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Second Appeal Analysis
PA ID# 107-55893-00; Town of Owego
PW ID# 657; Timeliness, Insurance
In September 2011, heavy rains from Tropical Storm Lee caused widespread flooding and inundated the Town of Owego’s (Applicant) Highway Garage (Facility) in New York. In Project Worksheet (PW) 657, FEMA initially estimated permanent repair work to cost $95,766.88. While performing an insurance review, FEMA determined the Facility sustained flood damage in a previous declared disaster, FEMA-1650-DR-NY and received Public Assistance (PA) funding from FEMA for it. As a result of that 2006 disaster, FEMA prepared PW 2535 to document (1) an emergency repair/cleanup contract to clean, sanitize, and remove mud from the truck bays and office area, and (2) contracts for the replacement of outlets, heaters paneling, insulation, office supplies, toilets, sinks, and urinals. Through that PW, FEMA approved $5,597.38 in eligible costs, of which $1,804.02 corresponded to the clean out and removal of the water and mud. PW 2535 also contained a condition that the Applicant obtain and maintain flood insurance on the damaged structure for a minimum amount equal to the funded repairs. Satisfying that condition was a prerequisite for any future award. During recovery efforts following Tropical Storm Lee, FEMA determined the Applicant had not obtained or maintained flood insurance for the Facility and consequently was precluded from additional PA funding for it.
In a letter dated December 6, 2012, the Applicant appealed FEMA’s denial of PA funding. The Applicant asserted that the $1,804.02 in costs for cleaning and mud removal services documented on PW 2535 should have been funded through a separate PW and categorized as emergency work. Accordingly, the Applicant argued PW 2535 should have only documented $3,793.36 in permanent work. As this amount is less than the $5,000.00 minimum necessary for FEMA to enforce the requirement that applicants obtain and maintain insurance pursuant to 44 C.F.R. § 206.252(d), FEMA incorrectly conditioned the award.
The New York State Division of Homeland Security and Emergency Services (Grantee) forwarded the Applicant’s first appeal on January 10, 2014, together with their review supporting it. On September 3, 2015, FEMA transmitted a final request for information (Final RFI) to the Grantee and Applicant, seeking documentation supporting the assertion the work captured in PW 657 is eligible for PA funding. The Final RFI also noted that unless additional documentation was submitted, FEMA would deny the appeal.
The Applicant responded to FEMA’s Final RFI on November 4, 2015 and cited PW 1681, involving a different facility damaged by Tropical Storm Lee, as an example where FEMA separated different types of emergency work from an existing PW, and created an additional PW to capture it. In that instance, FEMA wrote PW 1681 to account for the debris cleanup and removal work from a park building and its grounds. FEMA later amended PW 1681, writing Version 1 to account for the debris cleanup for the park grounds and stream bed, and drafted PW 2228 to account for the debris cleanup of the building. The Applicant relied on these PWs to request FEMA remove the $1,804.02 in cleanup work from PW 2535.
The Grantee misinterpreted the Applicant’s response to the Final RFI as a second appeal, and transmitted it to FEMA as such on December 28, 2015. The Grantee attached a memorandum to its letter, reiterating the Applicant’s previous arguments.
FEMA Region II issued a first appeal response on March 11, 2016. The Regional Administrator (RA) denied the Applicant’s appeal, noting that the water extraction efforts and mud cleanup from the truck bays and office area, totaling $1,804.02, were properly included in PW 2535 as permanent work. The RA noted the mud cleanup and water extraction efforts were inextricably tied to the permanent repair and restoration efforts and thus, the costs were properly included as Category E – Buildings and Equipment work. It found that because the Applicant incurred over $5,000.00 in damages from the prior disaster, the Applicant was required to obtain and maintain flood insurance, which it failed to do.
Following issuance of the March 2016 first appeal decision, FEMA reopened the first appeal in order to review the documentation the Applicant submitted in its response to the Final RFI. The RA reviewed that information and on August 8, 2016 adopted the prior denial. The RA denied the first appeal because the Applicant did not obtain and maintain insurance for the Facility following the 2006 disaster thereby making costs to repair damages incurred to it during Tropical Storm Lee ineligible for PA funding.
The Grantee forwarded the Applicant’s Final RFI response as the Applicant’s second appeal, attaching a memorandum in support of the appeal on September 30, 2016.  The Grantee’s memorandum renews the arguments made on first appeal, arguing work tied to the earlier disaster was not properly categorized and thus did not trigger the obtain and maintain requirement.
The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) § 423(a) provides that “[a]ny decision regarding eligibility for, from, or amount of assistance under this title may be appealed within 60 days after the date on which the applicant for such assistance is notified of the award or denial of award of such assistance.” 44 C.F.R. § 206.206(c)(1) implements that provision and states that applicants must submit appeals within 60 days of receipt of the notice of the action that is being appealed. Neither the Stafford Act nor 44 C.F.R. provides FEMA with authority to grant time extensions for filing appeals.
FEMA obligated PW 2535 on November 15, 2006, putting the Applicant on notice it was required to obtain and maintain flood insurance on the Facility. The Applicant did not appeal this condition of PW 2535. In a letter dated December 6, 2012, six years after FEMA obligated PW 2535, the Applicant requests modification of the award. This request was made long after the 60-day timeframe required by 44 C.F.R. § 206.206(c)(1) expired and is untimely. As the instant appeal is based entirely on the Applicant’s request to modify PW 2535, the Applicant’s current appeal is moot. Nevertheless, even if timeliness were not an issue, this appeal is still denied on the merits, per the below.
Obtain and Maintain Insurance Requirement
Stafford Act § 311 requires that, with respect to any property to be repaired, restored, reconstructed, or replaced with PA funds, an applicant must obtain and maintain such types and extent of insurance as may be reasonably available, adequate, and necessary to protect against future loss to such property. Such types and amounts of insurance must be reasonable and necessary to protect the facility against future damage from a similar storm. If an applicant fails to satisfy an insurance requirement for a facility that previously received Public Assistance funding then FEMA will not provide assistance for damage sustained in a future disaster of the same type as the original. The requirement to obtain and maintain insurance applies to permanent work except when eligible costs for an insurable facility do not exceed $5,000.00.
When FEMA prepares a PW, emergency work and permanent work may be combined into one project when the emergency work is incidental to the permanent work. For example, if storm-generated debris must be removed from a building before the building can be repaired, it is acceptable for the PW to include both the debris removal and permanent repair work.
Here, the Applicant disputes FEMA’s application of the obtain and maintain requirement to the Facility following the 2006 disaster, arguing FEMA improperly combined emergency work with permanent work in PW 2535. Accordingly, the issue on appeal is whether the cleanup work, which the Applicant contends was separate “emergency work,” was an element of the permanent work and therefore an eligible cost for an insurable facility.
With regard to repair of the damages caused by the 2006 flood, both mud and water had to be removed to complete the permanent repair work. Such actions were necessary to restore the facility as well as to ensure worker safety. Consequently, the cleanup work was a component of the permanent work and FEMA properly included within PW 2535. As such, eligible funding for the insurable facility exceeded $5,000.00 and the obtain and maintain requirement for flood insurance was applicable.
The Applicant failed to file an appeal of PW 2535 within the 60-day timeframe required by Stafford Act § 423(a) and 44 C.F.R. § 206.206(c)(1). Timeliness aside, the eligible costs documented under PW 2535 were appropriately combined and exceeded $5,000.00. Accordingly, FEMA correctly applied the insurance requirements under the Stafford Act § 311(a) and 44 C.F.R. § 206.252. As the Applicant was required to obtain and maintain flood insurance for the Facility and concedes the Facility did not possess flood insurance at the time of Tropical Storm Lee, the appeal is denied.
 Project Worksheet 2535, Town of Owego, Version 0 (Nov. 15, 2006) [hereinafter PW 2535].
 PW 2535, at 5 [citing, Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.252 (2010)].
 Letter from Supervisor, Town of Owego, to Pub. Assistance Liaison, N.Y. St. Div. of Homeland Sec. and Emergency Servs, (NYSOEM), and Disaster Assistance Officer, NYSOEM, at 1-2 (Dec. 6, 2012) (in which the Applicant concedes the Facility was uninsured at the time of Tropical Storm Lee and acknowledges its “intent was to purchase flood insurance for [the Facility] based on the maintain/obtain requirement, an intent that went unfulfilled due to the confusion that naturally ensues during a catastrophic event and the Public Assistance process.”).
 Letter from Supervisor, Town of Owego, to Disaster Assistance Officer, NYSOM, (Nov. 4, 2015) (citing PW 1161-DR4031-NY and PW 2228-DR4031-NY as support for its request to have the $1,804.02 it asserts was emergency work removed from PW 2535. Rather than PW 1161, the Applicant meant to cite to Project Worksheet 1681, Town of Owego, Version 1 (May 9, 2012) [hereinafter PW 1681, Version 1] and Project Worksheet 2228, Town of Owego, Version 0 (June 16, 2012) [hereinafter PW 2228]).
 Project Worksheet 1681, Town of Owego, Version 0 (Apr. 19, 2012).
 PW 1681, Version 1 (designating the work as Category A); PW 2228 (designating the work as Category B).
 Letter from Alternate Governor’s Authorized Rep., to Reg’l Adm’r, FEMA, Region II, (Dec. 28, 2015).
 Letter from Reg’l Adm’r, FEMA Region II, to Governor’s Authorized Rep., NYSOEM, and Supervisor, Town of Owego, at 1 (Aug. 8, 2016) (stating the “Grantee requested that FEMA reopen the first appeal and use the documentation the Grantee submitted as a second appeal as the response to the RFI since this was the Applicant’s original intention.”).
 Email from Disaster Assistance Mgr., NYSOEM, to Lead Appeals Analyst, FEMA Region II (Oct. 17, 2016, 11:48AM) (in which the Grantee, in response to FEMA’s request for clarification regarding what document to use as the Applicant’s second appeal, forwarded the Applicant’s Final RFI response, dated November 4, 2015.).
 The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 423(a), 42 U.S.C. 5189(a) (2007).
 Title 44 Code of Federal Regulations (44 C.F.R.) § 206.206(c)(1).
 FEMA Second Appeal Analysis, Dept. of Transp., FEMA-4068-DR-FL, at 3 (Aug. 5, 2016); FEMA Second Appeal Analysis, City of Plattsburgh, FEMA-4020-DR-NY, at 4 (June 8, 2016).
 Stafford Act § 311(a)(1).
 44 C.F.R. § 206.252(d).
 Public Assistance Guide, FEMA 322, at 97-98 (Oct. 1999) [hereafter PA Guide (Oct. 1999)]; Public Assistance Guide, FEMA 322, at 123 (June 2007) [hereinafter PA Guide (June 2007)].
 44 C.F.R. § 206.252(d).
 PA Guide, at 71 (Oct. 1999); PA Guide, at 98 (June 2007).
 Id.; PA Guide, at 56 (Oct. 1999) (“Removal of mud, silt, or other accumulated debris is eligible [as Category E work], along with any cleaning and painting necessary to restore the building.”); PA Guide, at 83 (June 2007) (“Removal of mud, silt, or other accumulated debris is eligible as permanent work if the debris does not pose an immediate threat but its removal, along with any cleaning and painting, is necessary to restore the building.”).
 The Applicant cites to FEMA’s separation of categories of work in PW 1681 to argue FEMA should do the same for PW 2535. This reliance is misplaced as the work covered by PW 1681 and the work separated into another PW were for emergency measures and did not involve the obtain and maintain insurance requirement.