Debris Disposal and Monitoring

Appeal Brief

Summary Paragraph

Hurricane Sally caused damage throughout the state of Alabama, during the period of September 14 through September 16, 2020, resulting in a major disaster declaration on September 20, 2020. The Baldwin County Commission (Applicant) used contract labor to conduct vegetative debris removal operations. FEMA prepared Grants Manager Project 182868 to document the claimed contract debris removal, totaling $142,907.96. FEMA reviewed a sampling of the 817 debris load tickets provided by the Applicant. Based on an initial and subsequent review, FEMA determined that 17 (10.625%) of the 160 load tickets reviewed, for tree limbs and branches, did not document that the debris removed was eligible. FEMA issued a Determination Memorandum denying $15,183.97, calculated by taking 10.625% of the Applicant’s total costs. The Applicant appealed, arguing that all debris removal occurred in the Applicant’s public ROW or on public property. The FEMA Region 4 Regional Administrator partially approved the first appeal in a letter dated June 26, 2023, finding that 2 of the 17 denied load tickets demonstrated the removal of vegetative debris that posed an immediate threat to the public. Accordingly, FEMA found $1,786.35 eligible and denied the remaining 15 load tickets, totaling $13,397.62. In a letter dated August 25, 2023, the Applicant submits a second appeal for $13,397.62, stating that it provided sufficient documentation to demonstrate that the claimed debris removal is eligible.

Authorities

• Stafford Act § 407(a).
• 44 C.F.R. § 206.224(a).
• PAPPG, at 99, 101, 103.

Headnotes

• FEMA is authorized to provide Public Assistance funding for debris removal activities that eliminate immediate threats to lives, public health, and safety, or eliminate immediate threats of significant damage to improved public or private property. Removal of tree limbs or branches are ineligible if the item is in a natural area and does not extend over improved property or public use areas. FEMA does not fund removal of broken limbs or branches located on private property unless: (1) the limbs or branches extend over the public ROW; (2) the limbs or branches pose an immediate threat; and (3) the Applicant removes the hazard from the public ROW (without entering private property).
  • The documentation demonstrates removal activities associated with broken limbs or branches related to trees located: (1) along roads that were not shown to pose an immediate threat to lives, public health, and safety, or an immediate threat of significant damage to improved public or private property; or (2) in natural areas that did not extend over improved property or public use areas. In addition, the documentation demonstrates that other broken limbs or branches removed were located on private property that did not extend over a public ROW and posed an immediate threat.

Conclusion

The Applicant has not demonstrated the claimed vegetative debris removal activities met FEMA’s eligibility requirements. Therefore, the second appeal is denied.

Appeal Letter

Appeal Analysis

Background

Hurricane Sally caused damage throughout the state of Alabama, during the period of September 14-16, 2020, resulting in a major disaster declaration on September 20, 2020. The Baldwin County Commission (Applicant) used contract labor to conduct debris removal operations to remove hanging limbs, hazardous tress, and stumps. FEMA prepared Grants Manager Project 182868 to document the claimed debris removal, totaling $142,907.96 in contract costs. FEMA reviewed a representative sampling of the 817 debris load tickets provided by the Applicant. Based on an initial and subsequent review, FEMA determined that 17 of the 160 load tickets (10.625 percent) reviewed, for tree limbs and branches, did not demonstrate eligibility of the debris removed. 

On February 23, 2022, FEMA issued a Determination Memorandum (DM) denying $15,183.97 of the requested costs, calculated by making a representative reduction of 10.625 percent of the Applicant’s total costs, noting that the Applicant did not demonstrate the claimed debris removal for tree limbs and branches met FEMA’s eligibility criteria for debris removal. Specifically, FEMA stated that the Applicant’s documentation, including photographs, did not demonstrate an eligible hazard or immediate threat to the Applicant’s rights-of-way (ROW) or an improved area used by the public.

First Appeal 

The Applicant filed a first appeal in a letter dated April 22, 2022. The Applicant argued that all debris removal occurred in the Applicant’s public ROW or on public property and asserted the documentation it provided, including photographs, GPS coordinates, and monitoring reports, established that the debris removal was eligible. The Applicant provided a chart in which it explained that each specific load ticket demonstrated that the debris removal was eligible. In a letter dated April 28, 2022, the Alabama Emergency Management Agency (Recipient) forwarded the Applicant’s appeal with a request that FEMA review all documentation and make a determination regarding the appeal.

The FEMA Region 4 Regional Administrator partially approved the first appeal in a letter dated June 26, 2023, finding that two of the 17 denied load tickets demonstrated the removal of vegetative debris that posed an immediate threat to the public. Accordingly, FEMA found $1,786.35 eligible and denied the remaining 15 load tickets, totaling $13,397.62.

Second Appeal

In a letter dated August 25, 2023, the Applicant submits a second appeal for $13,397.62, stating that it provided sufficient documentation to demonstrate that the claimed debris removal is eligible. In a letter dated August 28, 2023, the Recipient forwards the appeal to FEMA with a request to review all documentation provided by the Applicant and make a determination regarding the second appeal.

Discussion

FEMA is authorized to provide Public Assistance funding for debris removal activities that are in the public interest, such as when the work eliminates immediate threats to lives, public health, and safety, or eliminates immediate threats of significant damage to improved public or private property.[1] This includes removal of vegetative debris.[2] Eligible vegetative debris may include tree limbs, branches, stumps, or trees that are still in place, but damaged to the extent they pose an immediate threat.^[3] These items are ineligible if the item is in a natural area and does not extend over improved property or public use areas.[4] FEMA does not fund removal of broken limbs or branches located on private property unless: (1) the limbs or branches extend over the public ROW; (2) the limbs or branches pose an immediate threat; and (3) the Applicant removes the hazard from the public ROW (without entering private property).[5]

The original denial of costs arose from FEMA making a proportional reduction of claimed costs based on the results of a review of a representative sample of documentation. Although the Applicant states the documentation associated with the 15 load tickets from the representative sample demonstrates all the work constituted eligible debris removal, it has not demonstrated this. First, based on the documentation provided for these specific load tickets, debris removal activities were conducted along roads where limbs or branches were not shown to pose an immediate threat to lives, public health, and safety, or an immediate threat of significant damage to improved public or private property; or in natural areas where limbs or branches did not extend over improved property or public use areas. Second, the documentation demonstrates that other broken limbs or branches were removed from trees located on private property, such as in the front lawn of a private home. However, the documentation does not establish that the broken limbs or branches located on private property extended over a public ROW and posed an immediate threat. The Applicant has not demonstrated that the requested costs of $13,397.62 are associated with the performance of eligible work.

Conclusion

The Applicant has not demonstrated the claimed vegetative debris removal activities met FEMA’s eligibility requirements. Therefore, the second appeal is denied.