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Private Property Debris Removal

Appeal Brief Appeal Letter

Appeal Brief

Disaster1941-DR-MN
ApplicantCity of Hammond
Appeal TypeSecond
PA ID#157-26828-00
PW ID#15
Date Signed2012-04-27T04:00:00

Citation:     FEMA-1941-DR-MN, City of Hammond, Funding for Labor and Equipment Costs, Project Worksheet (PW) 15

Cross-

Reference: Debris Removal, Work Eligibility

Summary:   Severe storms and the subsequent flooding of the Zumbro River resulted in damage to property throughout the City of Hammond (Applicant).  A private citizen and resident of Millville, Minnesota (Citizen) used his skid-steer loader over a period of seven days to help residents of Hammond rescue heavy items from homes and move debris from private property to the public rights-of-way.  FEMA prepared PW 15 for $19,892 to reimburse the Applicant for removal of debris under a contract with La Vigne Enterprises, Inc. and for services rendered by the Citizen.  Upon review, FEMA determined that the work performed by the Citizen was ineligible because FEMA did not authorize debris removal from private property.  Consequently, FEMA reduced the eligible cost on PW 15 by the $5,704 associated withthe Citizen’s 71.3 hours of work.  FEMA denied the Applicant’s first appeal because there was no contractual agreement between the Applicant and the Citizen, citing the applicant’s contract administration requirements in Title 44 of the Code of Federal Regulations (44 CFR) § 13.36(b)(2).

                    In the second appeal, the Applicant concedes that it did not have a contract with the Citizen, but argues that an “oral agreement” existed by virtue of the National Guard having permitted the Citizen access to the “locked down” city with other debris removal contractors.  The Applicant has submitted no documentation that demonstrates that the Citizen’s services were appropriately procured in accordance with Part 13 of 44 CFR.  Furthermore, moving debris from private property to the right-of-way is the property owners’ responsibility.  However, under exceptional circumstances, FEMA may reimburse eligible applicants the costs of debris removal from private property when the debris results in a widespread threat and FEMA provides approval prior to the applicant initiating work.  In this case, FEMA granted no such approval to the Applicant, rendering the work ineligible for reimbursement.

Issue:          Are the costs for the debris removal services performed by the Citizen eligible for reimbursement?

Findings:    No.

Rationale:  44 CFR §13.36(b) Procurement Standards; Disaster Assistance Policy 9523.13, Debris Removal from Private Property

Appeal Letter

April 27, 2012

Kris Eide

Director

Homeland Security and Emergency Management

Minnesota Department of Public Safety

444 Cedar Street, Suite 223

Saint Paul, Minnesota, 55101-6223

Re:  Second Appeal‑City of Hammond, PA ID 157-26828-00, Private Property Debris Removal, FEMA-1941-DR-MN, Project Worksheet (PW) 15

Dear Ms. Eide:

This letter is in response to a letter from your office dated December 2, 2011, which transmitted the referenced second appeal on behalf of the City of Hammond (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding in the amount of $5,704 for the debris removal services rendered by a private citizen and resident of Millville, Minnesota (Citizen).

Background

Severe storms and flooding from September 22 to October 13, 2010, affected several jurisdictions in the State of Minnesota.  Flooding of the Zumbro River damaged property throughout the City of Hammond.  On September 28, 2010, the Citizen, transported his skid-steer loader to the Applicant’s jurisdiction and assisted Hammond residents with moving debris from private property to the curbside and other designated areas for debris pickup.  FEMA prepared PW 15 on November 8, 2010, for $14,188 to reimburse the Applicant for removal of debris under a contract with La Vigne Enterprises, Inc. and for the services invoiced by the Citizen.  Upon review, FEMA determined that the work performed by the Citizen was ineligible because debris removal from private property was not authorized as necessary to protect public health and safety.  FEMA may reimburse eligible applicants for the costs of removing debris from the public rights-of-way, but it is generally the responsibility of the individual property owners to move the debris from the private property to the curb or other designated location on public property.  Consequently, FEMA reduced the eligible cost on PW 15 by the $5,704 associated with the Citizen’s 71.3 hours of work and obligated the PW for $8,484.20 on December 21, 2010.

First Appeal

On June 1, 2011, Minnesota Homeland Security and Emergency Management (Grantee), forwarded the Applicant’s March 29, 2011, first appeal to FEMA.  In support of the appeal, the Applicant submitted an invoice from the Citizen for the labor and equipment costs included on PW 15.  The Grantee supported the Applicant’s appeal, but acknowledged that work completed on private property was not eligible for reimbursement.  The Grantee estimated that 30 of the 71.3 invoiced hours appeared to be eligible and recommended that FEMA approve an additional $2,400 on PW 15.  On September 27, 2011, the FEMA Regional Administrator denied the Applicant’s first appeal, citing Title 44 of the Code of Federal Regulations (44 CFR) §13.36(b)(2) Procurement standards, regarding adherence to procurement procedures to ensure that contractors perform work within the specifications and conditions of a contract.  The Regional Administrator concluded that since there was no contractual agreement between the Citizen and the Applicant, the invoiced costs were not eligible for funding.

Second Appeal

In its second appeal letter, dated November 17, 2011, the Applicant explains that due to its inexperience with disaster response operations, representatives from Wabasha County and Elgin, a neighboring city, reviewed contracts on the Applicant’s behalf.  As a result, the Applicant concedes that it did not procure a contract with the Citizen to remove debris.  However, the Applicant contends that when the National Guard permitted the Citizen to access the “locked down” city along with other contractors, it established an “oral agreement”.  Furthermore, the Applicant asserts that the Citizen’s efforts were not restricted to removing debris from private property but also included the transporting of items from the public rights-of-way to locations where the Applicant positioned dumpsters for flood debris.  The Grantee forwarded the second appeal to FEMA on November 28, 2011.

Discussion

FEMA may provide funding for debris removal work in a major disaster when it is necessary to eliminate an immediate threat to lives, public health and safety, and improved property.  Removal of debris from private property must be in the public interest and approved in advance by FEMA.  In order to be eligible for reimbursement, debris removal work must also comply with procurement requirements for Federal grant funding. 

First, with regard to the work performed, the removal of debris from private property may be authorized in limited circumstances when it is in the public interest and it is authorized by FEMA before the work is performed.  In accordance with Disaster Assistance Policy 9523.13‑Debris Removal from Private Property (July 18, 2007), in order to “seek reimbursement to remove debris from private property within a designated area (an applicant) will, prior to commencement of work, submit a written request for reimbursement to, and receive approval from, the Federal Coordinating Officer (FCO).”  The Applicant did not request or receive such an approval for the debris removal work under this appeal. 

Second, contracts must meet rules for Federal grants, as provided for in 44 CFR §13.36, Procurement in order to be eligible for reimbursement under the Public Assistance Program.  While the Applicant suggested that the Citizen was authorized to remove debris as its agent by virtue of an oral agreement with the National Guard, the Applicant did not show that it procured his services through an appropriate procurement procedure as required by FEMA regulations. 

Conclusion

While I recognize that the Citizen’s efforts helped residents of Hammond through what was certainly a difficult time, for the reasons stated above, FEMA is unable to reimburse the Applicant for the invoiced costs.  I have reviewed the documentation submitted with the second 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:   Andrew Velasquez III

        Regional Administrator

        FEMA Region V