Ineligible Costs – Immediate Threat

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4337
Applicant	Clay (County)
Appeal Type	Second
PA ID#	019-99019-00
PW ID#	PW 1731
Date Signed	2021-04-16T16:00:00

Summary Paragraph

 Between September 4-October 18, 2018, Hurricane Irma caused widespread damage in Florida.  In its first appeal, the Applicant claimed that, as a result of the disaster, a bridge on County Road 218 was damaged to such an extent that it was impassible.  The bridge closure affected the emergency response times for Fire Rescue Station 14, located on the bridge's western side.  The Applicant’s personnel from Fire Station 14 could no longer quickly assist residents on the eastern side of the bridge.  The Applicant only had its Fire Rescue Station 15, located on the eastern side, to provide initial response services.  The Applicant augmented and redistributed the staffing of Fire Stations 14 and 15.  FEMA developed Project Worksheet (PW) 1731 to document the Emergency Protective Measures (EPM) work.  FEMA determined that the work performed by this additional staff was not disaster-related work and concluded that the Applicant's costs were expenses related to operating a facility and are considered ineligible increased operating costs.  The Applicant appealed FEMA’s determination on July 18, 2019, arguing that: (1) the costs associated with the augmentation and redistribution of staff to maintain the required service level were necessary and should be deemed eligible EPM; (2) the bridge closure isolated the communities and impacted the ability to provide service; and (3) the additional resources were activated solely to accomplish emergency health and safety tasks.  The FEMA Region IV Regional Administrator denied the appeal on October 15, 2020.  The Applicant submitted a second appeal, reiterating its first appeal arguments.

 

Authorities and Second Appeals

• Stafford Act § 403(a).
• 44 C.F.R. §§ 206.223(a)(1), 206.225(a).
• PAPPG at 42, 57, 60-61

Headnotes

• FEMA is authorized to provide PA funding for emergency protective measures to save lives, to protect public health and safety, and to protect improved property.
  • The Applicant incurred costs as a result of the incident; however, these additional costs were not emergency protective measures to save lives or protect public health and safety.
• Increased costs of operating a facility or providing a service are generally not eligible, even when directly related to the incident.
  • The augmented and redistributed personnel to fire stations 14 and 15 were conducting regular duties during the disaster time frame to support continuation services for its community.
  • The work performed by the Applicant’s staff is not emergency work related to the disaster and consequently ineligible for PA funding. 

Conclusion

The work performed by the staff was not required as a direct result of the disaster, and the costs incurred by the Applicant for augmented and redistributed staff are increased operating expenses and not eligible for PA funding. 

Appeal Letter

Appeal Analysis

Background

Hurricane Irma, with an incident period from September 4 through October 18, 2017, caused widespread damage in Florida.  During the incident period, Clay County (Applicant) closed a bridge at County Road 218 that had become impassible.  As a result, emergency response times increased for the Applicant’s Fire Rescue Station 14 (Fire Station 14), located on the western side of the bridge, to assist residents on the eastern side; the closest available detour to service the eastern-side residents increased the travel distance to 13.4 miles.  The Applicant only had its Fire Rescue Station 15 (Fire Station 15), located on the eastern side of the bridge, to provide initial response services to that area.  Because of the detour route, the Applicant augmented and redistributed the staffing of Fire Stations 14 and 15 from October 4 to November 30, 2017.[1]

FEMA developed Project Worksheet 1731 to document the Applicant’s requested reimbursement of $53,479.50 for the standby time and overtime associated with the augmentation and redistribution of its emergency personnel force account labor.

On May 31, 2019, FEMA issued a determination memorandum, finding the work and associated requested costs were ineligible for Public Assistance (PA) funding.  FEMA concluded that the work performed by the staff was not disaster-related work to save lives and protect public property, but rather associated costs were related to operating a facility and providing a service and are considered ineligible increased operating costs.

 

First Appeal

On July 18, 2019, the Applicant submitted a first appeal to the Florida Division of Emergency Management (Grantee) requesting that FEMA reimburse previously denied personnel costs that exceeded regular time labor.  The Applicant stated it incurred those costs for the augmentation and redistribution of staff required to maintain the mandatory level of service.  The Applicant asserted that the staffing augmentation, in effect from September 19 (the date of the bridge closure) through December 8, 2017 (the date the bridge was reopened), represents short-term costs necessary to ensure effective response service on both sides of the bridge to accomplish emergency health and safety tasks and should thus be deemed eligible emergency protective measures.  In support, the Applicant submitted a spreadsheet listing personnel overtime hours for Fire Stations 14 and 15, with an associated description of the type of work completed as “Overtime – Disaster.”  In a transmittal letter dated September 16, 2019, the Grantee expressed support for the appeal.

On October 15, 2020, the FEMA Region IV Regional Administrator denied the appeal.  FEMA determined the augmented personnel at Fire Station 14 and redistributed existing personnel to Fire Station 15 were performing normal duties to support the continuation of essential services for the community.  FEMA concluded, therefore, the claimed work and related costs were increased operating costs not eligible for PA reimbursement.

 

Second Appeal

On December 11, 2020, the Applicant filed a second appeal, requesting $53,479.50 in PA funding for staffing costs.  The Applicant reiterates its first appeal arguments, namely, that it augmented staffing to mitigate the threat to public health and safety and reduce potential damage to homes and business, based on the exigent circumstances directly resulting from the event.  To verify that the bridge closure caused the staff augmentation, the Applicant submits daily personnel staffing records for Fire Stations 14 and 15 for: (1) 50 days immediately prior to the bridge closure; and (2) the time period spanning the bridge closure.  The Grantee expresses support for the appeal in a February 2, 2021, letter.

 

Discussion

Eligible emergency work includes emergency protective measures that are necessary to save lives and protect property or public health and safety.[2]  To be eligible for PA, the items of work must be required as a result of the disaster,[3] and the emergency protective measures must: (1) eliminate or lessen immediate threats to lives, public health, or safety; or (2) eliminate or lessen immediate threats of significant additional damage to improved public or private property in a cost-effective manner.[4]  While increased costs of operating a facility or providing a service are generally not eligible, even when directly related to the incident, short-term increased costs that are directly related to accomplishing specific emergency health and safety tasks as part of emergency protective measures may be eligible.[5]  The additional costs are only eligible if: (1) the services are specifically related to eligible emergency actions to save lives or protect public health and safety or improved property; (2) the costs are for a limited period of time based on the exigency of the circumstances; and (3) the applicant tracks and documents the additional costs.[6]

Here, the Applicant responded to the bridge closure by activating additional resources and reallocating personnel between Fire Stations 14 and 15, resulting in increased force account labor costs.  However, the Applicant has not demonstrated that the additional staffing and services provided were associated with an immediate threat caused by the disaster.  The spreadsheet submitted on the first appeal describes the type of work as “Overtime – Disaster.”  While there are occasional comments included to explain certain claimed hours (e.g., “CR 218 Bridge down”), these similarly do not establish the costs are associated with specific disaster-related emergency actions, rather than work to ensure continuity of non-disaster-related emergency assistance.  Consequently, the costs associated with the augmentation and redistribution of personnel to Fire Stations 14 and 15 constitute increased operating expenses and are not eligible for PA funding.

 

Conclusion

The work performed by the staff was not required as a direct result of the disaster, and the costs incurred by the Applicant for augmented and redistributed staff are increased operating expenses and not eligible for PA funding.  Accordingly, the second appeal is denied.

 

[1] National Fire Protection Association Standard (NFPA) establishes the minimum members and travel time response to a fire.  To meet this requirement, on either side of the bridge, the Applicant would normally assign the response to both Fire Station 14 and 15 to comply with the National Fire Protection Association Standard (NFPA) requirements.  The bridge closure required the Applicant to reassign additional personnel in both fire stations to comply with the minimum requirements of NFPA.

[2] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 403, Title 42, United States Code § 5170b (2012); Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.225(a) (2016).

[3] 44 C.F.R § 206.223(a)(1).

[4] Id. § 206.225(a)(3); Public Assistance Program and Policy Guide, FP 104-009-2, at 57 (Apr. 2018) [hereinafter PAPPG].

[5] PAPPG, at 42.

[6] Id. at 60-61.