Private Property Debris Removal

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Desastre	4562
Applicant	Oregon Department of Transportation
Appeal Type	Second
PA ID#	000-UVR5Z-00
PW ID#	GMP 243136 and 182287
Date Signed	2022-08-31T16:00:00

Summary Paragraph

From September 7-November 3, 2020, wildfires and straight-line winds caused damage in Jackson County.  FEMA conducted a Recovery Scoping Meeting (RSM) with the Oregon Department of Transportation (Applicant) on November 17, 2020.  On December 26, 2020, FEMA approved the Applicant’s request on Jackson County’s behalf for CPDR from 20 properties destroyed by the disaster.  In August 2021, FEMA denied requests to add properties for CPDR under Grants Manager Projects 243136 and 182287 because it could not determine that extraordinary circumstances justified the add-on sites or that debris removal was in the public interest, and it appeared the Applicant completed debris removal on many of the properties before FEMA could approve the work.  The Applicant appealed both denials, stating that debris removal was in the public interest as the debris posed an immediate threat to public health.  On February 7, 2022, the FEMA Region X Regional Administrator denied the appeal since the Applicant did not demonstrate that CPDR for the add-on sites was in the public interest and would benefit the community at large.  On April 7, 2022, the Applicant submitted a second appeal, requesting $91,613.00 for costs incurred to complete CPDR work on 4 properties that were not approved by FEMA. 

Authorities and Second Appeals

• Stafford Act §§ 403(a), 407(a).
• 44 C.F.R. §§ 206.202(d)(1)(ii), 206.224(a).
• PAPPG, at 60, 109.

Headnotes

• An applicant is required to identify and report all of its incident-related impacts to FEMA within 60 days of the RSM.  FEMA may extend the deadline to identify and report the impacts if the applicant submits a request with justification based on extenuating circumstances beyond the grantee’s or applicant’s control.
  • The Applicant did not identify and report the four properties within 60 days of the RSM and did not request that FEMA extend the deadline with justification based on extenuating circumstances beyond the grantee’s or applicant’s control.
• Removal of debris from commercial properties is generally ineligible because commercial enterprises are expected to retain insurance that covers debris removal.  In very limited, extraordinary circumstances, FEMA may provide an exception.  In such cases, the applicant must meet the requirements of the approval process, and FEMA must approve the work prior to the applicant removing the debris. 
  • The Applicant did not meet approval process requirements, and FEMA did not approve the work prior to the Applicant removing the debris. 

Conclusion

The Applicant has not demonstrated justification based on extenuating circumstances beyond its or the Oregon Office of Emergency Management’s control for its late CPDR request.  In addition, FEMA did not approve the work prior to the Applicant removing the debris.  Therefore, this appeal is denied.

 

Appeal Letter

Appeal Analysis

Background

From September 7-November 3, 2020, wildfires and straight-line winds caused damage in Jackson County.  FEMA conducted a Recovery Scoping Meeting (RSM) with the Oregon Department of Transportation (Applicant) on November 17, 2020.  On December 26, 2020, FEMA approved a request from the Applicant on behalf of Jackson County for Commercial Property Debris Removal (CPDR) that applied to 20 properties damaged by the disaster. 

On June 14, 2021, the Applicant requested FEMA add 15 properties for CPDR under Grants Manager Project (GMP) 182287 and on July 6, 2021, the Applicant requested that FEMA add three properties for CPDR under GMP 243136.  FEMA denied the requests for GMP 243136 in a Determination Memorandum (DM) dated August 4, 2021, and for GMP 182287 in a DM dated August 23, 2021.  FEMA found it could not determine that extraordinary circumstances, beyond the Applicant’s or the Oregon Office of Emergency Management’s (Grantee) control, justified the delay in reporting the request for additional sites; and, the Applicant completed debris removal on many of the properties before FEMA could approve the work.

First Appeal

The Applicant appealed both denials on October 1, 2021, stating that the amount in dispute was $720,000.00 and that debris removal was in the public interest because the debris posed an immediate and serious health threat.  The Applicant amended the appeal on October 21, 2021, removing two properties and providing photographs, maps, soil reports and property-specific information, including noting threats posed by hazardous chemicals, and proximity to populated areas, floodplains, and waterways.

The Grantee transmitted the appeal to FEMA, recommending its approval.  The Grantee stated that the Applicant had legal authority to remove the debris and that the Applicant received CPDR approval for the 20 original properties before it removed debris.  The Grantee stated the Applicant discovered only later that it inadvertently omitted the additional properties from its original request.  The Grantee asserted that there was nothing inherently different between the properties initially approved and the properties at issue.  The Grantee stated that when FEMA initially approved the Applicant’s CPDR, FEMA had determined that the debris on commercial property was sufficiently widespread as to pose a threat to public safety and that its removal was necessary for the County’s economic recovery.

On February 7, 2022, the FEMA Region X Regional Administrator denied the appeal.  FEMA found that the Applicant demonstrated legal responsibility for the debris removal, but did not demonstrate that it was necessary to protect public health or to ensure economic recovery of the community at large.  Therefore, the Applicant’s request for CPDR did not meet the criteria for approval.  FEMA also noted that the Applicant’s removal of debris before it either requested or received FEMA’s approval made some sites ineligible on that basis alone.

Second Appeal

In its April 7, 2022 second appeal, the Applicant requests $91,613.00 for costs incurred to complete CPDR work on four properties.   The Applicant reiterates and expands upon first appeal arguments and claims circumstances warrant a waiver of FEMA’s requirement for preapproval, arguing that a waiver is consistent with the Robert T. Stafford Disaster Relief and Emergency Assistance Act and implementing regulations.  The Applicant states that FEMA policy provides no justification for imposing the preapproval requirement for commercial property.  The Applicant adds that its request is limited, and that the event was extraordinary and warrants flexibility.  The Grantee transmitted the appeal to FEMA, recommending its approval.

 

Discussion

An applicant is required to identify and report all of its incident-related impacts to FEMA within 60 days of the RSM.[1]  FEMA may extend the deadline to identify and report the impacts, if the applicant submits a request with justification based on extenuating circumstances beyond the grantee’s or applicant’s control.[2]  FEMA may provide assistance for debris removal as long as it is in the public interest; that is, necessary to eliminate immediate threats to life, public health, and safety, to protect improved property, or to ensure economic recovery of the affected community to the benefit of the community-at-large.[3]  Removal of debris from commercial properties is generally ineligible except in very limited, extraordinary circumstances.[4]  In such cases, the applicant must meet the requirements of the approval process and FEMA must approve the work prior to the applicant removing the debris.[5] 

Here, the Applicant did not identify and report the four properties at issue within 60 days of the RSM and it did not request that FEMA extend the deadline based on extenutating circumstances beyond its or the Grantee’s control.  The Applicant only later discovered that it inadvertantly left the properties off the original request.[6]  As such, neither the Applicant, nor the Grantee, have demonstrated an extenuating circumstance beyond their control justifying the delay in reporting the additional properties.  In addition, the Applicant removed the debris prior to FEMA approving the work and did not comply with the Agency’s approval process for CPDR.  The Applicant has therefore not demonstrated that the CPDR is eligible on the four properties.

 

Conclusion

The Applicant has not demonstrated justification based on extenuating circumstances beyond its or the Oregon Office of Emergency Management’s control for its late CPDR request.  In addition, FEMA did not approve the work prior to the Applicant removing the debris.  Therefore, this appeal is denied.

 

[1] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.202 (d)(1)(ii) (2019); Public Assistance Program and Policy Guide, FP 104-009-2, at 60 (June 1, 2020) [hereinafter PAPPG].

[2] PAPPG, at 60.

[3] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 403(a), 407(a), 42 United States Code §§ 5170b(a), 5173(a) (2018); 44 C.F.R. § 206.224(a).

[4] PAPPG, at 109.

[5] Id.

[6] Letter from Alt. Governor’s Authorized Rep., Oregon Office of Emergency Mgmt., to Acting Reg’l. Adm’r., FEMA Region X, at 4 (Nov. 18, 2021).