Debris Disposal and Monitoring

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4451
Applicant	Missouri Department of Transportation
Appeal Type	Second
PA ID#	000-U1X28-00
PW ID#	GMP 132669/ PW 1274
Date Signed	2023-01-31T17:00:00

Summary Paragraph

During the incident period of April 29-July 6, 2019 for DR-4451, Missouri experienced severe storms, tornadoes, and flooding. The Missouri Department of Transportation (Applicant) requested $943,386.88 in Public Assistance funding for emergency work to clear vegetative, silt, and construction debris from DR-4451. FEMA issued a Determination Memorandum, determining that the charges for claimed mobilization and erosion work were not reasonable, reducing the measures by $322,969.08, and obligating  $620,417.80 in funding for the debris removal. The Applicant appealed only the determination that the mobilization costs were unreasonable. FEMA sent two requests for information (RFI) seeking documentation regarding the work and costs claimed. The Applicant responded to each RFI, stating that original debris estimates were made when the area was still underwater and some work should have been captured in DR-4435 rather than DR-4451. The FEMA Region VII Regional Administrator denied the appeal, finding that all of the debris removal work and costs were ineligible for PA funding due to the lack of required debris removal and monitoring documentation and that some of the damage did not result from the declared disaster DR-4451. FEMA also determined that Section 705(c) did not apply to prohibit FEMA from recovering payments and deobligated $620,417.80 in previously awarded funds. On second appeal, the Applicant requests FEMA re-evaluate the project, reasserting that some damages should have been included in DR-4435 instead of DR-4451.

Authorities and Second Appeals

• Stafford Act §§ 403(a), 407(a).
• 44 C.F.R. §§ 206.206(a), 206.223(a)(1), 206.224(a), 206.225(a)(1),.
• PAPPG, at 21, 23-24, 42, 44, 133.
• Campbell Cty. Fire Dist. #1, FEMA-4497-DR-KY, at 3

Headnotes

• To be eligible for reimbursement, costs must be directly tied to the performance of eligible work and be adequately documented. To determine the eligibility of debris removal operations, the applicant must provide debris types, quantities, reduction methods, and pickup and disposal locations.
  • The Applicant has not substantiated through required documentation, that the costs claimed are tied to the performance of eligible work.

Conclusion

The Applicant has not substantiated through documentation that the costs claimed are directly tied to the performance of eligible work. Therefore, the appeal is denied.

Appeal Letter

Appeal Analysis

Background

From April 29-July 6, 2019, the state of Missouri experienced severe storms, tornadoes, and flooding. On July 9, 2019, the President issued a major disaster declaration (DR-4451) for the areas affected.[1] The Missouri Department of Transportation (Applicant) requested $943,386.88 in Public Assistance (PA) funds for emergency work to clear vegetative, silt, and construction debris from five road sites in three counties that it claimed resulted from this disaster. The Applicant estimated the initial total quantity of debris across all project sites but later reduced the quantity via several contract change orders to reflect the actual debris removed and bid each of the project site’s damaged items as a separate contract, choosing the lowest bidders for each item. FEMA wrote Grants Manager Project (GMP) 132669/Project Worksheet (PW) 1274 to capture completed debris removal work. FEMA issued a Determination Memorandum (DM), determining that the mobilization charges and reducing the requested costs, including mobilization and erosion control, by $322,969.08 in direct proportion with the actual quantity of debris work performed.[2] FEMA then obligated $620,417.80 in funding for the debris removal for GMP 132669/PW 1274.

First Appeal

On June 6, 2021, the Applicant submitted its appeal, requesting the denied mobilization costs. The Applicant stated those costs: 1) were a separate line-item bid in contracts; 2) were not based on the total amount of work or the total cost of the work completed; 3) did not solely consist of actual costs associated with moving equipment to the site for a specific item of work; and 4) must be paid per the contract regardless of the amount of actual work performed. The Missouri State Emergency Management Agency (Recipient) transmitted the appeal with its support.

FEMA sent a request for information (RFI) seeking documentation to support debris monitoring for the contract work, as well as an explanation and any supporting documentation on what equipment specifically was mobilized and why mobilization of that equipment was reasonable and prudent. The Applicant responded by stating that the original debris estimates were made when the area was still underwater. FEMA sent a second RFI, requesting additional clarification on whether the work was the result of this declared incident, as the Administrative Record showed that the contracts for two sites were each awarded prior to the incident period for this disaster. The second RFI also requested additional documentation supporting quantities of debris removed, disposed, and recycled (by type) with a representative sampling of load tickets to support quantities; debris monitoring reports; and debris pick-up locations. The Applicant submitted a partial response stating that some work for GMP 132669 should have been captured in a project for DR-4435, a disaster that also included flooding that occurred earlier in the year, before DR-4451.[3]

The FEMA Region VII Regional Administrator denied the appeal. FEMA found all of the debris removal work and costs were ineligible for PA funding because: 1) the Applicant’s invoices were not supported by debris monitoring reports demonstrating that the debris was eligible for removal or generated by the disaster; 2) the Applicant did not provide adequate load tickets to show debris pick-up locations, type of debris removed, quantity, and eligibility; 3) the Applicant acknowledged in the second RFI response that some of the damage captured in GMP 132669/PW1274 may have been the result of DR-4435; and 4) without adequate and proper documentation showing that the Applicant adequately monitored the work, FEMA could not verify that the claimed costs were reasonable, were associated with eligible work, or that the debris removed posed an immediate threat to life, health, safety, or economic recovery. FEMA also deobligated $620,417.80 in previously awarded funds after it determined that section 705(c) of The Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act did not prohibit recovery of those payments as two prongs of section 705(c) were not met. First, FEMA confirmed through its Grants Manager system that payment was not made as funds had not been drawn down. Second, FEMA determined the purpose of the grant was not accomplished as a post-award condition that requires maintaining adequate documentation had not been met.

Second Appeal

On September 19, 2022, the Applicant submitted its appeal. First, it disputed FEMA’s note in the first appeal decision that it did respond to the second RFI.  The Applicant suggests some of the file it sent to Region VII was not transferred through to FEMA’s accounts due to its size. Second, the Applicant requests FEMA re-evaluate this project given the additional information that the Applicant attached. The Applicant also reiterates that work for two sites should have been included in DR-4435 instead of DR-4451 and requests guidance on whether this project may be included in DR-4435, and provides additional documentation for both site locations, including debris management reports. The Recipient transmitted the appeal, and after its review, supports the Applicant’s position.

 

Discussion

FEMA is authorized to provide PA funding for debris removal activities when the work eliminates certain immediate threats, including those: (1) to lives, public health and safety; or (2) of significant damage to improved public or private property.[4] To be eligible, costs must be directly tied to the performance of eligible work and be adequately documented.[5] It is the applicant’s responsibility to substantiate its claim as eligible.[6] To determine the eligibility of debris removal operations, the Applicant must provide debris types, quantities, reduction methods, and pickup and disposal locations.[7] FEMA requires the Applicant to monitor all contracted debris operations to document this information and ensure that the contractor removes eligible debris.[8] If the Applicant does not provide sufficient documentation to support its claim as eligible, FEMA cannot provide PA funding for the work.[9] Documentation should provide the “who, what, when, where, why, and how much” for each item claimed.[10] The burden to fully substantiate an appeal with documented justification falls exclusively on the applicant and hinges on the applicant’s ability not only to produce its own records, but to clearly explain how those records support the appeal.[11]

Here, the Applicant provided documentation that identifies a group of planned emergency response activities conducted through the incident period, photographs taken prior to the beginning of work, two load tickets for a small quantity of the total claimed debris, invoices for completed debris work, and bid documentation.  However, this documentation does not identify the who, what, when, where, why, and how much for each claimed activity at each project site. Specifically, this documentation does not include debris monitoring reports demonstrating that the debris was eligible for removal or provide any further specificity or detailed explanation of methodologies used to substantiate quantities prior to obtaining bids.  The Applicant did not provide documentation supporting quantities of debris with a representative sampling of load tickets, containing detailed debris monitoring reports, indicating debris pick-up locations, or demonstrating eligibility in compliance with FEMA’s debris monitoring requirements and directly tying the work claimed to eligible emergency protective measures during the incident period. Therefore, the claimed costs on appeal, the mobilization costs originally denied in the DM as well as the previously awarded funding deobligated in the first appeal decision, cannot be directly tied to the performance of eligible work.[12]

 

Conclusion

The Applicant has not substantiated through documentation that the costs claimed are directly tied to the performance of eligible work. Therefore, the appeal is denied.

 

 

 

[1] This disaster, FEMA-4451-DR-MO, occurred shortly after a prior major disaster declaration, FEMA-4435-DR-MO, had impacted the same affected area.  The President issued the major disaster declaration for the prior disaster on May 20, 2019, with an incident period from March 11-April 16, 2019.

[2] For example, the Applicant’s contractor collected 80.6% less debris than the contract anticipated for Damage Inventory 371181 and FEMA made a corresponding 80.6% decrease in the mobilization costs.  FEMA deducted a total of $322,969.08, for erosion control measures in the amount of $31,160.81 and mobilization costs in the amount of $291,808.27. 

[3] Email from Emergency Management Coordinator, to Region VII Appeals Team (Apr. 12, 2022, 10:22 EST).

[4] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act §§ 403(a) and 407(a), Title 42, United States Code (U.S.C.) §§ 5170b(a) and 5173(a) (2018); Title 44 Code of Federal Regulations (C.F.R.) §§ 206.225(a)(1) and 206.224(a) (2018); Public Assistance Program and Policy Guide, FP 104-009-2, at 42, 44 (Apr. 2018) [hereinafter PAPPG].

[5] PAPPG, at 21.

[6] Id. at 133.

[7] Id. at 57.

[8] Id.

[9] Id. at 133.

[10] Id.

[11] 44 C.F.R. § 206.206(a); FEMA Second Appeal Analysis, Campbell Cty. Fire Dist. #1, FEMA-4497-DR-KY, at 3 (Dec. 19, 2022).

[12] Based on this finding, the issue that some of the work was the result of DR-4435 is moot.