Private Property Debris Removal, Ineligible Costs

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4293
Applicant	Gatlinburg
Appeal Type	Second
PA ID#	155-28800-00
PW ID#	PW 44
Date Signed	2020-12-04T17:00:00

Summary Paragraph

From November 28 to December 9, 2016, wildfires damaged trees and structures on public and private lands in Tennessee.  The City of Gatlinburg (Applicant) applied and was approved for limited private property debris removal (PPDR).  In a February 2, 2017 letter, FEMA designated the terms of eligibility for PPDR.  The Applicant submitted a list of approximately 2,500 damaged sites for consideration.  Of those sites, FEMA identified 102 eligible sites.  FEMA approved Project Worksheet (PW) 44 to obligate $510,000.00 for PPDR.  Later, FEMA and the Applicant conducted joint site visits to 30 additional sites.  FEMA determined that none of the additional sites were eligible for PPDR because they did not meet the criteria outlined in FEMA’s February 2, 2017 letter.  The Applicant appealed and stated it complied with the requirements of the February 2, 2017 letter by engaging an arborist and engineer to examine the trees and debris for which removal was being requested.  Additionally, the Applicant noted all submitted sites had been documented with photographs, inspections, insurance information, and right-of-entry documents.  The FEMA Region IV Regional Administrator denied the appeal.  FEMA found that the Applicant had not demonstrated that the debris removal work was in the public interest.  The Applicant submitted a second appeal for 20 sites but clarified in its response to a Request for Information that it is only requesting costs for the engineering and arborist site assessment costs as the PPDR for the 20 sites was performed with donated resources.  It further asserts that the PPDR work performed was justified and met FEMA’s requirements for approval.

 

Authorities and Second Appeals

• 44 C.F.R. §§ 206.206(a), 206.224.
• PAPPG, at 21.

Headnote

• Under 44 C.F.R. § 206.224, FEMA may aid with the removal of debris and wreckage from publicly and privately owned lands and waters if doing so is in the public interest.  
  • In this case, the Applicant has not demonstrated that removal of debris from the 20 requested sites is in the public interest.
• Not all costs incurred as a result of the incident are eligible. To be eligible, costs must be directly tied to the performance of eligible work.

• Because the PPDR work is ineligible for PA funding, the engineering and arborist site assessment costs associated with that work are also ineligible.

Conclusion
The Applicant has not demonstrated a threat to life, public health, or safety existed to substantiate the PPDR work, and accordingly the PPDR is not in the public’s interest.  Since the PPDR work is ineligible, the engineering and arborist site assessment costs associated with the PPDR work are also ineligible.  Therefore, the appeal is denied.

 

Appeal Letter

Appeal Analysis

Background

From November 28 through December 9, 2016, wildfires damaged trees and structures on public and private lands throughout the State of Tennessee.  The City of Gatlinburg (Applicant) applied for Public Assistance (PA), to include Private Property Debris Removal (PPDR), due to widespread damage depositing vegetative debris as well as metal debris from structures that were destroyed by the fire.  On February 2, 2017, FEMA issued a letter that approved work for limited PPDR to residential and commercial property, limited demolition on both residential and commercial property, and provided for the removal of standing dead trees.  FEMA required site inspections on the properties requested, including evaluation by both an engineer and an arborist, to identify hazardous debris and standing trees that required removal. 

The Applicant submitted a list of approximately 2,500 damaged sites for PPDR.  After review, FEMA identified 102 sites that were potentially eligible.  FEMA prepared Project Worksheet (PW) 44 and obligated $510,000.00 in PA funding for eligible PPDR work ($5,000.00 for each of the 102 eligible sites).  FEMA and the Applicant then conducted joint site visits between November 27 and December 6, 2017 to determine the eligibility of an additional 30 sites.  FEMA determined that none of the additional sites were eligible for PPDR because the sites did not meet the criteria outlined in FEMA’s February 2, 2017, PPDR letter.[1]  

 

First Appeal

The Applicant submitted a first appeal requesting FEMA fund PPDR for the additional sites.   The Applicant stated the work was eligible because FEMA approved of the PPDR program and the Applicant complied with the requirements of engaging an arborist and engineer to examine the trees and debris for which removal was being requested.  Additionally, all submitted sites had been documented with photographs, inspections, insurance information, and right-of-entry documents.  The Tennessee Emergency Management Agency (Grantee) transmitted the Applicant’s first appeal to FEMA along with its concurrence on April 10, 2019.   

On May 21, 2019, FEMA generated a Request for Information (RFI) asking that the Applicant provide: the basis for determining that removing debris and demolishing structures from private properties was in the public interest; and the established legal requirements used to declare the existence of a threat to public health and safety.  In response, the Applicant submitted its initial request for PPDR, including a public interest determination from the County Mayor.  

On August 5, 2019, the FEMA Region IV Regional Administrator denied the appeal because the Applicant had not demonstrated that the trees and debris threatened the health and safety of the general public and were therefore in the public interest.  Specifically, FEMA found the trees and debris were sporadically located in a wooded area and did not affect waterways, roadways, or areas affecting the public.  FEMA noted that while the Applicant submitted the County Mayor’s public interest statement, the statement was not specific to the 30 appealed sites.

 

Second Appeal

The Applicant submitted a second appeal dated October 2, 2019.  The Applicant stated it outlined the danger to public safety in its initial PPDR request.  The Applicant referenced the batch letters submitted with each group of sites requesting PPDR, and the comments written by the arborist and engineer in each site assessment.  The Applicant asked that FEMA review the documentation submitted by its licensed arborist and engineer and accept it as proof of eligibility for PPDR.  To support its position that the debris and standing trees are a danger to the public, the Applicant stated that weather events since the wildfires caused mudslides and falling trees.

FEMA issued a second RFI requesting the amount in dispute and a list of the specific sites being appealed.  The Applicant responded by submitting a list of 20 sites that it stated remained at issue, requesting a total of $8,831.25 for the costs of engineer and arborist site assessments, and providing documentation related to the assessments.  The Applicant stated that the PPDR work associated with the 20 sites had been completed with donated resources, and therefore, the Applicant is only requesting the costs for engineering and arborist site assessments.

 

Discussion

Private Property Debris Removal
FEMA is authorized to provide debris removal on private property if it is determined that debris removal is in the public interest.[2]  Such removal is considered in the public interest when it is necessary to eliminate immediate threats to life, public health, and safety or eliminate immediate threats of significant damage to improved public or private property.[3]

FEMA included its Private Property Debris Removal Documentation Checklist Narrative[4] with its February 2, 2017 letter.  Under the “Hazardous Trees” section, FEMA emphasized that debris must pose an immediate threat to public infrastructure or rights of way, or to workers performing debris removal operations at eligible private property sites, as a direct result of the event, to be considered eligible.[5]  In addition, FEMA clarified that debris removal and demolition from natural unimproved lands (e.g., wooded and unused areas, vacant lots, forests, heavily wooded areas, unimproved property, etc.) is ineligible for PA funding.[6] 

The Applicant has not provided documentation that supports its claim that the standing trees and debris are a threat to the public’s health and safety.  The photographs submitted with the engineer and arborist reports depict individual trees, located in unimproved wooded areas that are not near public roads, waterways, or infrastructure.  Additionally, though the Applicant stated that there were mudslides and flooding following the disaster, these events pose no threat to public safety as the trees and debris are located in unimproved, isolated areas.  Accordingly, the debris and trees do not meet the eligibility criteria for PPDR.

 

Site Assessment Costs

Not all costs incurred as a result of the incident are eligible. To be eligible, costs must be directly tied to the performance of eligible work.[7] 

In order for the engineering and arborist site evaluation costs to be eligible for PA funding, the costs must be tied to eligible work.  In this case, the work is not eligible because the Applicant has not demonstrated that the trees and debris prove a threat to life, public health and safety.  Since the sites are ineligible for debris removal, the site assessment engineering and arborist costs in the amount of $8,831.25 are not tied to eligible work.[8] 

 

Conclusion

The Applicant has not demonstrated a threat to life, public health, or safety was posed by the debris in question, and accordingly the PPDR was not in the public’s interest.  Since the PPDR work is ineligible, the engineering and arborist site assessment costs associated with the PPDR work are also ineligible.  Therefore, the appeal is denied.

 

 

[1]PPDR Approval Letter from Federal Coordinating Officer, FEMA, to Director, Tennessee Emergency

Management Agency (TEMA), and City Manager, Gatlinburg (Feb. 2, 2017).

 

[2] Title 44, Code of Federal Regulations (44 C.F.R.) § 206.224(a) (2016). 102, 42 U.S.C. § 5122013).

[3] Id.

[4] FEMA, Private Property Debris Removal Documentation Checklist Narrative, v.3, at 4 (Feb. 2, 2017).

[5] Id.

[6] Id. at 5.

[7] Public Assistance Program and Policy Guide, FP 104-009-2, at 21 (Jan. 1, 2016).

[8] Id.