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Second Appeal Brief
PA ID# 103-U9LJM-00; Terryville Fire District
PW ID# Project Worksheet 373 ; Snow Removal
During the incident period of March 14-15, 2017, a severe winter storm and snowstorm afflicted eastern New York. On July 12, 2017, the President declared a major disaster under FEMA-4322-DR-NY, designating Suffolk County, New York, as eligible for Public Assistance (PA) categories A through G, but not for snow assistance because it did not receive record or near record snowfall. On January 16, 2018, FEMA prepared Project Worksheet (PW) 373 for zero dollars to document the expenditures incurred by the Terryville Fire District (Applicant), located within Suffolk County, for ineligible snow removal activities. On March 8, 2018, FEMA issued a Determination Memorandum formally denying all costs for PW 373. FEMA found that because the President had not designated Suffolk County for snow assistance, the Applicant was ineligible for PA funding associated with snow removal activities. The Applicant appealed, stating that as a sub-division of New York state, it could not rely on immediate snow assistance to ensure it could respond safely and in a timely manner to emergencies, therefore it equipped support vehicles with eight foot plows, and argued that using support vehicles to facilitate emergency response constitutes eligible emergency work. The New York State Division of Homeland Security and Emergency Services (Grantee) supported the appeal. The Regional Administrator (RA) issued a Final Request for Information (RFI) for documentation indicating which fire, rescue and emergency medical service calls were required as a direct result of the disaster, and the personnel and equipment that were sent to respond to the disaster-related calls. The Applicant responded with call logs of emergency responses during the incident period with support from the Grantee, but acknowledged that the disaster was not necessarily the cause for any of the calls. The RA denied the appeal, noting Suffolk County was not designated for snow assistance and the Applicant did not demonstrate that snow removal was necessary to perform specific emergency protective measures required as a result of the disaster, and pointed out neither the Stafford Act nor FEMA policy authorizes clearance of roads unrelated to performance of specific emergency tasks and essential community services. The Applicant repeats previous arguments in its second appeal. The Grantee argues the Applicant is not a public works entity but only cleared roads as necessary immediately preceding deployed emergency vehicles, that firefighting and medical care and transport are identified as eligible emergency protective measures, and that it should be sufficient that conditions caused by the declared event posed an immediate threat of worsening emergencies if left unaddressed.
Authorities and Second Appeals
- Stafford Act § 403(a)(3)(c).
- 44 C.F.R. §§ 206.206(a), 206.223(a), 206.225(a), 206.227.
- PAPPG, at 20, 134, 59, 82, Appendix H.
- Town of Secaucus, FEMA-4264-DR-NJ, at 4, Village of Waterford, FEMA-4020-DR-NY, at 3.
- 44 C.F.R. § 206.225(a) authorizes emergency protective measures necessary to eliminate or lessen immediate threats to life, public health, or safety, as well as threats of significant additional damage to improved property. 44 C.F.R. § 206.227 limits both emergency and major disaster declarations that are based on snow or blizzard conditions to cases of record or near-record snowstorms.
- Suffolk County was not designated for snow assistance, and snow removal activities are not eligible for PA as emergency protective measures as they were not necessary to perform otherwise eligible work.
The requested costs associated with snow removal activities are not eligible for PA funding. Accordingly, the second appeal is denied.