Debris Removal
Appeal Brief
Appeal Letter
Appeal Analysis
Citation: FEMA-1545/1561-DR-FL; St. Lucie County, multiple PW, Debris Removal
Cross Reference: Debris Removal; Private Property
Summary: As a result of Hurricane Frances (FEMA-1545-DR-FL) and Hurricane Jeanne (FEMA-1561-DR-FL), St. Lucie County (Applicant) submitted a request for funding for the removal of storm generated debris from public roadways and facilities within St. Lucie County. FEMA approved Project Worksheets 313, 314, 315 (DR-1545) and 346 (DR-1561) to cover eligible debris removal costs, however, the Applicants claim was reduced by approximately $2.2 million associated with ineligible debris removal activities. Of that $2.2 million, $515,502 is associated with debris removal from private roads. On March 9, 2005, the Applicant submitted a first appeal, asserting that it has the legal responsibility to remove debris from private property, and that the removal of said debris was necessary to protect against immediate threats to public safety. On November 15, 2005, FEMA denied the Applicants first appeal because the Applicant failed to show that it had legal responsibility of removing debris from private property. The Applicant filed a second appeal with FEMA on March 9, 2006, reiterating its position that it had the legal responsibility to remove the debris.
Issues: (1) Did the Applicant have legal responsibility to remove the debris?
Findings: (1) No.
Rationale: 44 CFR §206.223
Hurricanes Frances and Jeanne struck Florida in September 2004 (FEMA-1545/1561-DR-FL) and caused flooding and wind damage that deposited debris throughout St. Lucie County. St. Lucie County (Applicant) requested assistance from the Federal Emergency Management Agency (FEMA) for incurred costs for county-wide debris removal.
In November 2004, FEMA prepared Project Worksheets (PW) 313, 314 and 315 for Hurricane Frances (1545-DR) to fund the removal of storm generated debris from public roadways and facilities within St. Lucie County. In December 2004, FEMA prepared PW 346 for Hurricane Jeanne (1561-DR) to fund the removal of storm generated debris from public roadways and facilities within St. Lucie County. FEMA reduced the amount of eligible debris removal on all four PWs because the total amount of debris removed by the Applicant included debris removed from private roads. FEMA denied $515,502 in funding associated with the debris removed from private roads.
First Appeal
In a letter dated March 29, 2005, the Applicant appealed FEMAs determination that the Applicant did not have the legal responsibility of the debris removal from private roads. The Applicant asserted that it had the legal responsibility to remove debris from private property, and that the removal of debris was necessary to protect against immediate threats to public safety. The Applicants appeal referred to $2.2 million in dispute. FEMA reduced the Applicants claim by approximately $2.2 million due to load ticket discrepancies and because debris was removed from Federal Highway Administration Roads; however, the appeal addresses only the issue of debris removal from private property, which totals $515,502.
On November 15, 2005, FEMA denied the Applicants first appeal, stating that the Applicant did not demonstrate its legal responsibility to remove the debris from the private property in question.
Second Appeal
On March 9, 2006, the Applicant submitted a second appeal of FEMAs denial of costs associated with debris removal from private roads. Again, the Applicants appeal refers to $2.2 million in dispute; however, the appeal addresses only the issue of debris removal from private property. In its appeal, the Applicant argues that based on certain State of Florida law and local codes, it has the legal responsibility to remove the debris from private property.
DISCUSSION
Generally, debris removal from private property is not eligible under the Public Assistance Program and is the responsibility of the property owner. Following the 2004 Florida Hurricanes, FEMA issued Disaster-Specific Guidance #8 (DSG #8), Debris Removal from Roadways in Private or Gated Communities, which outlined the procedures necessary to establish eligibility of debris removal from private property. Under DSG #8, Applicants requesting reimbursement for debris removal from private property were required to demonstrate legal responsibility through the implementation of its legal process established by local laws, ordinances, or codes.
The Applicants appeal disputes FEMAs determination that the Applicant did not have the legal responsibility to remove debris from private roads. To establish legal responsibility, the Applicant provided excerpts from 1953 and 1965 Florida State Legislation that establish that garbage collection and disposal may be declared to be a county purpose and that it is in the public interest for the Applicant to regulate the disposal of garbage and debris. The legislation also authorizes the Board of County Commissioners to cause any debris on private property to be removed if the owner refuses to do so after reasonable notice.
In accordance with Title 44 of the Code of Federal Regulations (44 CFR) §206.223 (a)(3), to be eligible for financial assistance, an item of work must be the legal responsibility of an eligible applicant. The legislative actions are authorizations only, and the owners still have legal responsibility to remove disaster-related debris from their property. Therefore, these legislative actions do not confer legal responsibility. While the Applicant may enter the property to clear it, the owners still have that responsibility.
The Applicant also references Section 1-9-53(b) of the St. Lucie County Code of Ordinances and Compiled Laws which states that the Applicant has the responsibility and authority to provide for the collection of solid waste and recyclable materials within the unincorporated area of the county. This reference only applies to solid waste collection. Therefore, it does not establish that the Applicant has the legal responsibility to remove disaster-related debris from private property.
In the appeal, the Applicant describes its procedure to enforce its Code of Ordinances. As the first step of enforcement, the Applicant issues a complaint report to the property owner which may lead to a finding of violation and a fine hearing. A lien may be placed upon the property and the property owner is given the opportunity to clean the property within a specified time period. At the end of the period, the Applicant is authorized to clean the property. The Applicant argues that following this process was not a viable option given the mounting piles of debris and the growing hazards their presence created. The Applicant also asserts DSG #8 provides that each local government must make the determination to approve the removal of debris from private property based on its own regulations. The Applicant argues that confronted with the Fire District and Sheriff which were unable to provide life safety services to its citizens, the County made a determination and acted within its emergency management and purchasing procedures to respond.
FEMA recognizes that the hurricanes generated a significant quantity of debris. However, this fact does not alleviate the property owner of its responsibility to remove the debris. As stated in DSG #8, an applicant must demonstrate that it has taken legal steps under its own legal process to gain legal responsibility for the removal of debris from private property before FEMA would consider funding such removal. In this case, the Applicant clearly states that it did not follow its legal process.
The Applicant argues that FEMAs regulations and policies regarding the eligibility of emergency protective measures are inconsistent with those regarding the eligibility of debris removal and provides examples of eligible emergency protective measures performed to protect individuals located on private property (gated communities). Examples provided include police and fire protection services as well as the placement of traffic control devices for the evacuation of a gated community. There is a distinction between emergency protective measures that are taken to protect and save lives on private property and the removal of debris from private property. It is clear that the police department, for example, would have the responsibility to protect the lives of all county citizens, whether or not they live in a gated community. Debris located on private property, however, is the responsibility of the property owner until the local government determines it is in the interest of the community-at-large to remove it. The local government then must take the appropriate legal steps to enter the private property and take responsibility for the debris. This legal process can be obviated only in rare instances when the debris is immediately threatening the lives of its citizens and the local government exercises its police powers to remove the threat.
The Applicant asserts that reimbursement for debris removal from private property without clear legal responsibilitom North Carolina, the 1991 Oakland Hills Fires in California, and the 2004 tornadoes in Oklahoma; however, the Applicant provides no specifics regarding the individual Applicants and the determinations made. FEMA may fund debris removal from private property on a case-by-case basis, as stated in DSG #8. In these other disasters, the Applicants were able to establish legal responsibility in accordance with FEMA regulation and policy.
Lastly, the Applicant states that there is a clear inconsistency between the application of polices of FEMA in 2004 and the application of the same policies one year later in 2005. It refers to the Recovery Division Fact Sheet dated October 21, 2005, Debris Removal from Private Property, which states that FEMA may not require Applicants to precisely apply their pre-disaster abatement process when disasters cause a high concentration of debris on private property over a widespread area presenting an immediate health and safety hazard. FEMA continually develops new policy to clarify eligibility issues and to ensure that eligibility criteria are consistently applied. In this case, the Fact Sheet was published after Hurricanes Frances and Jeanne. Accordingly, it cannot be used to make eligibility determinations for work performed as a result of those two disasters. Only the policy in place at the time of the disaster can be considered.
CONCLUSION
For the reasons discussed above, the Applicants appeal for funding for costs associated with the debris removal from private property is denied. The Applicant did not establish that it had the legal responsibility for the debris removal, nor did it follow its established procedures to gain the legal responsibility.
Appeal Brief
| Disaster | FEMA-1545/15 |
| Applicant | St. Lucie County |
| Appeal Type | Second |
| PA ID# | 111-99111-00 |
| PW ID# | Multiple PWs |
| Date Signed | 2006-12-11T05:00:00 |
Appeal Letter
December 11, 2006
Mr. W. Craig Fugate
State of Florida Department of Community Affairs
Division of Emergency Management
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
Re: Second Appeal St. Lucie County, PA ID 111-99111-00
Debris Removal, FEMA 1545/1561-DR-FL, multiple PWs
Dear Mr. Fugate:
This letter is in response to the referenced second appeal submitted by St. Lucie County
(Applicant) to your office on March 9, 2006, transmitted by your letter dated March 20,
2006. The Applicant is appealing the Department of Homeland Securitys Federal Emergency Management Agencys (FEMA) determination to deny the costs associated with the removal of debris from private roads.
For reasons explained in the enclosed analysis, I determined that the claim of $515,502 for debris removal from private property is not eligible for FEMA assistance. Therefore, this appeal is denied.
Please inform the Applicant of my decision. This determination constitutes the final decision of this matter pursuant to 44 CFR §206.206.
Sincerely,
/s/
John R. DAraujo, Jr.
Director of Recovery
Enclosure
cc: Major Phil May
Regional Director
FEMA Region IV
Mr. W. Craig Fugate
State of Florida Department of Community Affairs
Division of Emergency Management
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
Re: Second Appeal St. Lucie County, PA ID 111-99111-00
Debris Removal, FEMA 1545/1561-DR-FL, multiple PWs
Dear Mr. Fugate:
This letter is in response to the referenced second appeal submitted by St. Lucie County
(Applicant) to your office on March 9, 2006, transmitted by your letter dated March 20,
2006. The Applicant is appealing the Department of Homeland Securitys Federal Emergency Management Agencys (FEMA) determination to deny the costs associated with the removal of debris from private roads.
For reasons explained in the enclosed analysis, I determined that the claim of $515,502 for debris removal from private property is not eligible for FEMA assistance. Therefore, this appeal is denied.
Please inform the Applicant of my decision. This determination constitutes the final decision of this matter pursuant to 44 CFR §206.206.
Sincerely,
/s/
John R. DAraujo, Jr.
Director of Recovery
Enclosure
cc: Major Phil May
Regional Director
FEMA Region IV
Appeal Analysis
BACKGROUNDHurricanes Frances and Jeanne struck Florida in September 2004 (FEMA-1545/1561-DR-FL) and caused flooding and wind damage that deposited debris throughout St. Lucie County. St. Lucie County (Applicant) requested assistance from the Federal Emergency Management Agency (FEMA) for incurred costs for county-wide debris removal.
In November 2004, FEMA prepared Project Worksheets (PW) 313, 314 and 315 for Hurricane Frances (1545-DR) to fund the removal of storm generated debris from public roadways and facilities within St. Lucie County. In December 2004, FEMA prepared PW 346 for Hurricane Jeanne (1561-DR) to fund the removal of storm generated debris from public roadways and facilities within St. Lucie County. FEMA reduced the amount of eligible debris removal on all four PWs because the total amount of debris removed by the Applicant included debris removed from private roads. FEMA denied $515,502 in funding associated with the debris removed from private roads.
First Appeal
In a letter dated March 29, 2005, the Applicant appealed FEMAs determination that the Applicant did not have the legal responsibility of the debris removal from private roads. The Applicant asserted that it had the legal responsibility to remove debris from private property, and that the removal of debris was necessary to protect against immediate threats to public safety. The Applicants appeal referred to $2.2 million in dispute. FEMA reduced the Applicants claim by approximately $2.2 million due to load ticket discrepancies and because debris was removed from Federal Highway Administration Roads; however, the appeal addresses only the issue of debris removal from private property, which totals $515,502.
On November 15, 2005, FEMA denied the Applicants first appeal, stating that the Applicant did not demonstrate its legal responsibility to remove the debris from the private property in question.
Second Appeal
On March 9, 2006, the Applicant submitted a second appeal of FEMAs denial of costs associated with debris removal from private roads. Again, the Applicants appeal refers to $2.2 million in dispute; however, the appeal addresses only the issue of debris removal from private property. In its appeal, the Applicant argues that based on certain State of Florida law and local codes, it has the legal responsibility to remove the debris from private property.
DISCUSSION
Generally, debris removal from private property is not eligible under the Public Assistance Program and is the responsibility of the property owner. Following the 2004 Florida Hurricanes, FEMA issued Disaster-Specific Guidance #8 (DSG #8), Debris Removal from Roadways in Private or Gated Communities, which outlined the procedures necessary to establish eligibility of debris removal from private property. Under DSG #8, Applicants requesting reimbursement for debris removal from private property were required to demonstrate legal responsibility through the implementation of its legal process established by local laws, ordinances, or codes.
The Applicants appeal disputes FEMAs determination that the Applicant did not have the legal responsibility to remove debris from private roads. To establish legal responsibility, the Applicant provided excerpts from 1953 and 1965 Florida State Legislation that establish that garbage collection and disposal may be declared to be a county purpose and that it is in the public interest for the Applicant to regulate the disposal of garbage and debris. The legislation also authorizes the Board of County Commissioners to cause any debris on private property to be removed if the owner refuses to do so after reasonable notice.
In accordance with Title 44 of the Code of Federal Regulations (44 CFR) §206.223 (a)(3), to be eligible for financial assistance, an item of work must be the legal responsibility of an eligible applicant. The legislative actions are authorizations only, and the owners still have legal responsibility to remove disaster-related debris from their property. Therefore, these legislative actions do not confer legal responsibility. While the Applicant may enter the property to clear it, the owners still have that responsibility.
The Applicant also references Section 1-9-53(b) of the St. Lucie County Code of Ordinances and Compiled Laws which states that the Applicant has the responsibility and authority to provide for the collection of solid waste and recyclable materials within the unincorporated area of the county. This reference only applies to solid waste collection. Therefore, it does not establish that the Applicant has the legal responsibility to remove disaster-related debris from private property.
In the appeal, the Applicant describes its procedure to enforce its Code of Ordinances. As the first step of enforcement, the Applicant issues a complaint report to the property owner which may lead to a finding of violation and a fine hearing. A lien may be placed upon the property and the property owner is given the opportunity to clean the property within a specified time period. At the end of the period, the Applicant is authorized to clean the property. The Applicant argues that following this process was not a viable option given the mounting piles of debris and the growing hazards their presence created. The Applicant also asserts DSG #8 provides that each local government must make the determination to approve the removal of debris from private property based on its own regulations. The Applicant argues that confronted with the Fire District and Sheriff which were unable to provide life safety services to its citizens, the County made a determination and acted within its emergency management and purchasing procedures to respond.
FEMA recognizes that the hurricanes generated a significant quantity of debris. However, this fact does not alleviate the property owner of its responsibility to remove the debris. As stated in DSG #8, an applicant must demonstrate that it has taken legal steps under its own legal process to gain legal responsibility for the removal of debris from private property before FEMA would consider funding such removal. In this case, the Applicant clearly states that it did not follow its legal process.
The Applicant argues that FEMAs regulations and policies regarding the eligibility of emergency protective measures are inconsistent with those regarding the eligibility of debris removal and provides examples of eligible emergency protective measures performed to protect individuals located on private property (gated communities). Examples provided include police and fire protection services as well as the placement of traffic control devices for the evacuation of a gated community. There is a distinction between emergency protective measures that are taken to protect and save lives on private property and the removal of debris from private property. It is clear that the police department, for example, would have the responsibility to protect the lives of all county citizens, whether or not they live in a gated community. Debris located on private property, however, is the responsibility of the property owner until the local government determines it is in the interest of the community-at-large to remove it. The local government then must take the appropriate legal steps to enter the private property and take responsibility for the debris. This legal process can be obviated only in rare instances when the debris is immediately threatening the lives of its citizens and the local government exercises its police powers to remove the threat.
The Applicant asserts that reimbursement for debris removal from private property without clear legal responsibilitom North Carolina, the 1991 Oakland Hills Fires in California, and the 2004 tornadoes in Oklahoma; however, the Applicant provides no specifics regarding the individual Applicants and the determinations made. FEMA may fund debris removal from private property on a case-by-case basis, as stated in DSG #8. In these other disasters, the Applicants were able to establish legal responsibility in accordance with FEMA regulation and policy.
Lastly, the Applicant states that there is a clear inconsistency between the application of polices of FEMA in 2004 and the application of the same policies one year later in 2005. It refers to the Recovery Division Fact Sheet dated October 21, 2005, Debris Removal from Private Property, which states that FEMA may not require Applicants to precisely apply their pre-disaster abatement process when disasters cause a high concentration of debris on private property over a widespread area presenting an immediate health and safety hazard. FEMA continually develops new policy to clarify eligibility issues and to ensure that eligibility criteria are consistently applied. In this case, the Fact Sheet was published after Hurricanes Frances and Jeanne. Accordingly, it cannot be used to make eligibility determinations for work performed as a result of those two disasters. Only the policy in place at the time of the disaster can be considered.
CONCLUSION
For the reasons discussed above, the Applicants appeal for funding for costs associated with the debris removal from private property is denied. The Applicant did not establish that it had the legal responsibility for the debris removal, nor did it follow its established procedures to gain the legal responsibility.
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