Debris Removal – Construction and Demolition

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-4080
Applicant Town of Jean Lafitte
Appeal TypeSecond
PA ID#051-38082-00
PW ID#1378
Date Signed2016-09-26T00:00:00

Conclusion:  The request for funding the demolition of 18 private structures is denied because the Applicant has not sufficiently demonstrated that the structures were damaged to the point of imminent partial or complete collapse as a result of the declared event; FEMA was not provided an opportunity to concur with the demolitions; and FEMA Environmental and Historical Preservation staff was not afforded a chance to conduct an investigation before the demolition occurred.

Summary Paragraph

The Town of Jean Lafitte (Applicant) is appealing the Region VI Regional Administrator’s (RA) first appeal decision that the demolition of 18 private residential structures is not eligible for funding because the structures were not in imminent danger of partial or total collapse as a result of the declared event, the Applicant did not provide FEMA the opportunity to concur with the demolition before the work was completed, and FEMA Environmental and Historical Preservation (EHP) staff was not afforded the opportunity to complete a compliance review.  In 2012, Hurricane Isaac’s flood water and wind driven rain damaged 19 structures.  The Applicant’s building inspector evaluated each residence, determined them structurally unsafe and recommended demolition.  Project Worksheet (PW) 1378 was written for zero dollars because: FEMA was not provided an opportunity to concur with the demolitions prior to the completion of the work; the structures did not fit the definition of “unsafe” as a direct result of the declared disaster; and, EHP staff was not notified before demolition.  The Applicant filed a first appeal arguing that the structural damage met the required imminent collapse standard, that FEMA preapproval was not required, and EHP regulatory compliance had been satisfied.  The RA denied the appeal based on DAP9523.4, finding that the documents provided did not establish the structures were in danger of imminent collapse, prior approval was required, and EHP must be given the opportunity to conduct its own pre-demolition investigation.  To correct a procedural mistake, the RA rescinded that first appeal decision to properly close the administrative record and requested further information from the Applicant.  The Applicant supplemented the record with affidavits from its building inspector and withdrew one structure because it was outside of the town’s limits.  The RA again denied the appeal. The Applicant filed a second appeal reiterating the arguments from the first appeal.  This decision denies the second appeal because the documentation provided by the Applicant does not substantiate that the 18 structures were unsafe in accordance with FEMA regulation and DAP9523.4 and FEMA was precluded from conducting an EHP review prior to the Applicant’s actions. 

Authorities and Second Appeals

  • Stafford Act §§ 403(a)(3)(E) and 316..

  • 44 C.F.R. § 206.225(a).

  • 44 C.F.R. § 206.206.

  • DAP9523.4, Demolition of Private Structures.

Headnotes

  • Stafford Act § 403(a)(3)(E) authorizes FEMA to provide assistance to meeting immediate threats to life and property resulting from a major disaster, including the demolition of unsafe structures which endanger the public.

  • Under 44 C.F.R. § 206.225(a), emergency protective measures to save lives, to protect public health and safety and to protect improved property are eligible.

  • DAP9523.4 defines an unsafe structure as one so damaged or structurally unsafe as a direct result of the declared disaster that partial or complete collapse is imminent.

    • The 18 structures show evidence of mold, saltwater immersion and roof damage that does not fit the definition of imminent partial or complete collapse.

  • DAP9523.4 states that the Public Assistance Group Supervisor must concur that the demolition of unsafe structures and the removal of demolition debris are in the public interest.

    • The Public Assistance Group Supervisor was not provided an opportunity to concur.

  • DAP9523.4 states that eligible demolition activities must satisfy environmental and historical preservation compliance review requirements.

    • FEMA EHP was not provided an opportunity to review, contrary to this provision.

Appeal Letter

James Waskom
Director
Governor’s Office of Homeland Security and Emergency Preparedness
7667 Independence Boulevard
Baton Rouge, Louisiana 70806

Re: Second Appeal – Town of Jean Lafitte, PA ID 051-38082-00, FEMA-4080-DR-LA, Project Worksheet (PW) 1378 – Debris Removal – Construction and Demolition

 

Dear Mr. Waskom:

This is in response to a letter from your office dated June 15, 2015, which transmitted the referenced second appeal on behalf of the Town of Jean Lafitte (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $107,936.00 for demolition of 18 structures on private property.

As explained in the enclosed analysis, I am denying the appeal.  The enclosed analysis finds that, pursuant to DAP9523.4, the structures were not damaged by the declared event to the point of imminent partial or total collapse, and FEMA was not provided the opportunity to concur with the demolition decision or to perform an environmental and historical preservation review.

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

Sincerely,

/s/

Christopher Logan
Acting Director
Public Assistance Division

                                                                                                                                               

Enclosure

cc: George A. Robinson
      Regional Administrator
      FEMA Region VI

Appeal Analysis

Background

From August 26 to September 10, 2012, flood water and wind driven rain from Hurricane Isaac damaged 18 privately owned residential structures in the Town of Jean Lafitte, Louisiana (Applicant).  The Applicant verified that the structures were unoccupied, condemned the structures, and completed demolitions without giving FEMA notice.  The demolitions took place from mid-September until early November 2012. 

On April 1, 2013, the Applicant sent a letter to the Louisiana State Historic Preservation Officer (SHPO) requesting a National Historic Preservation Act (NHPA) Section 106 review for 15 of the properties.[1]  The Applicant stated that ten of the properties were mobile homes, none were more than fifty years of age, and the other five were wooden structures of no architectural or historical significance.[2]

Project Worksheet (PW) 1378 was written for zero dollars because FEMA was not contacted before the demolitions took place and did not have the opportunity to concur on the decision; the demolished structures did not meet the Disaster Assistance Policy 9523.4, Demolition of Private Structures (Jul. 18, 2007) (DAP9523.4) definition of “unsafe;” and the demolished structures were not made unsafe as a direct result of Hurricane Isaac.  Additionally, FEMA Environmental and Historical Preservation (EHP) staff were not provided the chance to conduct a site visit prior to demolition.[3]

FEMA’s EHP staff subsequently reviewed the demolition site and found discrepancies related to procedural compliance.  They reported that no contact or consultation with FEMA or SHPO occurred; the affected properties were not identified in the context of historical districts; the level of effect on historical districts was not assessed; there was no consultation between FEMA EHP, the Governor’s Office of Homeland Security and Emergency Preparedness (Grantee) and the Applicant to resolve any adverse effects; and a NHPA Section 106 review was not completed, contrary to FEMA’s programmatic agreement with the State of Louisiana.[4]

First Appeal                                                                  

The Applicant appealed FEMA’s decision in a letter dated August 10, 2013, arguing that FEMA received documentation demonstrating that the 19 structures were a hazard to residents and many were covered in mold, a serious health hazard.  The Applicant stated that it was not possible to wait for FEMA to access the structures prior to demolition.[5]

On November 6, 2013, the Grantee transmitted the appeal to FEMA Region VI.  The Grantee supported the appeal, asserting FEMA preapproval is not required if the structures were in the declared disaster area, were made unsafe by the disaster, and were certified by the local government as unsafe and an immediate threat to the public.  The Grantee also argued that inspections completed by the Applicant’s building inspector satisfied DAP9523.4 eligibility criteria.[6]

The Grantee argued, in the alternative, that DAP9523.4 considers the removal of debris resulting from demolition to be a part of the demolition process.  Since DAP 9523.4 does not require prior approval from FEMA for demolition, the Applicant’s demolition and debris removal costs should be eligible.[7]

On January 2, 2014, FEMA’s Regional Administrator (RA) denied the first appeal.  The RA determined that the Applicant had not demonstrated the structures were in danger of imminent collapse; the work was completed without FEMA inspection or approval; and FEMA was denied the opportunity to fulfill its EHP requirements.[8]  In a letter dated September 16, 2014, the RA rescinded its first appeal decision as he determined that the administrative record had not been properly closed, and allowed the Applicant to supplement it with new information.[9]  The RA’s letter included a final request for information (RFI) for any other additional documentation the Applicant could provide to support its appeal, and gave notice that the administrative record would close at the issuance of the amended first appeal response.  The letter stated that FEMA will not consider further documentation after the issuance of the first amended appeal should the Applicant elect to continue with a second appeal.[10] 

The Applicant responded to the final RFI, through the Grantee, in a letter dated October 22, 2014.  The Applicant noted one previously claimed demolition was for a residence outside the town limits and therefore was not the Applicant’s legal responsibility.  Consequently, the Applicant reduced its funding request to $107,936.00[11] and provided affidavits on each property.[12]  The Applicant argued that the National Environmental Policy Act (NEPA) does not require FEMA to limit environmental impacts or only fund the least environmentally intrusive alternative.  The Applicant acknowledged that NEPA procedural requirements must be met but claimed a statutory exception under the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 (Stafford Act) that states an action taken pursuant to §403 shall not be deemed a major Federal action affecting the environment.[13]  The Applicant also reiterated that FEMA preapproval is not needed to satisfy EHP requirements.  The Grantee supported this argument.[14] 

The RA denied the appeal on February 3, 2015, finding no indication the structures were unsafe as a direct result of the disaster such that partial or complete collapse was imminent.  Based on photographic documentation, the RA found no visible loss of structural integrity in 17 of the 18 structures and that the residences were upright with their exterior walls and roofs intact.  The RA also noted that the 18th structure, a small wooden shed, could have been temporarily fenced off to protect safety.[15]  The RA also found that the Applicant completed the demolition work prior to FEMA inspection or approval, and EHP staff were not afforded the opportunity to conduct a review, contrary to DAP9523.4.[16]

Second Appeal

On April 12, 2015, the Applicant filed a second appeal for reimbursement of demolition costs in the amount of $107,936.00.[17]  The Applicant makes three arguments.  First, the Applicant asserts that the 18 structures required demolition as a result of the disaster because they were so damaged and structurally unsafe that partial or complete collapse was imminent.  To establish that the structures were unsafe pursuant to DAP9523.4, the Applicant states that its building inspector closely followed the demolition checklist from the Public Assistance Debris Management Guide, FEMA 325 (July 2007) (Debris Guide), documented the structural conditions with photographs, provided detailed reasons why the structures should be demolished, and relied on his professional experience that saltwater damaged metal structures would not last.[18]  Additionally, the Applicant claims building inspections, health inspections, and fire inspections were done for each structure.[19] 

Second, the Applicant argues that a former structure which has been totally destroyed may be relegated to the status of debris and removed and reimbursed according to the regulations on debris removal from private property.[20]  Moreover, the Applicant states that FEMA guidance does not require the Applicant to obtain approval from FEMA prior to commencing demolition work.  Based on the following language from DAP9523.4, “The eligible applicant must demonstrate the legal basis as established by law, ordinance or code upon which it exercised or intends to exercise its responsibility following a major disaster to demolish unsafe private structures,” the Applicant argues that the past tense of “exercised” is a clear indication that the process for FEMA to determine eligibility can occur after demolition work is performed.[21]  The Applicant points to strong public policy to support its argument that FEMA guidance does not require a local government to wait for FEMA to arrive, inspect, concur, and consider alternative measures prior to demolishing an unsafe structure.[22]  Along those lines, the Grantee contends FEMA has delegated to State and local governments the authority to determine whether a structure is unsafe.[23]

Finally, according to the Applicant, all EHP requirements have been satisfied.  The Applicant performed a self-evaluation and concluded the demolitions: did not occur in any historic district, were not known historical properties, did not violate state environmental regulations, did not involve the taking or converting of undeveloped green space into residential or commercial property, and did not impact any endangered species or involve any archaeological sites.  The Applicant argues that the Stafford Act statutorily excludes the demolitions from undergoing a NEPA review.

In its transmittal letter dated June 15, 2015, the Grantee argues that the Supremacy Clause of the United States Constitution voids the DAP9523.4 definition of “unsafe” because the Stafford Act is the supreme law of the land and supersedes all policies.  The Grantee states that since neither the Stafford Act nor other federal laws provide a definition of an unsafe structure, other sources (e.g. the International Building Code and The International Property Maintenance Code) contain useful definitions.[24]   

Discussion

Eligibility of Facility: Private Structure

The Stafford Act authorizes FEMA to provide assistance essential to meeting immediate threats to life and property resulting from a major disaster for work and services to save lives and protect property, including the demolition of unsafe structures which endanger the public.[25]  Emergency protective measures that eliminate or lessen immediate threats to lives, public health or safety are eligible for PA funding.[26]  For an Applicant to be reimbursed for the demolition of privately owned structures, one of the requirements is that the unsafe structure be “found to be dangerous to the life, health or safety of the public because such structure is so damaged or structurally unsafe as a direct result of the declared disaster that partial or complete collapse is imminent.”[27] 

The documentation provided by the Applicant does not substantiate that the structures were unsafe in accordance with FEMA regulation and DAP9523.4.  The affidavits submitted by the Applicant were prepared over two years following the declared disaster and are not contemporaneous.  Each of the affidavits contains the statement that the structures “required demolition to protect the citizens of the Town of Jean Lafitte from an immediate threat to their health and safety,” however, the Applicant has not factually substantiated the immediate threat that ten mobile homes, one shed, and seven wood-frame homes posed to the life, public health or safety of citizens within the Town of Jean Lafitte.[28]  The affidavits also contain site specific descriptions of the damage sustained by the structures, such as flooding, mold, salt water exposure, wind damaged ceilings, the potential for looting and missing windows.  The damage may be unrepairable or a hazard that rises to a level requiring condemnation, but the damage does not establish an immediate threat to life, public health, or safety nor does it demonstrate that the structures were on the verge of partial or complete collapse.  This is verified by photographic documentation submitted by the Applicant showing that the structures were upright with their exterior walls and roofs intact.

The Applicant misconstrues FEMA policy and regulation in its argument that the definition for “unsafe structure” is not exclusive because other FEMA policy and FEMA’s regulations do not require a structure to be in a state of partial or total collapse to be eligible for the reimbursement of demolition costs.  FEMA policy aligns with both the Stafford Act and its implementing regulations.  The Stafford Act authorizes FEMA to provide assistance essential to meeting immediate threats to life and property resulting from a major disaster.[29]  FEMA regulation clarifies that emergency protective measures, such as demolition work, must eliminate or lessen immediate threats to lives, public health or safety.[30]  And finally, for demolition of a privately owned structure to be eligible for PA funding, the DAP9523.4 requires that partial or complete collapse must be imminent.[31]  There is no discrepancy between FEMA policy and relevant regulatory and statutory provisions.  Moreover, the Applicant’s reference to slab removal is misplaced because slab removal work is generally ineligible, except in very unusual circumstances where the slab itself causes an immediate threat to public health and safety. 

Finally, the Applicant’s argument that a private structure that has been totally destroyed by a disaster may be relegated to the status of debris and eligible for removal is not relevant because the 18 structures at issue were not totally demolished and are not considered debris.  Moreover, for private property debris removal to be eligible for funding an immediate threat to life, public health, and safety is still required to be demonstrated.[32]

In its transmittal letter, the Grantee argues the FEMA’s definition for “unsafe structure” overly restricts the purpose and intent of the Stafford Act in violation of the Supremacy Clause of the U.S. Constitution.  The Supremacy Clause establishes that federal law takes precedence over state and local laws when there is a conflict.[33]  The DAP9523.4, which defines “unsafe structure,” is neither a state nor local law, therefore, the Supremacy Clause is inapplicable.  And, as discussed above, the definition of “unsafe structure” is directly in line with the Stafford Act and implementing regulations.

Eligibility of Work: FEMA Approval

The DAP9523.4 states that a “Public Assistance Group Supervisor must concur that the demolition of unsafe structures and the removal of demolition debris are in the public interest.”  Additionally, FEMA will consider alternative measures (e.g. fencing or restricting public access) when evaluating requests for demolition.[34]

The Applicant contends that prior approval by FEMA is not required because the Debris Guide checklist it followed did not include a line item regarding FEMA approval.  For convenience, the Debris Guide contains a summary of the eligibility criteria for debris removal operations,[35] but informs the reader that the document is not exhaustive, is subject to change[36] and explicitly refers the reader to the DAP9523.4 for further guidance.[37]  Most importantly, the Debris Guide contains the almost identical language as the DAP9523.4 in regard to FEMA considering alternative measures to eliminate threats to life, public health, and safety and a Public Assistance staff concurring with the demolition of unsafe structures and removal of demolition debris are in the public interest.[38]  The fact that the Debris Guide checklist does not contain a line item for FEMA’s approval does not negate the requirement in the policy.

The Applicant’s argument that the use of the word “exercised” in DAP9523.4 proves that prior approval by FEMA is not required, misapplies the word by removing it from its specific context of demonstrating legal responsibility.  To be eligible for PA funding, an applicant must, among other requirements, “demonstrate the legal basis as established by law, ordinance or code upon which it exercised or intends to exercise its responsibility following a major disaster to demolish unsafe private structures (44 CFR 206.233(a)(3)).”  The DAP9523.4 permits an applicant to establish legal responsibility before or after demolishing unsafe private structures.  This flexibility is specific to establishing legal responsibility and cannot be expanded or applied to the other DAP9523.4 requirements, such as receiving concurrence from FEMA.

EHP Compliance

FEMA must consider a range of federal statutes, regulations and Executive Orders related to EHP when providing PA funding.[39]  FEMA’s review must be completed before the approval of funding and before the applicant starts work “since the review may identify steps to be taken or conditions to be met before the project can be implemented.”[40]  When an applicant initiates or completes work on a project before FEMA is able to conduct the necessary EHP compliance review, the work generally is not eligible for PA funding.[41]  In this case, FEMA was not afforded the opportunity to perform an EHP review prior to the Applicant’s initiation and completion of the demolition work.  FEMA does not have statutory or regulatory authority to rely on the Applicant’s after-the-fact review.  Therefore, the demolition work is not eligible for funding.

Additionally, the Stafford Act does not statutorily exclude the Applicant’s demolition work in this case from undergoing NEPA review.  While FEMA’s provision of essential assistance to applicants under Section 403 of the Stafford Act is statutorily excluded by Section 316 from undergoing a NEPA review,[42] the Applicant has neither demonstrated that the damaged sustained by the structures created an immediate threat to life, public health, or safety nor that the structures were on the verge of partial or complete collapse.[43]  As such, the demolition work is not eligible for essential assistance under section 403 of the Stafford Act and consequently is not statutorily excluded from NEPA review.

Conclusion

The documentation provided by the Applicant does not substantiate that the 18 structures were unsafe in accordance with FEMA regulation and DAP9523.4.  Additionally, FEMA was not afforded the opportunity to conduct an EHP review prior to the Applicant’s actions to demolish the structures.  As such, the appeal is denied.

 


[1] The administrative record does not include a response from SHPO.

[2] Letter from Bldg. Inspector, Town of Jean Lafitte, to State Historical Preservation Officer, La. Office of Cultural Dev. (Apr. 1, 2013).

[3] Project Worksheet 1378, Jean Lafitte, FEMA-4080-DR-LA, Version 0 (Apr. 16, 2013).

[4] Id. at 2–3.

[5] Letter from Mayor, Town of Jean Lafitte, to Representative, Governor’s Office of Homeland Sec. and Emergency Preparedness, La. (August 10, 2013).

[6] Governor’s Office of Homeland Sec. and Emergency Preparedness, Appeal Analysis, Town of Jean Lafitte, FEMA-4080-DR-LA, at 2 (Nov. 6, 2013).  This was submitted to support the first appeal submission.

[7] Id. at 3.

[8] Letter from Reg’l Adm’r, FEMA, to Dir., Governor’s Office of Homeland Sec. and Emergency Preparedness, La., and Mayor, Town of Jean Lafitte (Jan. 2, 2014).

[9] The supplemental documentation consisted of a letter from the United States Fish and Wildlife Service (USFWS), meant to establish that the demolition had no potential effect to threatened or endangered species or habitat, a letter from the SHPO meant to establish that no historical districts were involved and no previously recorded archaeological sites were impacted, and a list of surrounding National Historical Places meant to establish that there were no pre-historic districts or prehistoric population sites where the demolitions occurred. 

[10] Letter from Reg’l Adm’r, FEMA Region VI, to Dir., Governor’s Office of Homeland Sec. and Emergency Preparedness, La. (Sep. 16, 2014).

[11] Letter from Representative, Town of Jean Lafitte, to State Coordinating Officer, Governor’s Office of Homeland Sec. and Emergency Preparedness, La. (Oct. 22, 2014).

[12] The Applicant included 18 affidavits, each dated October 21, 2014, from the Applicant’s building inspector, one for each of the demolished structures.  Each affidavit included a brief damage description and the inspector’s opinion as to why demolition was required.  The reasons for the demolition included flooding, wind damaged ceilings, the potential for looting and missing windows.  The inspector opined that three of the structures would have collapsed at any time, one residence was unstable, and another had moved off its foundation.  He also determined that the flooded mobile homes continued to deteriorate and could not be repaired.

[13] Memorandum from Acting Environmental Officer, FEMA, to Associate Directors, Reg’l Directors, Federal Coordinating Officers, FEMA, Environmental Policy Memo #3, at 1 (May 3, 1996) [hereinafter Environmental Policy Memo #3].

[14] Letter from Assistant Deputy Dir., Governor’s Office of Homeland Sec. and Emergency Preparedness, to Assistant Adm’r, FEMA (May 13, 2014.)

[15] FEMA First Appeal Analysis, Town of Jean Lafitte, FEMA-4080-DR-LA, at 2 (Feb. 3, 2015) [hereinafter First Appeal Analysis].

[16] Letter from Reg’l Adm’r, FEMA Region VI, to Dir., Governor’s Office of Homeland Sec. and Emergency Preparedness, La. (Feb. 3, 2015).

[17] Memorandum from Representative, Town of Jean Lafitte, to State Coordinating Officer, Governor’s Office of Homeland Sec. and Emergency Preparedness, La., at 2-3 (April 12, 2015).

[18] Id. at 6 (the building inspector provided no time frame for when or if a saltwater compromised building would collapse).

[19] Id.

[20] Id. at 7.

[21] Id. at 9.

[22] Id. at 8

[23] Governor’s Office of Homeland Sec. and Emergency Preparedness, Appeal Analysis, Town of Jean Lafitte, FEMA-4080-DR-LA, at 4 (Jun. 15, 2015).

[24] Id. at 2

[25] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 403(a)(3)(E), 42 U.S.C. § 5170b (2012) [hereinafter Stafford Act].

[26] 44 C.F.R. § 206.225(a) (2012).

[27] DAP9523.4, at 2.

[28] The Applicant originally made this assertion for a structure that was not within the town’s jurisdiction.

[29] Stafford Act § 403(a)(3)(E) (emphasis added).

[30] 44 C.F.R. § 206.225(a) (2012) (emphasis added).

[31] DAP9523.4, at 2 (emphasis added).

[32] Disaster Assistance Policy DAP9523.13, Debris Removal from Private Property, at 2 (July 18, 2007).

[33] U.S. Const. art. VI.

[34] DAP9523.4, at 3.

[35] Public Assistance Debris Management Guide, FEMA 325, at 1 (July 2007) [hereinafter Debris Guide].

[36] Debris Guide, at i.

[37] Id. at 38.

[38] Id. at 37.

[39] Environmental Policy Memo #3, at 1 (stating it is FEMA policy that actions initiated and/or completed without fulfilling the specific documentation and procedural requirements of NEPA may not be considered for funding.)

[40] Id. at 128.

[41] See FEMA Second Appeal Analysis, Village of Pardeeville, FEMA-1768-DR-WI, at 3 (Dec. 16, 2014) (denying PA funding due to the applicant completing an improved project before FEMA could conduct necessary EHP review).

[42] Stafford Act § 316; Memorandum from Acting Environmental Officer, FEMA, to Associate Directors, Reg’l Directors, Federal Coordinating Officers, FEMA, Environmental Policy Memo #3, at 1 (May 3, 1996).

[43] See FEMA Second Appeal Analysis, City of Gallipolis, FEMA-4002-DR-OH (Jun. 26, 2013) (determining that the project on appeal cannot be considered statutorily excluded from NEPA review because construction of the road was not necessary to eliminate or lessen an immediate threat to life of safety).

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