Emergency Protective Measures

February 15, 2013

Michael M. Cline
State Coordinator
Commonwealth of Virginia
Department of Emergency Management
10501 Trade Court
Richmond, Virginia  23236-3713

Re: Second Appeal–Fairfax County, PA ID 059-99059-00, Emergency Protective Measures,
FEMA-1905-DR-VA, Project Worksheet (PW) 575

Dear Mr. Cline:

This letter is in response to a letter from your office dated April 20, 2012, which transmitted the referenced second appeal on behalf of Fairfax County (Applicant).  The Applicant requests that the Department of Homeland Security’s Federal Emergency Management Agency (FEMA) approve additional funding in the amount of $1,258,353 for emergency response activities performed during the February 2010 severe winter storms and snowstorms by the Fire and Rescue Department (FRD).

Background

As a result of the severe winter storms and snowstorms that occurred in February 2010, the Applicant’s FRD personnel responded to numerous emergency calls and performed various emergency protective measures.  The Applicant requested reimbursement of $5,140,182 from FEMA for labor, equipment, and material costs.  FEMA reviewed the Applicant’s claim and determined that a significant portion of the costs represented increased operating expenses and were not eligible for reimbursement.  FEMA reviewed dispatch records and call logs to identify the emergency calls that were not disaster related such as house fires, drug overdoses, suicide attempts and assaults.  FEMA presumed that the remaining calls, the descriptions for which indicated a potential to be disaster related, were required as the result of the event and estimated the labor and equipment costs based on the time of each call and the types of equipment used.  The call logs did not indicate which employees were involved in each call.  Accordingly, FEMA used information provided by the Applicant regarding the number of staff assigned to each type of equipment and applied an average labor rate to calculate labor costs for each call.  FEMA prepared PW 575 for $172,585 in the FRD costs associated with eligible emergency work and awarded the PW on April 21, 2011.

First Appeal

The Virginia Department of Emergency Management (Grantee) transmitted the Applicant’s July 1, 2011, first appeal of PW 575 to FEMA on September 12, 2011.  In the appeal letter, the Applicant stated that a portion of the FRD’s gross costs for emergency response during the event is associated with eligible emergency protective measures, but noted that the FRD’s dispatch system does not provide sufficient detail to determine which emergency calls were eligible for funding.  The Applicant requested that FEMA fund 43.24 percent of the FRD’s costs incurred during the incident period based on the percentage increase in total incident response time over the aggregate of time for incident response during the week before the event.

On November 17, 2011, the FEMA Regional Administrator partially granted the first appeal.  The Regional Administrator concluded that the Applicant did not provide a basis for the proposed percentage of total costs and the additional labor and equipment costs requested were not eligible; however, the requested costs of $24,439 for the purchase of snow chains and $125 for the rental of a 4-wheel drive vehicle were determined to be eligible.  FEMA amended PW 575 and awarded an additional $24,564.

Second Appeal

The Applicant submitted a second appeal on February 8, 2012, which the Grantee forwarded to FEMA on April 20, 2012.  The Applicant stated that its request for additional funding in the amount of $1,258,353 is associated with eligible emergency work conducted as a direct result of the event and that the costs are fully supported by the documentation submitted.  The Applicant requests that FEMA approve funding for 43.24 percent of the total FRD costs because it believes that the percentage is a reasonable representation of eligible costs and because the method of calculating the percentage was developed in collaboration with FEMA field staff.

On September 11, 2012, representatives of the Applicant met with Grantee and FEMA Public Assistance Division staff at FEMA headquarters in Washington, D.C. to provide an in-person presentation of the second appeal argument.  The Applicant reiterated that the FRD performed eligible emergency work during the event but claimed that the dispatch and call logs do not include all emergency work performed and are not detailed enough to separate time spent conducting eligible emergency work in response to the declared event from routine operational activities.

Discussion

According to Title 44 Code of Federal Regulations (44 CFR) §206.223(a)(1), to be eligible for financial assistance, an item of work must be required as the result of the major disaster event.  Based on a description of the work performed by FRD staff and a detailed log of emergency calls responded to by FRD staff during the incident period, only a portion of the costs claimed by the Applicant under PW 575 is associated with eligible emergency work that was required as the result of the event.

In its appeal, the Applicant states that all parties agree that the costs for the work performed by FRD staff during the incident period include eligible and ineligible costs, including increased operating costs; however, the Applicant states that FRD and FEMA worked together during the development of PW 575 and agreed upon a fair and reasonable methodology to determine eligible work based on a percentage of the total FRD labor and equipment costs incurred during the event.  The Applicant states that a portion of the time FRD spent on eligible work is not represented in the call logs, because some eligible activities are not dispatched.  FRD calculated the percentage by comparing the incident response time for the week before the event with the incident response time during the event.  The Applicant states that FEMA proposed calculating the increase in costs by comparing the incident response time during the week before the event with the incident response time during the event and should honor this method.

As discussed, clearly some work performed by the FRD was eligible, and in the absence of documentation to tie costs claimed by the Applicant to actual work performed, the FEMA Project Specialists working with the Applicant attempted to develop a fair and reasonable approach to determine what portion of the work performed was required by the event and eligible for funding.  However, the derived percentage is based on increased response time which is not a true indicator of the amount of time spent on emergency work required by the event.  Response times for all calls were increased during the storm; however, all calls were not associated with work required by the event.  Accordingly, FEMA staff involved in the review of PW 575 determined that the proposed percentage approach was not appropriate.  Furthermore, the FRD call logs, which document actual work performed and the time spent performing the work, were available to the FEMA staff to use to estimate the costs associated with eligible work.

While the logs may not capture all emergency protective measures performed by the FRD that were required by the event, the Applicant has provided no documentation to support that the additional claimed costs are associated with eligible work.  The Applicant has provided detailed documentation supporting actual costs incurred by FRD during the event and a description of the activities performed by FRD staff that were not captured in the call logs, but has not provided documentation to support the actual, specific costs associated with those activities.  The approach used by FEMA in the development of PW 575 was a reasonable approach to estimate eligible costs based on the documentation provided by the Applicant.

In the second appeal, the Applicant states that another applicant, the City of Alexandria, applied the same percentage approach in its request for equipment costs for emergency work, and FEMA approved the costs.  The Applicant requests equal treatment to that provided to the City of Alexandria.  FEMA analyzes the eligibility of each individual request for assistance in accordance with the Robert T. Stafford Disaster Relief and Emergency Assistance Act and 44 CFR based on the specifics of each request for assistance, and Federal funding for large projects is limited to the actual eligible documented costs as outlined in 44 CFR § 206.203 (c)(1), Federal grant assistance, Project funding.  Final inspection and cost reconciliation are components of the closeout process and FEMA may make adjustments to the obligated amount in cases where the documentation does not substantiate the total award amount.  Notwithstanding eligibility determinations made by FEMA for similar projects completed by other applicants, in this case, the Applicant has not provided sufficient documentation to support that the work associated with all the costs claimed was required by the declared event.

Conclusion

I have reviewed the information submitted with the second appeal and have determined that the Regional Administrator’s decision in the first appeal is consistent with Public Assistance Program regulations and policy.  Accordingly, I am denying the second appeal. 

This determination is the final decision on this matter pursuant to Title 44 of the Code of Federal Regulations § 206.206, Appeals.   Please inform the Applicant of my decision.

Sincerely,

/s/
Deborah Ingram
Assistant Administrator
Recovery Directorate

cc: MaryAnn Tierney
Regional Administrator
FEMA Region III