Private Property Debris Removal

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4576
Applicant	Diamondhead
Appeal Type	Second
PA ID#	045-19100-00
PW ID#	DI 453225
Date Signed	2022-09-06T16:00:00

Summary Paragraph

From October 28-29, 2020, Hurricane Zeta caused damages and debris in Mississippi.  On November 16, 2020, FEMA met with the Mississippi Emergency Management Agency (Recipient) and the City of Diamondhead (Applicant) to conduct the Preliminary Damage Assessment (PDA).  The Applicant authorized funds on December 1, 2020, for commercial property debris removal (CPDR) where debris had been pushed to the public rights-of-way from commercial properties.  The President issued a major disaster declaration on December 31, 2020.  The Applicant conducted CPDR from January 8-20, 2021.  The Applicant submitted its CPDR request to FEMA on March 31, 2021.  FEMA denied the CPDR request on the basis that the Applicant did not obtain the required pre-approval from FEMA prior to conducting CPDR.  The Applicant appealed, asserting that it raised concerns at the PDA about commercial debris near residential homes and the Recipient responded that, “if this commercial debris was to come across my desk, it would be denied.”  FEMA allegedly added no comments.  The Applicant contended that, based on the Recipient’s statement and FEMA’s endorsement through silence, it conducted work thinking CPDR would be ineligible for Public Assistance (PA) funding.  The Applicant also disputed FEMA’s CPDR pre-approval requirement as infeasible.  FEMA denied the appeal for CPDR work completed without the necessary pre-approval from FEMA.  In its second appeal, the Applicant reiterates its first appeal arguments and proposes that FEMA exercise administrative leniency to approve the CPDR request.

Authorities and Second Appeals

• Stafford Act §§ 403(a), 407(a).
• 44 C.F.R. § 206.224(a).
• PAPPG, at 100, 108-09.

Headnotes

• The PAPPG, at 100 and 109, provides that removal of debris from commercial properties, including debris placed on the public rights-of-way from commercial properties, is generally ineligible for PA funding.  In very limited, extraordinary circumstances, FEMA may provide an exception.  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.
  • The Applicant removed debris from commercial properties placed on the public rights-of-way without meeting the approval process requirements for CPDR and did not obtain FEMA approval prior to removing the debris.

Conclusion

The Applicant did not meet the approval process requirements for the removal of debris from commercial properties and failed to obtain FEMA approval prior to removing the debris.  Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

Hurricane Zeta caused flooding, high winds, and storm surge throughout portions of Mississippi from October 28-29, 2020.[1]  The disaster created debris in the City of Diamondhead (Applicant).  On November 16, 2020, FEMA met with the Mississippi Emergency Management Agency (Recipient) to review the Preliminary Damage Assessment (PDA).  During this PDA visit, the Applicant met with the Recipient and FEMA.

On December 1, 2020, the Applicant authorized the expenditure of funds for commercial debris removal and disposal along its streets, where debris had been pushed to the public right-of-way from commercial entities, faith-based organizations, and property owner’s association properties.[2]  The Applicant removed this commercial property debris from January 8-20, 2021.

FEMA approved the Applicant’s Request for Public Assistance on January 26, 2021.  The Applicant, the Recipient, and FEMA conducted an exploratory call on February 3, 2021, and Recovery Scoping Meetings on February 12 and 19, 2021.  The Applicant’s contractor reached out to FEMA regarding commercial property debris removal (CPDR) on February 22, 2021, and FEMA advised that the CPDR request needed to be submitted to FEMA.[3]  On March 31, 2021, the Applicant submitted its CPDR request to FEMA.[4]  The Applicant stated approval of CPDR would be in the public’s interest and support economic recovery for commercial entities already negatively impacted by the COVID-19 pandemic.[5]  On April 21, 2021, FEMA denied the Applicant’s CPDR request on the basis that the Applicant did not obtain the required pre-approval from FEMA prior to removing the debris from commercial property.

First Appeal

The Applicant submitted its first appeal letter to the Recipient on June 24, 2021, requesting approval of CPDR costs totaling $78,895.05 for debris removal and monitoring.  The Applicant stated that it recalled raising concerns, during the PDA on November 16, 2020, about debris fronting commercial properties in close proximity to residential homes.[6]  The Applicant stated that, as it recalled, the Recipient advised during the PDA that, “if this commercial debris was to come across [its] desk, it would be denied,” and FEMA added no comments, which ended the conversation.[7]  The Applicant contended that FEMA’s inaction to clarify statements made by the Recipient amounted to an endorsement of the Recipient’s statements and a failure to offer programmatic guidance, on which the Applicant relied to its detriment by believing CPDR work would not be eligible for Public Assistance (PA) funding.  Accordingly, the Applicant did not attempt to request approval prior to commencing work.  Further, the Applicant argued that obtaining prior approval before conducting CPDR created an “impossibility of performance” and did not grant necessary expediency allowances for emergency work to be carried out as soon as possible.[8]  The Applicant elaborated that FEMA did not deem the Applicant eligible for PA until 90 days after the disaster, the exploratory call on February 3, 2021 did not take place until after the Applicant had already removed the debris, and communication channels were limited prior to the major disaster declaration.[9]  In a letter dated June 28, 2021, the Recipient transmitted the Applicant’s appeal to FEMA and recommended approval of the CPDR costs without commenting on the Applicant’s assertion that the Recipient provided detrimental advice during the PDA.

The FEMA Region IV Regional Administrator denied the appeal for CPDR work completed without the necessary pre-approval from FEMA, noting that CPDR is limited to extraordinary circumstances and requires that the Applicant meet the requirements for debris removal and receive FEMA approval prior to commencing work.  FEMA concluded that the Applicant did not demonstrate that it was unable to access the applicable policy documents or that it requested additional information from FEMA regarding eligibility or the proper process to request CPDR.  Despite the Applicant’s assertion of receiving erroneous advice during the PDA, FEMA emphasized that FEMA policies regarding CPDR are clear and must be followed to be eligible for PA reimbursement.

Second Appeal

The Applicant submits its second appeal by letter dated May 31, 2022, reiterating arguments from its first appeal and proposing that FEMA has administrative leniency to approve the CPDR request.  The Applicant notes that it does not claim it lacked knowledge of FEMA’s CPDR policy, and instead contends that messaging from the Recipient and silence by FEMA provided misguidance which FEMA could rectify through administrative leniency.  In a letter dated May 31, 2022, the Recipient forwarded the Applicant’s second appeal to FEMA and requested that an eligibility determination be made based on the submitted documentation.

 

Discussion

FEMA is authorized to provide PA 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.[10]  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.[11]  In very limited, extraordinary circumstances, FEMA may provide an exception.[12]  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.[13]  Removal of debris placed on the public rights-of-way from commercial properties is ineligible unless it is pre-approved by FEMA.[14]  As part of the approval process, applicants must submit a written request to FEMA identifying the specific properties or areas of properties where debris removal activities will occur, FEMA then engages with the recipient and applicant to review the request and conduct site inspections, and FEMA must determine that CPDR at each property is eligible.[15]

The Applicant’s removal of debris from commercial properties, including debris placed on the public rights-of-way from commercial properties, is ineligible for PA funding unless it meets FEMA’s CPDR eligibility requirements.  These requirements restrict CPDR to very limited, extraordinary circumstances, and requires the Applicant to obtain approval from FEMA prior to removing the debris.  The Applicant did not submit a written request identifying specific properties where debris removal would occur or obtain approval of such work from FEMA prior to conducting CPDR.  Without meeting the approval process requirements for CPDR and obtaining FEMA approval prior to removing the debris, the requested CPDR work remains ineligible for PA funding.

 

Conclusion

The Applicant did not meet the approval process requirements for the removal of debris from commercial properties and failed to obtain FEMA approval prior to removing the debris.  Therefore, this appeal is denied.

 

[1] The President declared the event a major disaster on December 31, 2020.

[2] City of Diamondhead Council Minutes at 3, 5 (Dec. 1, 2020) (during which the City Manager reported that the costs for this debris removal may not be reimbursed by FEMA and may be paid entirely by the Applicant, but reimbursement would be sought to the extent possible).

[3] First Appeal Letter from City Manager, Diamondhead, to Pub. Assistance Off. Dir., Miss. Emergency Mgmt. Agency, at 4-5 (June 24, 2021) [hereinafter Applicant’s First Appeal].

[4] See Id. at 5 (noting that the Applicant submitted its CPDR request dated March 7, 2021, on March 31, 2021, after having trouble finding the appropriate point of contact for submitting its request during the month of March).

[5] Letter from City Manager, Diamondhead, to Infrastructure Branch Dir., FEMA, at 1-2 (Mar. 7, 2021) (citing letters from the Hancock County Sheriff’s Office, Diamondhead Fire Protection District, and Mississippi State Department of Health recommending removal of storm-related debris from all roadways in the city to support its claim that disaster debris piles presented a threat to public health and safety and offering its own assertion that the debris could lead to unsanitary conditions that can promote the spread of COVID-19).

[6] Applicant’s First Appeal, at 4.

[7] Id.; Affidavit from City Manager, Diamondhead, at 2 (June 24, 2021); Affidavit from City Clerk, Diamondhead, at 2 (June 24, 2021).

[8] Applicant’s First Appeal, at 7.

[9] Id.

[10] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act §§ 403(a), 407(a), 42 United States Code §§ 5170b(a), 5173(a) (2018); Title 44 Code of Federal Regulations § 206.224(a) (2020).

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

[12] Id.

[13] Id.

[14] Id. at 100.

[15] Id. at 108.