A Debris Management Handbook for State and Local DOTs and Departments of Public Works (2014)

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21 Synopsis of Issue Debris policies provide clear, specific directions for applying comprehensive rules in a uniform manner to debris management activities. They are the basis for evaluating if work is eligible for reimbursement through publicly-funded grant programs based in compliance with legal, environmental, documentation, and other program requirements. Debris policies are generally formulated by upper-level managers, administrators, and community leaders. After being officially approved, they must be made available to all offices and personnel that are or would be involved in the actions addressed in the policies to help ensure that these individuals clearly understand appli- cable existing policies. Sometimes people confuse the terms “policies” and “procedures.” Policies must clearly state their intended purpose and the approving authority. The simple difference is that while policies are official and approved, procedures show processes to accomplish specific tasks. According to the results of a 2012 survey that was conducted for the development of this hand- book, understanding application of policy is one of the areas of least confidence in the debris management cycle for those responsible for debris operations. The majority of respondents to the survey indicated that their jurisdictions do not have debris management policies in place or they do not know if any policies exist. Target Audience • Debris managers. • Local administrators. • Legal counsel. What Is a Debris Policy and What Does It Address? During and following a disaster, there is often confusion regarding debris-related policies. Many communities are not familiar with federal, state, or even local policies that could impact what can operationally be done, what permits are required, and what is necessary for reimbursement. It is especially important that DOTs and DPWs are aware that such policies exist and how they can affect debris operations and eligible funding. Public policy is defined by the Public Policy Cycle website, as “a purposive and consistent course of action produced as a response to a perceived problem of a constituency, formulated by a specific political process, and adopted, implemented, and enforced by a public agency” (5). A debris removal policy is a public policy that establishes by law, ordinance, or code the responsibility of a designated legal entity to remove and process disaster-related debris. Such C H A P T E R 4 Policy

22 A Debris Management Handbook for State and Local DOTs and Departments of Public Works policies can exist at the federal, state, and local levels to address any or all aspects of the debris management cycle. Some of the issues they can address include: • Legal authority to remove disaster-related debris. • Contracting procedures and requirements. • How debris monitoring should be accomplished. • Grant applicant eligibility. • Grant funding eligibility of debris-related activities. • Debris handling and transport requirements. • Acceptable debris disposal locations. • Recycling rates/percentages to be achieved and types of materials to be recycled. • How measurements are taken. • Documentation required for reimbursement. • Requirements for closeout and auditing of program activities. The following federal agencies have debris and debris-related policies: • Federal Emergency Management Agency (FEMA)—Public Assistance program debris policies. • Federal Highway Administration (FHWA)—emergency relief program debris policies. • Natural Resources Conservation Service (NRCS)—stream debris removal policies. • U.S. Coast Guard (USCG)—waterway debris removal policies. • U.S. Army Corps of Engineers (USACE)—debris removal policies. • EPA—policies related to debris sites, including the handling and disposal of hazardous waste. Of these federal agencies, state and local agencies engaged in debris operations most commonly engage with FEMA, FHWA, and NRCS on their debris policies. FEMA is a Department of Homeland Security (DHS) agency; FHWA is a component of the Department of Transportation; and NRCS is part of the U.S. Department of Agriculture (USDA). The policies of each of these three agencies are discussed briefly in the following paragraphs. Federal Debris Policies for FEMA, FHWA, and NRCS FEMA Debris Policies: The FEMA Public Assistance (PA) program goes into effect for most presidentially-declared disasters. These program policies establish the parameters for cost reimburse- ment eligibility through the PA program for debris clearance, removal, reduction, and disposal. Maintaining an awareness and understanding of these policies is important for any entity that is eligible for and intends to seek reimbursement from FEMA through the PA grant program or is developing a comprehensive debris management plan. FEMA has developed a series of policies that apply to the PA program. These are commonly known as the 9500 Series. A summary of the 9500 Series policies applicable to debris is listed in Table 4.1 below. The individual policies can be found electronically on FEMA’s website at http://www.fema.gov/9500-series-policy-publications or at http://www.fema.gov, by typing “9500 series” into the search box on the main web page, and following the link that is returned from the search. Additional information about FEMA debris programs and policies are included in the following publications, which can be accessed through the FEMA library on the FEMA website (6): FEMA Publication 325—Debris Management Guide FEMA Publication 327—Debris Monitoring Guide FEMA Publication 329—Debris Estimating Field Guide FHWA Debris Policies: FHWA debris policies are in effect for non-federal, state-declared disasters. The FHWA includes its debris policies in the FHWA Emergency Relief (ER) Manual (7). These policies define what is considered “emergency repair” work, address how debris and timber are included in the program, establish timelines for accomplishing the work, and identify limits for

Policy 23 Policy Number Policy Title Issue Addressed 9523.4 Demolion of Private Structures Eligibility of demolion of private structures 9523.5 Debris Removal from Waterways Eligibility of debris removal from navigable waterways, coastal and inland zones, and wetlands 9523.6 Mutual-Aid Agreements for Public Assistance and Fire Management Assistance Eligibility of costs incurred through mutual- aid agreements 9523.11 Hazardous Stump Extracon and Removal Eligibility Hazardous stump removal eligibility 9523.12 Debris Operaon —Hand- Loaded Trucks and Trailers Eligibility of debris removal accomplished using hand loading rather than mechanical equipment 9523.13 Debris Removal from Private Property Eligibility of debris removal from private property 9525.2 Donated Resources Establishes criteria to credit applicants for volunteer labor, donated equipment, and donated materials in performance of eligible emergency work 9525.7* Labor Costs—Emergency Work Eligibility of labor costs for applicant’s permanent, temporary, and contract employees performing emergency work 9525.8 Damage to Applicant-Owned Equipment Performing Emergency Work Eligibility of damage and extraordinary maintenance to applicant-owned equipment used for emergency work 9580.4 Emergency Work Contrac ng Iden fies acceptable contrac ng procedures when contrac ng for emergency work 9580.8 Eligible Sand Replacement on Public Beaches Eligibility of emergency and permanent work performed on public beaches 9580.201 Debris Contrac ng Guidance Guidance for mee ng federal contrac ng requirements when procuring debris removal and monitoring contracts 9580.202** Debris Removal Authori es of Federal Agencies Describes the authori es of various federal agencies involved with debris opera ons a‰er a federally-declared disaster 9580.203 Debris Monitoring Provides informa on on how to properly monitor applicant-managed debris removal opera ons to ensure compliance with guidelines 9580.204 Documen ng and Valida ng Hazardous Trees, Limbs, and Stumps Iden fies documenta on required and valida on process for reimbursement of hazardous tree, limb, and stump removal 9580.214 Debris Removal on Federal- Aid Highways Updates guidance for debris removal from federal-aid roads in accordance with MAP-21 9580.215 Hurricane Sandy: Debris Removal Force Account Labor Costs Allows for reimbursement of force account labor performing disaster-related debris work *Parts of this policy have been superseded by 9580.215. **Parts of this policy have been superseded by 9580.214. Table 4.1. FEMA debris policies, 9500 Series.

24 A Debris Management Handbook for State and Local DOTs and Departments of Public Works clearing and hauling. The FHWA ER policies also clearly establish the ineligibility of debris depos- ited at the curbside by private residents. The relevant language for timber and debris removal can be found in Chapter 13 of the FHWA Emergency Relief (ER) Manual. NRCS Debris Policies: The NRCS Emergency Watershed Protection (EWP) program policies govern how the NRCS will “provide financial and technical assistance to remove debris from stream channels, road culverts, and bridges . . .” (8). Only legal subdivisions of a state can apply for funds, i.e., cities, counties, general improvement districts, etc. An eligible applicant can sponsor a project for public or private landowners. State and Local Debris Policies: In addition to the federal program policies in place, many state and local governments enact debris management related policies to achieve other objectives, such as maintaining consistency with state environmental regulations, requiring a minimum level of debris recycling, or reducing the amount of landfill space that disaster debris occupies. At the local level, debris policies also establish who within the local government is responsible for implementing the policy. It also may set forth the actions to be taken in relation to prepara- tion for, response to, and recovery from, a debris-generating disaster. The local debris policy may describe what debris the local jurisdiction will remove using local government resources, and what remains the responsibility of private citizens. Many ordinances state that timeframes for pickup will be established by the magnitude of a specific event, but that the pickup durations for disaster-generated debris will be limited. Why Is It Important to Have a Debris Policy? At the local level, having an adopted debris policy clearly establishes what type of work will and will not be performed by the local government after a disaster. The policy establishes the legal authorities of the local agency, or agencies, to perform work as described in the policy or ordinance. It also will identify documentation that might be required to do the work, such as rights-of- entry and hold-harmless agreements. Making these policies available to the public helps manage expectations following a debris-generating disaster of any size and type. Adoption of local government debris management policies also forms the basis for applying for federal disaster funding, should such assistance become available, by clearly identifying the legal responsibilities of the local government with respect to debris operations. “Legal responsibility” to perform debris removal work is one of the most often appealed topics in FEMA’s appeals database, and most of these appeals relate to having legal responsibility and authority to remove debris from private roads, private property, and gated communities. Relying on an existing solid waste removal ordinance as the basis for a public entity to remove disaster-related debris is not always sufficient to meet the requirements of federal grant programs. For example, FEMA’s Disaster Assistance Policy (DAP) 9523.13 regarding debris removal from private property states, “Codes and ordinances must be germane to the condition representing an immediate threat to life, public health, and safety, and not merely define the applicant’s uniform level of services. Typically, solid waste disposal ordinances are considered part of an applicant’s uniform level of services.” In other words, a jurisdiction’s solid waste removal ordinance is not sufficient to meet the FEMA program requirements for demonstrating a local entity’s authority to remove debris from private property. Debris removed from private property by a local jurisdiction may be eligible for FEMA reimbursement if the jurisdiction has a separate ordinance specifically relating to disaster-generated debris that poses an immediate threat to life, public health, and safety, and ensures the economic recovery of the community. Applicants that can demonstrate they have formally adopted, in advance of a disaster, an ordinance authorizing their local government agencies to remove storm-generated debris from private property and gated communities generally have been successful in being reimbursed by federal agencies for their work. Such policies must apply

Policy 25 whether or not an event is of such magnitude that there is a federal disaster declaration. Further, the debris must meet the immediate threat requirement, and such a threat should be identified. At the state level, debris policies can establish the responsibilities the state will assume versus those that local governments and other entities are expected to assume. State government debris policies also can govern disposal options to achieve specific goals and objectives. For example, such policies may restrict disposal at landfills, specify requirements for the location of DMSs, or encourage/require recycling. At the federal level, debris policies establish the agency’s requirements and parameters to achieve the objectives of its specific debris program. Because federal debris programs are gener- ally reimbursement programs, the policies establish the parameters for who is eligible to apply for assistance, under what circumstances, what debris is eligible, timeframes for accomplishing debris work, and the federal agency’s financial obligation to the applicant. Establishing these parameters limits the financial obligations of the federal agency to only the specific work that is accomplished in accordance with the policies of the federal debris program. Who Develops Debris Policies? Debris policies at the local government level are approved by community officials who have the legal authority to enact them. The specific person or persons who can enact the policies may vary based on the structure of the local government, but generally they are adopted by commu- nity officials such as city councils or county commissioners, and are enforced by city or county managers. In some instances, the enforcement of some aspects of the policies may be delegated to the designated debris manager (often the director of public works or solid waste). At the state level, debris policies are likely to be formulated by the state DOT and/or state Emergency Management Agency; however, some related policies may be formulated by such agencies as the Department of Natural Resources, Department of Environmental Protection, or Solid Waste Management. Typically, they are included as part of the Debris Management Plan, which is in turn part of the Emergency Operations Plan. They must be formally adopted by the appropriate state political entities (e.g., legislature and/or governor). At the federal level, some policies may be adopted pre-disaster and others may be issued as disaster-specific policies. • At FEMA, pre-disaster debris policies are often issued by the Assistant Administrator for Recovery Assistance. • The FHWA ER program policies are adopted at the national headquarters level in the Office of Program Administration and administered by the division administrators. The NRCS EWP program is administered by each state’s NRCS conservationist, who may request a waiver of program requirements from the Deputy Chief for Easements and Landscape Planning. How to Develop a Debris Policy At the local level, the need for disaster-specific debris policies may be identified during the plan- ning process, or may be identified by the debris manager, city or county manager, or other admin- istrator based on previous experience. The actual process of development and adoption is likely to differ based on each jurisdiction’s governmental structure, but some basic steps might include: • Identifying what needs to be addressed. In the case of disaster-related debris removal, the policy might consider what debris will be removed, by whom, and possibly in what timeframe, sites for temporary and final debris disposal, the need to separate debris, etc.

26 A Debris Management Handbook for State and Local DOTs and Departments of Public Works • Making a local legislator aware of the issue so they can sponsor further study. • Designating an individual or a special committee to study the issue and draft the language for the policy. In some cases, the local jurisdiction might task a consultant with drafting policy language. It is up to the local jurisdiction to determine who will create the draft language. The policy should consider not only public interest, but also capacity and financial resources available to accomplish the work. • Having the draft policy language reviewed by the jurisdiction’s legal counsel for conformance with existing policies and procedures. • Adopting a draft policy adopted by the local legislative body that has the authority to enact policies and ordinances on behalf of the jurisdiction. The legislative body should follow its regular adoption process. • Publishing and communicating the policy to the public to help establish expectations for actions when disaster debris is generated. The policy should be reviewed after it has been implemented for a period of time to evaluate its effectiveness and any unintended consequences. It may be amended as appropriate. A policy development checklist based on Figure 4.1 below can be found in Appendix B. Figure 4.1. The policy formation process can be adapted to develop and adopt a debris management policy. (Adapted from the New Zealand Ministry for the Environment’s Drafting Issues, Objectives, Policies, and Methods in Regional Policy Statements and District Plans, online version.) (9)

Policy 27 Example: Hurricanes Frances and Jeanne (10) In 2004, Hurricanes Frances and Jeanne struck the City of Fort Pierce, FL, causing widespread debris to be deposited as a result of wind and flooding. The city had adopted an ordinance, Procedure for Removal of Nuisance, which gives city agencies the legal responsibility to remove debris causing a nuisance from private property. The ordinance outlines procedures city agencies must follow to legally remove debris from private property. It contains a provision that allows the responsible agency to waive procedures for notifying private property owners before removing debris from private property if removal of said debris will eliminate a threat to public health and safety. Considering the magnitude of the events, the city used the author- ity granted by this ordinance to remove debris from private property. Because these were federally-declared disasters, the city applied to FEMA for reimbursement of debris removal costs, including the costs for removing debris from private property. FEMA initially denied the claim, but the city was able to successfully demonstrate through the FEMA appeals process that its actions were consistent with, and authorized by, its pre-existing nuisance abatement ordinance.