Debris Disposal and Monitoring

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4451
ApplicantMarion County Drainage District
Appeal TypeSecond
PA ID#127-0512E-00
PW ID#GMP 130182
Date Signed2022-06-13T16:00:00

Summary Paragraph

Severe storms and flooding between April 29 and July 5, 2019 scattered debris along both sides of the Marion County Drainage District’s (Applicant) levee system and deposited sand, soil and mud in drainage ditches.  FEMA wrote Grants Manager Project 130182 for claimed contract debris removal operations costs.  FEMA found a conflict of interest regarding procurement of the debris removal contract, a duplication of benefits because the Applicant received a grant from the Natural Resources Conservation Service for debris removal from the ditches, and a lack of adequate documentation substantiating that the Applicant monitored the debris removal and concluded that the project was ineligible.  The Applicant appealed.  FEMA requested information including documentation demonstrating that debris monitoring occurred.  The Applicant withdrew the appeal for costs related to the ditches, stated it had no additional documentation regarding debris monitoring, and requested that FEMA consider cost reasonableness and that the debris was properly disposed.  FEMA denied the appeal as the Applicant did not demonstrate with documentation that it performed the required debris monitoring and, as a result, FEMA could not determine eligibility of the claimed costs.  In its March 12, 2022 second appeal, the Applicant states that FEMA should be able to validate the debris removed and determine cost reasonableness on the basis that a FEMA employee provided the original estimate. 

Authorities and Second Appeals

  • Stafford Act §§ 403, 407.
  • 2 C.F.R. § 200.328.
  • 44 C.F.R. §§ 206.223(a)(1), 206.224(a).
  • PAPPG, at 57.

Headnotes

  • FEMA is authorized to provide Public Assistance (PA) funding for debris removal when it is in the public interest because it is necessary to eliminate immediate threats to lives, public health and safety, or ensure economic recovery, as a result of the disaster.  FEMA requires applicants to monitor all contracted debris operations to document this information and ensure that the contractor removes eligible debris.  If the applicant does not monitor contracted debris removal operations, it will jeopardize its PA funding for that work.
    • The Applicant did not monitor contract debris operations.  Without documentation showing that the Applicant adequately monitored the work, FEMA is unable to validate eligibility for PA funding.

Conclusion

FEMA finds that the Applicant did not demonstrate that it adequately monitored contracted debris removal operations.  Therefore, FEMA cannot verify the claimed costs were reasonable or associated with eligible work and the second appeal is denied.

 

Appeal Letter

James W. Remillard               

Director                                                                      

Missouri Department of Public Safety

State Emergency Management Agency                    

2302 Militia Drive

P.O. Box 106

Jefferson City, MO 65102

 

Re:       Second Appeal – Marion County Drainage District, PA ID 127-0512E-00, FEMA-4451-DR-MO Grants Manager Project 130182 – Debris Disposal and Monitoring

 

Dear Mr. Remillard:

This is in response to a letter from your office dated March 15, 2022, which transmitted the referenced second appeal on behalf of the Marion County Drainage District (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $76,032.50 in Public Assistance funding for debris removal.

As explained in the enclosed analysis, I have determined that the Applicant did not demonstrate that it adequately monitored contracted debris removal operations.  Therefore, FEMA cannot verify the claimed costs were reasonable or associated with eligible work and the second appeal is denied.

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/

                                                                                                        Ana Montero

                                                                                                        Division Director

                                                                                                        Public Assistance Division

                                                                       

cc: Andrea Spillars

Regional Administrator

      FEMA Region VII

Appeal Analysis

Background

Severe storms and flooding between April 29 and July 5, 2019 scattered debris including driftwood, railroad ties, tires and other trash along both sides of the Marion County Drainage District’s (Applicant) levee system and deposited sand, soil, and mud in drainage ditches.  FEMA wrote Grants Manager Project 130182 to document claimed contract debris removal operations costs totaling $499,400.03.  In its March 16, 2021 Determination Memorandum, FEMA denied funding, finding a conflict of interest regarding procurement of the debris removal contract, a duplication of benefits because the Applicant received a grant from the Natural Resources Conservation Service (NRCS) for debris removal from the ditches, and a lack of adequate documentation substantiating that the Applicant monitored the debris removal.  

First Appeal

The Applicant appealed on May 14, 2021, for $499,400.03.  The Applicant denied that there was a conflict of interest, noted that the ditches were not under NRCS’s authority, and stated debris removal complied with procedures from FEMA’s 2021 Public Assistance Debris Monitoring Guide (Debris Guide).  The Applicant provided a Debris Removal Project Manual, documents it claimed showed there was no conflict of interest or failure to comply with procurement standards and requirements, and a memorandum[1] from its District Engineer.  In the memorandum, the Engineer cited an earlier memorandum[2] that summarized the Contractor’s role in project development and bidding and in the pre-project, construction, and post-project phases.  The Engineer described documentation procedures specifically relating to chapter six of the Debris Guide regarding documenting eligible work and costs.  The memorandum included a FEMA surveyor’s estimate of the debris work to be completed, along with pre- and post-work pictures.  The Missouri Department of Public Safety’s (Grantee) July 6, 2021 transmittal recommended that FEMA deny the appeal because the Applicant failed to monitor debris removal operations.[3]

FEMA requested information on September 27, 2021, including more details for the on-site monitoring and the quantities of debris removed, a potential duplication of benefits with NRCS, and maintenance records for the drainage ditches.  In its October 27, 2021 response,[4] the Applicant stated that it submitted all available information in its initial appeal and that no on-site debris monitoring occurred beyond that outlined in the memorandum prepared by the District’s Engineer.  The Applicant cited the Debris Guide regarding the level of effort required for debris monitoring operations and FEMA’s Public Assistance Program and Policy Guide regarding the debris monitor’s primary role in support of its position.  The Applicant stated that the actual cost of the debris removal was reasonable compared to FEMA’s estimate and requested that FEMA consider the Engineer’s monitoring, the contractor’s efficiency and minimal cost for the work performed. 

The FEMA Region VII Regional Administrator denied the appeal on January 12, 2022.  FEMA determined that the administrative record did not contain sufficient documentation demonstrating that debris monitoring occurred, so FEMA could not validate the quantity of debris removed and other required information necessary to determine cost reasonableness or whether the work was required as a result of the disaster.  In addition, FEMA noted it did not have the discretion to waive the statutory requirement that FEMA cannot fund debris removal unless the debris was caused by the disaster.[5]

Second Appeal

In its March 12, 2022 second appeal for $76,032.50, the Applicant states that other applicants rarely produced load tickets and daily monitoring reports to FEMA.  The Applicant asserts that FEMA should be able to validate the debris removed and determine cost reasonableness on the basis that a FEMA employee provided the original estimate.  The Applicant points out that the contract was competitively bid and the total contract price for the completed work was nearly a third the cost of FEMA’s original cost estimate.  The Grantee again recommends that FEMA deny the appeal in its March 15, 2022 transmittal.

 

Discussion

FEMA is authorized to provide Public Assistance (PA) funding for debris removal when it is in the public interest because it is necessary to eliminate immediate threats to lives, public health and safety, or ensure economic recovery, as a result of the disaster.[6]  Applicants must monitor their activities under Federal awards to assure compliance with applicable Federal requirements and that performance expectations are being achieved.[7]  FEMA policy requires applicants to provide debris types, quantities, reduction methods, and pickup and disposal locations to establish eligibility of the work; moreover, FEMA requires applicants to monitor all contracted debris operations to document this information and ensure that the contractor removes eligible debris.[8]  If the applicant does not monitor contracted debris removal operations, it will jeopardize its PA funding for that work.[9]

The Applicant has not submitted documentation showing that it satisfied Federal debris monitoring requirements.  Pre-work pictures show scattered debris deposited along both sides of the levee, and FEMA provided an estimate of debris work to be completed.  However, FEMA’s estimate is not supported by monitoring reports verifying that the debris was eligible for removal or generated by the disaster.  The Applicant did not provide load tickets to show debris location, type of debris removed, quantity, and eligibility.  Though the work was completed at a lower cost than FEMA estimated, that does not excuse compliance with FEMA requirements and, without proper documentation showing that the Applicant adequately monitored the work, FEMA cannot verify that the claimed costs were reasonable or associated with eligible work.

 

Conclusion

The Applicant did not demonstrate that it adequately monitored contracted debris removal operations.  Therefore, FEMA cannot verify the claimed costs were reasonable or associated with eligible work and the second appeal is denied.

 

 

 

[1] Memorandum from Pro. Eng’r, Klingner and Assocs. P.C., to Marion Cnty. Drainage Dist. (May 13, 2021).

[2] Memorandum from Pro. Eng’r, Klingner and Assocs. P.C., to Marion Cnty. Drainage Dist. (May 10, 2021).

[3] Letter from Mgr., Recovery Div., Mo. Dep’t of Pub. Safety, State Emergency Mgmt. Agency, to Dir., Recovery Div., FEMA Region VII (July 6, 2021).

[4] Letter from Att’y, Husch Blackwell LLP, to Supvr., PA Appeals and Audits Section, FEMA Region VII (Oct. 27, 2021) (In the RFI response, the Applicant withdrew its appeal for costs related to drainage ditches and stated the amount in dispute is $76,032.50).

[5] FEMA also noted that the Applicant’s contract was missing contract provisions required by regulation, but that FEMA’s debris monitoring determination rendered this procurement noncompliance issue moot.

[6] Robert T. Stafford Disaster Relief and Emergency Assistance Act §§ 403, 407, 42 U.S.C. § 5170b, 5173 (2018); Title 44 of the Code of Federal Regulations §§ 206.223(a)(1), 206.224(a) (2018).

[7] Title 2 of the Code of Federal Regulations § 200.328 (2018).

[8] Public Assistance Program and Policy Guide, FP 104-009-2, at 57 (Apr. 2018).

[9] Id.

Last updated July 6, 2022