Snow Removal, Emergency Protective Measures

Appeal Brief

Summary Paragraph

Severe winter storms, tornadoes, straight-line winds, and flooding occurred throughout the State of Texas from December 26, 2015, until January 21, 2016.  Major disaster DR-4255-TX was declared on February 9, 2016.  FEMA prepared PW 89 to document $22,137.50 that Lubbock-Cooper Independent School District (Applicant) incurred for snow removal.  Several contractors were utilized to remove snow from the city streets around the school campuses, parking lots, and entrances/exits to the buildings.  FEMA notified the Grantee on July 28, 2016, that the cost was ineligible for Public Assistance funding because snow removal was not included in the declaration.  On first appeal, the Applicant claimed snow removal was necessary to meet the fire code relative to the blocking of doors and to prevent the cancellation of classes.  FEMA sent an RFI to the Applicant, asking that it demonstrate the snow removal supported an emergency protective measure.  The Applicant replied that it had no additional information.  FEMA denied the first appeal on April 3, 2017, determining that the costs were ineligible since the declaration of DR-4255-TX did not include snow assistance, and the Applicant did not provide documentation that identified activities and costs in support of FEMA-eligible emergency work.  In the second appeal, the Applicant argues that the snow removal around the school should be considered an emergency protective measure since maintenance crews needed to access the building to determine if there was damage, neglecting to remove the snow would have created risk for injury, and many students did not have supervision at home if school did not begin on January 4, 2017, as scheduled.

Authorities and Second Appeals

• 44 C.F.R. §§ 206.36, 206.225, 206.227.
• PAPPG, at 77-78.
• FEMA Second Appeal Analysis, Town of Secaucus, FEMA-4264-DR-NJ (April 27, 2017).

Headnotes

• In accordance with 44 C.F.R. § 206.227 Snow Assistance, emergency or major disaster declarations based on snow or blizzard conditions will be made only for cases of record or near record snowstorms, as established by official government records.
  • DR-4255-TX did not authorize snow assistance.

• The PAPPG states that for severe winter storm declaration that do not specifically authorize snow assistance, “FEMA only provides PA funding for limited snow-related activities that are necessary to preform otherwise eligible work.  For example, snow removal necessary to repair downed power lines is eligible, while normal snow removal from roads is not eligible.”
  • The Applicant did not establish that limited snow removal was necessary to perform otherwise eligible work.

Appeal Letter

Appeal Analysis

Background

Severe winter storms, tornadoes, straight-line winds, and flooding occurred throughout the State of Texas from December 26, 2015, until January 21, 2016.  Counties in the Texas Panhandle region suffered high winds, heavy snowfall, and deep snow drifts.  On January 26, 2016, the Governor of Texas requested a Presidential Disaster Declaration to include various individual assistance programs for six counties and the Public Assistance (PA) Program for 25 counties including Lubbock County.[1]  The President declared a major disaster for the State of Texas (DR-4255-TX) on February 9, 2016, which did not authorize snow assistance. [2] 

The Lubbock-Cooper Independent School District (Applicant) experienced high winds with 10 inches of snow and 5 to 6-feet deep snow drifts on its school campuses.  The Applicant utilized contractors to remove snow from streets around the school campuses, parking lots, and entrances/exits to the buildings.  FEMA prepared Project Worksheet (PW) 89 to document $22,137.50 of costs incurred from snow removal, but determined that costs were ineligible and wrote it as a $0 PW.  The Applicant received FEMA’s determination memo on July 28, 2016, which notified it that the cost was ineligible because snow removal was not included in the declaration for DR-4255-TX.

First Appeal

The Applicant appealed FEMA’s determination on September 7, 2016.  The Grantee forwarded the appeal to FEMA along with its letter of support on October 5, 2016.  The Applicant claimed snow removal was necessary to meet the fire code relative to the blocking of doors and to prevent the cancellation of classes.  The Applicant also claimed that the snow removal costs were necessary to ensure the safety of the students, faculty, and parents, and was therefore an emergency protective measure.  By letter dated December 28, 2016, FEMA issued a final request for information (RFI) from the Applicant to demonstrate that the snow removal supported an emergency protective measure.  The Applicant responded that it had no additional information to support its claim, which the Grantee submitted to FEMA on January 26, 2017.  FEMA determined that the costs were ineligible since the declaration of DR-4255-TX did not include snow removal assistance, and the Applicant did not provide documentation that identified activities and costs in support of FEMA-eligible emergency work.  FEMA denied the first appeal in a letter to the Grantee and Applicant dated April 3, 2017. 

Second Appeal

In the second appeal, dated May 1, 2017, the Applicant reiterated that the snow removal around the school should be considered an emergency protective measure, which was included in the declaration for DR-4255-TX.  It argued that snow plowing was necessary for maintenance crews to access the building and determine if there was building damage before the school could open for the spring semester.[3]  Had the snow not been plowed, ensuing below freezing temperatures would have kept the ice from melting and created a risk for injury.  The state requires 180 days of student instruction, and many students do not have supervision at home.  The Applicant also noted that the amount of snow associated with DR-4255 was rare for the area, and it did not have the snow equipment to remove it.  A contractor was needed to remove the snow so school could begin again on January 4, 2017. 

Discussion

According to Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.36(c)(4), the Governor’s request should include the types of supplementary federal disaster assistance needed, such as snow assistance as an emergency protective measure under the PA program.  Emergency or major disaster declarations based on snow or blizzard conditions will be made only for cases of record or near record snowstorms, as established by official government records.[4]  An evaluation is conducted for each requested county individually.  In order to obtain a snow assistance declaration, the Governor’s request must specifically identify counties that meet near record criteria and the disaster declaration would grant funding for snow removal in the disaster declaration.  In the case at hand, the Governor did not request snow removal assistance, and the President only granted Public Assistance, which does not include snow removal. 

The Public Assistance Program and Policy Guide explains that for severe winter storm declarations that do not specifically authorize snow assistance, “FEMA only provides PA funding for limited snow-related activities that are necessary to preform otherwise eligible work.  For example, snow removal necessary to repair downed power lines is eligible, while normal snow removal from roads is not eligible.”[5]  This is an extremely limited exception to the policy that allows reimbursement of snow-related activity costs only if the snow-related work is incidental to the actual performance of eligible emergency protective measures.[6]  This provision does not include general snow-related activities in counties that are not eligible for snow assistance, such as clearance of one lane for general emergency services operations or clearance of snow from around buildings to allow for general operation of schools, hospitals, or other facilities.

The amount of snow associated with DR-4255-TX may not have been normal for the area, but that does not make the removal of the snow eligible because snow assistance was not specified in the disaster declaration.  Also, there is no information to demonstrate that snow removal was necessary to accomplish eligible emergency work such as snow removal necessary to repair downed power lines.  The Applicant did not provide documentation that identified activities and costs in support of FEMA-eligible emergency work.

Conclusion

The State of Texas did not request snow assistance and the disaster declaration for DR-4255-TX did not authorize snow assistance; therefore, FEMA cannot fund snow removal activities unless they are necessary to perform otherwise eligible work.  The Applicant was not able to demonstrate that the snow removal activities performed met this eligibility criteria.  Accordingly, the work is not eligible and the second appeal is denied.