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Second Appeal Analysis
PA ID# 037-99037-00; Los Angeles County
PW ID# 444; Debris Removal
From January 17 through February 6, 2010, rainstorms deposited vegetative debris, mud, and rock onto roads and blocked 453 culvert drains in Los Angeles County (Applicant) Road District 518. On September 8, 2011, FEMA prepared Project Worksheet (PW) 444 for $353,730.13 to remove 120 cubic yards of debris, but it was never obligated. On October 5, 2011, FEMA notified the State of California (Grantee) that the PW was ineligible because the “photographs supplied [did] not substantiate the work as eligible.” On October 27, 2011, the Grantee notified the Applicant that the PW was determined to be ineligible. The letter noted that the “photographs show minimal amounts of debris on public and maintained property which, according to the PW scope of work, has not been quantified or substantiated by supporting documentation.”
In a first appeal letter submitted December 28, 2011, the Applicant appealed FEMA’s denial of debris removal in Road District 518. There was no monetary figure or any other information included with the appeal letter, but the Applicant stated it would provide additional information and documentation.
In a February 13, 2012, letter submitted after the appeal deadline, the Applicant claimed $191,500.00 as the amount in dispute for debris removal in Road District 518 and provided supplemental information to augment the original appeal letter. The Applicant asserted that debris removal was not performed on private or unmaintained property. In addition, the Applicant provided photos and spreadsheets listing employee names, dates worked, hours worked, labor rates, fringe benefit rates, rental equipment, and other miscellaneous costs. The Grantee supported the appeal and forwarded it to FEMA on March 12, 2012.
On May 8, 2013, the FEMA Region IX Regional Administrator (RA) denied the first appeal stating that the Applicant “did not submit their appeal complete with documentation justifying their position within the time period allowed.” The RA found that the photographs submitted show “natural, unmaintained areas, and some debris from private property, and minimal debris from public property.” The RA provided the following reasons as to why the submitted documentation was insufficient:
- Equipment and operator costs were not matched to verify the operated equipment time and the standby equipment time.
- Labor and equipment costs require job descriptions, dates, and the work location to determine eligibility for disaster-related work.
- A breakdown of fringe benefits with supporting documents has not been submitted.
- Rental equipment invoices and daily work tickets have not been submitted.
- Load tickets for quantity verification of the amount of debris and the dump site location have not been submitted.
- Maintenance records for the cleaning of the inlet structures and road ditches have not been submitted.
In the second appeal letter submitted July 22, 2013, the Applicant is appealing $191,500.00 in debris removal costs in Road District 518. With the second appeal, the Applicant provided additional information, including:
- Department of Public Works (DPW) ad hoc FEMA reports which provide summaries of force account labor overtime costs, force account equipment costs, rental equipment costs, and contract payments.
- Samples of rental equipment tickets and daily work tickets.
- Samples of daily haul truck tickets.
- Samples of refuse disposal tickets.
- A maintenance policy for the cleaning of inlet structures and road ditches.
- Pictures with individual narratives to clarify what is being depicted.
The Applicant states that a breakdown of fringe benefits with supporting documentation will be submitted at closeout. The Applicant notes that it has always been its practice to provide FEMA with summaries of records and then to provide actual documentation at closeout. The Applicant reiterates that “at no time [has it] requested reimbursement for debris removal activities on private property or provided pictures … that depict such efforts on private property or unmaintained forest property.” The Grantee forwarded the second appeal reiterating the Applicant’s position.
Appeal Time Limits
FEMA notified the Applicant of its decision that PW 444 was ineligible on November 2, 2011. The 60-day deadline for the Applicant to file an appeal was January 1, 2012. The Applicant submitted a letter on December 28, 2011, indicating its intent to appeal and stated that additional information would follow. The Applicant sent the additional information in a letter on February 13, 2012.
Pursuant to 44 C.F.R. § 206.206(c)(1), “[a]ppellants must file appeals within 60 days after receipt of a notice of the action that is being appealed.” In this case, the Applicant filed an appeal but not the necessary documentation to support it within the 60-day period. When additional information is required after the filing of an appeal, FEMA may issue a Request for Information (RFI) pursuant to 44 C.F.R. § 206.206(c)(3) to which the Applicant has a specific date to respond. The Applicant’s February 13, 2012, letter is essentially equivalent to an RFI response from an appeal applicant. Although an RFI was not issued by the RA in his case, it is within the RA’s discretion to consider the supplemental submission. Noting such, the RA’s finding that the appeal submission was procedurally and substantively defective was correct.
Debris Removal on Private and Unmaintained Property
Assuming arguendo the first appeal was not defective, the second appeal does not adequately address the substantive issues raised in the RA’s first appeal denial. The Public Assistance Guide states that, “[t]o be eligible for Public Assistance, debris removal must be in the public interest, which is when removal is necessary to: eliminate immediate threats to lives, public health and safety; [and] eliminate immediate threats of significant damage to improved public or private property.” It further states that, “[d]ebris on private property rarely meets the public interest standard because it does not affect the public at large and may not be the legal responsibility of a State or local government.” FEMA initially denied PW 444 because the “photographs supplied [did] not substantiate the work as eligible.” The RA upheld this decision on first appeal stating that “the submitted photographs show mostly natural, unmaintained areas and some debris from private property and minimal debris from public property.” The Applicant submitted additional photographs and descriptions with the second appeal:
- In several photos, there is not sufficient evidence to determine if debris is located in a maintained area that is the Applicant’s responsibility, or if the debris is on private property. One photo does not display sufficient evidence to determine if an immediate threat exists.
- Photos show roads that were not listed in the PW scope of work and therefore, are not part of this project. Some photos do not state what road they are showing, so it is not known if they are included in the PW scope of work.
- Some photos claim to show plugged culverts. Although the Applicant provided a policy stating that it is required to inspect the culverts and follow up with maintenance if required, it has not provided maintenance records demonstrating that the culverts were clear before the disaster. Without maintenance records, there is no way to determine if the plugged inlet is a direct result of the disaster.
- When photos do show eligible work, the documentation provided does not show what work was completed at the location, who worked there, for how many hours, and what equipment was used. Therefore, the costs for this debris removal cannot be determined.
The PA Guide states that in the PW scope of work, “work should be specified as an action with quantifiable (length, width, depth, capacity) and descriptive (brick, wood, asphalt, timber deck bridge) terms.” Without this information, an item of work cannot be determined to be eligible.
The Applicant’s first appeal was not submitted in accordance with the substantive and procedural requirements established in 44 C.F.R. § 206.206. Even if it had been, the documentation submitted did not adequately substantiate the eligibility of the work.
 E-mail from Federal Emergency Management Agency to State Public Assistance Officer, California Emergency Management Agency (Oct. 5, 2011, 10:04am) [hereinafter Email].
 Letter from State Public Assistance Officer, California Emergency Management Agency to Chief Executive Officer, Los Angeles County (Oct. 27, 2011).
 44 C.F.R. § 206.206(c)(1) (2009).
 Public Assistance Guide, FEMA 322 at 67 (June 2007) [hereinafter PA Guide].
 PA Guide, supra note 5, at 69.
 For instance, the Applicant claims that several photos show a slope failure with debris covering a quarter of Glendora Ridge Road, but the relationship of the debris to the roadway is not evident.
 For instance, a photo claims to show damage from a plugged inlet on Covina Hills Road, but the location of the roadway is not evident.
 The following roads are not listed in the PW scope of work: Queenside Drive, Queenside Road, Kirkwall Road, Kingside Drive, and Galanto Avenue.
 For instance, two photos claim to show unnamed county roads.
 For instance, a photo shows a plugged culvert inlet on Crystal Lake Road.
 For instance, a photo shows a slope failure with debris covering almost half of Glendora Mountain Road.
 PA Guide, supra note 5, at 101.