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Second Appeal Letter
PA ID# 059-99059-00; Fairfax County
PW ID# 512 and 513; Emergency Protective Measures
February 19, 2013
Michael M. Cline
Commonwealth of Virginia
Department of Emergency Management
10501 Trade Court
Richmond, Virginia 23236-3713
Re: Second Appeal–Fairfax County, PA ID 059-99059-00, Emergency Protective Measures,
FEMA-1905-DR-VA, Project Worksheets (PWs) 512 and 513
Dear Mr. Cline:
This letter is in response to a letter from your office dated April 20, 2012, which transmitted the referenced second appeal on behalf of Fairfax County (Applicant). The Applicant requests that the Department of Homeland Security’s Federal Emergency Management Agency (FEMA) fund emergency response activities performed during the February 2010 severe winter storms and snowstorms by the Department of Public Safety and Communications (DPSC) and the Sheriff’s Office in the amounts of $199,572 and $453,259, respectively.
As a result of the severe winter storms and snowstorms that occurred in February 2010, the Applicant’s DPSC and Sheriff’s office participated in emergency response activities. The DPSC operates the 9-1-1 call center and required some employees to work longer than normal shifts to cover for employees who were not able to commute to work. The Sheriff’s office worked to ensure the safety and security of the Public Safety Complex, the Adult Detention Center, and the County Courthouse.
The Applicant requested reimbursement from FEMA for labor costs for DPSC staff working longer than normal shifts at the call center and for those employees called in on normal days off during the event. The Applicant also requested funding for hotel costs for staff that were not able to travel home. For the Sheriff’s office, the Applicant requested reimbursement for labor costs for employees working during the event who were involved in the 24-hour operation of the Adult Detention Center, including booking new inmates and guarding inmates being treated at medical facilities; serving restraining, and cease and desist orders; and providing additional security for the Public Safety Complex. FEMA prepared PW 512 and 513 in the amounts $199,572 and $453,259 to document the DPSC and Sheriff’s office costs, respectively. Upon review, FEMA determined both PWs to be ineligible, because the scopes of work associated with the claimed costs did not represent disaster-related emergency work. FEMA determined that the claimed costs were increased operating expenses.
On May 20, 2011, the Applicant submitted a first appeal of the denial of PWs 512 and 513, and your office transmitted the appeal to FEMA on July 28, 2011. The Applicant stated that the costs claimed under PWs 512 and 513 are for activities that meet the definition of emergency protective measures and are directly related to the event. The Applicant stated that the costs are not increased operating costs, but are directly related to accomplishing specific emergency health and safety tasks as part of eligible emergency protective measures. On November 28, 2011, the FEMA Regional Administrator denied the first appeal. The Regional Administrator concluded that claimed costs are increased operating costs and are not associated with eligible emergency work.
The Applicant submitted its second appeal on February 27, 2012, which was forwarded to FEMA by your office on April 20, 2012. The Applicant stated that the costs claimed were incurred as a direct result of the event and are associated with eligible emergency work. While the Applicant conceded that the claimed labor costs include costs for some routine operating tasks, both the DPSC and Sheriff’s office “operated well above routine emergency efforts with tasks that were ‘extraordinary’ and directly related to the storm.” The Applicant requested that FEMA consider funding a percentage of the claimed costs.
On September 11, 2012, representatives of the Applicant, met with Virginia Department of Emergency Management (VDEM) and FEMA Public Assistance Division staff at FEMA headquarters in Washington, D.C. to provide an in-person presentation of the second appeal argument. The Applicant reiterated that the work performed during the event constituted eligible emergency work but noted that its system for accounting for personnel hours was not detailed enough to isolate the time spent conducting emergency work in response to the declared event from routine operating tasks.
According to Title 44 Code of Federal Regulations (44 CFR) §206.223(a)(1), General work eligibility, to be eligible for financial assistance, an item of work must be required as the result of the major disaster event. While the Applicant has provided documentation to support its costs claimed under PWs 512 and 513, the Applicant has not provided documentation to support its position that the work performed was required as the result of the declared disaster event.
Regarding PW 512, it is reasonable to assume that at least a portion of the work performed by the DPSC employees staffing the 9-1-1 call Center may have been required as the result of the severe storms, it is also clear that not all 9-1-1 calls made during the incident period were required as the result of the event. The Applicant has provided no documentation to support which costs are associated with work required as a result of the event.
The scope of work documented in PW 513 includes the operation of the Adult Detention Center, serving time sensitive public safety orders, and providing security for the Public Safety Complex. These activities performed by the Sheriff’s office personnel may have been more time consuming during the event, but they were not required as the result of the event and not eligible for funding.
The Applicant states that the Regional Administrator based the denial of the first appeal on the fact that the Applicant could not provide a breakdown of costs potentially attributable to, and a direct result of, the event. In its second appeal, the Applicant asserts that FEMA is not restricted by policy to the review of only one type of data to substantiate costs (e.g. daily activity logs). Although FEMA policy does not limit the types of documentation required, applicants are required to submit sufficient documentation to support the eligibility of both the work and the costs associated with a request for assistance. In this case, the Applicant has provided documentation to support the costs associated with the employees who worked during the incident period; however, the Applicant has not provided documentation to support what portion of that work performed by the employees was required by the event.
In the absence of detailed activity logs, the Applicant suggests that FEMA assume that some portion of the work performed was required by the event and approve a reasonable percentage of the costs claimed. While it is clear that the work performed by the Sheriff’s office was not required by the event, it is reasonable to assume that some portion of the work performed by the DPSC employees may have been required as the result of the event; however, there is no basis for approving a percentage of the costs claimed. The documentation submitted is not sufficient to support a reasonable assumption as to the percentage of the work performed by the DPSC staff and required by the event. In its appeal, the Applicant states that historically FEMA has approved funding for emergency response activities based on documentation other than detailed activity logs and provides four examples of such cases. FEMA does not require detailed activity logs to substantiate the eligibility of emergency work in every instance; however, FEMA does require sufficient documentation to support the eligibility of the work and costs claimed for the work. FEMA analyzes the eligibility of each individual request for assistance based on the specifics of each request for assistance. In this case, the Applicant has not provided sufficient documentation to support that the work associated with the costs claimed was required by the declared event.
I have reviewed the information submitted with the second appeal and have determined that the Regional Administrator’s decision in the first appeal is consistent with Public Assistance Program regulations and policy. Accordingly, I am denying the second appeal.
This determination is the final decision on this matter pursuant to 44 CFR § 206.206, Appeals. Please inform the Applicant of my decision.
cc: MaryAnn Tierney
FEMA Region III