Communities hit by such natural disasters as hurricanes, earthquakes, fires, floods, tornadoes, and landslides are often faced with large-scale and costly recovery efforts. The Federal Emergency Management Agency (FEMA) is the federal agency whose primary mission is to provide monetary assistance to those communities devastated by disasters, but communities’ cleanup efforts might need to be performed before FEMA’s financial assistance can begin.
Recovery efforts invariably begin immediately and end with debris removal operations that involve, among other things, removing downed and damaged trees and hauling those materials away. Even a small event is capable of generating tens of thousands of cubic yards of debris and large-scale events can result in millions of cubic yards of debris. Within the first 100 days following Hurricane Sandy, for example, more than 8 million cubic yards of debris were removed from the streets and public areas of affected communities.
Debris removal and the associated costs incurred in performing debris removal may be eligible for federal assistance under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (“Stafford Act”), 42 U.S.C. §§ 5121--5208, under which FEMA is authorized to provide public assistance grants to communities recovering from a natural disaster.
Debris Removal Funding
The Stafford Act provides relatively vague guidance regarding eligibility of debris removal operations and gives the U.S. President broad discretion to grant funding under the act. The President, in turn, has delegated his authority to FEMA.
FEMA determines whether a community is entitled to receive post-event assistance and if so, the amount. FEMA has implemented rules and developed grant-making criteria to govern the process to be followed when a community seeks assistance.
Broadly speaking, in order to be eligible for assistance, the debris—be it a leaning tree, a fallen or dangling branch, or vegetation clogging a waterway—must be the direct result of an event that is a presidentially declared disaster. If the debris was there before the event occurred, then its removal would not be eligible for public assistance.
The debris also must in some way encumber a public right of way or public property (parks, recreation areas, roads, sidewalks, etc.) in such a way that it threatens public health and safety, or improved property, like roads, pathways, and power lines.
The applicant for public assistance for emergency debris removal, which usually is a state or local government, must present evidence demonstrating the eligibility for identifying, removing, and disposing of that debris. The applicant must also demonstrate that the costs incurred to identify and remove eligible debris were reasonable.
An applicant’s public assistance request can be denied as the grants to remove disaster debris are by definition discretionary, and FEMA’s decisions under the Stafford Act are not subject to judicial review. A community cannot challenge FEMA’s decision in court; the court, be it federal or state, has no jurisdiction to consider such a matter.
Administrative Review Process
In lieu of judicial review, FEMA has implemented an administrative process for reviewing the decisions of its officials and representatives. The administrative review process consists of two levels of appellate review within FEMA.
The first appeal may be lodged with FEMA’s regional office (“first-level appeal”), that being the FEMA region tasked initially with deciding the application for relief. Sometimes these appeals are denied in whole or in part, and sometimes the appeals are settled by FEMA and the applicant. If an appeal is settled or decided favorably for the applicant, there would be no need to file a subsequent appeal.
If the first-level appeal is denied in whole or in part, the applicant may file a second appeal with FEMA headquarters (the “second-level appeal”). Sometimes these second-level appeals are denied in whole or in part, and sometimes they are settled by the parties. The process for both appeals is similar, but the deciding officials are not the same. FEMA maintains a public database of appellate decisions.1
In the aftermath of Hurricane Katrina and through Section 601 of the 2009 stimulus act, Congress allowed aggrieved communities to seek independent review of FEMA decisions through a special arbitration process.
For disputes arising out of certain disasters occurring before 2012, arbitrations against FEMA could be filed before a panel of three judges sitting on the Civilian Board of Contract Appeals (CBCA). The CBCA arbitration panel reviewed the application for public assistance de novo. In other words, the panel reviewed the same evidence presented to FEMA and decided anew, as though for the first time, whether the applicant qualified for assistance.
A Shift in Procedure
For disasters declared on or after October 30, 2012, the arbitration procedure has shifted from CBCA to the U.S. Coast Guard’s Office of Administrative Law Judges. The shift to a new forum also entails the application of a narrower standard of review, under which FEMA’s decision will stand so long as it has a reasonable and rational basis and is not found to be arbitrary or capricious.
Preparedness Is Key
In order to better prepare for the possible paperwork associated with public assistance proceedings, community leaders should develop emergency preparedness plans because these plans identify the necessary first steps in responding to a natural disaster, identify the individuals responsible for accomplishing those tasks, and identify the community’s available resources for those critical tasks, including capability and capacity of nearby hospitals or medical centers, vehicles and heavy equipment available for emergency evacuation, and personnel and contractors available for emergency repairs.
Thus, when disaster strikes community officials already know what tasks must be done, who will perform those tasks, and which resources are available to complete them.2 With that information readily available, community leaders will later be better prepared to justify the resources expended when requesting public assistance from FEMA.
Communities will pull together in time of disaster to help one another and to achieve the greater good for the benefit of all. That same esprit de corps can be mustered long before a disaster is forecasted.
Local community leaders from area businesses, churches, government, schools, and volunteer organizations can organize to provide human capital to form and implement preparedness plans—plans that, however informal, could make the difference between a favorable and unfavorable FEMA determination. Millions of dollars are at stake for any given disaster.
Whether or not a disaster preparation plan has been developed, once a disaster hits, communities can act with C.A.R.E.:
Communicate with FEMA. During the recovery process, applicants and their contractors should work as closely as possible with FEMA personnel to try to avoid instances in which the applicant’s interpretation of FEMA eligibility criteria differs from FEMA’s eligibility determinations.
Always document communications with FEMA. Applicants and their contractors can and should maintain contact with FEMA representatives through electronic correspondence or some other written communication. Follow-up after meetings or teleconferences with FEMA personnel should be done through e-mail to enhance clarity and mutual understanding of recovery work and the public assistance process.
Recognize your rights. If FEMA denies part or all of an applicant’s request for public assistance funding, the applicant has the right to appeal that denial and may have the right to seek arbitration.
Evaluate FEMA precedent. Applicants should use FEMA’s second-level appeal decisions to develop the strongest case for recovery should FEMA decide along the way that the applicant is not entitled to complete relief. According to FEMA’s Public Assistance Appeals Database, 152 appeals decisions fall under the category of “debris removal.”3 Understanding the nuances of these cases might help applicants as they proceed through possible appeals and arbitration in the future.
1 The database of FEMA appellate decisions can be found at https://www.fema.gov/appeals.
2 A template for a community disaster plan can be found at http://www.state.in.us/isdh/files/PREPARE_Disaster_Plan_Template_IN_8_08.pdf.
3 See https://www.fema.gov/appeals.