Damage Caused While Performing Eligible Work

Appeal Brief

Appeal Letter

Appeal Analysis

Background

On August 22, 2020, the President issued a major disaster declaration for damages caused by wildfires throughout the state of California.[1] The disaster deposited debris on private property in Butte County. The California Governor’s Office of Emergency Services (Recipient) delegated responsibility for private property debris removal (PPDR) to the California Department of Resources Recycling and Recovery (CalRecycle), which contracted the work out to Pacific States Sukt-P31 (Pacific) through a Standard Agreement (Contract). CalRecycle then applied to FEMA and received Public Assistance (PA) funding for PPDR statewide, including work on Berry Creek’s 12 Star Road (Road).[2] Subsequently, Lake Madrone Water District (Applicant), a special district government, within Butte County requested $118,560.46 in PA funding from FEMA to repair 800-linear feet of the Road that the Applicant claims it was legally responsible for and which was damaged by heavy equipment during CalRecycle’s PPDR operations performed by Pacific.[3] 

FEMA issued a Determination Memorandum on November 3, 2021, denying the Applicant’s request for PA funding. FEMA determined that the Applicant should pursue a claim to recover costs from Pacific as the responsible third-party based on the terms of the Contract, which stipulated that any damage to the Road caused as part of the PPDR operation was Pacific’s responsibility to repair at no cost to the State of California. FEMA explained that it is prohibited from providing financial assistance when doing so would result in a duplication of funding.

First Appeal 

In a letter dated December 29, 2021, the Applicant appealed FEMA’s denial of funding for the Road repairs that the Applicant stated occurred during PPDR operations. The Applicant acknowledged that CalRecycle accepted responsibility to conduct the debris removal, but the Applicant had not received financial assistance from CalRecycle or any other source. The Applicant stated it was trying to develop its claim for the Road damages and planned to make all reasonable efforts to recover expenses from CalRecycle, but that FEMA should provide PA funding without reductions until the Applicant recovered the funds from the third-party, CalRecycle. The Recipient supported and submitted the Applicant’s first appeal on January 18, 2022. The Recipient contended that the claimed damages were a direct result of the incident, there was no duplication of benefits because the Applicant had not received funding for the claimed damages, and FEMA’s denial of an otherwise eligible PA project due to a potential third-party claim is inappropriate and inconsistent with section 312 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act and implementing regulations.

The FEMA Region 9 Regional Administrator denied the appeal on November 18, 2022, determining that the Applicant was not legally responsible for the claimed work because the Contract specified that CalRecycle’s contractor, Pacific, was legally responsible for damages it caused during PPDR operations.[4] Further, FEMA stated that the Applicant acknowledged CalRecycle’s contractors caused the claimed damages to the Road during the PPDR activities. FEMA determined that the emergency work project that generated these damages belonged to another PA applicant, CalRecycle, and the claimed damages were not part of an eligible emergency work project conducted by the Applicant. Further, FEMA stated that even if the claimed damages were considered under this Applicant’s project as damages caused during the performance of eligible emergency work, the appropriate applicant would be required to demonstrate that the damages were caused by severe conditions resulting from the incident, were unavoidable, and were not the result of improper or excessive use. FEMA concluded the Applicant’s documentation did not meet these requirements. Accordingly, FEMA denied the Applicant’s appeal. 

Second Appeal

The Applicant submitted a second appeal on January 19, 2023, contesting FEMA’s legal responsibility determination and claiming that the Road damages were a direct result of the declared disaster and the subsequent PPDR operations. The Applicant stated that, while Pacific could be obligated to repair damages to the Road caused during eligible debris removal operations, the Applicant retained legal jurisdiction and authority to make the repairs regardless of any post-event agreements between CalRecycle and Pacific. The Applicant emphasized that, when requesting PA funding, it had not received any benefit related to repairing the Road. The Applicant asserted that the claimed damages incurred during PPDR operations were due to severe conditions resulting from the disaster, were unavoidable, and were not due to improper or excessive use. According to the Applicant, the traffic from debris-hauling trucks related to PPDR operations lasted approximately 24 months. In addition, the Applicant noted that it neither contracted nor supervised the debris removal operations. To demonstrate damages to the Road, the Applicant submitted pre- and post-disaster videos of the roadway and shoulder areas and a site map of initial damages. The Recipient forwarded the Applicant’s appeal in a letter dated February 28, 2023, supporting the second appeal and reiterating previously raised arguments.

Discussion

FEMA provides PA funding to eligible applicants for the repair, restoration, or replacement of facilities damaged or destroyed by disasters.[5] To be eligible, an item of work must be required as a result of the declared incident.[6] The applicant must demonstrate that the damage was directly caused by the incident.[7] FEMA may also provide assistance for emergency work, including debris removal.[8] If an applicant damages property while performing eligible emergency work, the repair of that damage may be eligible as part of that respective emergency work project if the damage was due to severe conditions resulting from the incident, unavoidable, and not due to improper or excessive use.[9]

The Applicant does not assert that the claimed Road damages were a direct result of the disaster, but instead claims that the repairs are necessary due to the increased traffic and heavy loads stemming from PPDR operations. FEMA provided funding for those PPDR operations through an emergency work project to CalRecycle. FEMA policy states that if an applicant damages property while performing eligible emergency work, the repair of that damage may be eligible as part of that respective emergency work project if certain conditions are met.[10] In this case, the damages were not caused by the declared event, i.e., the wildfires, but were instead caused as a result of CalRecycle’s PPDR project. The Applicant, Lake Madrone Water District, did not damage the property during the performance of eligible emergency work and are not eligible to request PA funding for damages to property caused by CalRecycle’s PPDR project.

Conclusion

The Applicant has not demonstrated that the damages were a direct result of the disaster or that it damaged property during the performance of eligible emergency work. Therefore, the appeal is denied.