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Second Appeal Brief
PA ID# 025-UA6IR-00, ; Economic Development and Industrial Corporation of Boston
PW ID# Project Worksheet 1238 ; Alternate Project – Snow Removal
The City of Boston used a dry dock (Facility) owned by the Applicant as a place to dump snow following a 2015 storm. In the process, it damaged various Facility components. FEMA prepared Project Worksheet 1238 (PW) to address costs to repair the damage, which it initially classified as Category G permanent work, and in May 2016 awarded $82,713.48 in estimated repair costs. The Applicant requested an alternate project in August 2016, seeking to make repairs to two adjacent properties in lieu of restoring the Facility. At the time of the request, the Applicant already executed a contract with a construction firm and issued a notice to proceed. The work was completed in January 2017. The FEMA Region I Acting Regional Administrator denied the alternate project request in an April 2018 determination memorandum, explaining that FEMA should have classified the PW as Category B because the Facility damage resulted from the performance of emergency protective measures, and there is no authority under the emergency work provisions of the Stafford Act or FEMA regulations to approve an alternate project. The memo also stated the alternate project would be ineligible because the Applicant initiated and completed the project without prior FEMA approval. The memo also noted the Applicant failed to complete the original Facility restoration project by the project completion deadline. The Applicant appealed, asserting the PW should be classified as Category G, allowing for an alternate project, because the repairs to the Facility were permanent in nature. The Massachusetts Emergency Management Agency (Grantee) supported the appeal, stating that projects to restore damage caused during emergency protective measures do not have to be classified as Category B and providing examples in which FEMA classified such projects as permanent work. The Acting Regional Administrator denied the appeal for the reasons set forth in the determination memorandum.
Authorities and Second Appeals
- Stafford Act §§ 403 and 406.
- 44 C.F.R. §§ 206.204(c) & (d), 206.203(d)(2), 206.223(e), 206.225, and 206.226.
- PA Guide, at 31.
- Under Section 403 of the Stafford Act, FEMA is authorized to provide financial assistance for work or services performed under a major disaster that is essential to saving lives and protecting and preserving property or public health and safety. The Public Assistance Guide states that the costs of repairing damage caused by applicants, if not due to negligence, may be eligible for assistance, especially if the damage occurs during emergency response efforts.
- Section 403 authorized FEMA to provide financial assistance for snow removal operations, an eligible emergency protective measure. Because the damage to the Applicant’s dock resulted from the performance of that emergency work, Section 403 also served as the authority for reimbursing the costs of dock repairs only, not the Applicant’s alternate project to repair adjacent properties.
- Under Section 406 of the Stafford Act, FEMA is authorized to provide financial assistance for work to repair, restore, reconstruct, or replace a public facility damaged or destroyed by a major disaster. If an applicant determines the public welfare would not be best served by restoring the damaged facility or its function, Section 406 authorizes it to apply its funding toward other eligible purposes. Such alternate projects may be taken only on permanent work.
- For the costs of the Applicant’s alternate project to be eligible under Section 406, the initial dry dock damage must have been a direct result of the disaster. Instead, the damage resulted from the performance of emergency protective measures. Because Section 403, not 406, applies here, the costs of the Applicant’s alternate project are not eligible.
The damage to the Facility was caused during the performance of emergency protective measures under Section 403. Because alternate projects are not authorized under Section 403, the Applicant is not eligible for financial assistance. Therefore, FEMA is denying the second appeal.