Stump Removal Costs

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

ApplicantCity of Paris
Appeal TypeSecond
PA ID#227-55080-00
PW ID#776
Date Signed2002-10-07T04:00:00
Citation: FEMA-1356-DR-TX; City of Paris; Project Worksheet #776

Cross-reference: Emergency work, general eligibility, insufficient documentation

Summary: On January 8, 2001, FEMA-1356-DR-TX was declared as a result of ice storms in Texas. The City of Paris (City), requested reimbursement for removal and disposal of 400 tree stumps from Lake Crook Park, 304 from a debris staging area and 144 from various streets around the city. FEMA prepared Project Worksheet (PW) #776 on April 1, 2001, for $179,050. FEMA's Office of Inspector General (OIG) conducted an investigation of the City's debris removal operation in Lake Crook Park and recommended deobligation of $179,050 based on the investigating agent's determination that a majority of the stumps came from undamaged trees in the beautification and development of unimproved areas within Lake Crook Park. FEMA deobligated $179,050 with PW #776 Version 1 on August 15, 2001.

The City submitted a first appeal on October 5, 2001, seeking a copy of all documentation that contributed to the deobligation. On December 3, 2001, the Regional Director denied the appeal because the OIG’s investigation concluded that the stumps were removed from undamaged trees in unimproved areas and did not obstruct the public right of way. In the City's December 26, 2001, second appeal and May 1, 2001, supplemental letter, the City requested all documentation relating to the stump removal project under the Freedom of Information Act. On February 22, 2002, FEMA provided copies of documents resulting from the OIG's investigation. In the supplemental letter the City charged the OIG's investigation to be "fraught with so many errors [that] it is without credibility." The City admitted that it was unaware that it needed to retain documentation regarding the eligibility of the removal of the stumps. To establish the requisite documentation, the City submitted affidavits from each City employee involved with the debris removal operation and load tickets for each stump.

Issues: 1) Do the affidavits establish the eligibility of removal of the stumps under the Public Assistance Program? 2) Do the load tickets establish eligibility of removal of the stumps under the Public Assistance Program?

Findings: 1) No, the affidavits attest that the City’s debris removal operations focused on removing only storm-damaged trees. They do not confirm that all stumps removed came from uprooted trees. 2) Only the load tickets from the various city streets establish the eligibility of the stumps for removal. The load tickets from the Park and staging area do not identify a specific location from which the stumps were removed.

Rationale: 44 CFR § 206.224 (a)

Appeal Letter

October 7, 2002

Mr. Ed Laundy
State Coordinating Officer
Division of Emergency Management
Texas Department of Public Safety
P.O. Box 4087
Austin, Texas 78773-2444

Re: Second Appeal – City of Paris, PA-ID # 227-55080-00, Stump Removal Costs, FEMA-1356-DR-TX, PW #776

Dear Mr. Laundy:

This is in response to your January 25, 2002, letter transmitting the above referenced second appeal submitted by the City of Paris (City) to the Federal Emergency Management Agency (FEMA). The City is requesting that FEMA prepare a Project Worksheet (PW) for $179,050 to obligate funding for the removal of 848 tree stumps following the December 2001 ice storms. I apologize for the delayed response.

As explained in the enclosed analysis, I have determined that the requested costs for removal of stumps from the rights-of-way of public streets is eligible for reimbursement. However, I have determined that the stumps removed from the debris staging site and from within Lake Crook Park are ineligible for reimbursement under FEMA’s Public Assistance Grant Program. Therefore, the City’s second appeal is partially approved. By copy of this letter, I am requesting that the Regional Director prepare a Project Worksheet for $40,650 to implement my decision.

Please inform the applicant of this determination. My decision constitutes the final decision on this matter as set forth in 44 CFR §206.206.

John R. D’Araujo, Jr.
Assistant Director
Response and Recovery Directorate


cc: Ron Castleman
Regional Director
FEMA Region VI

Appeal Analysis

On January 8, 2001, major disaster FEMA-1356-DR-TX was declared as a result of a series of severe winter storms that impacted the northern and northeastern counties of the State of Texas from December 12 to December 25, 2000. Forty counties were designated as eligible to receive Federal disaster assistance through the Federal Emergency Management Agency’s (FEMA’s) Public Assistance Grant Program. Throughout the City of Paris (City), the ice storms deposited broken limbs and other vegetative debris on city streets, rights-of-way, public and private property. FEMA obligated $1,348,692 to the City as reimbursement for its debris removal activities.

The City contracted with Storm Reconstruction Services Inc.(SRS) on February 15, 2001, to remove vegetative debris from public property, including rights-of-way, within the City. The contract also included provisions for removing and disposing of tree stumps. The City informed FEMA in March 2001 that it planned to request reimbursement for 848 stumps. The City did not have information to show where the stumps came from during the initial visit. A FEMA representative visited Lake Crook Park on March 24, 2001 and reported having observed the contractor cutting down undamaged trees. Later, the FEMA representative and a representative of the City toured the city to identify locations where there was evidence that tree stumps were removed. They identified about a dozen locations at which tree stumps may have been removed. The City submitted to FEMA a listing of the quantity and size of tree stumps it was requesting reimbursement for on April 24, 2001. FEMA obligated Project Worksheet (PW) 776 for $179,050 on June 10, 2001 for the removal and disposal of 848 stumps.

The FEMA Office of Inspector General (OIG) subsequently conducted an investigation of debris removal activities in Lake Crook Park and concluded that the City cut down undamaged trees. In its report to the FEMA Region VI Regional Director, received on July 11, 2001, the OIG recommended that FEMA deny the City reimbursement for stumps because the OIG believed that the City cut down undamaged trees in the park and removed the stumps associated with them. In addition, the City did not document the locations in the City where other stumps were removed. FEMA de-obligated the PW 776 on August 15, 2001, based on the OIG report.

First Appeal
The City submitted a first appeal on October 5, 2001, in which the City requested a copy of all documentation that contributed to the de-obligation of the funds under the Freedom of Information Act (FOIA). Texas’s State Coordinating Officer (SCO) supported the City’s appeal and forwarded it to FEMA on October 29, 2001. With a December 3, 2001, letter, FEMA’s Regional Director denied the first appeal based on staff reports and the OIG investigation which indicated that the City had requested reimbursement for the cost of removing stumps that were in unimproved areas and did not obstruct the public right- of-way. The Regional Director further stated that debris removal is eligible when it is disaster related and is necessary to eliminate threats to life, public health, and safety; or eliminate threats of significant damage to improved public or private property; or ensure the economic recovery of the affected community.

Second Appeal
With a letter dated January 25, 2002, the SCO supported and forwarded the City’s second appeal letter dated December 26, 2001, to FEMA. In the appeal, the City claimed that “no field personnel appeared in the City of Paris to oversee the City’s implementation of the program until approximately six (6) weeks following the implementation of the contract.” Nothwithstanding this fact, the City maintained that all of the debris removed from Lake Crook Park was from trees damaged by the storm. The City repeated its request for all information relating to the stump removal project under FOIA. The City admitted that it had an ongoing project of removing undamaged trees from Lake Crook Park to create open space, but denied that undamaged trees were included with the storm debris.

To document its claim, the City submitted several attachments with its second appeal, including affidavits from all City employees that participated in the debris removal operations. Each affidavit attested that only trees damaged by the storm were removed and claimed under FEMA’s Public Assistance Program. The City also submitted copies of load tickets for each stump removed which identified the date, time, debris monitor name, truck number, truck capacity, driver name, loading location, and debris classification. The load tickets identified the removal of 400 stumps from Lake Crook Park, 304 stumps from a debris-staging site, and 144 stumps from various city streets. The stumps were removed between March 5 and March 20, 2001.

On February 22, 2002, the FEMA OIG provided the information that the City requested under FOIA. Pursuant to the law and regulations, the information was redacted for privacy reasons. Based on the information included in the FOIA response, the City submitted a supplement to its second appeal on May 1, 2002, in which it objected to the redaction of the documents and requested full disclosure of all information related to the project without redaction or omission of any kind. The City also provided the following points of clarification relative to the OIG report. First, Lake Crook Park did not serve as a debris staging area. Rather, the staging area was established at the County Fairgrounds located 4 miles away. Second, the red ribbons attached to healthy trees within Lake Crook Park designated trees to be removed under the City’s beautification project, and not from FEMA funds. Third, the City provided load tickets indicating the locations where stumps were removed.

FEMA staff records its meetings and telephone calls with applicants in the Case Management File of NEMIS, our project management database. Our records indicate that a FEMA project officer contacted the City’s Public Works Director (PWD) as early as January 29, 2001, to discuss general eligibility and the formulation of projects. On February 9, 2001, the same FEMA representative visited with a representative from the City’s Department of Public Works to further discuss eligibility, preparation of forms, and the letting of the debris contract. One week later, on February 16, 2001, the FEMA representative once again met with the City’s representative to discuss the level of documentation needed for debris removal. Over the next two weeks the FEMA representative interacted with the City representative another four times regarding documentation needed for debris removal, submittal of debris PWs and a road restoration project. Our records show that we provided program guidance to the City in a timely manner.

Pursuant to Title 44 Code of Federal Regulations §206.224, FEMA may reimburse costs associated with debris removal when the work: 1) eliminates immediate threats to life, public health, and safety; or 2) eliminates immediate threats of significant damage to improved public or private property; or 3) ensures the economic recovery of the affected community to the benefit of the community at large. The removal of disaster-related debris from public property, including public rights-of-way, is eligible for reimbursement under the disaster assistance program. Generally, the cost of removing hanging branches and broken limbs from disaster-damaged trees is eligible for reimbursement. For substantially damaged trees that are in imminent danger of falling, the removal of the tree cut flush at ground level is also eligible. Removal of stumps is eligible only when the tree has uprooted, creating a threat to the public’s life health and safety. The applicant muntove requirements.

The event resulting in the disaster declaration was an ice storm. There were no winds associated with the event. During an ice storm, ice builds up on tree limbs causing branches with low load bearing capacity to fail resulting in broken branches. Sometimes the load becomes so great that the trunk of the tree fractures laterally. Furthermore, the gently sloping loams found in the Lake Crook Park and the surrounding areas, promote good surface drainage. Trees common in the hardwood forests of the affected area include ash, cottonwood, hickory, oak, pecan, sweetgum, walnut, and the occasional pine. These hardwood trees generally have an extensive network of roots that do not lend themselves to overturning except under situations of extreme stress. Given the event characteristics, topography, soil type, and types of vegetation, it is unusual to have a significant number of trees uproot.

The City submitted affidavits from 37 employees in the City’s Public Works Department. Each affidavit states “To my knowledge only those stumps and other debris which were damaged as a result of the ice storm were removed under the program sponsored by and paid for by the Federal Emergency Management Agency (FEMA), and no such trees, stumps, or other vegetation were removed as part of that program which had not been damaged by the storm.” Unfortunately, the affidavits establish that the removed tree stumps were from trees damaged by the storm. The documents fail to establish that the damaged trees were uprooted and presented a health and safety hazard. Stump removal from improved public property, including the public right-of-way is eligible for removal if it is overturned or poses a hazard. This criterion also applies to improved and maintained areas of public parks and recreational areas.

The file for this case contains information that shows the condition of Lake Crook Park soon after the debris was removed. FEMA and OIG descriptions of what they observed at the park as well as photographs of the park show that trees were removed from previously unimproved sections of the park. The photographs showed areas where trees were totally removed while adjacent areas showed almost no damage. It is unlikely that the ice storm caused that degree of overturned trees. Also, there were few indications that the improved part of the park was disturbed after the storm.

I am approving reimbursement of $40,650 for the costs of removing and disposing of 144 stumps from around the city because the load tickets for stumps removed from various city streets identify specific locations where a plausible threat to life, health, and safety or improved property would be likely to exist. However, I am denying the cost of removing 704 stumps from Lake Crook Park and the debris staging area at the fairgrounds because the city has repeatedly failed to provide documentation establishing that the tree stumps were eligible for removal.
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