Alternate Project – Snow Removal

Appeal Brief

Appeal Letter

Appeal Analysis

Background

In response to a severe winter storm and snowstorms from January 26-28, 2015, the city of Boston used a dry dock (Facility) owned by the Economic Development and Industrial Corporation of Boston (Applicant)[1] as a place to push and dump snow during emergency snow removal operations.  During these efforts, trucks, loaders, and bulldozers damaged various Facility components, including parapet curbing, guardrails, and manhole and deck opening covers.  A major disaster was declared on April 13, 2015.

FEMA prepared Project Worksheet 1238 (PW) to document Facility damage, set out a scope of work to repair the damage, and provide estimated repair costs.  On May 30, 2016, FEMA approved and awarded estimated project costs of $82,713.48.[2]  FEMA classified the work as Category G (parks, recreational, and other facilities) permanent work.

In an August 8, 2016 letter to the Massachusetts Emergency Management Agency (Grantee), the Applicant stated it needed to evaluate the Facility’s future use and costs to revitalize it, and it requested an alternate project.[3]  The proposed alternate project was to make structural repairs to a bulkhead and a pier on adjacent properties.  The Applicant stated it already had entered into a contract with a construction firm for $2.5 million to make the repairs beginning May 12, 2016 and ending December 12, 2016.[4]  The Grantee transmitted the Applicant’s request to FEMA the same day it received it, as well as nearly a year later, on June 1, 2017.[5]

The FEMA Region I Acting Regional Administrator (RA) denied the request.[6]  The memorandum explained that Section 403 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) authorizes financial assistance for emergency protective measures, and, as explained in the Public Assistance Guide (PA Guide), damage to facilities caused during the performance of such work may also be eligible under Section 403.  Therefore, the PW should have been classified as Category B, not Category G.  The memo further explained that under Section 403 or FEMA’s implementing regulation at 44 Code of Federal Regulations § 206.225, there is no authority to approve an alternate project in lieu of restoring a facility and, therefore, the Applicant’s alternate project was not eligible for financial assistance.

The determination memo went on to state that the Applicant also initiated and completed its alternate project without obtaining prior FEMA approval, as required.  It also noted the Applicant did not incur any eligible costs for the original PW project nor complete the work by the permanent work project completion deadline of October 13, 2016.[7]  As a result of this determination, FEMA deobligated the funding.

First Appeal

The Applicant argued that the PW should have remained Category G because the repairs to the Facility were permanent in nature and fit the definition of “permanent work” set forth in the PA Guide. [8]  It also asserted it did not receive a response from FEMA as to its alternate project request until FEMA issued the determination memo, and it said it obtained two project completion deadline extensions from the Grantee, the second of which set a deadline of January 30, 2017.[9] 

The Grantee transmitted the first appeal to FEMA in a letter dated July 24, 2018.  The Grantee argued that based on the PA Guide’s definitions of permanent work, emergency work and emergency protective measures, the PW should have remained Category G because the work involved permanent repairs to the Facility.  The Grantee argued the determination memo interpreted the PA Guide’s discussion of applicant-caused damage too narrowly, asserting that work to repair damage stemming from emergency protective measures may be classified as permanent work in addition to emergency work.[10]  The Grantee also asserted that FEMA often classifies PWs under PA’s permanent work categories involving repairs to damage caused during the performance of emergency work.  It pointed out that FEMA did so to another project under the same disaster that also involved similar damage stemming from snow removal efforts.  It also provided statistics it gathered indicating that large percentages of approved permanent work-classified projects under DR-4214 and a 2013 snow disaster were written for damage resulting from snow removal activities.  The Grantee also highlighted second appeal decisions indicating FEMA classified work to repair damage caused during the performance of emergency work as permanent work.[11]

FEMA Region I issued an RFI dated October 5, 2018, to the Grantee and Applicant requesting from the Applicant information demonstrating that (1) FEMA doesn’t rely upon Section 403 of the Stafford Act for authority to provide assistance for the costs of restoring facilities damaged during the performance of emergency protective measures, or that Section 403 authorizes alternate projects; and (2) the Applicant obtained FEMA approval before starting work on its alternate project.[12]

The Grantee responded to the RFI in a letter dated November 2, 2018, stating it had no responsive documents.[13]  The record doesn’t indicate whether the Applicant responded.

FEMA issued a first appeal decision dated December 7, 2018, denying the appeal for the reasons set forth in the determination memo.  The decision cited the Public Assistance Program and Policy Guide (PAPPG), although not in effect at the time of the disaster, to stress that restoring damage stemming from the performance of emergency protective measures is Category B work.  The decision noted the PAPPG states that repairing damage an applicant causes while performing eligible emergency response activities “is eligible as part of that respective project.”[14] 

The decision also reiterated that Section 406 of the Stafford Act, which authorizes financial assistance for permanent restoration work for damage caused by a disaster, does not authorize FEMA to provide financial assistance for damage caused by an applicant while performing emergency protective measures and not caused by the event.

As to the examples of other instances in which FEMA classified work to restore damage stemming from emergency work under PA permanent work categories, the decision stated that FEMA would work to correctly classify such projects in the future but that, nevertheless, restoration of such damage is authorized by Section 403, not Section 406, so the Applicant’s alternate project is not eligible.[15]

Second Appeal

The Applicant filed a second appeal reiterating its position that the repairs set forth in the PW were permanent in nature and should have remained classified as Category G, as well as arguing that FEMA has frequently categorized work to repair damage resulting from the performance of emergency work as permanent work.[16]

The Grantee forwarded the second appeal to FEMA, supporting the appeal and suggesting that under FEMA practice and precedent, the agency classifies work to repair damage resulting from the performance of emergency work as permanent work.[17]  The Grantee also stated that the PW was classified as permanent work through April 2018, and during that time, FEMA and the Grantee advised the Applicant on permanent work rights and options, which guided the Applicant’s actions.[18]

Discussion

Under Section 403, FEMA is authorized to provide financial assistance for work or services performed under a major disaster essential to saving lives and protecting and preserving property or public health and safety.[19]  FEMA classifies such work as Category B “emergency protective measures.”[20]  Snow clearance and removal from eligible facilities and snow dump operations are among emergency protective measures eligible for FEMA assistance.[21]  FEMA does not provide assistance for costs to repair damage caused by an applicant’s negligence,[22] but if applicant-caused damage is unavoidable, it may not necessarily be from negligence, especially if it occurs during the course of emergency response efforts.[23]  In such cases, repairs may be eligible as Category B work.[24]

Under Section 406, FEMA is authorized to provide financial assistance for work to repair, restore, reconstruct, or replace a public facility damaged or destroyed by a major disaster.[25]  FEMA classifies such work as “permanent work” under Categories C through G.[26]  If an applicant determines the public welfare would not best be served by restoring the damaged facility or its function, Section 406 authorizes applicants to apply its funding for other eligible purposes.[27]  Such alternate projects may be taken only on permanent work and used to repair or expand other public facilities, construct new ones, or fund hazard mitigation measures.[28]

Here, the work to restore the Facility was authorized by Section 403 and therefore is properly classified as Category B emergency protective measures.  The damages to the Facility resulted from the City of Boston’s snow removal operations, the costs of which were eligible for assistance as emergency protective measures under Section 403.  This is true even though the Facility repairs were permanent in nature. 

The PA Guide’s discussion of applicant-caused damage supports this conclusion.  It provides an example in which an applicant damaged roads providing access to a site where it was building a temporary berm for emergency flood protection.  According to the PA Guide, even though the applicant caused the damage, repairing the roads “back to their original condition” could be eligible as Category B emergency work, assuming the applicant’s actions weren’t negligent.  For local roads, “repairs to pre-disaster conditions would be eligible.”[29]  Thus, the costs of repairing damage caused by an applicant while providing emergency protective measures is eligible under Category B, and not a permanent work category. 

Although the Applicant and Grantee state that FEMA has in other cases classified work to restore damage caused during the performance of emergency protective measures under permanent work categories, the fact remains that such work is properly classified as Category B because Section 403 provides the authority to fund it.[30]

Conclusion

The damage to the Facility resulted from the performance of snow removal, an emergency protective measure eligible for financial assistance under Section 403 of the Stafford Act.  Because Section 403, unlike Section 406, does not authorize alternate projects, the Applicant’s alternate project is not eligible.