Debris Removal

Appeal Brief

Summary Paragraph

Following Hurricane Frances, FEMA drafted Project Worksheets (PWs) 7884 and 7889 to address debris removal throughout the City of Boynton Beach (City).  During a review of the PWs, FEMA determined that the Applicant removed 7,337 cubic yards (CY) of debris and 16,766 CY of debris from private roads as documented in PW 7884 and PW 7889 respectively; however, at closeout, FEMA found that the Applicant was not legally responsible for removing debris from private roads.  As such, FEMA reduced costs associated with the work.  The Applicant appealed this determination, and in November 2006, FEMA Region IV issued a decision determining that the Applicant was not legally responsible for removing debris from private roads.  Following a 2010 FEMA second appeal determination for the City of Winter Springs, the Applicant again appealed the eligibility of work performed to remove debris from private roads, and FEMA Region IV again denied it on the basis of legal responsibility.  In its second appeal, submitted two years after the first appeal decision, the Applicant asserts that it is responsible for safeguarding the life and property of all of its citizens.  As evidence, the Applicant cites to Florida Statute 252-38 which it says authorizes it to “take whatever prudent action necessary to ensure the health, safety, and welfare of the community.”  In addition, the Applicant asserts that its solid waste ordinance provides legal responsibility for debris removal on private and public roads.  The Applicant argues that the City ordinance combined with the State law establishes legal responsibility; thus, the debris removed from private roads is eligible for Public Assistance (PA) funding. 

Authorities and Second Appeals

• Stafford Act §§ 403(a)(3)(A), 407(a)(1), 423.

• 44 C.F.R. §§ 206.206, 206.223(a)(3), 206.224(a)-(b).

• Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities.

   

   

  Headnotes

• Stafford Act § 423 and 44 C.F.R. § 206.206 provide statutory and regulatory timeframes for submitting appeals of FEMA determinations.

• The Applicant and the Grantee were untimely when submitting the second appeal for PWs 7884 and 7889.

• Pursuant to 44 C.F.R. § 206.223 and Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities, an eligible applicant must be legally responsible for removing debris from private roads.

• The Applicant did not sufficiently establish that its City ordinance endowed it with clear, legal responsibility to remove disaster-related debris from private roads.

• Pursuant to 44 C.F.R. § 206.224, as clarified in Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities, FEMA may reimburse costs associated with debris removal when it is necessary to eliminate an immediate threat to life or the debris is so widespread that public health and safety or the economic recovery of the community is threatened.

  • The Applicant did not establish that the debris on private roads created an immediate threat to life, public health and safety, or property.

• Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities, provides that FEMA requires the state or local government to indemnify FEMA from a claim arising from such removal and obtain unconditional authorization to remove the debris from the proper.

The Applicant did not provide the required indemnification and hold harmless agreements for this project.

Appeal Letter

Appeal Analysis

Background

In September 2004, strong winds, heavy rains, and flooding from Hurricane Frances generated large amounts of storm-related debris throughout the City of Boynton Beach (Applicant).  The Applicant used force account and contracted labor to remove, haul, and dispose of a total of 274,974.4 cubic yards (CY) of debris.  FEMA addressed the debris removal in Project Worksheets (PWs) 7884 and 7889.  During a review of the PWs, FEMA determined that the Applicant removed of 7,337 CY debris and 16,766 CY of debris from private roads as documented in PW 7884 and PW 7889 respectively, and reduced costs accordingly. 

In January 2006, the Grantee forwarded a first appeal to FEMA Region IV.  In November 2006, FEMA Region IV issued a decision determining that the Applicant was not legally responsible for removing debris from private roads.  Therefore, pursuant to 44 C.F.R. § 206.224(c), the Applicant was not eligible for Public Assistance (PA) reimbursement for costs associated with such work.

In March 2010 FEMA issued a second appeal letter for the City of Winter Springs.[1]  In reconsidering that second appeal decision, FEMA amended its 2007 determination and found that the Applicant was legally responsible for the removal of disaster-related debris from private roads based on its local ordinance.  

First Appeal

Following the 2010 Winter Springs determination, the Applicant resubmitted its first appeal in a March 1, 2010 letter, by restating it was required to collect and transport refuse, garbage, and trash from residents.  In addition, the Applicant asserted it was responsible for providing and ensuring continuous access of “life safety services, water, and sewer operations” within its jurisdiction.  As evidence that it was legally responsible for debris removal on private roads, the Applicant cited to Section 10-22 of the City of Boynton Beach Code of Ordinances, which states, “[a]ll refuse, garbage, trash of all types, vegetative trash, recycling, construction and demolition material accumulated in the City shall be exclusively collected, conveyed, and disposed of by the City under supervision of the Director of Public Works.”  The Grantee forwarded the Applicant’s first appeal via an April 9, 2010 letter claiming that the City of Winter Springs appeal determination established binding precedent that when a local government holds the exclusive franchise for all trash/debris/garbage removal throughout the jurisdiction, legal responsibility is conferred upon the local government to remove disaster-related debris from private roads and private property. 

FEMA Region IV accepted the March 1, 2010 letter as a new first appeal.  In a September 22, 2010 letter, the Region IV Regional Administrator (RA) concluded that, while the Applicant demonstrated it had legal authority to provide refuse and trash services, it failed to demonstrate it was legally responsible for removing debris from private roads following Hurricane Frances.  In addition, the RA determined that the Applicant failed to show that the debris was so widespread it constituted a health and safety threat or that removal would benefit the general public, not just individuals.  As such, the appeal was denied. 

Second Appeal

In a second appeal dated May 29, 2013, the Applicant asserts that it is responsible for safeguarding the life and property of all of its citizens.  As evidence, the Applicant cites to Florida Statute 252-38 which it says authorizes it to “take whatever prudent action is necessary to ensure the health, safety, and welfare of the community.”  In addition, the Applicant asserts that its solid waste ordinance provides legal responsibility for debris removal on private and public roads.  The Applicant argues that the City ordinance combined with the State law establishes legal responsibility, and consequently, its use of contractors and force account labor to remove debris from private roads is eligible for PA funding. 

Discussion

Appeal Timeliness

The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) § 423 requires an Applicant to appeal a denial regarding eligibility for, from, or amount of Public Assistance within 60 days after the date on which it was notified of the denial.[2]  Pursuant to Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.206, the Grantee must submit appeals from an Applicant, with a written recommendation, to the Regional Administrator within 60 days of receipt.[3]   Neither the Stafford Act nor 44 C.F.R. provides FEMA with authority to grant time extensions for filing second appeals.[4]  

Here, FEMA issued a first appeal decision on September 22, 2010.  The Applicant’s second appeal is dated May 29, 2013 – two and a half years after FEMA’s decision.  The Grantee submitted the second appeal to FEMA in August 2014.  As such, the Applicant’s second appeal fails to meet the statutory requirements of Stafford Act § 423 and the procedural requirements of 44 C.F.R. § 206.206(c)(1) and (2), and consequently is denied.  Timeliness aside, as described below, the second appeal also is not compelling on the substantive issues and would otherwise be denied.  

Work Eligibility

The Stafford Act authorizes FEMA to reimburse eligible applicants for debris removal from public and private lands when it is essential to saving lives, protecting the public health and safety, preserving property, or in the public interest.^[5]  Debris removal is deemed to be in the public interest when it eliminates an immediate threat to lives, public health, and safety, eliminates immediate threats of significant damage to improved public or private property, or ensures the economic recovery of the affected community to the benefit of the community at large.^[6]  While debris removal from public land is always deemed to be in the public interest, FEMA treats debris removal from private land differently.^[7]  If debris on private land is so widespread that public health, safety, or the economic recovery of the community is threatened, the actual removal of debris from the private property may be eligible.^[8]  FEMA determines eligibility of debris removal from private roads by analyzing whether the applicant is legally responsible for such work, the work reduced an immediate threat to life, public health and safety, and the applicant provided to FEMA rights-of-entry and hold harmless agreements from the private property owners or Homeowners’ Associations (HOAs), as a condition of receiving Federal funding.^[9]  It is important to note that there is no global determination or binding precedent on private property debris removal.[10]  As such, FEMA determines whether debris removal from private land is eligible for PA reimbursement on a case-by-case basis.^[11] 

Pursuant to 44 C.F.R. § 206.223, an item of work is eligible for PA funding if it is the legal responsibility of an eligible applicant.[12]  Regarding debris removal from private property, an eligible applicant must also show FEMA its legal process for taking responsibility for debris removal on private property (i.e., the applicable State or local law, ordinance, or code) and demonstrate how it followed that process.^[13]

The Applicant argues that Article II of the City of Boynton Beach Code of Ordinances establishes its legal responsibility to remove disaster-related debris.  In part, Article II reads, “[a]ll refuse, garbage, trash of all types, vegetative trash, recycling, construction and demolition material… shall be exclusively collected, conveyed and disposed of by the City under the supervision of the Director of Public Works.”^[14]  Article II defines “refuse,” “garbage,” “recycling,” and “construction and demolition material.”[15]  Article II does not define “trash of all types,” but it defines each type of trash individually (i.e., yard trash, bulk trash, and noncombustible trash).  None of the definitions provided in Article II appear to include disaster-related debris.  Moreover, in Section 10-24 of the ordinance, “placement of household garbage in a loose and uncontained manner on the roadside, swale, or other locations adjacent to the roadway with expectation of collection” is strictly prohibited.[16]  Refuse of all kinds must be placed in containers approved by the Director of Public Works in order to be collected.[17]  Article II further mandates that material intended for disposal must be placed in the container with the lid of the container closed, and the container must be placed within three feet of the curb or edge of the pavement.[18]  These requirements imply the City only collected and removed refuse that was contained in a City-approved container in a fixed location, not debris scattered onto private roads by a disaster. 

The Applicant also asserts that Florida Statute 252-38[19] authorizes it to “take whatever prudent action is necessary to ensure the health, safety, and welfare of the community.”  The Applicant argues that, read with Article II, this statute provides the necessary legal responsibility to remove disaster-related debris from private roads.  However, as stated in the first appeal decision, Article II only gives the Applicant authority to collect and transport refuse under specific circumstances.  Article II does not give the Applicant legal responsibility to enter private property for the purpose of removing disaster-related debris, as required by FEMA policy guidance.[20]  In addition, Article II does not provide a process by which the Applicant would legally enter private property to remove debris, nor has the Applicant demonstrated how it followed any such process.[21]  Therefore, even when read with Florida Statute 252-38, Article II, which pertains strictly to trash collection, does not provide the requisite criteria to establish legal responsibility under the PA Program based on FEMA policy guidance.   

Pursuant to 44 C.F.R. § 206.224, debris removal from privately owned land is eligible for PA funding when it is in the public interest, which means the work: eliminated an immediate threat to life, public health, and safety; eliminated an immediate threat of significant damage to improved public or private property; or ensured economic recovery of the affected community to the benefit of the community-at-large.[22]  To be eligible for PA funding, FEMA requires that debris on private property be so widespread that public health, safety, or the economic recovery of the community is threatened.^[23]

In its second appeal, the Applicant argues that it is responsible for safeguarding the life and property of all its citizens.  The Applicant further states that its responsibility is greatest during and following a disaster event.  In addition, the Grantee asserts that debris removal was necessary because “emergency response services are hindered by scattered debris which can cause delay times or a total inability for emergency services to reach certain locations.”[24]   The Grantee supports this assertion with an undated memo from the City of Boynton Beach’s Fire Chief, which states,

[d]uring any hurricane event… we have many communities that quickly become isolated due to downed power lines, fallen trees, and… debris that cut off our access points such as… private roads…. It is extremely important that the City put in place a post storm response plan that includes immediate… post storm debris clearance… regardless of who owns them or who is responsible for their maintenance .…^[25]

The Applicant and Grantee provide very broad statements about the Applicant’s responsibility to its citizens following disasters.  However, the Applicant and Grantee fail to identify what immediate threat was present during or following Hurricane Frances that required debris removal from private roads.  In addition, neither the Applicant nor the Grantee demonstrate how debris removal from private roads was in the public interest, not just for the benefit of a limited group of individuals. 

Finally, prior to removing debris from private roads, FEMA requires the state or local government to agree in writing to indemnify FEMA from a claim arising from such removal and obtain unconditional authorization to remove the debris from the property.^[26]  With its second appeal, the Applicant provided extensive documentation supporting its claim, but did not include  proof of hold harmless or indemnification records with its submittal.  Regardless of whether the Applicant met the other eligibility requirements, without such records, by FEMA policy guidance that applies to this case, FEMA will not approve costs associated with the work.   

Conclusion

The Applicant’s second appeal was untimely pursuant to the Stafford Act § 423 and 44 C.F.R. § 206.206.  In addition, the debris removal work in PWs 7884 and 7889 does not meet the requirements for PA eligibility pursuant to 44 C.F.R. §§ 206.223 and 206.224, and  Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities.  Accordingly, the appeal is denied.