406 Mitigation
Appeal Brief
Appeal Letter
Citation: FEMA-1335-DR-NY; Erie County Building and Grounds
Reference: 406 Mitigation
Summary: As a result of FEMA-1335-DR-NY in 2000, heavy rain damaged interior spaces and a lightening strike damaged certain electronic components of the security monitoring system at the Erie County Correctional Facility (ECCF). Project Worksheet #1671 was prepared, which included $200,868 in repairs and a proposed hazard mitigation project (HMP) for $145,000 to provide protection to electronic systems from future lightening strikes. Region II held the PW pending proof of insurance. The Applicant, however, proceeded with the work. On January 30, 2002, FEMA accepted proof of insurance but denied the HMP since the Applicant had not proven the project was cost-effective.
On May 2, 2002, the Applicant appealed Region IIs denial of the HMP. Lacking sufficient cost justification, Region II denied the first appeal on January 16, 2003. On February 25, 2003, the Applicant filed a second appeal. The central issue for Recovery Division HQ is whether an HMP arising out of damages caused by lightening is eligible for 406 Hazard Mitigation.
The Applicant also claimed that the HMP improvements constituted a building code required by regulations of the New York State Commission on Corrections.
Issues: 1) Is the HMP eligible?
2) Do the improvements in the HMP qualify as codes and standards under FEMAs authorities?
3) Did the Applicant proceed with the work before the project was approved?
Findings: 1) No. The future similar events the HMP is designed to protect against will most likely not reduce future Federal disaster expenditures.
2) No. The codes provided by the Applicant do not meet the eligibility requirements in 44 CFR 206.226(d).
3) Yes. The Applicant proceeded with the work before the project was approved.
Rationale: 44 CFR 206.226(e) and (d)
Appeal Brief
| Disaster | FEMA-1335-DR |
| Applicant | Erie County Buildings and Grounds |
| Appeal Type | Second |
| PA ID# | 029-UVLQC-00 |
| PW ID# | 1671 |
| Date Signed | 2003-10-03T04:00:00 |
Reference: 406 Mitigation
On May 2, 2002, the Applicant appealed Region IIs denial of the HMP. Lacking sufficient cost justification, Region II denied the first appeal on January 16, 2003. On February 25, 2003, the Applicant filed a second appeal. The central issue for Recovery Division HQ is whether an HMP arising out of damages caused by lightening is eligible for 406 Hazard Mitigation.
The Applicant also claimed that the HMP improvements constituted a building code required by regulations of the New York State Commission on Corrections.
2) Do the improvements in the HMP qualify as codes and standards under FEMAs authorities?
3) Did the Applicant proceed with the work before the project was approved?
2) No. The codes provided by the Applicant do not meet the eligibility requirements in 44 CFR 206.226(d).
3) Yes. The Applicant proceeded with the work before the project was approved.
Appeal Letter
October 3, 2003
Mr. John A. Agostino
Governor's Authorized Representative
New York State Emergency Management Office
1220 Washington Avenue
Building 22, Suite 101
Albany, NY 12226-2251
Re: Second Appeal, Erie County Buildings and Grounds,
PA-ID 029-UVLQC-00, 406 Mitigation,
FEMA-1335-DR-NY
Dear Mr. Agostino:
This is in response to your letter dated March 18, 2003, transmitting the referenced second appeal on behalf of the Erie County Department of Public Works, Buildings and Grounds (Applicant). The Applicant is appealing Region IIs denial of a first appeal for a hazard mitigation project (HMP) arising from damages caused by a lightening strike to the Erie County Correctional Facility (ECCF) during FEMA DR-1335 in 2000. The Regional Director found the HMP ineligible for assistance because it was not cost-effective.
On January 30, 2002, FEMA informed the New York State Emergency Management Office that the Applicants HMP was not cost-effective and, therefore, was not eligible for assistance. On May 2, 2002, the Applicant filed a first appeal with Region II on the HMP (the file contains two identical first appeal letters, one dated May 2, 2003, and the other dated June 1, 2003). The Applicant claimed in its appeal that the HMP, estimated to cost $145,000, would prevent similar damages from future lightening strikes.
Total eligible damages to ECCFs facilities were $217,324. Of that amount, $169,400 in damages occurred to ECCFs electronic security system due to a lightening strike. The proposed $145,000 hazard mitigation measures were intended to protect ECCFs electronic security system from future similar damage. Similar damage last occurred from a lightening strike in 1994, an event that was not part of a major disaster.
A central question is whether a HMP arising out of damages caused by a lightening strike is eligible under the Public Assistance programs policy on Section 406 discretionary hazard mitigation funding (Recovery Division Policy 9526.1). In that regard, it must be noted that the intent of the hazard mitigation program is to reduce Federal disaster expenditures from similar disaster events in the future (emphasis added). The principal benefit of this HMP is to protect ECCFs electronic security system from future damage from lightening strikes. The likelihood of lightening striking this particular facility in a future Presidentially-declared major disaster, resulting in damage to the electronic security system, is extremely remote. Therefore, we believe this particular HMP is not sufficiently justified to warrant discretionary funding by FEMA.
Based on the same reasoning, we must deny the Applicants request to fund the HMP as upgrades required by the New York State Commission on Corrections. The electronic security systems were part of the original construction of the facility, and to the extent these systems were damaged in DR-1335, repairs were approved on PW #1671. Improvements to these systems may be desirable, but they do not constitute a code or standard under 44 CFR 206.226(d).
On a final matter, the record demonstrates that the Applicant proceeded with the HMP before the FEMA project worksheet had been approved. This alone has been sufficient justification in the past to deny such appeals pursuant to Recovery Division Policy 9526.1.
Based on these facts, I am denying this appeal. Please inform the Applicant of this determination. My decision constitutes the final decision on this matter as set forth in
44 CFR § 206.206.
Sincerely,
/S/
Laurence W. Zensinger
Acting Director, Recovery Division
Emergency Preparedness & Response
Department of Homeland Security
cc: Joe PiccianoActing Regional Director
Region II
Mr. John A. Agostino
Governor's Authorized Representative
New York State Emergency Management Office
1220 Washington Avenue
Building 22, Suite 101
Albany, NY 12226-2251
Re: Second Appeal, Erie County Buildings and Grounds,
PA-ID 029-UVLQC-00, 406 Mitigation,
FEMA-1335-DR-NY
Dear Mr. Agostino:
This is in response to your letter dated March 18, 2003, transmitting the referenced second appeal on behalf of the Erie County Department of Public Works, Buildings and Grounds (Applicant). The Applicant is appealing Region IIs denial of a first appeal for a hazard mitigation project (HMP) arising from damages caused by a lightening strike to the Erie County Correctional Facility (ECCF) during FEMA DR-1335 in 2000. The Regional Director found the HMP ineligible for assistance because it was not cost-effective.
On January 30, 2002, FEMA informed the New York State Emergency Management Office that the Applicants HMP was not cost-effective and, therefore, was not eligible for assistance. On May 2, 2002, the Applicant filed a first appeal with Region II on the HMP (the file contains two identical first appeal letters, one dated May 2, 2003, and the other dated June 1, 2003). The Applicant claimed in its appeal that the HMP, estimated to cost $145,000, would prevent similar damages from future lightening strikes.
Total eligible damages to ECCFs facilities were $217,324. Of that amount, $169,400 in damages occurred to ECCFs electronic security system due to a lightening strike. The proposed $145,000 hazard mitigation measures were intended to protect ECCFs electronic security system from future similar damage. Similar damage last occurred from a lightening strike in 1994, an event that was not part of a major disaster.
A central question is whether a HMP arising out of damages caused by a lightening strike is eligible under the Public Assistance programs policy on Section 406 discretionary hazard mitigation funding (Recovery Division Policy 9526.1). In that regard, it must be noted that the intent of the hazard mitigation program is to reduce Federal disaster expenditures from similar disaster events in the future (emphasis added). The principal benefit of this HMP is to protect ECCFs electronic security system from future damage from lightening strikes. The likelihood of lightening striking this particular facility in a future Presidentially-declared major disaster, resulting in damage to the electronic security system, is extremely remote. Therefore, we believe this particular HMP is not sufficiently justified to warrant discretionary funding by FEMA.
Based on the same reasoning, we must deny the Applicants request to fund the HMP as upgrades required by the New York State Commission on Corrections. The electronic security systems were part of the original construction of the facility, and to the extent these systems were damaged in DR-1335, repairs were approved on PW #1671. Improvements to these systems may be desirable, but they do not constitute a code or standard under 44 CFR 206.226(d).
On a final matter, the record demonstrates that the Applicant proceeded with the HMP before the FEMA project worksheet had been approved. This alone has been sufficient justification in the past to deny such appeals pursuant to Recovery Division Policy 9526.1.
Based on these facts, I am denying this appeal. Please inform the Applicant of this determination. My decision constitutes the final decision on this matter as set forth in
44 CFR § 206.206.
Sincerely,
/S/
Laurence W. Zensinger
Acting Director, Recovery Division
Emergency Preparedness & Response
Department of Homeland Security
cc: Joe PiccianoActing Regional Director
Region II
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