Support Documentation

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	FEMA-4028
Applicant	Town of Franklin
Appeal Type	Second
PA ID#	021-25065-00
PW ID#	1106
Date Signed	2017-10-17T00:00:00

Conclusion:  The Town of Franklin (Applicant) has not demonstrated the work completed by its force account labor (FAL), force account equipment (FAE), and two of the private contractors, was disaster-related or the legal responsibility of the Applicant.  Moreover, the Applicant has not produced documentation that establishes the cost paid to the third private contractor is eligible for Public Assistance (PA).  Consequently, as the project costs are ineligible for PA, the direct administrative costs (DAC) are also ineligible.    

Summary

From August 28 until September 17, 2011, during and after Tropical Storm Irene, the Applicant collected vegetative and other hazardous debris, unloading it at its transfer station, through the use of FAL, FAE, and private contractors.  The Applicant requested reimbursement, submitting as support, itemized summaries of the hours worked per employee and equipment used by each employee.  In addition, it provided a contract summary record indicating, generally, the work done by each private contractor; and with respect to one contractor (Nowak), the Applicant listed the type of debris removed and the specific collection location.  Lastly, it submitted a request for DAC.  FEMA obligated funding under Project Worksheet (PA) 1106 for the FAL, FAE, contract services, and DAC.  However, after a review, FEMA determined the project was ineligible for PA because it could not verify and validate the debris removal costs, nor confirm the amount of debris collected and removed as a direct result of the disaster.  As such, FEMA deobligated all previously awarded funding.  In its first appeal, the Applicant argued the documentation it provided was sufficient to demonstrate the debris removal work was the result of the disaster.  In response to FEMA requests for additional information to substantiate the eligibility of the work, the Applicant provided undated photographs taken during and immediately after the disaster showing vegetative debris in roads, on utility lines, and in the driveways of private homes.  FEMA Region I’s Regional Administrator (RA) denied the appeal, determining the Applicant failed to provide documentation demonstrating the type, amount, and location of debris removed.  As such, the RA noted it could not reach a finding that the debris was located on public property or that the removal was required as a result of the disaster and in the public interest.  Lastly, the RA concluded Section 705(c) of the Stafford Act was not applicable because the Grantee had not drawn down funding for the project.  Consequently, it approved FEMA’s obligation of zero dollars.  The Applicant argues in its second appeal that it has demonstrated the debris removal work was the direct result of the disaster and done in the public interest.        

Authorities and Second Appeals

• Stafford Act §§ 403(a)(3)(A), 407, 705(c).
• 2 C.F.R. § 225 Appendix A (C)(1), (E)(1).
• 44 C.F.R. §§ 206.206(a), 206.223, 206.224(a).
• PA Debris Monitoring Guide, at 19-20, 46.
• PA Guide, at 69.
• DAP 9525.9, at 3; DAP 9580.203, at 1.
• Dep’t of Transp., FEMA-4068-DR-FL, at 5; Iowa Homeland Sec. and Emergency Mgmt. Dep’t, FEMA-1998-DR-IA, at 2; Vill. of Key Biscayne, FEMA-1602-DR-FL, at 3.

Headnotes

• Under 44 C.F.R. § 206.223, an applicant must demonstrate that the work completed was (1) generated as a result of the major disaster; (2) located within the designated area of a major disaster; and (3) the legal responsibility of the applicant.
  • The Applicant does not establish the type of debris removed or the collection locations of any of the work completed by FAL, FAE, and two of the three private contractors.  As such, the Applicant does not demonstrate the work is disaster-related or the legal responsibility of the Applicant.    
• PA policy recommends applicants document the following to support a request for contract costs: (1) locations of debris removal; (2) type of debris removed; (3) debris quantities; (4) identification of the debris hauling truck and contractor; (5) labor, equipment, and materials charges, including hours of service; and (6) load tickets.
  • As the Applicant does not include documentation for the last four items above with respect to the work completed by the third contractor, the cost paid to the contractor is ineligible for PA.    

Appeal Letter

Appeal Analysis

Background

From August 27 through August 29, 2011, Tropical Strom Irene caused extensive flooding and strong force winds in the Town of Franklin (Applicant), Massachusetts.  From August 28 until September 17, 2011 (clean-up period), the Applicant collected vegetative debris, moved it to the transfer station where the debris was reduced and chipped, and then hauled it from the transfer station to the final destination.  The Applicant performed the work using force account labor (FAL), force account equipment (FAE), and contracted services. 

Through certified spreadsheets, the Applicant outlined its costs for FAL, FAE, contract services, and direct administrative costs (DAC).  First, the Applicant provided an itemized list of the regular and overtime hours worked by 33 employees during the clean-up period, and the wages paid to those individuals.[1]  Second, the Applicant submitted an itemized list of the equipment used to collect and remove debris during the clean-up period, including the capacity of each piece of equipment and the hours used by specific operators on each device each day.  Third, the Applicant provided a contract summary record, reflecting (1) North Country Mulch (North) performed debris removal of 600 cubic yards (CYs) on September 6, 2011 and 600 CYs on September 19, 2011, (2) Maitby & Co., Inc. (Maitby) ground wood waste at the transfer station on September 15, 2011, (3) Mayer Tree Service (Mayer) performed tree removal with a chip truck from August 25 through September 12, 2011 (excluding August 27, 2011), and (4) Nowak Brothers Landscaping Co. (Nowak) performed emergency clean-up tree removal at 90 Daniels Street on September 1, 2011, at a cost of $3,000.00.  The Applicant also submitted invoices for the contracted services: (1) North’s invoice described the 1200 CYs of debris removed as freight, (2) Maitby’s invoice stated it ground waste wood on September 4 and September 6, 2011 and included a mobilization fee, (3) Mayer’s invoice listed the hours worked on August 28 through  September 2, 2011, September 7 through September 9, 2011, and September 12, 2011, for emergency tree service, and (4) Nowak’s invoice noted the work included emergency storm clean-up at 90 Daniels.  Finally, the Applicant submitted a form requesting DAC associated with 4 employees spending 46 hours administering the project.[2] 

FEMA prepared Project Worksheet (PW) 1106, indicating the Applicant collected and removed 1200 cubic yards (CY) of vegetative debris.  In the PW, FEMA noted the Applicant performed the debris removal work town-wide through the use of FAL, FAE, and services of four local contractors.  FEMA obligated $73,556.53 as the eligible cost for the project.

FEMA later reviewed the project and in an April 17, 2014 letter to the Massachusetts Emergency Management Agency (Grantee), determined the project was ineligible for Public Assistance (PA).  In an accompanying memorandum, FEMA explained that the Applicant had not verified or validated any of the debris removal costs, and additionally, because there was no evidence of monitoring, the quantities of debris removed could not be verified.  Lastly, FEMA concluded the Applicant had not established any of the debris removed was the direct result of the disaster.  The Grantee transmitted FEMA’s determination of ineligibility to the Applicant on April 23, 2014.[3]  Consistent with its denial, FEMA amended PW 1106, obligating zero dollars in Version 1.

First Appeal

In a letter dated June 20, 2014, the Applicant appealed FEMA’s denial of PA for the debris removal work.  It stated the previous submittals to FEMA of payroll sheets, superintendents’ reports and schedules, police logs, vendor contracts, and billings, demonstrated the work of clearing hazardous trees and debris, performed during the disaster and the days afterward, were eligible for reimbursement.  It then stated, without explanation, that because it understood it may not be eligible for reimbursement of debris grinding and disposal, it chose to revise its funding request.  The Applicant removed $8,650.00 from its requested costs: $7,450.00 in costs for the grinding of the debris completed by Maitby, and $1,200.00 for the work completed by North of hauling the debris off site from the transfer station.  Consequently, the Applicant requested reimbursement of a total of $64,906.53.  The Grantee transmitted the appeal in a letter dated July 2, 2014.

On August 7, 2014, FEMA Region I transmitted its first request for information (RFI) to the Grantee and Applicant, notifying them the record did not contain sufficient information: (1) concerning the amount of debris collected and removed; or (2) that the debris removed was directly related to the incident of August 28 through September 17, 2011.  FEMA noted that the Applicant had not provided individual load tickets, tower tickets, or paper trail of notes, verifying the monitoring of force account and contract services, or the eligibility of the debris collected. The Applicant responded by documenting the employees who worked each day and the routes taken by the Applicant’s trucks during debris removal.  It also submitted 16 photographs it stated were taken during the disaster, showing: (1) six roads blocked by fallen trees and branches and four roads with vegetative debris on top of utility lines; (2) two homes with driveways blocked by fallen trees, one home with a fallen tree touching a utility line, and one home with fallen vegetative debris in the yard; (3) a car parked on the side of a road with pieces of wood on its exterior; and (4) a grassy school yard with three portable toilets tilted on their sides.  Each photograph was undated but had a street name written on the back of it to identify the locations.  The Grantee transmitted the Applicant’s response in a letter dated October 28, 2014, and additionally attached notes from a September 26, 2014 meeting between personnel from FEMA, the Grantee, and the Applicant during which the Applicant acknowledged it did not have monitors at the disposal sites to document the amount of debris unloaded.  

On August 30, 2016, FEMA transmitted a second RFI to the Grantee, notifying it that as a result of the first appeal review, FEMA identified costs and work that may not be eligible for PA.  To determine whether Section 705(c) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act)[4] precluded FEMA from recovering PA funding, FEMA requested the Grantee confirm: (1) whether it had drawn down funding for the project; and (2) whether the scope of work (SOW) authorized in PW 1106 (Version 0) had been completed.  In a letter dated September 27, 2016, the Grantee confirmed the Applicant completed the approved SOW but that the federal funds for the project had not been drawn down.

In a January 5, 2017 letter, FEMA transmitted a Final RFI to the Grantee and Applicant, indicating the appeal would likely be denied because the Applicant had not provided adequate documentation demonstrating its incurred eligible project costs.  FEMA notified the Grantee and Applicant they had an opportunity to provide any additional information in support of the first appeal.  The Applicant responded via a February 1, 2017 letter.  It asserted that it demonstrated: (1) the initial response phase of debris operation began during the disaster; (2) it activated crews to clear debris on emergency access roads; (3) it removed debris in the public interest; (4) the debris was generated as a direct result of the disaster; and (5) it exercised debris monitoring through the Director of Public Works (DPW) and management staff’s constant observation of crews at all field operations, with the one exception being the transfer station.  As such, it reaffirmed its request for reimbursement of debris removal costs, with the exception being the costs associated with the debris grinding at the transfer station and hauling of the debris from the transfer station to the final site.

FEMA Region I’s Regional Administrator (RA) denied the appeal on May 4, 2017, determining the Applicant failed to provide documentation demonstrating the type and amount of debris removed and the location of the debris removed.  As such, the RA noted it could not reach a finding that the debris was located on public property or that the removal was required as a result of the disaster and in the public interest.  Lastly, the RA concluded Section 705(c) of the Stafford Act was not applicable because the Grantee had not drawn down any funding for the project.  Consequently, it confirmed FEMA’s obligation of zero dollars under PW 1106 (Version 1). 

Second Appeal

By letter dated June 23, 2017, the Applicant appeals the RA’s denial of $64,906.53 in funding, renewing its request for reimbursement of debris removal costs.  The Applicant relies on all previously submitted documentation to demonstrate it completed debris removal in line with Section 403 of the Stafford Act, arguing the work was done in the “public interest” in order to protect the public from immediate threats.[5]  It contends it initially cleared the streets of trees and branches to allow safe passage of emergency vehicles, prevent injury to the public, and preclude further damage to property.  The Applicant states it then worked over the weeks following the disaster to recover debris that had been pushed aside during the initial response or that had not posed an immediate threat.  Next, the Applicant argues photographs and testimonials establish the debris removal of trees from streets and removal of other hazardous debris, was the direct result of the disaster.  Finally, the Applicant asserts that it has clearly shown the DPW and management team, managed and monitored the debris removal process. 

The Grantee transmitted the Applicant’s appeal in a June 29, 2017 letter.  The correspondence did not included a recommendation for approval.

Discussion

Support Documentation

The Stafford Act authorizes FEMA to provide assistance for debris removal.[6]  To be eligible for PA, however, the Applicant must demonstrate that the work was: (1) generated as a result of the major disaster; (2) located within the designated area of a major disaster; and (3) the legal responsibility of the eligible applicant.[7]  It is the Applicant’s burden to substantiate appeals with documented justification.[8]  Lastly, regarding legal responsibility, it is rarely an applicant’s responsibility to remove debris from private property; it is generally the responsibility of the property owner, unless removal of the debris benefits the general public.[9] 

Applicants are encouraged to monitor debris removal operations to ensure the work is eligible for PA funding.  Failure to do so properly may jeopardize funding.[10]  Monitoring requires comprehensive observation, such as constant observation of crews, as well as documentation of the debris removal work performed from the point of collection to final disposal.[11] 

In order to be allowable, costs must be, among other requirements, necessary, reasonable, adequately documented, and consistent with the Agency’s regulations and policies.[12]  To support a request for reimbursement of contract costs, FEMA’s policy provides the documentation to be submitted by the Applicant: (1) locations of debris removal; (2) type of debris removed; (3) debris quantities; (4) identification of the truck/trailer hauling debris and the contractor; and (5) labor, equipment, and materials charges, including hours of service.[13]  Ultimately, load tickets provide the most comprehensive information to substantiate reimbursement.[14] 

Regarding DAC, PA policy allows reimbursement for those costs that are directly chargeable on a PW for a specific project.[15]  However, the costs must be directly associated with administering eligible work.[16]

Here, the Applicant provides photographs of vegetative and other debris that could have been generated by the disaster, such as the fourteenth photograph that shows a downed tree lying across Daniels Street.  However, other than the reference in the contract summary record to tree removal work completed by Nowak and Mayer, the Applicant fails to provide documentation confirming the type of debris it ultimately removed.  Additionally, the photographs do not establish the weight/quantity of debris removed and the Applicant did not produce load tickets confirming the quantity of debris unloaded at the transfer station.  As such, the Applicant has not demonstrated that the work was disaster-related because no documentation has been provided to verify the type and quantity of debris removed by FAL, FAE or North. 

In addition, other than the reference to Nowak’s tree removal at 90 Daniels Street, the Applicant has not demonstrated from where the debris was collected.  While some of the photographs show debris on public roads, others depict debris near or on private homes and property.  Without documentation, such as a load tickets, that state the locations from which FAL, FAE, Mayer, and North removed debris, the Applicant has not demonstrated it was legally responsible for the debris removed and for which it now seeks reimbursement.

While the Applicant asserts the DPW and management staff constantly observed the crews at all field operations to ensure eligible work was completed, it does not provide corresponding monitoring documentation that would allow FEMA to ascertain the specific debris removal work performed from points of collection to final disposal.  Furthermore, it does not include any reference to monitoring activities in the FAL spreadsheet, which lists employees who took part in the debris removal operations. 

Based on the above, with the exception of the work completed by Nowak, the Applicant has not demonstrated the work at issue in this appeal was disaster-related nor that it was the legal responsibility of the Applicant to perform.  Therefore, the work completed by FAL, FAE, Mayer, and North, as well as the associated costs, are ineligible for PA.  Consequently, determining whether the work was done in the public interest or to meet an immediate threat is moot. 

In contrast, the Applicant has documented that Nowak removed disaster-related debris and that it was the Applicant’s legal responsibility to do so.  The fourteenth photograph, contract summary record, and corresponding invoice, establish the Applicant removed a downed tree that blocked both lanes of 90 Daniel Street on September 1, 2011, thereby demonstrating removal was in response to an immediate threat and in the public interest.  Because the Applicant demonstrates Nowak’s work is eligible, FEMA must next examine the costs associated with the work.  Although the Applicant provided the location and type of debris removed by the contracted service, it does not provide documentation demonstrating the (1) quantity of the debris removed from that site, (2) identification of the debris hauling truck/trailer, or (3) labor, equipment, and materials charges, including hours of service.  Furthermore, the record does not contain any load tickets, precluding FEMA from ascertaining the quantity of debris unloaded at the transfer station.  Consequently, due to the lack of supporting documentation, the Applicant has not demonstrated that costs paid to Nowak were reasonable.  As such, the Applicant’s requested costs for work performed by Nowak is ineligible for PA.[17]  

Finally, because the requested costs associated with the project are ineligible for PA, the DAC incurred to administer the project are also ineligible. 

Conclusion

The Applicant has not demonstrated the work completed by FAL, FAE, North, and Mayer, was disaster-related or the legal responsibility of the Applicant.  In addition, the Applicant has not produced documentation that establishes the costs incurred through the contracted service to Nowak are reasonable and eligible for PA.  Therefore, this appeal is denied. 

 

 

[1] FEMA Force Account Labor Record from the Emergency Mgmt. Dir., Town of Franklin, at 1-6 (Jan. 20, 2012) (requesting reimbursement for wages paid to 13 heavy motor equipment operators, one water/sewer crew leader, one water/sewer operator, one transfer station operator, two water pump station operators, one motor roador (sic), one mechanic, one foreman mechanic, four working foreman, and eight police officers).   

[2] Form 9901 – Direct Administrative Costs (Subgrantee) from Town Adm’r, Town of Franklin (Jan. 20, 2012) (listing the employees and the hours worked as: Office Mgr. (21 hours), Pub. Works Administration (21 hours), Foreman Mechanic (3 hours), and Town Comptroller (1 hour)).

[3] Letter from Mitigation and Disaster Recovery Sec. Chief, Mass. Emergency Mgmt. Agency, to Dir., Dep’t of Pub. Works, Town of Franklin (Apr. 23, 2014).

[4] Section 705(c) bars FEMA from deobligating previously awarded funding if: “(1) the payment was authorized by an approved agreement specifying the costs; (2) the costs were reasonable; and (3) the purpose of the grant was accomplished.”  The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) of 1988, Pub. L. Na. 93-288 § 705(c), 42 U.S.C. § 5205 (2006).

[5] Letter from Dir., Dept. of Pub. Works, Town of Franklin, to Acting Reg’l Adm’r, FEMA, Region I, at 1 (June 23, 2017).

[6] Stafford Act §§ 403(a)(3)(A) and 407; see Title 44 Code of Federal Regulations (44 C.F.R.) § 206.224(a) (2010) (allowing assistance for debris removal that is in the public interest, such as when the work is necessary to (1) eliminate immediate threats to life, public health and safety, (2) eliminate immediate threats of significant damage to improved public or private property, (3) ensure economic recovery of the affected community to the benefit of the community-at-large, or (4) mitigate the risk to life and property by removing substantially damaged structures). 

[7] 44 C.F.R. § 206.223.

[8] FEMA Second Appeal Analysis, Dep’t of Transp., FEMA-4068-DR-FL, at 5 (Aug. 5, 2016); see also 44 C.F.R. § 206.206(a) (requiring an appeal to contain documented justification supporting an applicant’s position).

[9] Public Assistance Guide, FEMA 322, at 69 (June 2007).

[10] Disaster Assistance Policy DAP 9580.203, Disaster Assistance Directorate Fact Sheet Debris Monitoring, at 1 (May 3, 2007).

[11] Id.

[12] 2 C.F.R. § 225 Appendix A (C)(1)(a), (e), (j).

[13] Public Assistance Debris Monitoring Guide, FEMA 327, at 20 (Oct. 2010).

[14] Id. at 19; see generally id. at 46 (providing a sample debris load ticket, which includes identification of the loading location (address or cross streets) and the estimated/actual weight of the debris at the time of unloading, as well as a classification of the debris unloaded (i.e. Vegetation, Construction and Demolition, and White Goods)). 

[15] Disaster Assistance Policy DAP 9525.9, Section 324 Management Costs and Direct Administrative Costs, at 3 (Mar. 12, 2008); 2 C.F.R. § 225 Appendix A (E)(1) (“Direct costs are those that can be identified specifically with a particular final cost objective.”).

[16] FEMA Second Appeal Analysis, Iowa Homeland Sec. and Emergency Mgmt. Dep’t, FEMA-1998-DR-IA, at 2 (June 8, 2016) (“DAC, if incurred and properly documented, is only eligible for funding if the associated work is eligible”).  

[17] See FEMA Second Appeal Analysis, Vill. of Key Biscayne, FEMA-1602-DR-FL, at 3 (Aug. 27, 2012) (concluding “in the absence of…documentation to quantify the amount of debris the Applicant’s contractor removed, FEMA cannot calculate eligible costs for debris removal services…”).