Debris Removal

Appeal Brief Appeal Letter

Appeal Brief

Disaster1791-DR-TX
ApplicantCity of Dayton
Appeal TypeSecond
PA ID#291-19432-00
PW ID#00194 and 00317
Date Signed2012-03-05T05:00:00

Citation:         FEMA-1791-DR-TX; City of Dayton PWs 00194 and 00317

Cross

Reference:      Debris Removal

Summary:       After Hurricane Ike, the City of Dayton (Applicant) entered into a debris removal contract to haul and remove vegetative debris.  The Applicant was recording 100% full loads without providing documentation to substantiate eligible debris pick up, debris locations, or accurate truck measurements and capacities.  The Applicant indicated that the debris piles at the debris management site (DMS) represented all the debris that was removed by the contractor.  A team consisting of FEMA, the Texas Division of Emergency Management (TDEM), the U.S. Army Corps of Engineers (USACE), and the Applicant measured debris piles at the DMS in order to verify eligible debris volumes.  In consideration of the DMS topography, wet site conditions, and to allow for any compaction and settlement of the piles, the team added one foot to the height of each pile in the calculation of the eligible debris volume.  FEMA prepared PW 00194 and PW 00317 to reimburse the Applicant for a total of $509,329 to reimburse the Applicant for the removal and disposal of the measured eligible debris volume (20,373 CY) at the contract prices.

                        The Applicant submitted its first appeal on January 23, 2009, stating that FEMA had refused to accept load tickets, that FEMA’s method of debris pile measurement was factually incorrect, and that FEMA entered into the matter predisposed to be combative with the Applicant.  In a letter dated

October 9, 2009, FEMA denied the appeal because the load tickets could not be validated as accurate since there was no truck measurements recorded and that all loads that were denoted as 100 percent full without being able to inspect inside the truck beds.   

The Applicant submitted its second appeal on December 5, 2009, reiterating its claim from the first appeal.  The Applicant did not provide any additional documentation to support its claim.  The State supports the Applicant’s appeal.

Issue:              Did the Applicant provide the necessary documentation to substantiate the invoiced amount of debris?

Finding:           No.

Rationale:       44 CFR Part 13; 44 CFR §206.224; Public Assistance Debris Management Guide, FEMA 325, dated July 2007; Public Assistance Guide, FEMA 322, dated June 2007

Appeal Letter

March 5, 2012

W. Nim Kidd, CEM

Assistant Director for Emergency Management

Texas Department of Public Safety

P.O. Box 4087

Austin, TX  78773-0220

Re:   Second Appeal–City of Dayton, PA ID 291-19432-00, Debris Removal, FEMA-1791-DR-TX, Project Worksheet (PW) 00194 and 00317

Dear Chief Kidd:

This is in response to a letter from your office dated January 13, 2010, which transmitted the referenced second appeal on behalf of the City of Dayton (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding to reimburse the Applicant for the cost to remove and dispose of 52,390 cubic yards (CY) of debris claimed by the Applicant.

Background

On September 13, 2008, Hurricane Ike made landfall on the Texas Gulf Coast, causing wide-spread damage.  After Hurricane Ike, the Applicant entered into two non-competitive service contracts for debris removal and another for debris disposal, with unit prices of $20 per CY to remove and haul debris, and $5 per CY to incinerate vegetative debris.  The Applicant requested reimbursement for the removal of 72,763 CY of debris.  FEMA approved reimbursement for the cost to remove 20,373 CY of debris as eligible for funding.

On October 10, 2008, a FEMA project officer and U.S. Army Corps of Engineers (USACE) debris specialist noted the debris removal contract was not being adequately monitored by the Applicant.  The Applicant was not independently verifying the amount of debris that was removed and hauled to the debris management site (DMS).  Specifically, records indicated every truck load was documented as 100 percent full, however, monitors were not adequately elevated on towers at levels to see inside the trucks.  In an attempt to verify and validate that the trucks were carrying full loads, FEMA and USACE debris specialists monitored a sample of the trucks entering the DMS and determined that the majority of trucks they inspected were as little as 30 percent full.  On October 17, 2008, FEMA and the Applicant met to discuss the finding.  In order to verify eligible debris volumes, FEMA measured debris piles at the DMS.  Based on this assessment, FEMA prepared PW 00194 to reimburse the Applicant for the debris located at the DMS.  FEMA estimated the total amount of debris removed to be 19,682 CY.  In addition, FEMA also prepared PW 00317 for the disposal of the debris measured in the initial assessment.

On November 4, 2008, a second assessment was conducted to measure debris piles at the DMS in order to verify the debris volumes found in the initial assessment.  This assessment included a team consisting of FEMA, USACE, the Texas Division of Emergency Management (TDEM), and the Applicant.   In consideration of the DMS topography and site conditions, and to allow for any compaction and settlement of the piles, the team added one foot to the height of each pile in the calculation of the eligible debris volume.  FEMA adjusted PW 00194 and PW 00317 to reimburse the Applicant for the measured eligible debris volume of 20,373 CY at the contract prices.   

First Appeal

On January 23, 2009, the Applicant submitted its first appeal, which was transmitted by the State to FEMA on August 6, 2009.  In the appeal, the Applicant cited to the Texas Government Code and the Texas Local Government Code and public exigency exceptions to competitive bidding requirements of 44 CFR§13.36.  Additionally, the Applicant argued that FEMA refused to accept load tickets provided by the Applicant as proof of work completed.   The Applicant also argued that the process of debris pile measurement was substituted by FEMA for the documentation provided by the Applicant and was factually incorrect.  The Applicant contends that there was no consideration for compaction and settlement to the debris pile over the intervening four weeks from the initial cleanup to the monitoring evaluation by FEMA.  Further the Applicant stated that the problems that developed during the debris management process that led to the denial of additional reimbursement could have been avoided if FEMA had provided information earlier in the process.

 In a letter dated October 9, 2009, the Acting Regional Administrator denied the appeal because FEMA could not validate load tickets as accurate, due to the lack of monitoring accountability on the part of the Applicant to substantiate eligible debris removed, its location, debris site management, or accurate truck measurements with certified capacities.  The measurement of the debris piles at the DMS was conducted by a second multi-agency team including the Applicant and took into consideration variables such as the topography of the site and compaction that may have occurred.  Despite the contracts entered into by the City of Dayton not having been competitively bid, funding was approved by FEMA for debris removal operations in accordance with the contractual prices entered into by the City of Dayton.

Second Appeal

The Applicant submitted its second appeal on December 5, 2009, which the State transmitted to FEMA on January 13, 2010.  The Applicant reiterated its position from the first appeal stating that it conducted sufficient monitoring and validation of the debris operation, including inspection of truck loads.  In addition, the Applicant stated that the debris pile that was measured at the DMS was wet and overly compacted.  The applicant also argued that debris totals experienced in neighboring jurisdictions supported the claim for additional debris removal funding.

Discussion

In accordance with FEMA 325, Public Assistance Debris Management Guide, FEMA periodically validates an applicant’s monitoring efforts to ensure that eligible debris is being removed and processed efficiently.  In this case, FEMA could not validate that the amount of debris shown on the truck load tickets was accurate since there were no truck measurements recorded.  FEMA also could not validate that all of the loads denoted as 100 percent full were properly measured due to the lack proper verification of debris inside the trunks. Therefore, FEMA, USACE, the State, and the Applicant performed a physical inspection and measurement of debris piles at the DMS to verify the amount of debris hauled to the site.  The Applicant indicated that the debris piles at the DMS represented all the debris that had been removed by the contractor.  The amount of debris measured at the DMS by the team was 20,373 CY, while the amount invoiced by the contractor was 72,763 CY.  The Applicant did not provided sufficient information to document the additional 52,390 CY of debris.  Site assessments validate only 20,373 CY of debris.

Conclusion

I have reviewed the information submitted with the appeal and have determined that the Regional Administrator’s decision in the first appeal is consistent with Public Assistance regulations and policy.  Accordingly, I am denying the second appeal.

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

Sincerely,

/s/

Deborah Ingram

Assistant Administrator

Recovery Directorate

cc:  Tony Russell

       Regional Administrator

       FEMA Region VI

 

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