Evacuation, Medical Care, and Sheltering

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4401
Applicant	Virginia Department of Emergency Management
Appeal Type	Second
PA ID#	000-U7YXQ-00
PW ID#	GMP 102056
Date Signed	2020-12-04T17:00:00

Summary Paragraph

From September 8–21, 2018, Hurricane Florence impacted the Commonwealth of Virginia.  FEMA wrote Grants Manager Project 102056 to document actions the Virginia Department of Emergency Management (Applicant) took to pre-position generators and bottled water for the disaster.  However, in a determination memorandum, FEMA found the project ineligible for Public Assistance (PA).  FEMA determined localities who had requested the pre-positioned resources of generators and bottled water were not within designated areas, and did not meet the sheltering or evacuation exception.  The Applicant appealed, stating that staging of the resources was necessary and prudent because all localities were within the predicted impact zone before the track of the storm changed.  The Applicant then emphasized that the costs were incurred for the support of evacuation.  The FEMA Region III Regional Administrator denied the appeal.  FEMA found that none of the localities who had requested the resources were designated areas for this disaster and additionally did not satisfy the exception for evacuation or sheltering activities.  It then determined the Applicant had not demonstrated the pre-positioned resources were related to either evacuation or emergency medical care.  On second appeal, the Applicant provides affidavits, fully explaining the basis of each locality’s request.  Specifically, the localities requested generators to ensure continuous operation of sewage systems, without which would have rendered each locality’s shelters inoperable in the event of a power loss; bottled water for residents who were not on county-provided water so that they could safely shelter-in-place in the event of a power loss; and, generators to ensure continuous operation of its emergency operations center and 911 call center in the event of a power loss.   

 

Authorities and Second Appeals

• Stafford Act § 403(a).
• 44 C.F.R. § 206.225(a).
• PAPPG, at 21, 58, 60, 65-67.
• Long Island Power Auth., FEMA-4322-DR-NY, at 3 (Sept. 4, 2019).

 

Headnotes

• Per the PAPPG, at 60, costs for unused pre-positioned resources for evacuating, or providing emergency medical care during the evacuation period (such as ambulances and busses), may be eligible for PA funding.  The PAPPG, at 66, includes mobilization of ambulances and other transport equipment as examples of necessary costs to prepare for evacuations. 
  • Here, the Applicant’s affidavits demonstrate that all the localities requested pre-positioned resources to support sheltering, not for evacuation or to provide emergency medical care.  Although the Applicant states one locality requested generators to support, in part, continued evacuation efforts of the Commonwealth, it hasn’t demonstrated unused generators are the type of item contemplated as being allowed in FEMA policy.  Finally, the costs associated with staging these items for re-deployment after they were returned to the Applicant are ineligible as they were not incurred during the evacuation period. 

 

Conclusion

The Applicant has not demonstrated the unused pre-positioned resources were for either evacuating or providing emergency medical care during the evacuation period.  Accordingly, this appeal is denied. 

Appeal Letter

Appeal Analysis

Background

From September 8 through 21, 2018, Hurricane Florence impacted the Commonwealth of Virginia (Commonwealth).[1]  In total, 32 localities within the Commonwealth were eventually designated as areas eligible for Public Assistance (PA) Category B funding for emergency protective measures as part of the major disaster declaration for the incident (FEMA-4401-DR-VA).[2]  On June 24, 2019, the Virginia Department of Emergency Management (Applicant) transmitted a letter to FEMA requesting approval of Grants Manager Project 102056, written to document actions the Applicant took to pre-position supplies for the disaster.  FEMA found the project ineligible.  First, FEMA determined the six localities (City of Chesapeake, City of Virginia Beach, Greensville County, Page County, Powhatan County, and York County), which had requested the pre-positioned resources of generators and drinking water from the Applicant, were not within areas designated as eligible to receive PA funding.  Second, FEMA determined the Applicant had not demonstrated the emergency work requested met the exception to this requirement, which allows for reimbursement of sheltering and/or evacuation activities conducted in non-designated areas.  Therefore, FEMA denied $249,137.84 in requested costs.

 

First Appeal

The Applicant appealed FEMA’s denial on November 8, 2019.  It provided a timeline of the events that led to the pre-positioning of resources.  On September 8, 2018, Virginia’s Governor declared a state of emergency and directed Commonwealth agencies to prepare and pre-position resources in advance of the storm.  Initial predictions indicated a catastrophic event, with a 90 percent chance of landfall on the Virginia coast.  Therefore, the cities of Chesapeake and Virginia Beach, and the counties of Powhatan and York, requested emergency generators from the Applicant for use in supporting a wastewater treatment plant and substations, an emergency operations center (EOC) and 911 center, a sanitary sewer facility, and sewage pump stations, to ensure continuous operation in the event of a power loss.  Greensville and Page Counties requested drinking water and/or bottled water from the Applicant for citizens who would not have access to water in their homes in the event of a power loss.  The Applicant delivered all the requested items on September 10 and 11, 2018.  Contemporaneously, Virginia’s Governor issued an evacuation order on September 10, 2018 for Zone A of the Commonwealth, to be effective starting at 8:00 am the next morning. 

Thereafter, the track of the storm changed, with predictions forecasting a less severe impact than originally estimated.  On September 14, 2018, Virginia’s Governor rescinded the evacuation order for Zone A.  The generators were removed and staged in Chesterfield County, an area designated under the major disaster declaration, for potential re-deployment on September 14, 2018. 

Based on the above, the Applicant affirmed that staging of the resources was necessary and prudent based on the information available at the time the decision was made to incur the costs; because when the Applicant pre-positioned the generators and water, all six localities were within the predicted impact zone.  Further, the Applicant emphasized that the costs were its legal responsibility, incurred for the support of evacuations. 

On January 30, 2020, the FEMA Region III Regional Administrator issued the first appeal decision, finding the work ineligible for PA funding.  FEMA found that none of the six localities which had initially requested the resources were areas designated for assistance under this major disaster declaration and additionally did not satisfy the exception for evacuation or sheltering activities conducted in non-designated areas.  It then determined the Applicant had not demonstrated the pre-positioned resources were related to eligible pre-positioning activities, namely either evacuation or emergency medical care. 

 

Second Appeal

The Applicant filed its second appeal on March 27, 2020.  The Applicant reiterates arguments raised on first appeal, stating that the costs were its legal responsibility as the supplies were necessary to protect the public health and safety and ensure continued access to and operation of critical infrastructure.  Additionally, the Applicant provides new documentation in the form of affidavits outlining the bases for the six localities’ requests.  The affidavits explain that some of the localities had opened shelters, all which relied on continuous sewage operations, and therefore would have been inoperable in the event wastewater facilities lost power and did not have generators.  Next, the Applicant affirms two generators were requested for use in supporting an EOC and 911 center because if those entities lost power, the county would not have been able to support the residents sheltering in place and the continued sheltering and evacuation efforts of the Commonwealth.  Finally, the Applicant explains that two counties requested bottled water for citizens who were not on a county-provided water system so that they could safely shelter in their homes.  The Applicant lastly asserts the costs associated with staging the generators in Chesterfield County for re-deployment is eligible as this work was located within a designated area.  

 

Discussion

The Robert T. Stafford Disaster Relief and Emergency Assistance Act grants FEMA authority to provide assistance essential to meet immediate threats to life and property resulting from a major disaster.[3]  Specifically, FEMA may provide reimbursement of emergency protective measures necessary to eliminate or lessen immediate threats to life, public health, or safety.[4]  This includes transporting and prepositioning equipment and other resources for response.[5]  However, costs related to prepositioning resources for a disaster are only eligible if the resources are used in the performance of eligible emergency work.[6]  The only exceptions to this limitation are for costs to pre-position resources for evacuating, or providing emergency medical care during the evacuation period (such as ambulances and buses), which are eligible even if those resources are not used, provided the staging of those resources was necessary and prudent based on the data at the time of the staging.[7]

Here, the Applicant asserts the staging and deployment of the resources was necessary and prudent based on initial weather forecasts, but does not demonstrate that any of the resources were actually used.  Therefore, this decision focuses on whether the Applicant has established it satisfies either the evacuation or emergency medical care exceptions for unused pre-positioned resources.[8]

The requested generators for the cities of Chesapeake and Virginia Beach and York County, along with the bottled water for Greensville and Page counties, were all related to sheltering activities.  Thus, they do not fall within the evacuation or emergency medical care exceptions for unused pre-positioned resources and are therefore ineligible for PA funding.[9] 

The affidavit for Powhatan County states its requested generators would have been used to ensure continued power at the EOC and 911 call center in order to support sheltering and evacuation efforts of the Commonwealth.  As noted above, sheltering is not an eligible exception and the Applicant has not demonstrated the unused generators for this County satisfy the exceptions for evacuation or to provide emergency medical care (i.e., ambulances and buses).[10]  Therefore, they are ineligible for PA funding.

Last, the Applicant states the staging of the unused generators in Chesterfield County was necessary to protect the public health and safety and ensure continued access to and operation of critical infrastructure.  However, the Applicant does not demonstrate that it staged these resources for re-deployment for either evacuation or to provide emergency medical care.  Additionally, it staged these resources on and after September 14, 2018, the date Virginia’s Governor rescinded the evacuation order.  Therefore, these unused pre-positioned resources’ costs were not incurred during the evacuation period. 

 

Conclusion

The Applicant has not demonstrated the unused pre-positioned resources were for either evacuating or providing emergency medical care during the evacuation period and is therefore not eligible for PA funding.  Therefore, the appeal is denied.

 

[1] The President issued a major disaster declaration for the event on October 15, 2018.

[2] The localities eligible for emergency protective measures included: Botetourt, City of Bristol, Charles City County, Chesterfield County, Craig County, City of Danville, Floyd County, City of Franklin, Franklin County, Grayson County, Halifax County, City of Hampton, Henry County, Isle of Wight County, King William County, King and Queen County, Lancaster County, Lunenburg County, City of Martinsville, Mathews County, Mecklenburg County, Nelson County, City of Newport News, Northumberland County, Nottoway County, Patrick County, Pittsylvania County, Pulaski County, City of Richmond, City of Roanoke, Russell County, and City of Williamsburg.  FEMA, Designated Areas: Disaster 4401, https://www.fema.gov/disaster/4401/designated-areas (last visited Nov. 2, 2020).

[3] Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended, § 403(a), 42 United States Code § 5170b(a) (2018).

[4] Title 44 of the Code of Federal Regulations § 206.225(a) (2018).

[5] Public Assistance Program and Policy Guide, FP 104-009-2, at 58 (Apr. 1, 2018) [hereinafter PAPPG]. 

[6] PAPPG, at 60.  See generally PAPPG, at 21 (costs must be directly tied to the performance of eligible work).

[7] Id. at 60.

[8] See FEMA Second Appeal Analysis, Long Island Power Auth., FEMA-4322-DR-NY, at 3 (Sept. 4, 2019) (finding that costs for electrical contracting crews that were pre-positioned prior the disaster in the event of power outages, were ineligible for PA funding because the electrical contractors did not actually perform eligible emergency work due to the storm changing direction.  It also noted that the only instances which allow reimbursement for unused pre-positioned resources, relate to costs for evacuating or providing emergency medical care because they are life saving measures) (emphasis added).

[9] See generally PAPPG, at 65 (noting that evacuation includes accessible transportation and emergency medical transportation); PAPPG, at 67 (including generator costs under shelter facility costs).

[10] See id. at 66 (costs incurred in advance of an incident necessary to prepare for evacuations in threatened areas may include mobilization of ambulances and other transport equipment.  PA funding for activating, staging, and using ambulance services ends when any of the following occurs: (1) FEMA, and the State, Territorial, or Tribal Government, determines that the incident did not impact the area where it staged ambulances; (2) evacuation and return of medical patients and individuals with disabilities or access and functional needs is complete; or, (3) the immediate threat caused by the incident has been eliminated and the demand for services has returned to normal operation levels.).