Debris Reduction, Hauling, and Disposal - Federal-Aid Roads

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4046-DR-CT
ApplicantTown of Vernon
Appeal TypeSecond
PA ID#18-62192-00
PW ID#337 and 537
Date Signed2013-10-30T00:00:00

Citation:   FEMA-4046-DR-CT, Town of Vernon, Debris Reduction, Hauling, and Disposal – Federal-Aid Roads, Project Worksheets (PWs) 337 and 537                     

Cross-Reference:  Other Federal Agency; Debris Removal                                                                         

Summary:  As a result of heavy snow and high winds generated from Severe Storm Alfred tree limbs and branches broke throughout the Town of Vernon.  The Town of Vernon (Applicant) utilized contract services to clear storm debris from rights of way, town parks, and public properties.  Debris removal work included grinding debris at the Temporary Debris Storage and Reduction Site (TDSRS) and hauling it to another location for final disposal. FEMA prepared PWs 337 and 537 based on contractors’ invoices submitted by the Applicant totaling $143,633 and $2,939,555, respectively, for debris removal, hauling, grinding, and final disposal services.  FEMA determined that the grinding, hauling and disposal of debris removed from federal-aid roads was included in both PW’s scope of work.  Because the Federal Highway Administration (FHWA) had activated its Emergency Relief (ER) Program for this disaster, FEMA reduced funding approved in each PW by the cost to grind, haul, and dispose of the debris removed from federal-aid roads, $7,419 and $14,938, respectively.  The Applicant submitted a first appeal requesting reimbursement of the denied debris removal costs.  The Applicant stated that that it did not receive ER Program funding for the cost of grinding, final hauling and disposal of first pass debris cleared from federal-aid roads.  The Acting Regional Administrator denied the first appeal explaining that FEMA does not provide Public Assistance for “first pass” debris removal from federal-aid roads in an area when the FHWA has activated its ER Program.  The Acting Regional Administrator also explained that once the debris was removed to the staging area, the debris no longer presented an immediate threat to life, public health, and safety.  The Grantee submitted a second appeal on behalf of the Applicant reiterating the Applicant’s first appeal position that the cost of grinding, final hauling and disposal of first pass debris was not covered under the FHWA ER Program, and that because these costs were not funded by another federal agency, there was no duplication of benefits 

Issues:    1.  Did the Applicant receive ER Program funding for grinding, final hauling and disposal costs related to first pass debris removal?

                2.  Did the disposal of the debris at the TDSRS eliminate the immediate threat posed by the debris?

Findings:  1.  No.  Debris disposal costs (grinding, final hauling and disposal) are ineligible for ER Program funding.

                  2.  No.  The immediate threat posed by the debris was not eliminated until final disposal.

Rationale: Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) Section 407(a)(2) Debris Removal  

Appeal Letter

October 30, 2013

William J. Hackett
Director
Division of Emergency Management and Homeland Security
25 Sigourney Street, 6th Floor
Hartford, Connecticut 06106

Re:  Second Appeal–Town of Vernon, PA ID 18-62192-00, Debris Reduction, Hauling, and Disposal - Federal-Aid Roads, FEMA-4046-DR-CT, Project Worksheets (PWs) 337 and 537

Dear Mr. Hackett:

This letter is in response to a letter from your office dated January 25, 2013, appealing on the Town of Vernon’s (Applicant) behalf the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) decision to deduct the cost of reduction, final hauling and disposal of debris removed from federal-aid roads, $7,419 from PW 337 and $14,938 from PW 537.

As explained in the enclosed analysis, I have determined that the Federal Highway Administration Emergency Relief Program does not provide funding for grinding, final hauling and disposal of debris removed from federal-aid roads, and that Public Assistance funding is available for these costs.  Therefore, I am approving the appeal.  By copy of this letter, I am requesting that the Acting Regional Administrator take appropriate actions to implement my decision.

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

Sincerely,

/s/

Deborah Ingram
Assistant Administrator
Recovery Directorate

cc:   Paul F. Ford
       Acting Regional Administrator
       FEMA Region I

Appeal Analysis

Background

A severe storm causing heavy snow and high winds generated from Severe Storm Alfred from October 29, through October 30, 2011, resulted in a major disaster declaration for the State of Connecticut was declared on November 17, 2011.  The storm produced ice and heavy winds that broke tree limbs and branches throughout the Town of Vernon.  The Town of Vernon (Applicant) utilized contract services to clear storm debris from rights of way, town parks, and public properties.  Debris removal work included grinding debris at the Temporary Debris Storage and Reduction Site (TDSRS) and hauling it to another location for final disposal.

FEMA prepared PWs 337 and 537 based on contractors’ invoices submitted by the Applicant totaling $143,633 and $2,939,555, respectively, for debris removal, hauling, grinding, and final disposal services.  FEMA determined that the grinding, hauling and disposal of debris removed from federal-aid roads was included in both PWs scope of work (SOW).  Because the Federal Highway Administration (FHWA) had activated its Emergency Relief (ER) Program for this disaster, FEMA reduced funding approved in each PW by the cost to grind, haul, and dispose of the debris removed from federal-aid roads, $7,419 and $14,938, respectively.  Debris removal from federal-aid roads is under the authority of the FHWA. 

First Appeal

On August 1, 2012, the Applicant submitted a first appeal requesting reimbursement of debris removal costs totaling $22,357.  The Applicant stated that it did not receive ER Program funding for the cost of grinding, final hauling and disposal of first pass debris cleared from federal-aid roads and that the removal and disposal of that debris was essential to ensure public safety.  The Applicant also stated that these costs are eligible and reimbursable under the Public Assistance Program.

In a letter dated November 26, 2012, the Acting Regional Administrator denied the first appeal explaining that FEMA does not provide Public Assistance for “first pass” debris removal from federal-aid roads in an area when the FHWA has activated its Emergency Relief Program.  The Acting Regional Administrator also explained that the FHWA provided the Applicant financial assistance to clear the debris from federal-aid roads to the debris staging area at the TDSRS, and that once this debris was removed to the staging area, the debris no longer presented an immediate threat to life, public health, and safety.

Second Appeal

On January 25, 2013, the State of Connecticut Division of Emergency Management and Homeland Security (Grantee) submitted a second appeal on behalf of the Applicant requesting that FEMA reinstate debris removal funding in the amount of $22,357 for PW 337 ($7,419) and PW 537 ($14,938).  The Grantee reiterates the Applicant’s first appeal position that the cost of grinding, final hauling and disposal of first pass debris was not covered under the FHWA ER Program, and that because these costs were not funded by another federal agency, there was no duplication of benefits.  The Grantee asserts that the Applicant followed FEMA debris management guidance in establishing a temporary debris management site to expedite debris collection and facilitate the reduction and recycling of storm-related debris and did so in accordance with applicable FEMA regulations and guidance. Therefore, these costs are eligible for Public Assistance reimbursement.

Discussion

Section 312(a) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) Duplication of Benefits, prohibits the duplication of benefits from two different federal emergency assistance programs for the same purpose.  Reflecting such, the FEMA Public Assistance Guide (FEMA 322, June 2007, pg. 26) notes that when FHWA activates its ER Program, FEMA Public Assistance for debris removal from federal-aid roads is generally not eligible.   However, that same policy does provide that limited debris clearance may be provided on a case-by-case basis.  

Title 44 of the Code of Federal Regulations (44 CFR) 206.224, Debris removal, provides that to be eligible, debris removal must be necessary to eliminate immediate threats to life, public health, safety or significant damage to improved property or to ensure economic recovery of the affected community to the benefit of the community-at-large.  In this case, however, the specific work at issue is the reduction, hauling, and final disposal of debris, the removal of which was funded under the ER Program.   At the time of its collection, the debris was an immediate threat to life, public health, and safety and, but for FHWA’s authority, FEMA Public Assistance would have been available from the point of collection through disposal to eliminate such threat. The FHWA ER Program does not provide funding for hauling beyond the general proximity of the highway.  It also does not provide funding for reduction at a TDSRS and hauling to a final disposal site.  As FHWA does not provide for the reduction, hauling, and final disposal of the debris in this case, Section 312 (a) does not preclude FEMA from considering funding those activities.  FEMA policy views final disposal to represent the culmination of the process to eliminate the immediate threat.  Consequently, simply removing and depositing the debris at the TDSRS did not eliminate the immediate threat to health and safety. Therefore, the debris reduction and final hauling and disposal are eligible for funding under the Public Assistance program.

Conclusion

The debris removed from federal-aid roads and stockpiled at the TDSRS posed an immediate threat to public health and safety.  The FHWA ER program funding provided was limited to the removal and disposal of the debris at the TDSRS.  Therefore funding for grinding, hauling and disposing the debris is eligible under Public Assistance Program.

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