Snow Removal

Appeal Brief

Summary Paragraph

During the incident period of March 14-15, 2017, a severe winter storm and snowstorm afflicted eastern New York.  On July 12, 2017, the President declared a major disaster under FEMA-4322-DR-NY, designating Suffolk County, New York, as eligible for Public Assistance (PA) categories A through G, but not for snow assistance because it did not receive record or near record snowfall.  On January 16, 2018, FEMA prepared Project Worksheet (PW) 373 for zero dollars to document the expenditures incurred by the Terryville Fire District (Applicant), located within Suffolk County, for ineligible snow removal activities.  On March 8, 2018, FEMA issued a Determination Memorandum formally denying all costs for PW 373.  FEMA found that because the President had not designated Suffolk County for snow assistance, the Applicant was ineligible for PA funding associated with snow removal activities.  The Applicant appealed, stating that as a sub-division of New York state, it could not rely on immediate snow assistance to ensure it could respond safely and in a timely manner to emergencies, therefore it equipped support vehicles with eight foot plows, and argued that using support vehicles to facilitate emergency response constitutes eligible emergency work.  The New York State Division of Homeland Security and Emergency Services (Grantee) supported the appeal.  The Regional Administrator (RA) issued a Final Request for Information (RFI) for documentation indicating which fire, rescue and emergency medical service calls were required as a direct result of the disaster, and the personnel and equipment that were sent to respond to the disaster-related calls.  The Applicant responded with call logs of emergency responses during the incident period with support from the Grantee, but acknowledged that the disaster was not necessarily the cause for any of the calls.  The RA denied the appeal, noting Suffolk County was not designated for snow assistance and the Applicant did not demonstrate that snow removal was necessary to perform specific emergency protective measures required as a result of the disaster, and pointed out neither the Stafford Act nor FEMA policy authorizes clearance of roads unrelated to performance of specific emergency tasks and essential community services.  The Applicant repeats previous arguments in its second appeal.  The Grantee argues the Applicant is not a public works entity but only cleared roads as necessary immediately preceding deployed emergency vehicles, that firefighting and medical care and transport are identified as eligible emergency protective measures, and that it should be sufficient that conditions caused by the declared event posed an immediate threat of worsening emergencies if left unaddressed. 

Authorities and Second Appeals

• Stafford Act § 403(a)(3)(c).
• 44 C.F.R. §§ 206.206(a), 206.223(a), 206.225(a), 206.227. 
• PAPPG, at 20, 134, 59, 82, Appendix H.
• Town of Secaucus, FEMA-4264-DR-NJ, at 4, Village of Waterford, FEMA-4020-DR-NY, at 3.

Headnotes

• 44 C.F.R. § 206.225(a) authorizes emergency protective measures necessary to eliminate or lessen immediate threats to life, public health, or safety, as well as threats of significant additional damage to improved property.  44 C.F.R. § 206.227 limits both emergency and major disaster declarations that are based on snow or blizzard conditions to cases of record or near-record snowstorms.  
  • Suffolk County was not designated for snow assistance, and snow removal activities are not eligible for PA as emergency protective measures as they were not necessary to perform otherwise eligible work.
     

Conclusion

The requested costs associated with snow removal activities are not eligible for PA funding.  Accordingly, the second appeal is denied.

Appeal Letter

Appeal Analysis

Background

During the incident period of March 14-15, 2017, a severe winter storm and snowstorm affected eastern New York.  On July 12, 2017, the President declared a major disaster under FEMA-4322-DR-NY, authorizing snow assistance for 27 counties, and Public Assistance (PA) for 28 counties.[1]  Suffolk County, New York, was authorized for PA categories A through G, but not for snow assistance because it did not receive record or near record snowfall.  On January 16, 2018, FEMA prepared Project Worksheet (PW) 373 for zero dollars to document the expenditures incurred by the Terryville Fire District (Applicant), located within Suffolk County, for ineligible snow removal activities.[2]  On March 8, 2018, FEMA issued a Determination Memorandum formally denying all costs for PW 373.  FEMA found that because the President had not designated Suffolk County for snow assistance, the Applicant was ineligible for PA funding associated with snow removal activities.

First Appeal

The Applicant appealed, stating that as a sub-division of the State of New York it could not rely on immediate snow assistance from town or county resources to ensure it could respond safely and in a timely manner to emergencies.  It equipped support vehicles with eight foot plows, and argued that using them to facilitate emergency response constituted eligible emergency work.  In a letter dated April 30, 2018, the New York State Division of Homeland Security and Emergency Services (Grantee) acknowledged that snow assistance is only available in counties that achieve a record or near record snow amount and stated the Applicant did not request snow assistance.  The Grantee argued FEMA mischaracterized the Applicant’s request for reimbursement as snow assistance, where in fact Federal law and regulation intended limited actions completed to open a road for safe emergency service access to be eligible as category B work.  It stated that neither the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 (Stafford Act) nor Title 44 Code of Federal Regulations (44 C.F.R.) restrict the clearance of roads, performed as an emergency protective measure, to specific types of impediments.  Finally, the Grantee argued that FEMA’s implementation of the Public Assistance Program and Policy Guide (PAPPG)[3] reduced funds for a PA activity that was previously deemed eligible and, as such, FEMA needed to engage in formal rule making procedures prior to implementing any change in policy.

FEMA issued a Final Request for Information (RFI) in a letter dated June 8, 2018.  It stated the first appeal lacked the necessary documentation for FEMA to adjudicate the appeal.  It requested documentation indicating which emergency calls were required as a direct result of the disaster and the personnel and equipment that were sent to respond to the disaster-related calls.  

The Applicant responded in a letter dated June 27, 2018, producing call logs of emergency responses to alarms received from the County dispatcher or directly from residents during the incident period, and noting while the storm “was not necessarily the cause for the alarms,”[4] the disaster required the Applicant to clear snow drifts to facilitate timely responses for emergency medical system vehicles.  The Grantee forwarded the Applicant’s Final RFI response to FEMA on July 6, 2018, and stated storm conditions prevented emergency vehicles from safely responding to emergency calls and posed an immediate threat to life and safety and to improved public or private property. The Grantee argued emergency protective measures can be taken to prevent or mitigate additional harm, not just to respond to existing harm caused by the declared event.  The Grantee also argued that, whether the alarms were caused by the declared event or not, death, injury, or additional property damage due to a delayed or absent emergency response would be a direct result of the declared event.  Therefore, it contended clearing roads in advance of responding emergency vehicles should be approved as eligible emergency protective measures, regardless of the cause of the underlying emergency.

FEMA denied the first appeal on September 24, 2018.  The FEMA Region II Regional Administrator (RA) stated the Applicant was not located in a county that had been designated for snow assistance, that the Applicant’s call logs did not demonstrate snow removal was necessary to perform specific emergency protective measures required as a result of the disaster, and that neither the Stafford Act nor FEMA policy authorized clearance of roads unrelated to performance of specific emergency tasks and essential community services.  The RA also noted previous authorizations of PA reimbursement of costs for clearing a single lane of roadway as an emergency protective measure were made in error and were not binding.  Additionally, the RA contradicted the Grantee’s assertion that FEMA did not provide the public with notice and an opportunity to comment on the April 1, 2017 PAPPG, by directing its attention to a notice published in the Federal Register on September 23, 2016.[5]

Second Appeal

The Applicant filed a second appeal on November 8, 2018, repeating its previously raised arguments.  The Grantee forwarded the appeal on November 27, 2018, repeating and expanding upon previous arguments.  The Grantee points out the Applicant is not a public works entity that engages in general snow-related activities, but only cleared roads as necessary immediately preceding deployed emergency vehicles.  The Grantee notes that FEMA’s PAPPG identifies measures such as firefighting and medical care and transport as examples of eligible emergency protective measures.[6]  Finally, the Grantee argues that record-keeping and analysis regarding the cause of the alarms are not routinely maintained or performed by responders.  Moreover, such an expectation is overly burdensome, and it should be sufficient for FEMA that conditions caused by the declared event posed an immediate threat of worsening emergencies if left unaddressed.

Discussion

Section 403 of the Stafford Act grants FEMA authority to provide assistance essential to meet immediate threats to life and property resulting from a disaster, including clearance of roads necessary to the performance of emergency tasks and essential community services.[7]  Implementing this authority, 44 C.F.R. § 206.225(a) authorizes emergency protective measures necessary to eliminate or lessen immediate threats to life, public health, or safety, as well as threats of significant additional damage to improved property.[8]  44 C.F.R. § 206.227, however, limits both emergency and major disaster declarations that are based on snow or blizzard conditions to only cases of record or near-record snowstorms.[9]  As such, FEMA provides PA funding for snow assistance as an emergency protective measure in cases of record or near-record snowfall.  As Suffolk County did not receive record or near record snowfall, it was not designated for snow assistance and was not eligible for PA funding for snow removal as an emergency protective measure.

The PAPPG further explains that for severe winter storm declarations that do not specifically authorize snow assistance, “FEMA only provides PA funding for limited snow-related activities that are necessary to perform otherwise eligible work.  For example, snow removal necessary to repair downed power lines is eligible, while normal snow removal from roads is not eligible.”[10]  This is an extremely limited exception that allows reimbursement of snow-related activity costs only if the snow-related work is incidental to the actual performance of eligible emergency protective measures.[11]  

The Applicant and the Grantee argue the disaster caused an immediate threat to life and property by hindering the Applicant’s ability to respond to emergency alarms to provide timely firefighting and medical care and transport services.  They argue that, since the Applicant is not a public works entity and only cleared roads as necessary during the incident period, associated costs should be approved as an eligible emergency protective measure, or, alternatively, as necessary to perform eligible emergency protective measures.  However, the documentation provided by the Applicant does not show the snow removal activities were necessary to perform eligible disaster-related emergency protective measures, and are not eligible for PA funding.  

Conclusion

Suffolk County was not designated for snow assistance; therefore snow removal is not eligible for PA funding.  In addition, the Applicant failed to show that snow removal activities were necessary to perform eligible emergency protective measures.  Therefore, the requested costs associated with snow removal activities are not eligible for PA funding.  Accordingly, the second appeal is denied.