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Second Appeal Brief
PA ID# 013-47070-00; Town of Lyons
PW ID# 552; Force Account Labor – Emergency Labor
Conclusion: While Stafford Act § 403(d) permits reimbursement of basic pay for permanent employees performing emergency protective measures, FEMA has limited funding for such costs through 44 C.F.R. § 206.228(a)(2)(iii). Therefore, basic pay and benefits for the Applicant’s permanent employees performing emergency protective measures is not eligible for PA funding.
From September 11 to 30, 2013, severe storms, flooding, landslides and mudslides caused floodwaters to overtop embankments along the Saint Vrain Creek. The flooding damaged a large portion of the Town of Lyons’ (Applicant) critical infrastructure. FEMA prepared Project Worksheet (PW) 552 to address labor, equipment and contract costs associated with various emergency protective measures performed by the Applicant, including sandbagging, search and rescue operations, sheltering and emergency mass care, emergency demolition, and providing food, water, ice, and other essential needs. In version 2 of PW 552, FEMA deobligated $102,058.50 in costs associated with straight-time labor it deemed ineligible pursuant to Stafford Act § 406, 44 C.F.R. § 206.228(a)(2) and FEMA RP9525.7, Labor Costs - Emergency Work (Nov. 16, 2006). The Applicant appealed FEMA’s determination to deny reimbursement of straight-time labor and benefits of its employees performing emergency protective measures following the disaster arguing that Stafford Act § 403, as amended by the Sandy Recovery Improvement Act (SRIA) of 2013, allows FEMA to reimburse applicants for “emergency and temporary labor.” The Applicant stated that it did not have a local emergency operations plan in place at the time of the disaster, so it used permanent staff to perform emergency and essential tasks. The Region VIII Regional Administrator denied the first appeal determining that neither the regulation nor FEMA policy permit reimbursement of the costs of basic pay of an applicant’s permanently employed personnel performing emergency protective measures. In its second appeal, the Applicant reiterates that SRIA specifically authorizes reimbursement of basic pay of permanent employees doing disaster-related emergency work if not part of their normal duties. The Applicant states that the amended Stafford Act supersedes the 2006 Recovery Policy used by FEMA to justify denying the costs.
Authorities and Second Appeals
- Stafford Act §§ 305, 321, 403(d).
- 44 C.F.R. § 206.228(a)(2)(iii).
- California-Nevada Methodist Homes v. Fed. Emergency Mgmt. Agency, 152 F. Supp. 2d 1202, 1206-07 (N.D. Cal. 2001).
- RP 9525.7, Labor Costs – Emergency Work (Nov. 16, 2006).
- As of January 2013, Stafford Act § 403(d)(1)(A) allows FEMA to reimburse local governments for costs relating to basic pay and benefits for permanent employees conducting emergency protective measures, if the work is not typically performed by the employees and the type of work may otherwise be carried out by contract or agreement with private organizations, firms, or individuals.
- 44 C.F.R. § 206.228, which implements Stafford Act § 403, expressly prohibits reimbursement of basic pay for permanent employees performing emergency work.
- While Stafford Act § 403(d) may allow reimbursement of certain costs, FEMA has exercised its discretionary authority to limit such funding.
- Consequently, certain costs claimed in PW 552 are ineligible under the PA Program.