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Result of the Declared Incident; Private Property Debris Removal; Public Interest

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4554
ApplicantAlexander City (City of),
Appeal TypeSecond
PA ID#123-01132-00
PW ID#GMP 156330
Date Signed2021-08-24T16:00:00

Summary Paragraph

On April 19, 2020, severe storms, tornadoes, and straight-line winds caused damage throughout the State of Alabama.  Alexander City (Applicant) requested Private Property Debris Removal (PPDR) for several hangers, limbs, and vegetative debris from dead pine trees.  FEMA reviewed the documentation and denied the request as the Applicant had not substantiated that the debris posed a widespread threat given the small percentage (6.37 percent) of properties that were affected or that such removal would be in the public interest.  Furthermore, the Applicant could not substantiate that the debris was the result of the declared incident.  The Applicant filed a first appeal stating that the PPDR was necessary and in the public’s interest, but it did not provide additional documentation in support of its claim.  The Alabama Emergency Management Agency supported the Applicant’s first appeal and identified the areas affected as low to moderate income, minority communities.  FEMA denied the first appeal as the Applicant had not substantiated that PPDR would eliminate an immediate threat to lives, public health, and/or safety or protect improved property or be in the public’s interest.  Furthermore, the Applicant’s city ordinances identified the private property owners as responsible for the removal of the trees.  The Applicant filed a second appeal, reiterating first appeal arguments. 

Authorities and Second Appeals

  • Stafford Act, §§ 403(a)(3)(A), 407(a).
  • 44 C.F.R. §§ 206.206(a), 206.223(a)(1), 206.224(a)-(b).
  • PAPPG at 100, 107-108. 
  • Ind., Dep’t of Natural Resources, FEMA-4363-DR-IN, at 4.

Headnotes

  • The Applicant is required to provide documentation to substantiate debris was deposited by the declared incident and was not pre-existing.
    • Here the photographs of debris that were taken in the window survey could not be connected to the disaster. 
  • Debris removal must be in the public interest and not merely benefit an individual or a limited group of individuals.  The burden is on the appellant to demonstrate that the PPDR is in the public interest.
    • The documentation provided did not substantiate a widespread threat to the public from the debris.

Conclusion

The Applicant has not demonstrated that the requested PPDR is required as a result of the declared incident, nor has it demonstrated that PPDR is in the public interest.  Therefore, this appeal is denied.

Appeal Letter

Brian Hastings           

Director                                                                      

Alabama Emergency Management Agency              

5898 County Road 41                                    

Clanton, Alabama 35046-2160          

 

Re:  Second Appeal – Alexander City (City of), PA ID: 123-01132-00, FEMA-4554-DR-AL, Grants Manager Project 156330, Result of the Declared Incident; Private Property Debris Removal; Public Interest

 

Dear Mr. Hasting:

This is in response to a letter from your office dated May 26, 2021, which transmitted the referenced second appeal on behalf of Alexander City (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s denial of funding for Private Property Debris Removal (PPDR).  

As explained in the enclosed analysis, I have determined that the Applicant has not demonstrated that the requested PPDR is required as a result of the declared incident, nor has it demonstrated that PPDR is in the public interest.  Therefore, this appeal is denied. 

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/

                                                                        Ana Montero

                                                                        Division Director

                                                                        Public Assistance Division

 

Enclosure

cc:  Gracia B. Szczech  

Regional Administrator

FEMA Region IV

Appeal Analysis

Background

On April 19, 2020, severe storms, tornadoes, and straight-line winds caused damage throughout the State of Alabama.[1]  Alexander City (Applicant) requested FEMA provide Public Assistance (PA) funding for Private Property Debris Removal (PPDR) on December 22, 2020. 

The debris in question included standing dead pine trees on privately-owned lots throughout the city.  In support of its claim for assistance, the Applicant submitted multiple documents including a November 16, 2020 City Resolution, which states that removal of these trees on private property would constitute a “public purpose” given their proximity to homes and yards causing risk of injury and/or death; and a November 2020 windshield survey of claimed debris with photographs and GPS coordinates.[2]  The request also stated that the pine trees represented: (1) a falling hazard to homes and other structures and utilities; and, (2) a massive outbreak of pine beetles had infected the dead trees and created a risk of spreading to pine forests in the state. 

FEMA reviewed the supporting documentation and noted the Applicant requested removal of 1,348 cubic yards of vegetative debris, 316 “hazardous tree leaners,” and 260 “hazardous limb hangers” from 386 privately owned lots.[3]  FEMA noted that the Applicant took photographs of the debris seven months after the declared incident.  On January 12, 2021, FEMA denied the Applicant’s request for PPDR funding, noting the documentation did not establish there was a widespread threat to public health and safety and, given the affected properties represented only 6.37 percent of city occupied housing units, the removal was not in the public interest.  Finally, the Applicant did not demonstrate that the debris removal was required as a result of the incident. 

 

First Appeal

On January 22, 2021, the Applicant appealed and reiterated its assertion that the PPDR is in the best interest of the public and that it met FEMA policy requirements for PPDR.  The Applicant requested an in-person site visit for FEMA to observe the damage.[4]  The Alabama Emergency Management Agency (Grantee) forwarded the first appeal to FEMA on January 28, 2021 and noted that the 6.37 percent of city properties that FEMA found were affected by the debris represented low and moderate income, minority communities.

The FEMA Region IV Regional Administrator denied the appeal on May 13, 2021.  FEMA determined the Applicant had not substantiated that PPDR was necessary to eliminate an immediate threat to lives, public health and/or safety; eliminate immediate threats of significant damage to improved public or private property; or ensure the economic recovery of the affected community to the benefit of the community at large.

 

Second Appeal

The Applicant submitted its second appeal to the Grantee on May 25, 2021, reiterating its first appeal arguments.  The Grantee forwarded the appeal to FEMA on May 26, 2021, supporting the Applicant’s request.

 

Discussion

Result of the Declared Incident

FEMA may provide assistance for debris removal, but to be eligible for financial assistance, the work must be required as the result of the declared incident.[5]  The Applicant needs to provide documentation to substantiate the debris was deposited by the incident and was not pre-existing.[6] 

The Applicant conducted a windshield survey several months after the incident and the photographs of debris taken at that time do not establish a connection between the disaster and the identified debris.  The Applicant has not provided any further documentation that may demonstrate that the disaster caused the identified debris, such as photographs showing the predisaster condition of the areas.  As such, the Applicant has not satisfied its burden to substantiate that the work to remove debris was required as a result of the declared incident.[7]

 

Private Property Debris Removal

FEMA may provide assistance for debris removal from private property when it is determined to be in the public interest,[8] however, because PPDR is the responsibility of the property owner, it is usually ineligible under the PA Program.[9]  In limited circumstances, though, based on the severity of the impact of an incident and whether debris on private property is so widespread that it threatens public health and safety or the economic recovery of the community, FEMA may determine that debris removal from private property is eligible.[10]  The debris removal must not merely benefit an individual or a limited group of individuals.[11]  The Applicant is required to submit a written request for PPDR and the burden is on the Applicant to demonstrate that the PPDR is in the public interest.[12]      

Here the Applicant’s original PPDR request and subsequent survey documentation show that only 6.37 percent of privately owned property lots were affected by the debris.[13]  In addition, several of the window survey photographs provided by the Applicant show debris only affected specific residences and not the community as a whole.[14]  Based on the information provided, the Applicant has not demonstrated that PPDR in this case is in the public interest.

 

Conclusion

The Applicant has not demonstrated that the requested PPDR is required as a result of the declared incident, nor has it demonstrated that PPDR is in the public interest.  Therefore, this appeal is denied.

 

[1] The President issued a major disaster declaration on July 10, 2020.

[2] A windshield survey is one where inspectors will review damage and/or debris from the windshield of the vehicle traveled in to confirm presence of said damage or debris.

[3] See Request for Private Property Debris Removal Analysis, FEMA (Jan. 4, 2021) [hereinafter PPDR Analysis].  This analysis was developed by FEMA in review of the Applicant’s PPDR request. 

[4] On February 9, 2021, FEMA field staff, with the Applicant’s and the Grantee’s representatives, conducted site visits to observe claimed damage.  The information collected during the visit did not result in any alteration to FEMA’s original eligibility determination. 

[5] Robert T. Stafford Disaster Relief and Emergency Assistance Act §§ 403(a)(3)(A), 407(a), Title 42, United States Code §§ 5170b(a), 5173(a) (2018); Title 44 Code of Federal Regulations (44 C.F.R.) § 206.223(a)(1) (2019); Public Assistance Program and Policy Guide, FP 104-009-2, at 51 (June 1, 2020) [hereinafter PAPPG].

[6] PAPPG, at 100. 

[7] See FEMA Second Appeal Analysis, Ind. Dep’t of Nat. Res., FEMA-4363-DR-IN, at 3-4 (Sept. 16, 2020) (FEMA could not determine if debris removal was required as a direct result of the disaster, in part because the Applicant had not provided information demonstrating the predisaster condition of the debris-claimed area.).

[8] 44 C.F.R. § 206.224(a)-(b).

[9] PAPPG, at 107.

[10] Id.

[11] Id.

[12] See 44 C.F.R. § 206.206(a) (requiring that an appeal contain documented justification supporting the appellant's position.); PAPPG, at 108.

[13] See PPDR Analysis.  This percentage is based on the 386 residential private properties, out of 6,064 occupied housing units, that were included in the PPDR Tree survey. 

[14] Id., at 2-3. 

Last updated August 24, 2021