer 2160
Clanton, AL 35046-2495
RE: Second Appeal City of Foley, PA ID 003-26992-00
Debris Removal, FEMA-1549-DR-AL, Project Worksheet 626
Dear Mr. Byard:
This is in response to your letter dated August 5, 2005, regarding the referenced second appeal. In its appeal, the City of Foley (Applicant) disputes the basis of the Federal Emergency Management Agencys eligibility determination regarding the debris removal from Wolf Bay Park and the Foley Industrial Park areas.
As explained in the enclosed appeal analysis, I have determined that the debris removal was not necessary to eliminate an immediate threat to lives, public health and safety, or damage to improved property, nor to ensure the economic recovery of the community at large, and is therefore not eligible. The Applicants appeal is denied.
Please inform the Applicant of my decision. My determination constitutes a final decision of this matter pursuant to 44 CFR § 206.206.
Sincerely,
/S/
David Garratt
Acting Director of Recovery
Federal Emergency Management Agency
Enclosure
cc: Kenneth Burris
Regional Director
FEMA, Region IV
Appeal Analysis
BACKGROUNDAs a result of high winds associated with Hurricane Ivan (FEMA-1549-DR-AL, declared September 15, 2004), the City of Foley (Applicant) sustained damage to Wolf Bay Park and the Foley Industrial Park areas (sites). Damage at the sites consists of 15,205 cubic yards of downed and hanging trees and limbs. The Applicant requested assistance from the Federal Emergency Management Agency (FEMA) for the debris removal operation from these sites and citywide.
Wolf Bay Park was purchased by the Applicant on June 8, 2004, to be developed as a nature preserve. The Foley Industrial Park is an old naval airstrip with partially developed roads and improvements now serving as a police shooting range, a storage area, and a National Guard training area. The Applicant stated that vegetative debris was removed from the sites to provide access to another park, to return the area to its pre-disaster condition, and to protect the public from hanging trees and limbs. Removal of the debris was also required to help reduce the spread, or decrease the chances of infestation, of the Southern Pine Beetle, based on advice from the Alabama Forestry Commission.
The sites were visited by representatives of FEMA, the Alabama Emergency Management Agency (AEMA), the U.S. Army Corps of Engineers (USACE), and the Applicants contractor, IED, Inc., on October 21, 2004. The purpose of the meeting was to discuss any potential debris eligibility issues as they related to the City of Foleys debris removal operation. During the meeting it was verified that 15,205 cubic yards of vegetative debris was removed from these sites between October 1, 2004 and October 15, 2004. However, the FEMA Public Assistance Officer determined that the debris was within unimproved property and, therefore, was ineligible for reimbursement through the Public Assistance Program. IED stated that costs totaling $235,679.05 for ineligible debris removal would not be billed to the Applicant.
FEMA prepared and obligated Project Worksheet (PW) 626 in the amount of $1,732,147.25 to reimburse the City of Foleys costs associated with citywide Category A debris removal, excluding the costs associated with these sites.
First Appeal
On January 18, 2005, the Applicant submitted a first appeal letter to the State, which was forwarded by the State to FEMA Region IV on the same day. The Applicant stated that the removal of the vegetative debris was required to prevent beetle infestation in its remaining trees and the trees on neighboring property. The Applicant contends that the debris removal is eligible because having fallen trees and partially downed trees and limbs in areas where people were likely to be present posed an immediate threat to public health and safety, and to improved public or private property. In addition, the Applicant asserted the debris removal was necessary to ensure the economic recovery of the affected community because public agencies were using the site for their storage, training, and work. The Applicant also stated that it was not advised of the ineligibility of debris removal from this site in a timely manner. The Applicant requested that the ineligibility determination of debris removal costs totaling $235,679.05 be reversed.
On May 9, 2005, the Acting Regional Director denied the first appeal, stating that FEMAs policy is to provide assistance for the removal of eligible debris such as trees, sand, gravel, vehicles, and buildings to eliminate immediate threat to lives, improved public or private property, and public health and safety. In accordance with Title 44 of the Code of Federal Regulations (44 CFR) §206.224 and the FEMA Public Assistance Policy Digest, FEMA 321, Debris Removal, page 28, ineligible activities would be the removal of trees, limbs, and trunks from natural (unimproved) wilderness areas.
Second Appeal
The Applicant, through its legal representative, Helmsing, Leach, Herlong, Newman & Rouse, submitted a second appeal of FEMAs determination to the State on June 30, 2005, transmitted by the State in a letter dated August 5, 2005. In its second appeal, the Applicant repeats the same position presented in its first appeal and provides no additional supporting documentation.
DISCUSSION
The Applicants appeal centers on the eligibility of debris removed from Wolf Bay Park, a nature preserve, and the Foley Industrial Park, a partially developed industrial park. In particular, the Applicant contends that the debris removal costs are eligible because they were:
Preventing their remaining trees, and those on neighboring property, from being infested by beetles,
Eliminating an immediate threat to public health and safety in Wolf Bay Park due to downed and hanging trees and limbs in areas where people were likely to be present,
Eliminating an immediate threat in the Foley Industrial Park by re-establishing the loss of access by the public agencies using the area for their storage, training, and work,
Ensuring the economic recovery of their community by clearing the site that was being used for storage, training, and work by public agencies, and
Not advised of the ineligibility of debris removal costs at the site in a timely manner.
In accordance with 44 CFR §206.224(a), debris removal may be eligible only when it:
Eliminates immediate threats to lives, public health and safety,
Eliminates immediate threats of significant damage to improved public or private property, and/or
Ensures economic recovery of the affected areas to the benefit of the community at large.
Evaluation of Eligibility Based on Beetle Infestation
The Alabama Forestry Commission indicates that the weakening of trees by windstorms, such as Hurricane Ivan, commonly precedes outbreaks of the Southern Pine Beetle. Mitigating the outbreak of beetles by removing trees that were weakened by the disaster does not meet eligibility criteria because it does not constitute an immediate threat to life, public health and safety, or damage to improved public or private property. The potential outbreak presents a threat to the trees, which are natural features, not improved property.
Evaluation of Eligibility Based on an Immediate Threat to the Public
The site where the debris in question was removed includes a nature preserve and a partially developed industrial park. The nature preserve is a wilderness area. As stated on Page 28 of the FEMA Public Assistance Policy Digest, FEMA 321, ineligible activities include the removal of debris, such as tree limbs and trunks, from natural (unimproved) wilderness areas. The industrial park is being used intermittently for training and storage. Although the industrial park is partially developed with roads, the Applicant provides no indication that an immediate threat to life, public health and safety, or damage to improved public or private property exists. The appeal references the loss of access to the area; however, no immediate threat was caused by this loss of access.
Evaluation of Eligibility Based on Ensuring the Economic Recovery of the Community
The Applicants appeal does not include any supporting documentation showing how the community at large would have suffered economically from the presence of the debris.
Evaluation of Eligibility Based on the Applicant Not Being Advised of the Ineligibility Determination in a Timely Manner
The majority of the debris in question was removed from the site between October 1, 2004 and October 8, 2004, with no debris being removed after October 15, 2004. During a meeting at the site on October 21, 2004, the FEMA Public Assistance Officer determined the debris removed from the site was ineligible ft The Applicant asserts that it was not advised that there was, or might be, a problem with the eligibility of the debris until after the operation had concluded. In its appeal, the Applicant states that when debris monitors were asked if there was a problem during the removal operation, the monitors indicated there was no problem.
Debris monitors are responsible for monitoring the contractor and making sure the contract provisions are followed. Monitors are not responsible for, or have the authority to make eligibility determinations.
CONCLUSION
Based on a review of the documentation provided in the Applicants second appeal, it is concluded that the debris removal from the site is ineligible for funding. The Wolf Bay Park is an unimproved wilderness area. Further, the Applicant has not provided any information that supports its claim that the debris was removed from the Foley Industrial Park in order to eliminate an immediate threat to life and property or to ensure recovery of the affected area to the benefit of the community at large. The Applicants appeal is denied.
Last updated