Debris Removal – Private Property

Appeal Brief

Appeal Letter

Appeal Analysis

Background

From October 3 to October 19, 2016, Hurricane Matthew produced severe storm conditions in communities along the east coast of Florida, including Flagler County (Applicant), which experienced extensive debris accumulations as a result.  In response, the Applicant engaged in significant debris removal efforts.  FEMA documented the Applicant’s private property debris removal (PPDR) in Project Worksheets (PWs) 989 and 990 but did not obligate any funding for the work due to the pending eligibility determination at issue in this appeal.[1]

The Applicant initially requested PPDR approval on October 13, 2016, through a mission request on EM Constellation (EMC), a web-based platform administered by the Florida Division of Emergency Management (Recipient) to track and coordinate requests for emergency assistance.  The EMC request sought “approval from [the Federal Coordinating Officer (FCO)] for [a] first pass of debris pickup on private roads for access by emergency responders,” with “resources needed until” 5 p.m. on October 13, 2016.^[2]  Other than basic contact information, the record does not reflect that the Applicant provided any additional information with this entry.

According to the Applicant, when it did not receive approval to commence PPDR, its staff continued to repeat the request to the Recipient and FEMA in intergovernmental conference calls and meetings.  Eventually, on October 25, 2016, the Applicant commenced PPDR without FEMA’s prior approval.  It completed the work on December 6, 2016, and elected to participate in the Accelerated Debris Removal Pilot Program to receive reimbursement for the work completed, with costs amounting to $512,833.49.^[3]    

On December 21, 2016, the Applicant submitted a PPDR request letter through the Recipient, asking FEMA to approve reimbursement of debris removal costs.^[4]  The request included: a determination from the Applicant that removal was in the public interest, with a supporting rationale from the County Health Officer and County Fire Rescue Chief; an attachment identifying the specific neighborhoods/homeowner’s associations requiring debris removal; documentation supporting the Applicant’s legal authority to remove the debris; and a statement agreeing to indemnify the federal and state government from any claims arising from debris removal.^[5] 

On February 7, 2017, the FCO denied the request, finding the Applicant did not provide all information required by FEMA’s policy guidelines when seeking reimbursement for PPDR costs, despite repeated attempts by FEMA to obtain this information.  Although the FCO did not specify what information was missing, he did state that the Applicant had “not substantiated where debris removal meets the requirement of being in the public interest.”^[6] 

First Appeal

In its first appeal letter, dated April 5, 2017, the Applicant noted that although the FCO rejected its PPDR request due to a lack of necessary information, the FCO did not specify what information was missing, and the Applicant believed its request complied with all applicable guidelines and requirements.^[7]  Regarding the FCO’s finding that the Applicant did not demonstrate the PPDR was in the public interest, the Applicant argued that PPDR was justified by numerous public interests, including mitigating against the then-ongoing threat of the Zika virus (as mosquito larvae may thrive in debris), providing access to residents for emergency services through private roadways, and allowing necessary restoration of public utilities.[8]

On August 31, 2017, FEMA sent the Applicant and Recipient a Final Request for Information (RFI) advising of a potential denial of the appeal due to the absence of debris removal quantities or indemnification agreements in the record, and stating that the administrative record would close when the Regional Administrator (RA) issued the first appeal decision.  The RFI also asked, among other things, for photos identifying debris removed from the communities at issue on appeal and an explanation for the Applicant’s commencement of PPDR without prior approval from FEMA, including any specific requests from the Applicant for such prior approval.^[9]

Although the Applicant did not produce photos of the debris taken prior to removal, it submitted documentation in response to all other requests from the Final RFI.^[10]  As evidence of a PPDR request made prior to starting work, the Applicant attached a printout of its October 13, 2016 EMC request to its RFI response.  The Applicant explained that it continued to request FEMA assistance through the Recipient and a FEMA representative, but that eventually it had to proceed with PPDR operations without approval due to the immediate threats the debris posed, such as blocking emergency vehicle access and creating fire hazards.

On November 30, 2017, the RA denied the first appeal because the Applicant did not formally request or obtain approval from FEMA prior to commencing PPDR, contrary to Public Assistance Program and Policy Guide (PAPPG) requirements.^[11]  The RA also noted that FEMA subsequently requested documents in an RFI that could validate the Applicant’s eligibility after-the-fact given that FEMA was unable to view the debris initially, but the Applicant did not provide photos or other visual evidence of the debris at issue from prior to its removal.  Further, the RA stated that the PPDR load ticket summary was commingled with other work in the attachment to the submitted response.

Second Appeal                                 

In its second appeal dated February 2, 2018, the Applicant concedes that it “did not submit the initial pro forma letter to FEMA requesting approval for collecting private property debris” prior to commencing work and did not receive prior approval.^[12]  However, the Applicant states that under the circumstances FEMA should treat its October 13, 2016 EMC request as “equivalent to the written request,”[13] given: its repeated and ignored verbal requests for FEMA to visit;^[14] its comprehensive December 21, 2016 submission requesting PPDR approval; its small size and lack of experience with disasters of this scale; the urgency with which PPDR was needed; the lack of guidance from FEMA representatives regarding the need for a formal letter prior to commencing work; and subsequent changes in FEMA policy relaxing this requirement for specific disasters.  For these same reasons, the Applicant also contends “that it has complied with the spirit of the requirements for [obtaining FEMA’s prior] authorization of [PPDR].”[15]  The Applicant, while noting that the PAPPG does not require photos for PPDR approval, nevertheless provides additional photos and videos with the second appeal letter, to help gauge eligibility in hindsight, arguing that more comprehensive visual evidence is unnecessary to establish the public threat posed by the removed debris.  Lastly, the Applicant resubmits its PPDR load tickets, separated for clarity.

The Recipient transmitted the Applicant’s second appeal on March 20, 2018, and attached a letter supporting the appeal.^[16]  In its letter, the Recipient argues that the Applicant did not need to submit a written request or receive approval before commencing PPDR under FEMA policy.  In support, the Recipient cites to a September 12, 2017 Public Assistance PPDR Fact Sheet which, unlike the PAPPG, does not require a prior written request or prior approval for PPDR, but instead only requires prior written notice.  The Recipient acknowledges that the Fact Sheet was published after Hurricane Matthew, but states that FEMA evidenced an intent for this guidance document to apply retroactively with the phrase “due to the magnitude of recent disasters.”[17]  The Recipient argues that the Applicant complied with the Fact Sheet’s notice requirement, which does not include a requirement for supporting documentation, by submitting a request through EMC and providing FEMA ample opportunity to conduct a site visit of the debris.

Discussion

FEMA may reimburse eligible applicants for debris removal from private lands in special circumstances involving a public interest.^[18]  However, an applicant seeking reimbursement for PPDR must comply with PAPPG guidelines, which require an applicant to “submit a written request and receive approval from FEMA” prior to commencing work on private property.^[19]  Furthermore, the written request “needs to identify the specific properties or areas of properties” requiring approval and “must include” documentation demonstrating a public interest justification, establishing the applicant’s legal responsibility for PPDR, and indemnifying the federal government from claims arising from the PPDR.^[20]  In September 2017, FEMA issued a series of PPDR Fact Sheets simplifying the approval process, “[d]ue to the magnitude of recent disaster events,” including Hurricane Harvey.^[21]  Under these modified procedures, applicants need only “provide a written notice . . . to FEMA identifying areas where PPDR activities will occur” and “need not wait for FEMA approval to start work.”[22]

The PAPPG requires a specifically detailed written request and FEMA approval prior to the commencement of PPDR, and the Applicant admits that it did not comply with these requirements.[23]  The Applicant instead asks FEMA to view its EMC entry as a satisfactory written request and to find that it complied with the spirit of the PAPPG’s requirement to obtain prior approval, given numerous, ignored verbal requests for approval (as well as other mitigating circumstances, such as its small size, lack of experience, urgent needs, and comprehensive PPDR request, after-the-fact).  However, none of the Applicant’s requests for prior approval conformed to the PAPPG requirements, as they did not include documentation demonstrating a public interest justification, establishing the Applicant’s legal responsibility for PPDR, or indemnifying the federal government from resulting claims.  Therefore, per FEMA policy, these requests do not excuse the lack of prior approval, nor do they satisfy the PAPPG’s requirements for PPDR eligibility.

Although FEMA relaxed some of these requirements in a September 12, 2017 Fact Sheet “[d]ue to the magnitude of recent disaster events,” it did not apply this policy exemption retroactively for PPDR pertaining to Hurricane Matthew (declared in October 2016).  Rather, FEMA simplified the PAPPG’s process for PPDR approval for certain major disasters that occurred around September 2017.[24]  Because the October 2016 disaster at issue in this appeal occurred before September 2017, the PPDR Fact Sheet is inapplicable here.

Finally, the Applicant provides photos, videos, and other documentation, and resubmits its original December 21, 2016 PPDR request package, to help FEMA gauge eligibility after-the-fact.  However, applicable FEMA policy does not provide for after-the-fact validation of PPDR eligibility absent prior approval as required by the PAPPG.  Thus, the documentation provided may not be considered on second appeal, despite language in FEMA’s first appeal analysis that could be read to suggest otherwise.[25]

Conclusion

FEMA policy required the Applicant to submit a written request with specific supporting documentation and receive approval from FEMA prior to commencing PPDR work.  Because the Applicant did not meet these requirements, funding for PPDR costs in PWs 989 and 990 is ineligible.  Therefore, the appeal is denied.