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Second Appeal Brief
PA ID# PA ID: 000-UUMIZ-00; Long Island Power Authority
PW ID# PW 707; Pre-positioned Resources
The Applicant is a public utility that provides electrical services to customers in Suffolk County, New York. In March 2017, a severe winter storm was predicted to cause damage throughout Suffolk County. The Applicant expected a large number of electrical outages and pre-positioned electrical contractors to perform utility repair work. The storm changed direction and the Applicant cancelled its request for electrical crews. Some of the electrical contractors were en route from out of state, while the other contractors were placed in staging areas on standby. Because these pre-positioned electrical contractors did not perform any emergency work as a result of the disaster, FEMA determined that those costs were ineligible for Public Assistance (PA) funding. FEMA explained that its policy only funds pre-positioned resources if they perform eligible emergency work. The Applicant appealed and argued it was prudent to position the electrical contractors, and these crews played a key role in protecting public health and safety, especially to those citizens vulnerable to power outages. The FEMA Region II Regional Administrator denied the appeal, finding FEMA policy only allows costs for pre-positioning resources if those resources are used in the performance of eligible emergency work. Eligible emergency work is work providing essential assistance to meet an immediate threat to life and property due to a major disaster. The Applicant again appeals and states the Stafford Act and 44 C.F.R. do not limit unused, pre-positioning resources, and FEMA policy does not expressly exclude these resources, it only mentions medical care and evacuations as examples of eligible work.
Authorities and Second Appeals
- Stafford Act § 403.
- 44 C.F.R. § 206.225(a) (2015).
- PAPPG, at 25, 60 (Jan. 1, 2016).
- Pursuant to FEMA policy, costs related to pre-positioning resources for a disaster are only eligible if the resources are used in the performance of eligible emergency work. The only exceptions to this prohibition are for costs to pre-position resources for evacuating, or providing emergency medical care during the evacuation period, which are eligible even if those resources are not used.
- The costs of pre-positioning electrical crews, who did not actually perform any emergency work as a result of the disaster, are ineligible for PA. They were not performing evacuations or medical care during evacuations, which are the only exceptions to the prohibition.
FEMA does not provide funding for pre-positioned, unused resources, except in very limited circumstances. Those exceptions do not apply here. Accordingly, FEMA is denying this appeal.