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Second Appeal Analysis
PA ID# 117-38425-00; City of Lake Mary
PW ID# 192 and 7156; Debris Removal
From August 11 through August 30, 2004, Hurricane Charley generated large amounts of storm-related debris throughout the City of Lake Mary (Applicant). Utilizing contract labor, the Applicant picked up, hauled and disposed of thousands of cubic yards (CY) of debris from both public rights of way and private property throughout its jurisdiction.
FEMA prepared Project Worksheet (PW) 7156 to account for $197,660.00 of debris removal performed within a 72-hour period authorized at 100 percent Federal funding. FEMA prepared PW 192 to account for debris removal work performed outside of the 72-hour period. On August 29, 2005, in Version 9 of PW 192, FEMA deobligated $188,533.30 to address ineligible debris removal for various reasons including discrepancies with truck capacities and debris removal from private roads and Federal Aid roads. Of this amount, $102,366.80 was related to 5,118.34 CY of debris removed from private roads. In total, FEMA approved PW 192 for $1,867,346.80. FEMA closed PW 192 on November 21, 2008.
Both the Florida Division of Emergency Management (Grantee) and the Applicant stated that FEMA initially funded debris removed from private roads in PW 7156 and later moved the costs to PW 192. In actuality, FEMA funded the work in PW 192.
In its letter dated January 17, 2011, the Applicant appealed FEMA’s deobligation of $102,366.80 for 5,118.34 CY of debris removed from private property. The Applicant stated that, following closeout, it received an invoice for $161,719.33, which prompted it to conduct a reconciliation of all costs. During this reconciliation, the Applicant realized FEMA had deobligated funding attributed to private property debris removal. In addition, the Applicant asserted that, since 1985, it has provided an exclusive franchise for the collection of garbage, yard waste, and vegetative debris, and its citizens have no other legal means of having debris collected.
In an April 15, 2011 letter, the Grantee forwarded the first appeal. The Grantee argued that Section 91.35 of the City of Lake Mary’s (City) Code of Ordinances (Code), which provides for the removal of solid waste, follows FEMA’s requirements for establishing an applicant’s legal responsibility for removing debris from private property as outlined in a previous second appeal determination, City of Winter Springs. The Grantee also asserted that the costs in question remained eligible until the closeout of PW 192.
In a letter dated November 10, 2011, the FEMA Region IV Regional Administrator (RA) denied the first appeal on the basis that the City (1) failed to demonstrate legal responsibility for debris removed from private property; and (2) did not submit its appeal within the 60-day period pursuant to Title 44 Code of Federal Regulations (44 C.F.R.) § 206.206(c). The RA stated that the Applicant’s provision of a service to remove limited household trash and yard waste does not establish legal responsibility to remove debris and that legal responsibility is defined as responsible for the property. The RA acknowledged that the Applicant-provided Franchise Agreement establishes a contractual relationship between the City and its contractor for solid waste removal services. However, he found that Section 7.5, Extraordinary Collection Services, of the Franchise Agreement specifically excludes the cost of removal of large amounts of loose garden trash and special waste from the residential service rate, and moreover, identifies a mechanism to estimate removal costs using a “reasonable” yet separate commercial bulk collection rate for services. The RA concluded that a “service agreement to provide household garbage and limited yard waste removal” does not endow the Applicant with clear, legal responsibility “to remove debris from private property.” Finally, the RA determined that the Applicant missed the 60-day deadline to file its first appeal.
On August 7, 2012, the Applicant submitted a second appeal. In response to the issue of timeliness, the Applicant contends that it initially delayed filing its appeal until after project closeout based on the advice of FEMA field staff. Upon closeout in 2008, the Applicant stated that the deobligation it had intended to appeal for the disallowance of debris removed from private property appeared to have been resolved. Therefore, it did not submit an appeal at the time of closeout. The Applicant contends further, that multiple other factors, such as several PW versions and the length of time that elapsed from project completion to closeout, caused confusion and contributed to its delay in submitting its appeal.
In response to the issue of legal responsibility, the Applicant asserts that its solid waste ordinance and the corresponding fees imposed on residents for solid waste collection services establish its legal responsibility to remove debris from private roads. With its second appeal, the Applicant also submitted a copy of its Ordinance No. 1293, promulgated in 2008, which provides the City with specific responsibility for removing disaster-debris if shown to be an immediate threat to the community. Moreover, the Applicant claims that FEMA second appeal determinations for City of Winter Springs and Martin County provide precedent in establishing legal responsibility for removing debris from private roads through a local government’s solid waste ordinance, and argues that FEMA’s Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities further supports its position that a City’s solid waste ordinance can establish legal responsibility. Finally, the Applicant contends that its property maintenance code also establishes legal responsibility as a viable alternative to using its solid waste ordinance.
Timeliness of Appeals
The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) § 423 holds that: “[a]ny decision regarding eligibility for, from, or amount of assistance under this title may be appealed within 60 days after the date on which the applicant for such assistance is notified of the award or denial of award of such assistance.” Title 44 C.F.R. § 206.206(c) outlines clear procedures for the filing of appeals within a prescribed period of time that is triggered by the date the appellant receives notice of an action. Neither the Stafford Act nor 44 C.F.R. provides FEMA with authority to grant time extensions for filing appeals.
The Applicant submitted its first appeal on January 17, 2011, approximately six years after FEMA deobligated the funds from PW 192, Version 9, on August 29, 2005; and two years after closeout of the PW on November 21, 2008. In addition, the Applicant submitted the second appeal on August 7, 2012, nine months after FEMA’s first appeal decision was issued on November 10, 2011. Two years later, on December 4, 2014, the Grantee forwarded the second appeal. Consequently, the Applicant’s second appeal fails to meet the statutory requirements of Stafford Act § 423 and the procedural requirements of 44 C.F.R. § 206.206(c)(1) and (2), and is denied. As explained below, the Applicant’s second appeal would otherwise be denied for failing to meet eligibility requirements.
Eligibility of Debris Removal from Private Roads
The Stafford Act authorizes FEMA to reimburse eligible applicants for debris removal from public and private lands when it is essential to saving lives, protecting the public health and safety, preserving property, or in the public interest. Applicable to Hurricane Charley, FEMA Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities, provides three specific criteria for determining the eligibility of removing debris from private property. For each case, the Applicant must establish that (1) it was legally responsible for the work; (2) the work was necessary to eliminate an immediate threat to the community at large; and (3) the Federal government was held harmless and indemnified from claims arising from the work performed.
Title 44 C.F.R. § 206.223(a)(3) requires that work must be the legal responsibility of an eligible applicant in order to be eligible for funding. An applicant must demonstrate legal responsibility by providing the law, ordinance, or code that provides the legal process that establishes responsibility for removing debris from private property and show that it has taken steps under this legal process. The Applicant asserts that its solid waste collection Ordinance No. 236 establishes its legal responsibility to remove debris from private roads. The Applicant’s primary contention centers on its belief that the City’s long-standing responsibility to provide routine waste collection and removal services by exclusive franchise and at a charge to residents endows the City with the legal responsibility to remove disaster-generated debris from private property. Although the City has authority to remove certain kinds of waste on a routine basis, there is no provision within Ordinance No. 236 that specifically accounts for the removal of disaster-debris or references to a mechanism or process that addresses an emergency or disaster.
With its second appeal, the Applicant submitted a second ordinance in support of its argument for legal responsibility: Ordinance No. 1293. According to the Applicant, the City promulgated Ordinance No. 1293 “to clarify the City’s responsibility of debris removal from private roads and gated communities in the event of an immediate threat to life, public health, and safety after a significant disaster.” However, the City did not pass this ordinance until July 24, 2008, almost four years after the event. Thus, as Ordinance No. 1293 was not in effect at the time of the disaster, it has no direct bearing on FEMA’s consideration of whether the Applicant was legally responsible for the debris removal work performed during the event.
In its second appeal letter, the Applicant states:
The City’s solid waste ordinance was the primary mechanism for determining legal responsibility. However, had the City’s solid waste ordinance not established legal responsibility, the City could have used their property maintenance code which relates to the abatement of nuisances…The latter method would have hindered recovery efforts and the abatement of threats to public health and safety.
The Lake Mary Property Maintenance Code (“Code”) mandates minimum standards for the maintenance of property within the City. Within the Code, responsibility for property maintenance falls to the individual “mortgagee and/or property owner.” The City cannot declare a property to be a “public nuisance” and enforce abatement independently without following its own legal process to issue a citation or other notice of violation to the property owner. The City is not authorized to enter the property to “remedy, correct, or remove the violation” until after it has provided the owner with the opportunity to address the violation. Following that, the City can access the owner’s property to correct the violation; however, it still holds the property owner responsible for the costs of the remediation work it performed plus administrative charges by placing a lien against the property.
The Applicant failed to specify how the City’s Code and abatement of nuisance would apply to this particular case. Other than the passage cited above and attaching a copy of the Code, the Applicant offered no specific analysis connecting the Code to its legal responsibility argument. Regardless, the Code holds the individual owner responsible for property maintenance and the costs associated with nuisance abatement. Consequently, it does not substantiate the Applicant’s assertion that it is legally responsible for removing the debris from private property.
The Applicant believes that the second appeal amendments for City of Winter Springs and Martin County should persuade FEMA to accept the City’s position that its long-standing authority for providing for the exclusive removal of solid waste by ordinance is sufficient legal responsibility for removing disaster-debris from private roads.  At the time of the decision there was no binding precedent on how FEMA determined legal responsibility for private property debris removal, as each case presented unique circumstances and was determined on a case-by-case basis. Moreover and as discussed in the following subsections, the Applicant does not demonstrate how its own actions and ordinance satisfy the other requirements enumerated in Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities.
Pursuant to 44 C.F.R. § 206.224(a) and (b), FEMA is authorized to provide funding for debris removal from private property when it serves the public interest, such that it eliminates an immediate threat to lives, public health and safety, and improved property or ensures economic recovery of the affected community to the benefit of the community at large. In its second appeal letter, the Applicant states that “[t]he disaster debris presented a threat to public health and safety.” Ordinance No. 236 does not contain language defining criteria that the Applicant would follow to make a health and safety threat determination as required by FEMA’s guidance. The Applicant provided no information to explain how it determined that removing 5,118.34 CY of debris from private roads was in the interest of the greater public in eliminating an immediate threat to lives, public health and safety. FEMA intended for the guidance to underscore the “distinction between public and private roads when acting to eliminate a threat to life, public health and safety.”
Finally, as stated in Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities and the Public Assistance Guide, FEMA requires written documentation showing that it “was held harmless and indemnified for all claims of loss or damage resulting from the work.” Federal funding is contingent upon the applicant meeting this condition. In the information submitted with its second appeal, the Applicant did not include copies of records showing that the Federal government was held harmless and indemnified from claims of loss resulting from the debris removed from private roads, nor did it address this matter in its response letter. Consequently, the Applicant failed to sufficiently demonstrate compliance with this requirement.
Pursuant to 44 C.F.R. § 206.206(c), the Applicant’s appeal is time barred because it was not filed within the 60-day regulatory timeframe. In addition, the Applicant has not met all eligibility criteria pursuant to 44 C.F.R. §§ 206.223(a)(3) and 206.224(a)-(b), Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities and the PA Guide. Accordingly, the Applicant’s cost of $102,366.80 associated with the removal of 5,118.34 CY of debris from private roads remains ineligible for FEMA reimbursement.
 See Project Worksheet 7156, City of Lake Mary, Version 3 (Nov. 25, 2008) (explaining in the scope of work that FEMA deducted $102,366.80 related to 5,118.34 CY of debris removed from private roads in a separate project – PW 192 Version 9).
 The Applicant attributes the delay in the first appeal submission to different correspondence between it, the Grantee, and FEMA. This correspondence includes a February 25, 2011 memorandum from the Grantee to the FEMA Infrastructure Branch Director forwarding a copy of the Applicant’s first appeal and a March 17, 2011 letter from FEMA informing the Grantee that the first appeal should be properly submitted pursuant to 44 C.F.R. § 206.206(a), not to the leadership staff deployed to oversee Public Assistance Program field operations.
 See FEMA Second Appeal Analysis, City of Winter Springs, FEMA-1539-DR-FL (Mar. 11. 2010) (amending a previous second appeal letter dated Mar. 1, 2007).
 See 44 C.F.R. § 206.206(c) (2003).
 See generally Franchise Agreement The City of Lake Mary and Waste Management, Inc. of Florida (Sept. 18, 2003) (providing for the collection of solid waste and recyclable materials).
 See generally Lake Mary, Fla., Code of Ordinances § 91A.01 (2008).
 See FEMA Second Appeal Analysis, City of Winter Springs, FEMA-1539-FL.
 See FEMA Second Appeal Analysis, Martin County, FEMA-1561-FL (Sept. 19, 2007) (amending a previous second appeal letter dated Jan. 24, 2007).
 See generally, Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities (Sep. 20, 2004).
 The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 423, 42 U.S.C. § 5189a (2003).
 See 44 C.F.R. § 206.206(c)(1).
 See FEMA Second Appeal Analysis, Public Health Trust of Miami-Dade County, FEMA-3259-EM-FL, at 2
(Mar. 27, 2015); see also FEMA Second Appeal Analysis, Broward County School Board of Florida, FEMA-1609-DR-FL, at 2 (Sep. 4, 2014).
 See Stafford Act §§ 403 and 407.
 See Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities, at 2.
 See 44 C.F.R. § 206.223(a)(3); see also Public Assistance Guide, FEMA 322, at 45 (Oct. 1999) [hereinafter PA Guide].
 See generally Lake Mary, Fla., Code of Ordinances § 91.30(A)-(B) (1985).
 See id. § 91.35(A)-(B) (1985) (stating that “[i]t shall be the responsibility of the City to make available Residential and Commercial Collection Service to all Residential and Commercial Improved Real Property under the terms and provisions of this ordinance”); see also Applicant’s Second Appeal, at 3 (stating that “[t]he City’s solid waste Ordinance No. 1312 that was in place during DR-1539 was provided in the first appeal.” Ordinance No. 236 (Oct. 3, 1985) was amended by Ordinance No. 1312 (Feb. 5, 2009). The Applicant provided copies of both ordinances with its first appeal package).
 See Lake Mary, Fla., Code of Ordinances § 91A.01 (2008).
 Letter from City Manager, City of Lake Mary, to Director, Florida Division of Emergency Management, at 3-4 (Aug. 7, 2012) [hereinafter Applicant’s Second Appeal].
 Although passed in 2008 and not applicable to this event, it is noteworthy that Ordinance No. 1293 appears to address the three eligibility criteria required by Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities.
 Applicant’s Second Appeal, at 5.
 See Lake Mary, Fla., Code of Ordinances §§ 91.70-91.99 (1988).
 See id. § 91.75(A) (1988).
 Id. § 91.75(D)(5)(E).
 See FEMA Second Appeal Analysis, City of Winter Springs, FEMA-1539-DR-FL (Mar. 1, 2007).
 See FEMA Second Appeal Analysis, Martin County, FEMA-1561-DR-FL (Sep. 19, 2007).
 See FEMA Second Appeal Analysis, City of Winter Springs, FEMA-1539-DR-FL and FEMA Second Appeal Analysis, Martin County, FEMA-1561-DR-FL. In the initial second appeal determinations for the City of Winter Springs and Martin County, FEMA contended that the Applicants failed to demonstrate clear and explicit legal responsibility for work performed on private property. In subsequent amendments to both appeals, FEMA determined that the City and County Codes providing for solid waste collection services substantiated legal responsibility for private property debris removal; but see FEMA Second Appeal Analysis, Town of Juno Beach, FEMA-1545-FL (Feb. 13, 2007) (deciding, under Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities, that the Applicant did not establish legal responsibility for failing to show it was authorized to enter private property or follow due process procedures. FEMA also determined that the Applicant’s solid waste and recycling ordinance giving contractors the right to enter gated communities did not sufficiently establish legal responsibility to enter private property to remove disaster-debris); and FEMA Second Appeal Analysis, City of Palm Beach Gardens, FEMA-1545-DR-FL (July 23, 2007) (deciding that the Applicant did not establish legal responsibility because its waste ordinance and related documentation provided for routine trash removal, but did not reference extraordinary circumstances like storm-generated debris. In addition, the Applicant did not have the necessary right of entry/hold harmless agreements as required by Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities).
 See Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities, at 1 (stating that “[h]owever, in rare circumstances, an eligible applicant, such as the local government, may undertake removal of debris from private property. In such cases, FEMA and the State will determine eligibility on a case-by-case basis”) (emphasis added).
 See 44 C.F.R. § 206.224(a)-(b).
 See Applicant’s Second Appeal, at 1.
 See Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities, at 2 (emphasizing that “[w]hen the language of the ordinance is vague, or does not set out criteria for a public health and safety threat determination, the eligible applicant claiming legal responsibility must demonstrate to the satisfaction of FEMA the method it used to determine the existence of a threat to life, public health and safety at the private or gated community sites from which it removed or intends to remove debris”).
 See Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities, at 1.
 Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities, at 2; see also PA Guide, at 46 (explaining that “[d]ebris removal from private property shall not take place until the State or local government has agreed in writing to indemnify FEMA from a claim arising from such removal and obtained unconditional authorization to remove the debris from the property”).
 See Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities, at 3.