Debris Removal – Construction and Demolition
Appeal Brief
| Disaster | 1603-DR-LA |
| Applicant | Plaquemines Parish |
| Appeal Type | Second |
| PA ID# | 075-99075-00 |
| PW ID# | 1645, 13495, and 13611 |
| Date Signed | 2015-01-22T00:00:00 |
Conclusion: Funding for demolition of commercial property is not eligible because the applicant did not obtain written approval from FEMA as required by FEMA policy prior to the demolition.
Summary Paragraph
Following Hurricane Katrina, FEMA obligated $23.5 million in three Project Worksheets (PWs) to fund debris removal and demolition of public and private properties throughout Plaquemines Parish. In response to an Office of Inspector General audit, FEMA deobligated a total of $440,824.55 from the three PWs for the demolition of 39 commercial properties found to be ineligible because the Applicant performed the work without FEMA approval. In the first appeals, the Applicant asserted that it requested and obtained prior approval for demolitions at the 39 commercial sites as demonstrated by the sites being recorded in FEMA’s private property debris removal (PPDR) property and debris matrix, a spreadsheet used to track debris removal activities within the parish. The Region VI Regional Administrator denied the first appeals citing the Applicant’s failure to request and obtain written Federal Coordinating Officer (FCO) approval for the commercial demolition and debris removal activities as required by FEMA Recovery Policy RP9523.13 Debris Removal from Private Property (Oct. 23, 2005). In its second appeals, the Applicant reiterates its position from the first appels.
Authorities and Second Appeals
- RP9523.13, Debris Removal from Private Property, at 2-4 (Oct. 23, 2005).
Headnotes
- Recovery Policy RP9523.13 Debris Removal from Private Property (Oct. 23, 2005), Section 7.C. states that any State or local government that intends to remove debris from private property must, prior to commencement of work, submit a written request to the Federal Coordinating Officer (FCO) seeking approval for reimbursement. Section 7.H. states that work may commence after receiving written approval from the FCO.
- The Applicant did not receive written approval from the FCO.
- Section 7.D. of the policy details specific factors to be considered by the FCO in making an eligibility determination relative to removal of debris from private commercial property.
- The Applicant has provided no documentation to support that FEMA conducted the programmatic review required by Section 7.D.
Appeal Letter
January 22, 2015
Kevin Davis
Director
Governor’s Office of Homeland Security and Emergency Preparedness
7667 Independence Boulevard
Baton Rouge, Louisiana 70806
Re: Second Appeal – Plaquemines Parish, PA ID 075-99075-00, FEMA-1603-DR-LA, Project Worksheets (PWs) 1645, 13495, and 13611, Debris Removal – Construction and Demolition
Dear Mr. Davis:
This letter is in response to your three letters dated July 11, 2013, which transmitted the referenced second appeals on behalf of Plaquemines Parish (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding in the amount of $440,824.55 for commercial property demolition and the associated debris removal.
As explained in the enclosed analysis, I have determined that the Applicant failed to demonstrate it had obtained written approval from FEMA, as required by FEMA policy, prior to commencing the commercial property demolition. Accordingly, I am denying this appeal.
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/
William W. Roche
Director
Public Assistance Division
Enclosure
cc: George A. Robinson
Regional Administrator
FEMA Region VI
Appeal Analysis
Background
On August 29, 2005, Hurricane Katrina caused tidal surge and flooding damage to public and private property throughout Plaquemines Parish (Applicant) resulting in an immediate threat to public health, safety, and welfare. FEMA prepared Project Worksheets (PWs) 1645, 13495, and 13611 to fund debris removal and demolition of public and private properties throughout the Parish and obligated approximately $23.5 million in the three PWs.
The Office of Inspector General (OIG) issued an audit report dated December 19, 2008, recommending that FEMA disallow certain costs claimed by the Applicant for demolition and debris removal activities at 245 commercial properties because the Applicant failed to obtain prior approval for the work from FEMA. FEMA reviewed the OIG’s report and agreed that the Applicant had failed to obtain prior approval for demolition of 39 commercial properties listed on PWs 1645, 13495, and 13611. FEMA disagreed with the OIG on the other sites questioned within the report, finding that the Applicant removed commercial debris from the right of way, which it did have approval to do by FEMA.
During the evaluation of the OIG audit, FEMA determined that the Applicant’s debris contractor had not documented the quantity of debris removed or actual cost for the specific demolitions. In absence of actual costs, FEMA re-visited the sites of the 39 properties and developed an estimate of the debris quantities that would have been generated by the property demolitions. FEMA also estimated the haul distances. FEMA applied the actual contract unit cost to the estimated debris quantities and included estimated costs for debris hauling to estimate the costs associated with demolition and debris removal at the 39 sites. In April 2011, FEMA prepared versions to all three PWs deobligating a total of $440,824.55 for the demolition of 39 commercial properties.
First Appeals
On July 2 and 9, 2012, the Applicant submitted three first appeals to the State of Louisiana Governor’s Office of Homeland Security and Emergency Preparedness (Grantee) for the deobligations associated with the ineligible commercial demolition and debris removal in PWs 1645, 13495, and 13611. The Grantee transmitted the appeal letters to FEMA through letters dated September 7, 2012.
In the appeals, the Applicant asserted that it requested prior approval for demolitions at the 39 commercial sites as demonstrated by the sites being recorded in FEMA’s private property debris removal (PPDR) property and debris matrix, a spreadsheet used to track debris removal activities within the parish. Although there is no evidence FEMA provided approval of these demolitions, the Applicant claimed the inclusion of these properties on this FEMA produced document indicates that FEMA did recognize the submission of these properties for demolition and requested that FEMA use its authority to approve the demolition of these properties.
The Applicant also disagreed with FEMA’s method of calculating the deobligation amount, stating FEMA’s use of the maximum contract debris hauling distance for each of the sites does not accurately reflect the actual distance for each site nor does it account for the actual cost of the demolition, which it claims to be approximately $5000 per property. The Applicant requested that if FEMA continued to find the demolition of the commercial structures ineligible, then FEMA should reevaluate its calculations used to deobligate funding to the actual cost of the demolitions. Deobligated funding would include either the cost of the demolitions on a per property basis or actual distance the debris was hauled based on the contract rate for debris hauling.
On March 18, 2013, the FEMA Region VI Regional Administrator (RA) denied the three appeals citing the Applicant’s failure to request and obtain written Federal Coordinating Officer (FCO) approval for the commercial demolition and debris removal activities as required by FEMA Recovery Policy RP9523.13 Debris Removal from Private Property dated October 23, 2005. The RA also determined that FEMA utilized the best information available to determine the costs associated with the commercial demolitions in each PW.
Second Appeals
On May 28, 2013, the Applicant submitted three second appeals of the deobligation of funding for commercial demolition of 39 properties and the associated debris removal in PWs 1645, 13495, and 13611, which the Grantee transmitted to FEMA in letters dated July 11, 2013.
In the second appeals, the Applicant asserts that FEMA approved the demolition and debris removal at the commercial sites both verbally and through email, although neither claim can be supported with written documentation. The Applicant reiterates that FEMA granted prior approval for the demolitions through its use of its PPDR property and debris tracking matrix.
Alternatively, the Applicant asserts that FEMA incorrectly based its eligibility determination on FEMA Recovery Policy RP9523.13 Debris Removal from Private Property dated October 23, 2005. Rather it claims FEMA Response and Recovery Policy 9523.4 Demolition of Private Structures dated November 9, 1999, is the applicable policy for this work. This policy did not explicitly state prior, written approval from the FCO was required for commercial structure demolition to be eligible. The Applicant also requests that if FEMA continues to find the demolition costs ineligible then the debris removal costs at the sites should be found eligible and reinstated considering the FCO approved PPDR for the Parish.
On March 10, 2014, FEMA held a meeting with the Applicant representative and the Grantee. The Applicant reiterated several assertions it made in its second appeal primarily that the FEMA FCO was aware of and approved the demolition of the commercial properties. The Applicant also provided emails transmitted between its representatives and FEMA. Additional documentation submitted by the Applicant in support of its appeal includes its Demolition Operations Plan, the PPDR property and debris tracking matrix, and complete files for each property included on the matrix.
Discussion
Private property debris removal is generally not eligible for reimbursement under the Public Assistance program. However, after the catastrophic impact of Hurricane Katrina, FEMA determined that it was in the public’s interest to remove debris from private property in certain impacted areas, including Plaquemines Parish as documented in FEMA Disaster Specific Guidance DSG #3, Hurricane Katrina Private Property Debris Removal in Coastal Areas dated September 10, 2005 (DSG #3 memo). FEMA issued the DSG #3 memo “to clarify procedures that are to be followed by each Joint Field Office (JFO) for application of Recovery Policy Number 9523.13 Debris Removal from Private Property, issued September 7, 2005, for removal of debris from private property in certain areas.”[1] FEMA updated the policy on October 23, 2005.
Recovery Policy 9523.13 Debris Removal from Private Property dated October 23, 2005, refers to “debris removal” as the act of debris removal and disposal, including the demolition of unsafe structures when necessary from private property.[2] Sections 7.C and 7.H require the applicant to submit a written request to the FCO seeking approval for reimbursement prior to commencement of work and inform the applicant that work may begin only after receiving approval from the FCO.[3] Further, the policy in Section 7.D includes specific requirements for authorizing commercial property debris removal in addition to the requirements for other private property debris removal. The policy states:
When deciding whether to authorize the removal of debris from private commercial property, the FCO should determine if it is necessary to: eliminate an immediate threat to life, public health, safety or significant damage to improved property, 44 CFR § 206.224(a)(1) and (a)(2); or ensure economic recovery of the affected community to the benefit of the community-at-large, 44 CFR § 206.224(a)(3).[4]
The policy follows with a list of factors to be considered by the FCO in making determinations relative to debris removal from commercial property.
Further, FEMA issued a letter dated December 2, 2005 to the Grantee stating that FEMA concurred with the “procedure and record-keeping process set forth” in the Applicant’s Demolition Operations Plan.[5] The letter also states “[p]lease note that demolition of structures for which there is no record of appropriate programmatic, environmental, and historic review, may not be eligible for reimbursement.”[6] The documentation submitted by the Applicant supports the Applicant’s claim that it worked closely with FEMA to fulfill the requirements to satisfy eligibility requirements for PPDR. However, the Applicant was required to request and obtain prior approval by the FCO for the demolition of commercial property, and the Applicant has provided no documentation to support its claim that it received the FCO’s approval.
Applicable FEMA Policy
The Grantee and Applicant both assert that FEMA is incorrectly using FEMA Recovery Policy RP9523.13 Debris Removal from Private Property dated October 23, 2005 and that FEMA Response and Recovery Policy 9523.4 Demolition of Private Structures dated November 9, 1999, is the more applicable policy. As stated above, RP9523.13 refers to “debris removal” as the act of debris removal and disposal, including the demolition of unsafe structures. Therefore, RP9523.13 is the policy applicable to the issue under appeal.
Ineligible Costs
The Applicant has requested FEMA restore the costs of the debris removal portion of the work associated with the commercial demolitions if the demolitions themselves are still found to be ineligible. Debris generated by demolition of commercial property found to be ineligible is also not eligible for funding, because, without having the opportunity to evaluate and determine that the demolition of the commercial property itself was required to eliminate an immediate threat or to ensure economic recovery, FEMA cannot find that the removal of the debris generated by the demolition was required to eliminate an immediate threat.
Conclusion
The guidance in place at the time the Applicant performed the work required FCO written approval to consider commercial property demolition eligible for funding. The Applicant did not obtain prior FEMA approval for the demolition and debris disposal for the 39 commercial structures as required by FEMA Recovery Policy RP9523.13 Debris Removal from Private Property dated October 23, 2005. Accordingly, the demolition and associated debris removal of those properties is not eligible for funding.
[1] Disaster Assistance Memorandum #3 explains that, with its issuance, FEMA determined that the requirements contained in paragraph 7.A of RP9523.13 were thereby satisfied. However, the memorandum also explains that “[t]he requirement for the establishment of the applicant's legal authority in paragraphs 7.B, C, and D must still be satisfied, although the process may be abbreviated. ”
[2] Recovery Policy RP9523.13, Debris Removal from Private Property, at 1 (Oct. 23, 2005).
[3] Id. at 2, 4.
[4] Id. at 3.
[5] Letter from Deputy Federal Coordinating Officer, FEMA, to Governor’s Authorized Representative, State of Louisiana Office of Homeland Security and Emergency Preparedness (Dec. 2, 2005).
[6] Id.