Private Property Debris Removal

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4562
Applicant	Oregon Department of Transportation
Appeal Type	Second
PA ID#	000-UVR5Z-00
PW ID#	GMP 166208
Date Signed	2022-01-13T17:00:00

Summary Paragraph

From September 7 to November 3, 2020, wildfires and straight-line winds caused damage in Oregon.  The Oregon Department of Transportation (Applicant) submitted a Commercial Property Debris Removal (CPDR) preapproval request on behalf of Lincoln County for debris removal from the Salmon River Mobile Village (Park), a commercial mobile home park.  The Applicant asserted that the debris constituted a threat to public health and its removal was necessary to protect public health and safety, and to facilitate the economic recovery of the County.  FEMA denied the request, finding that CPDR was the commercial property owner’s responsibility and that the Applicant had not demonstrated that extraordinary circumstances existed that would warrant an exception by FEMA to approve the request.  The Applicant appealed, asserting that CPDR was in the public interest in terms of the community’s economic recovery, affordable housing mission, and potential environmental and public health impacts.  The FEMA Region X Acting Regional Administrator denied the first appeal, finding that the Applicant had not demonstrated that CPDR was in the public interest or would benefit the community-at-large.  The Applicant submits a second appeal, noting that it has since removed the debris and requests that FEMA waive the preapproval requirement.  The Applicant emphasizes that debris removal was necessary to ensure the economic recovery of the affected community, and without assistance the Park would remain a public health and environmental safety threat.

Authorities and Second Appeals

• Stafford Act §§ 403(a), 407(a).
• 44 C.F.R. § 206.224.
• PAPPG, at 109.

Headnotes

• Per Stafford Act §§ 403(a) and 407(a) and 44 C.F.R. § 206.224, FEMA is authorized to provide Public Assistance funding for debris removal as long as it in the public interest; that is, necessary to eliminate immediate threats to life, public health, and safety, to protect improved property, or to ensure economic recovery of the affected community to the benefit of the community-at-large.
• The PAPPG, at 109, provides that removal of debris from commercial properties, including trailer parks, is generally ineligible because commercial enterprises are expected to retain insurance that covers debris removal.  In very limited, extraordinary circumstances, FEMA may provide an exception, if the Applicant meets the requirements of the approval process, and FEMA must approve the work prior to the applicant removing the debris
  • Here, the Applicant has not demonstrated that debris removal from the Park is in the public interest and that extraordinary circumstances exist that would warrant FEMA to provide an exception to approve the CPDR request.  Further, the Applicant removed the debris before receiving FEMA’s prior approval.

Conclusion

FEMA finds that the Applicant has not demonstrated that extraordinary circumstances warrant approval of its CPDR request. 

 

Appeal Letter

Appeal Analysis

Background

From September 7 to November 3, 2020, wildfires and straight-line winds caused damage in Oregon.  On November 23, 2020, the Oregon Department of Transportation (Applicant) submitted a Commercial Property Debris Removal (CPDR) preapproval request on behalf of Lincoln County (County) for debris removal from the Salmon River Mobile Village (Park), a commercial mobile home park.  The Governor of Oregon provided the Applicant the authority to engage in the debris removal process from private and commercial property in impacted counties to support disaster recovery.  The Applicant asserted that the debris was hazardous and that the fire disproportionately impacted vulnerable, low-income populations, so it was in the County’s best interest to quickly remove the debris.

FEMA prepared Grants Manager Project 166208 to document the project, but on January 25, 2021, issued a Determination Memorandum finding that the Applicant had not demonstrated that extraordinary circumstances existed in the County that would warrant an exception by FEMA to approve the CPDR request.  FEMA found that the housing units lost from the fire only accounted for 0.1 percent of the total housing units in the County.  The Park was remote from populated areas and, while the units were adjacent to the Salmon River, the debris did not appear to pose a threat to public health and safety due to contaminated runoff entering the river.  FEMA concluded that the threat could be addressed through other means until the responsible private party discharged its responsibility to remediate the hazardous conditions on its property.  Further, the Park was not of sufficient scale to cause a specific detriment to the economic recovery of the affected community, and the Applicant did not demonstrate that removing debris from the Park would benefit the community-at-large.

First Appeal

On March 25, 2021, the Applicant submitted a first appeal, asserting that CPDR was in the best interest of the impacted community in terms of its economic recovery, affordable housing mission, and potential environmental and public health impacts.  The Applicant argued that, without federal assistance, the Park would remain a public health and safety threat, exposing the public to toxic substances and resulting in the environmental degradation of the Salmon River.  The Applicant also claimed that the Park had a disproportionate share of the area’s affordable housing supply.  The Grantee transmitted the first appeal to FEMA, adding that the Park’s potable water came from an on-site well subject to contamination via groundwater intrusion.  The Grantee estimated the total cost of the work was $467,000.00, but the Park owner received only $42,347.50 in insurance proceeds for the cost of debris removal. 

On June 22, 2021, the FEMA Region X Acting Regional Administrator denied the first appeal, finding that the Applicant had not shown that CPDR was in the public interest and would benefit the community-at-large.  FEMA found that the housing units lost did not constitute any significant percentage of the affected community, so debris removal was not necessary to eliminate an immediate threat to the public health or safety of the community.  Similarly, the Applicant had not demonstrated that the debris removal was necessary to ensure economic recovery of the community-at-large.  FEMA further explained that the Applicant did not provide adequate documentation to demonstrate that the debris posed an immediate health and safety threat, or that CPDR would benefit more than a limited group of individuals within the community.

Second Appeal

On August 20, 2021, the Applicant submitted its second appeal, noting that it has since removed the debris at a cost of $467,000.00, asserting that it was in the community’s best interest as the debris posed a threat.  Therefore, the Applicant requests that FEMA waive the CPDR preapproval requirement.  The Applicant asserts that the debris removal was necessary to ensure the economic recovery of the affected community and that without debris removal and financial assistance, the Park would be unsuitable to continue housing residents.

The Applicant adds that in late 2020, the U.S. Environmental Protection Agency (EPA) performed a Mission Assignment (MA) for bank stabilization, which included removing hazardous debris from streambanks and placing straw wattles and netting along the banks to slow the movement of ash and debris into the water.[1]  The Applicant asserts that the EPA work did not abate the emergency circumstances posed by the debris and notes that the erosion control measures are temporary in nature and not designed to withstand significant storm events.

On October 14, 2021, the Grantee transmitted the second appeal to FEMA, asserting that the debris removal was in the public interest and was consistent with FEMA policy and the President’s mandate to support underserved communities.[2]  The Grantee argues that FEMA discriminatorily holds lower income residents to a higher standard by finding that debris removal from trailer parks is generally ineligible because park owners are expected to retain insurance that covers debris removal versus individual homeowners who do not carry this type of insurance.  The Grantee argues that this departs from the equity mandate in recent Presidential and Agency announcements, and requests a policy waiver or change in policy to align with those equity initiatives.

Considering the widespread impact of the disaster, the Grantee requests that FEMA approve CPDR not just at the Park, but statewide, and waive the preapproval requirement, or interpret its policy to find CPDR eligible in situations such as this, where the Applicant at least waited until FEMA denied its request before proceeding with the work.

 

Discussion

FEMA is authorized to provide Public Assistance funding for debris removal as long as it is in the public interest; that is, necessary to eliminate immediate threats to life, public health, and safety, to protect improved property, or to ensure economic recovery of the affected community to the benefit of the community-at-large.[3]  Removal of debris from commercial properties, such as industrial parks, golf courses, cemeteries, apartments, condominiums, and trailer parks, is generally ineligible because commercial enterprises are expected to retain insurance that covers debris removal.[4]  In very limited, extraordinary circumstances, FEMA may provide an exception.[5]  In such cases, the Applicant must meet the requirements of the approval process, and FEMA must approve the work prior to the applicant removing the debris.[6]

The Park’s property owner retained insurance that covers debris removal, but it was insufficient to cover more than a fraction of the total cost.  Lack of sufficient insurance does not constitute extraordinary circumstances where FEMA may provide an exception to approve CPDR.  The Applicant has not demonstrated that CPDR would benefit more than a limited group of people (the affected Park residents) versus the community-at-large.  Further, FEMA recognized the potential public health and environmental risks posed by the debris and mitigated it through the EPA MA.  The debris was moved back from the stream bank to the mobile homes’ debris pile, where it could be removed by the responsible party.  Finally, although the Applicant ultimately removed the debris to mitigate perceived threats, it did so without FEMA’s prior approval of the CPDR request.[7]

 

Conclusion

FEMA finds that the Applicant has not demonstrated that extraordinary circumstances warrant approval of its CPDR request, and the Applicant removed the debris without FEMA’s prior approval.  Therefore, this appeal is denied.

 

[1] U.S. Env’t Prot. Agency, Assessment Report 06-10-32-AA-00300-00, at 1 (undated).  The report, at 2, states that ash and debris was pulled about 10 feet from the riverbank toward the mobile homes’ debris pile. 

[2] The Grantee refers to Exec. Ord. No. 13985, 86 Fed. Reg. 7009 (Jan. 25 2021) (Advancing Racial Equity and Support for Underserved Communities Through the Federal Government (Jan. 20, 2021)), and FEMA Advisory, FEMA Makes Changes to Individual Assistance Policies to Advance Equity for Disaster Survivors (Sept. 2, 2021).

[3] Robert T. Stafford Disaster Relief and Emergency Assistance Act §§ 403(a), 407(a), 42 United States Code §§ 5170b(a), 5173(a) (2018); Title 44 Code of Federal Regulations § 206.224(a) (2019).

[4] Public Assistance Program and Policy Guide, FP 104-009-02, at 109 (June 1, 2020).

[5] Id.

[6] Id.

[7] Regarding the Grantee’s request that FEMA approve CPDR statewide, any CPDR requests must be reviewed on a case-by-case basis to determine whether the request meets the limited circumstances that would warrant approval.