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Second Appeal Brief
PA ID# 121-040000-00; City of Atlanta
PW ID# 322; Force Account Labor-Emergency
Conclusion: The City of Atlanta (Applicant) has not demonstrated that it performed emergency protective measures addressing an immediate threat to public health and safety. The overtime and compensatory time and cost of meals and cleaning supplies are therefore also ineligible. Finally, the ice removal requested does not meet severe winter storm designation eligibility requirements.
In February 2014, a severe winter storm resulted in sleet, ice and snow accumulation in the City of Atlanta, Georgia. FEMA prepared Project Worksheet (PW) 322 to address the cost of force account labor (FAL), materials (food for employees and general cleaning supplies) and equipment (ice removal of runways) used to establish an Emergency Operations Center (EOC) and perform emergency protective measures at Hartsfield-Jackson Atlanta International Airport. In addition, the PW documented costs associated with salting bridges and roads. FEMA subsequently determined the work and costs in PW 322 were ineligible and the Applicant appealed. On first appeal, the Regional Administrator concluded that the Applicant did not substantiate: (1) its FAL was performing eligible emergency protective measures; (2) it had a predisaster policy in place to reimburse the cost for meals for its FAL; (3) general cleanup costs were eligible; and, (4) that ice removal was eligible. The Applicant appeals and claims that: (1) its FAL helped lessen the immediate threat to public health and safety; (2) reimbursing meal costs was necessary to allow its FAL to continue with emergency work; and (3) ice removal is distinguishable from snow removal and allowed under FEMA policy as emergency work.
Authorities and Second Appeals
- Stafford Act § 403.
- 44 C.F.R. §§ 206.201, 206.206, 206.225, 206.226, and 206.227, 206.228.
- DAP 9527.4, Snow Assistance and Severe Winter Storm Policy.
- RP9525.7, Labor Costs – Emergency Work.
- City of Blair, FEMA-1878-DR-NE, at 4.
- PA Guide, FEMA 322, at 42, 28, 54.
- Stafford Act § 403(a) authorizes FEMA to provide federal assistance to meet threats to life and property resulting from a major disaster, including work that reduce immediate threats to life, property, and public health and safety.
- Work that is typically performed by an applicant’s employees is not eligible.
- The Applicant has not demonstrated through the documentation submitted on appeal that the work conducted by its FAL were eligible.
- In addition, even if the work were eligible, the Applicant did not demonstrate that the work was not typically performed by its employees.
- The PA Guide states that while the cost of operating a facility or providing a service may increase due to or after a disaster, these costs are generally not eligible. An example of an ineligible increased operating expense is feeding staff of critical facilities.
- The Applicant did not demonstrate that the cost of meals were eligible.
- 44 C.F.R. § 206.225(a) authorizes necessary to eliminate immediate threats, however, § 206.227 limits funding to disaster declarations that are based on cases of record or near-record snowfall.
- FEMA will not include snow removal costs when calculating costs for severe winter storm declarations, unless the county qualifies for snow assistance as a record or near record snowfall.
- Here, there was not a record or near record snowfall and as such, the Applicant did not qualify for snow assistance, which includes activities such as de-icing, sanding, and salting the roads.