Appeal Timeliness, Improved Project, Environmental Compliance
|Applicant||Maine-Endwell Central School District|
|PW ID#||PW 2542|
- Stafford Act §§ 316, 403, 406, 423.
- 42 U.S.C. §§ 4331-4332.
- 40 C.F.R. § 1506.3.
- 44 C.F.R. §§ 10.8(c) 206.201(m), 206.203(d)(1), 206.206(c)(2), 206.226.
- PA Guide, at 38, 100, 111, 128-129.
- Environmental Policy Memo # 3, at 1.
- Dept. of Transp., FEMA-4068-DR-FL, at 3; City of Plattsburgh, FEMA-4020-DR-NY, at 4; Borough of Milltown, FEMA-4021-DR-NJ, at 3; Columbus Reg’l. Hosp. v. FEMA, 708 F.3d 893, at 899.
- Under 44 C.F.R. § 206.206(c)(2), a grantee has 60 days from the date of receipt to forward an applicant’s appeal to the FEMA RA.
- The Grantee forwarded the second appeal 84 days after receipt.
- Pursuant to the PA Guide, if the improved project entails changing the location of the facility, FEMA approval must also be obtained prior to construction.
- The Applicant did not obtain prior approval from FEMA for the improved project prior to construction of the Facility at the new location.
- The Stafford Act, as implemented by federal regulation, generally excludes FEMA’s reimbursement of emergency work actions and permanent work actions that restore a facility substantially to its predisaster condition from NEPA review.
- As the Applicant performed neither emergency work nor permanent work that restored the Buildings to their predisaster condition, FEMA was required to complete a NEPA environmental review prior to construction.
From September 7 to 11, 2011, Tropical Storm Lee caused flooding that damaged three maintenance buildings (Buildings), which totaled 4,300 square feet and housed equipment for the Maine-Endwell Central School District (Applicant), located in New York. On September 22, 2011, the Applicant’s Board of Education (Board) passed a resolution approving construction of a new maintenance facility (Facility) to be built at a different location. The Board classified the project as an emergency resolution that was needed in response to the disaster, and necessary to preserve property and to assure the health and safety of students, staff, and residents. The Board relied on a 2006 State Environmental Quality Review (SEQR) in determining that the new construction would not have a significant impact on the environment.
In November 2011, the Applicant attended a FEMA kickoff meeting. The Applicant sold the Buildings on April 11, 2012, without completing any repairs. On June 29, 2012, the Applicant’s architectural firm drafted a cost estimate (Architect’s Estimate) for the repairs to the Buildings in the amount of $533,630.00. The Applicant, however, began construction of the Facility in January 2012 and completed it in March 2012. In August 2012, FEMA estimated $44,302.66 in costs to repair the Buildings. The Applicant refused to sign the PW, contending it did not account for all of the damage. Public Assistance (PA) funding was never awarded.
FEMA re-examined the project and on February 6, 2015, issued a determination that denied PA funding. FEMA pointed out the Applicant never restored/repaired the Buildings, but rather chose to sell them and build a bigger Facility at a different location. FEMA consequently denied reimbursement of costs associated with construction of the new Facility and specifically made three determinations. First, FEMA concluded the new Facility was ineligible for funding as an improved project because neither the Grantee nor FEMA approved it prior to construction. Second, FEMA stated the new Facility was ineligible for reimbursement as a replacement/relocation of the original Buildings because: (1) FEMA’s repair cost estimate did not exceed more than 50 percent of the replacement cost of the Buildings; and (2) the Buildings were not destroyed, thereby making them ineligible for relocation. Last, FEMA concluded that because the Applicant did not afford FEMA the opportunity to comply with the National Environmental Policy Act (NEPA) nor the National Historic Preservation Act (NHPA) prior to construction, the new Facility was not compliant with federal law. FEMA noted it had no authority to conduct an after-the-fact environmental assessment (EA), nor waive the legal requirement for a NEPA/NHPA review.
On February 19, 2015, the Applicant appealed FEMA’s determination, requesting it re-examine the project. First, the Applicant stated it constructed the Facility because FEMA advised at the kickoff meeting to proceed with the project.  As such, it completed the Facility believing it would be approved, so FEMA should not blame the Applicant for constructing the Facility without prior approval. Second, the Applicant argued FEMA indicated one month before construction began that it would perform an EA for construction of the Facility but never did so; thus, the failure to perform the assessment rested solely on FEMA’s shoulders. Third, the Applicant asserted FEMA erred when it stated it did not have authority to waive the NEPA requirement or perform an after-the-fact EA. The Applicant contended that construction of the Facility was necessitated by an imminent threat and therefore was exempt from a NEPA review. Last, the Applicant asserted FEMA erred when it disregarded the Architect’s Estimate and then further erred when it miscalculated the restoration cost for the Buildings.
The New York State Division of Homeland Security and Emergency Services (Grantee) received the Applicant’s first appeal on February 19, 2015. On May 13, 2015, the Grantee concurred and forwarded the Applicant’s appeal, along with a supporting memorandum dated May 7, 2015, requesting $544,929.00 in reimbursed costs for construction of the Facility. The Grantee raised similar arguments to the Applicant, contending: (1) the construction of the Facility was done during an emergency situation and was necessary to preserve property and to ensure health, welfare and safety of the entire school district, as well as prevent severe economic losses; (2) FEMA failed to provide a clear, concise and timely explanation of what the Applicant needed to provide in order to gain approval for the project, even though the Applicant repeatedly followed up with FEMA requesting guidance on the issue; (3) FEMA’s calculation of restoration costs for the Buildings was insufficient because it did not account for necessary work items, such as post flood remediation protocols to clean the damage from highly contaminated flood waters; and (4) the repair costs to the Buildings exceeded 50 percent of the replacement value, entitling the Applicant to replacement costs.
On June 19, 2015, FEMA transmitted a Final Request for Information (RFI) to the Applicant and Grantee, seeking evidence that: (1) demonstrated the Applicant requested an improved project or change in the scope of work (SOW); (2) the Grantee and FEMA had approved the improved project or change to the SOW; and (3) substantiated replacement of the Buildings was an emergency, considering that FEMA provides funding for temporary relocation of facilities.
The Applicant responded by way of a memorandum dated October 24, 2015. The Applicant first argued that the Grantee and FEMA approved a SOW when FEMA signed the PW on August 10, 2012. The Applicant then restated its contention that it constructed the Facility as part of emergency procedures, as evidenced by the Board’s resolutions. Next, it asserted because the site of the Facility had been fully evaluated for environmental impacts by the State prior to construction, the Applicant’s reliance on the SEQR when authorizing construction of the Facility as part of an emergency action was appropriate. Finally, the Applicant reiterated that it believed FEMA erroneously disregarded numerous costs included in the Architect’s Estimate, and argued if FEMA’s estimate included those costs, it would result in a total repair cost estimate of $374,173.00, or in other words, 70 percent of the Buildings’ predisaster value. Consequently, it requested replacement costs in the amount of $533,630.00 in order to fund the permanent relocation of the Facility.
On July 22, 2016, FEMA Region II’s Regional Administrator (RA) denied the Applicant’s appeal. The RA rejected the Applicant’s claim that FEMA approved the SOW to construct the Facility prior to commencing construction by pointing out that PW 2542, which contained a SOW only for repairs to the Buildings and not for the new Facility, was never finalized and funding was never awarded because the Applicant refused to sign it. The RA then stated he delegated his authority to approve PA projects for this disaster to a Disaster Recovery Manager (DRM) and the DRM did not re-delegate that authority to any other member of FEMA’s staff. As a result, FEMA staff present at the kickoff meeting did not have authority to approve construction of the new Facility. Because the Applicant started its construction without prior FEMA and Grantee approval, the RA determined the Facility was not eligible for PA funding as an improved project.
In addition, the RA found the Applicant had not afforded FEMA the opportunity to complete a NEPA environmental review or investigate reasonable alternatives, and the 2006 SEQR could not substitute a full NEPA review. Moreover, the RA concluded the Applicant failed to demonstrate that construction of the Facility eliminated or lessened an imminent threat. As such, the RA concluded the Applicant had not demonstrated the applicability of a statutory exclusion to comply with NEPA’s requirements.
Finally, the RA agreed that its prior repair cost estimate for the Buildings was wrong, noting its prior estimate had evaluated the repair costs for all three buildings as a whole, rather than evaluating each structure individually. As a result, FEMA recalculated the repair cost estimate as part of its first appeal review, resulting in a new repair cost estimate of $176,864.14. The RA concluded the estimate demonstrated the Buildings’ damage did not exceed 50 percent of the replacement cost and consequently were not eligible for replacement or permanent relocation funding.
On August 15, 2016, the Applicant transmitted its second appeal, which the Grantee received on August 15, 2016, and forwarded to FEMA on November 7, 2016. In an accompanying supporting memorandum, the Grantee requests FEMA approve: (1) the Facility as an improved project so that the Applicant can obtain funding in the amount equal to FEMA’s repair cost estimate; or, alternatively, (2) $533,630.00 in costs associated with construction of the new Facility.
The Grantee argues that FEMA should excuse the Applicant’s decision to proceed with the construction of the Facility without prior approval because FEMA staff often made eligibility decisions that FEMA later relied on when awarding a PW. Accordingly, the Grantee argues, the FEMA personnel at the kickoff meeting had authority to bind FEMA. In addition, the Grantee states FEMA ignored the Architect’s Estimate and miscalculated the costs necessary to restore the Buildings to their predisaster condition. It also requests FEMA waive the requirement to conduct a NEPA review prior to construction and rely on the 2006 SEQR, which the Grantee alleges is “essentially the same as the NEPA review.” It argues FEMA’s denial is strictly based on a violation of procedure because, “FEMA has failed to identify any adverse environmental or historic impact by this project.” Furthermore, the Grantee claims the RA’s decision did not account for the future savings to taxpayers because the Facility’s location is now out of the floodplain. The Grantee alleges FEMA bears some of the responsibility for the Applicant’s actions, and as such, it should approve this appeal.
Section 423 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), as implemented by Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.206, allows an eligible applicant to appeal any PA eligibility determination. Upon receipt of an applicant’s appeal, a grantee has 60 days to forward it together with a written recommendation to the applicable FEMA RA. Neither the Stafford Act nor 44 C.F.R. provides FEMA with authority to grant time extensions for filing appeals.
Here, the Grantee received the Applicant’s second appeal on August 15, 2016, but did not forward it to FEMA until November 7, 2016, 84 days after receipt. Due to the second appeal being submitted after the expiration of the 60-day timeframe required by 44 C.F.R. § 206.206(c)(2), the Applicant’s second appeal rights lapsed, and consequently the appeal is denied. Nevertheless, even if timeliness were not an issue, this appeal would otherwise be denied.
FEMA may fund the cost of repairing, restoring, reconstructing, or replacing an eligible facility on the basis of the design, function and capacity of the facility as it existed immediately prior to the major disaster. FEMA may also reimburse costs when an applicant makes improvements that restore a damaged facility to a different design than existed predisaster but still maintains the same predisaster function and at least the same predisaster capacity. If an improved project results in a significant change from the predisaster configuration (that is, different location, footprint, function, or size), it must be approved by FEMA prior to construction. Project approval occurs when the RA, or a designee, reviews and signs an approval of work and costs on a PW. Improved project funding is limited to the cost associated with repairing or replacing the damaged facility to its predisaster design, or the actual cost of completing the improved project, whichever is less.
Here, the Grantee requests FEMA approve funding for the Facility as an improved project. The Facility, built 1.7 miles away from the site of the Buildings, and with an increased capacity of an additional 1,100 SF, is a significant change from the predisaster configuration of the Buildings. As such, the Applicant was required to obtain approval from FEMA prior to the new Facility’s construction.
In its first appeal, the Applicant argues that FEMA staff advised it to proceed with construction of the new Facility. Even assuming FEMA staff present at the kickoff meeting gave such advice, it does not constitute prior approval as the applicable FEMA RA had not delegated authority to the staff to approve projects, nor was any PW ever signed approving an improved project as is required. Consequently, the Applicant failed to obtain the required prior approval for the improved project. As such, the project is not eligible for funding. Therefore, the request for replacement and/or permanent relocation costs is moot.
NEPA requires all federal agencies to consider the environmental impact of a proposed action as well as whether any alternatives exist, prior to obligating funds and beginning work. Actions initiated and/or completed without the required NEPA review may not be considered for funding. However, the Stafford Act, as implemented by federal regulation, generally excludes FEMA’s reimbursement of emergency work actions and permanent work actions that restore a facility substantially to its predisaster condition from NEPA review. In rare circumstances this exclusion may be extended to cover completed or initiated emergency actions that prevent or reduce an immediate threat to life, health, property or severe economic loss, “if otherwise eligible.”
In its first appeal, the Applicant argues construction of the Facility is excluded from NEPA environmental review by the Stafford Act. FEMA does not find the argument compelling. First, the statutory exclusion is not applicable because the Applicant completed permanent work that involved combining the previously separate Buildings into one new Facility, thereby choosing not to restore the Buildings to their predisaster condition. Second, although the construction of the Facility at the new location served to remove it from the floodplain, the Applicant has not provided documentation demonstrating the action prevented or reduced an immediate threat to life, health, property, or severe economic losses. Third, the statutory exclusion only applies if the project is otherwise eligible; and as stated in the prior subsection, the project was not approved prior to construction and therefore is not eligible. Consequently, the Applicant has not demonstrated the construction was an action statutorily excluded from a NEPA environmental review.
Next, in its first appeal, the Applicant argues that the prior environmental reviews demonstrate the construction would not have a significant impact on the environment. The Grantee contends that the NEPA review requirement should be waived because the SEQR was essentially the same review as what encompasses a NEPA review. While federal regulation allows FEMA to adopt another federal agency’s environmental assessment, there is no such allowance for the adoption of a state environmental review. Furthermore, FEMA independently evaluated the merits of these claims and notes the SEQR did not include the construction of the Facility, and therefore does not include a complete evaluation of potential effects to natural and cultural resources. As the construction does not meet an action statutorily or categorically excluded from NEPA review, FEMA was required to complete an EA to evaluate the potential impacts of the action on the human environment, which would have also included an evaluation of alternatives. Therefore, regardless of the SEQR, FEMA was still required to complete a full NEPA review to ensure environmental compliance.
Lastly, the Applicant alternatively argues it gave FEMA information to facilitate a timely NEPA review and the failure to conduct one rests solely with FEMA. The Applicant, however, does not cite to any statute, regulation, or policy that allows FEMA to excuse non-compliance with NEPA based on the Agency not performing a timely review. As such, the work is not eligible for PA funding.
The Grantee did not submit the Applicant’s second appeal within the 60 day timeframe required by 44 C.F.R. § 206.206(c)(2). As such, the second appeal is untimely. Moreover, the Applicant constructed a new Facility instead of repairing the Buildings without prior approval from FEMA. Furthermore, it built the Facility before FEMA completed the federally required NEPA review, and the construction does not fall under any of the actions excluded from a NEPA environmental review. Consequently, the work associated with constructing the Facility is ineligible for PA, and the request for replacement/relocation costs is therefore moot.
 Maine-Endwell Cent. Sch. Dist. Bd. of Edu. Item 6.4, signed by the Clerk of the Board (Sept. 22, 2011) (approving the new facility to be 5,400 square feet).
 Id. Item 6.6.
 BCK-IBI Group, Maine-Endwell Existing Maintenance Facility, Existing Maintenance Building Restoration Costs, at 1 (June 29, 2012) [hereinafter Architect’s Estimate]. As the Buildings were already sold at this time, and therefore, it was impossible for the Applicant to perform those repairs on the Buildings, the Architect’s Estimate was presumably written to be used in a later request for an improved project for the new Facility. See generally Public Assistance Guide, FEMA 322, at 110-111 (June 2007) [hereinafter PA Guide] (defining an improved project as that which restores the predisaster function of a facility and at least its predisaster capacity but limits eligible funding to the cost associated with repairing or replacing the damaged facility to its predisaster design, or the actual cost of completing the improved project, whichever is less).
 Letter from Acting PA Branch Chief, FEMA Region II, to Alternate Governor’s Authorized Rep., N.Y. St. Div. of Homeland Sec. and Emergency Servs. (NYSOEM), at 1-2 (Feb. 6, 2015).
 Letter from Ass’t. Supt., Maine-Endwell Cent. Sch. Dist., to Disaster Assistance Officer, NYSOEM, at 1 (Feb. 19, 2015).
 Id. at 2.
 Id. (noting that the Applicant’s Board declared an emergency project so that the Facility could be built in time to accommodate the Applicant’s snow removal equipment for the winter to protect it against future winter storms that could have damaged the equipment. The Applicant argued there would have been immediate threats to students, staff and residents if the equipment was not readily available to clear and remove snow and ice. The Applicant also argued the existence of an emergency situation because there was an immediate threat of severe economic losses should they have to pay storage fees in the amount of $3,600.00 per month.); see generally, FEMA Environmental Policy Memo # 3, at 1 (May 3, 1996) (Emergency work is excluded from NEPA review through a statutory exclusion).
 Id. at 2-3 (arguing certain work FEMA found not to be disaster-related was in fact due to the disaster, and that FEMA failed to calculate mold remediation measures that would have been required to restore the Buildings as a result of the flooding).
 Email from Disaster Assistance Mgr., NYSOEM, to Lead Appeals Analyst, FEMA Appeals and Audits Section, Region II (Dec. 5, 2016, 01:39 PM).
 Memorandum to the Disaster Assistance Officer, NYSOEM, at 4 (May 7, 2015) (stating the actual cost for construction of the new facility was $544,929.00).
 Id. at 2 (conceding the Applicant did not receive approval for the Facility).
 Memorandum from Maine-Endwell Cent. Sch. Dist., to Rep., NYSOEM (Oct. 24, 2015) (confirming it built the Facility on a site previously examined as part of a capital improvement plan when the Applicant wished to construct a new high school and athletic field. As part of the prior review process, the Dep’t of Environmental Conservation approved a 2008 Storm Water Pollution Prevention Permitting Process plan, and the N.Y. State Parks and Historic Preservation opined the capital improvements would not have an impact on cultural resources.).
 Id.; Cf. Architect’s Estimate, at 1 (asserting the $533,630.00 cost was for the “existing maintenance building restoration costs” rather than alleging it was the replacement cost for the Buildings).
 FEMA First Appeal Analysis, Maine-Endwell Cent. Sch. Dist., FEMA-4031-DR-NY, at 5 (July 22, 2016) (citing FEMA Mechanical Engineer, FEMA Estimate/Calculation for Maine-Endwell Existing Maintenance Facility (Mar. 2016)).
 Id. at 8 (the RA does not state the replacement cost he utilized in performing the calculation, but as the damages would be less than 50 percent of either of the alleged replacement costs previously raised ($533,630.00 or 544,929.00), the missing information does not affect the final conclusion).
 Email from Disaster Assistance Officer, NYSOEM, to Lead Appeals Analyst, FEMA Appeals and Audits Section, Region II (Dec. 14, 2016, 08:24 AM).
 Letter from Commissioner, NYSOEM, to Reg’l. Adm’r., FEMA, Region II (Nov. 7, 2016).
 Memorandum from Designated Agency Rep., NYSOEM, at 2 (Sept. 23, 2016) (requesting approval for an improved project “that will allow the [A]pplicant to capture the original repair costs verified by FEMA.”). FEMA interprets this as a request for capped funding in the amount of $176,864.14, FEMA’s last verified estimate.
 Id. at 1.
 Id. at 2.
 The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) of 1988, Pub. L. No 93-288 § 423, 42 U.S.C. 5189(a) (2007); Title 44 Code of Federal Regulations (44 C.F.R.) § 206.206 (2010).
 44 C.F.R. § 206.206(c)(2).
 FEMA Second Appeal Analysis, Dept. of Transp., FEMA-4068-DR-FL, at 3 (Aug. 5, 2016) and FEMA Second Appeal Analysis, City of Plattsburgh, FEMA-4020-DR-NY, at 4 (Jun. 8, 2016).
 Additionally, even though the RA did not address timeliness in the First Appeal Analysis, the Applicant’s first appeal was also untimely submitted because the Grantee transmitted the Applicant’s first appeal 85 days after receipt.
 Stafford Act § 406(e).
 44 C.F.R. § 206.203(d)(1); PA Guide, at 100.
 PA Guide, at 111.
 44 C.F.R. § 206.201(m).
 PA Guide, at 110. See generally 44 C.F.R. § 206.226 (A facility is considered repairable when disaster damages do not exceed 50 percent of the cost of replacing a facility to its predisaster condition, and it is feasible to repair the facility so that it can perform the function for which it was being used as well as it did immediately prior to the disaster. If a facility is not repairable, then it may be eligible for replacement. Additionally, if a facility is eligible for replacement costs because it has been destroyed, it may be eligible for relocation, provided: (1) the facility is and will be subject to repetitive heavy damage; (2) the approval is not barred by other provisions of title 44 CFR; and (3) the overall project, including all costs, is cost effective.); see generally FEMA Second Appeal Analysis, Borough of Milltown, FEMA-4021-DR-NJ, at 6 (Apr. 8, 2016) (classifying a facility as “destroyed” when the damage exceeds 50 percent of the cost of repairing the facility).
 See Columbus Reg’l. Hosp. v. FEMA, 708 F.3d 893, at 899 (7th Cir. 2013) (“No field employee can commit the [A]gency to pay more than the statute and regulations require”).
 National Environmental Policy Act (NEPA) of 1969, as amended, Pub. L. 91-190, 42 U.S.C. §§ 4331-4332 (1969); PA Guide, at 128.
 FEMA Environmental Policy Memo # 3, at 1.
 Stafford Act § 316; 44 C.F.R. § 10.8(c); PA Guide, at 128-129.
 FEMA Environmental Policy Memo #3, at 1.
 40 C.F.R. § 1506.3; see Final Guidance on Improving the Process for Preparing Efficient and Timely Environmental Reviews under NEPA, 77 Fed. Reg. 48, 14479 (Mar. 12, 2012) (confirming that an agency should consider adopting another Federal agency’s environmental assessment (EA) when that agency’s EA already addresses the proposed action and satisfies the requirements under NEPA).