Immediate Threat

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4490
Applicant	Lake Area Industries Inc.
Appeal Type	Second
PA ID#	029-UJ5TO-00
PW ID#	GMP 661625
Date Signed	2023-03-24T16:00:00

Summary Paragraph

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for Missouri on March 26, 2020, with an incident period of January 20, 2020 to May 11, 2023. Lake Area Industries Inc. (Applicant) requested Public Assistance (PA) for 86 ultraviolet germicidal irradiation (UVGI) units for use in its facility. FEMA prepared Grants Manager Project 661625 to document the Applicant’s request with a total cost estimate of $140,490.00. FEMA denied the request, finding that the work was not an eligible emergency protective measure and represented ineligible increased operating costs. The Applicant appeal, asserting that UVGI technology is supported by the federal government as a measure against COVID-19. The FEMA Region 7 Regional Administrator denied the appeal, finding that the Applicant did not demonstrate that the work was a reasonable and necessary response to COVID-19, and the work did not satisfy PA eligibility requirements for UVGI air disinfection. Further, FEMA found that because the Applicant did not intend to perform the work until receiving PA funding, it was not pursuing emergency policies uniformly in federally funded and non-federally funded situations. The Applicant submitted a second appeal, reiterating its previous arguments and asserting, among other things, that the work is reasonable, necessary, and complies with PA eligibility requirements. The Missouri State Emergency Management Agency, transmitted the appeal to FEMA, recommending that FEMA uphold its determination of ineligibility.

Authorities and Second Appeals

·       Stafford Act § 403

·       2 C.F.R. § 200.403

·       44 C.F.R. §§ 206.223(a)(1), 206.225(a)

·       PAPPG, at 19, 21-22, 43, 57

·       O&O Policy, at 4-5; Air Disinfection Memorandum, at 1-2

·       PR Aqueduct and Sewer Authority, FEMA-4339-DR-PR, at 3-4

Headnotes

·       For emergency protective measures to be eligible, the applicant is responsible for showing the work is required due to an immediate threat resulting from the declared incident, and, for COVID-19 declarations, done in accordance with applicable FEMA policy, and CDC guidance or that of an appropriate Public Health official available at the time the work was completed.

              o   The Applicant did not demonstrate that its existing COVID-19 mitigation measures are inadequate to meet the current threat of the virus. FEMA finds that the UVGI work, having not yet started nearly three years into the pandemic, is not eligible emergency work required to address an immediate threat resulting from the declared incident.

Conclusion

FEMA finds that the Applicant did not demonstrate that the UVGI units are an eligible emergency protective measure in response to COVID-19.

 

Appeal Letter

Appeal Analysis

Background

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the State of Missouri on March 26, 2020, with an incident period of January 20, 2020 to May 11, 2023. Lake Area Industries, Inc. (Applicant), a Private Nonprofit,[1] requested Public Assistance (PA) for the purchase and installation of 86 ultraviolet germicidal irradiation (UVGI) units for use in its facility. FEMA prepared Grants Manager Project 661625 to document the Applicant’s request with a total cost estimate of $140,490.00.  

On April 4, 2022, FEMA issued a Determination Memorandum denying the Applicant’s request, finding that the work was not an eligible emergency protective measure and represented ineligible increased operating costs. FEMA noted that this technology was not listed as an eligible emergency protective measure under FEMA policies, including COVID-19 specific policies. 

First Appeal   

On April 27, 2022, the Applicant submitted a first appeal, stating that multiple federal agencies and the Presidential administration support UVGI as a cleaning and disinfection measure against COVID-19. The Applicant provided supporting documentation including an email from a senior research engineer with the Centers for Disease Control and Prevention (CDC), stating that the CDC supports the use of UVGI for supplemental air cleaning, adding that a layered approach using multiple tools will increase overall effectiveness of ventilation interventions. On

April 26, 2022, the Missouri State Emergency Management Agency (Recipient) transmitted the first appeal, recommending that FEMA uphold its determination of ineligibility because the work did not appear to meet eligibility criteria for emergency protective measures.   

On July 12, 2022, FEMA sent the Applicant a Request for Information after the issuance of a new policy regarding the eligibility of UVGI disinfection measures (Air Disinfection Memorandum).^[2] FEMA requested information regarding specific preventive measures the Applicant implemented, as well as how the requested UVGI measures would comply with the CDC recommendation criteria set forth in the Air Disinfection Memorandum. There is no response to this RFI in the administrative record.

On October 31, 2022, the FEMA Region 7 Regional Administrator denied the appeal, finding that the Applicant did not demonstrate the work was a reasonable and necessary response to the threat posed by COVID-19. Further, FEMA found that the Applicant’s documentation suggested it was waiting for FEMA funding approval before proceeding with the project, thus it was not a uniform application of emergency policy and procedures in federally funded and non-federally funded situations.[3] Moreover, FEMA noted that the Applicant did not demonstrate why the measures it was using to mitigate against COVID-19 were inadequate. FEMA added that the Applicant did not document the implementation of a layered approach as required in the Air Disinfection Memorandum. Finally, FEMA found the UVGI work did not satisfy PA eligibility requirements for UVGI air disinfection because the Applicant planned to install UVGI units facility-wide following the guidance of the UVGI vendor, and not locations that aligned with CDC recommendations.

Second Appeal

On December 31, 2022, the Applicant submitted a second appeal, contesting FEMA’s first appeal findings. The Applicant asserts that its policies and procedures dictate that it cannot spend any funds until it has them available, regardless of the funding source. The Applicant also states that the work has not started because it conducted extensive research on types of air disinfection solutions before deciding on UVGI. The Applicant contents that FEMA’s Air Disinfection Memorandum recognizes UVGI as an eligible emergency protective measure and that its request meets the requirements for UVGI air disinfection. The Applicant adds that it has been attempting to find funding to implement this project since March 2022, which demonstrates urgency. The Applicant lists the preventive measures it took in response to COVID-19, such as masking, physical distancing, cleaning and disinfecting of surfaces, encouraging vaccination, and temperature checks. The Applicant also identified indoor spaces that it asserts are eligible for UVGI units per CDC recommendations.

On January 4, 2023, the Recipient transmitted the appeal to FEMA, recommending that FEMA uphold its determination of ineligibility. The Recipient states that the Applicant’s second appeal does not appear to satisfy statutory language defining emergency work. The Recipient adds that the Applicant has continued to conduct normal operations despite the absence of UVGI units, so the work could not satisfy the definition of emergency work as work that must be done immediately.

 

Discussion

FEMA is authorized to provide assistance for emergency protective measures to save lives and protect public health and safety.[4] For emergency protective measures to be eligible, the applicant is responsible for showing the work is required due to an immediate threat resulting from the declared incident.[5] Eligible work includes cleaning and disinfection in accordance with applicable FEMA policy, and CDC guidance or that of an appropriate Public Health official available at the time the work was completed.[6] Air disinfection may be eligible in limited circumstances in accordance with FEMA Policy Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance (Interim) (Version 2).[7] FEMA may only fund air disinfection in cases where applicants implemented a layered approach, and UVGI specifically as an air disinfection method, if installed based on CDC recommendations, generally limited to certain high-risk areas that include spaces where people must take off masks to eat or drink (for example, school/institutional cafeterias).^[8]

FEMA considers the urgency with which an applicant proceeds with work when evaluating the eligibility of emergency work.[9] Costs must be consistent with an applicant’s internal policies and procedures and must apply uniformly to both federally and non-federally financed activities of the applicant.[10]

The Applicant’s request for $140,490.00 in PA for the purchase and installation of UVGI units does not meet PA eligibility requirements. The Applicant has continued to conduct normal operations despite the absence of UVGI technology and has not demonstrated its existing preventive measures are inadequate to meet the current threat of the pandemic. Additionally, the CDC recommends considering UVGI implementation in high-risk indoor settings, such as indoor spaces with insufficient or no mechanical HVAC systems or spaces where people must take off masks to eat or drink (e.g., the cafeteria),[11] but the Applicant has not requested such specific and limited interventions, instead requesting UVGI throughout its facility.[12] The Applicant has not demonstrated that the proposed work is eligible based on the criteria in the Air Disinfection Memorandum, and the UVGI funding is therefore ineligible.

In addition, the Applicant does not intend to perform the work until receiving PA funding, thus it is not pursuing emergency policies consistently in federally funded and non-federally funded situations. The delay in beginning work on the project does not support the requirement that work is necessary as an emergency protective measure to address an immediate threat caused by the disaster.[13] FEMA finds that the UVGI work, having not yet started nearly three years into the pandemic, is not eligible emergency work required to address an immediate threat resulting from the declared incident.

 

Conclusion

FEMA finds that the Applicant did not demonstrate that the UVGI units are an eligible emergency protective measure in response to COVID-19. Therefore, this appeal is denied.

 

 

 

[1] Lake Area Industries, Inc. operates an employment sheltered workshop for individuals with disabilities.

[2] Memorandum from Assistant Adm’r, FEMA Recovery Directorate, to Reg’l Adm’rs, FEMA Regions 1-10, Air Disinfection Eligibility Under FEMA’s Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance (Interim) Policy (June 13, 2022) [hereinafter Air Disinfection Memorandum].

[3] See generally, Title 2 of the Code of Federal Regulations (2 C.F.R.) § 200.403(c) (2020).

[4] Robert T. Stafford Disaster Relief and Emergency Assistance Act §§ 403, 502, Title 42, United States Code §§ 5170b, 5192 (2018); Title 44 Code of Federal Regulations (44 C.F.R.) § 206.225(a) (2019).

[5] 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(3)(i); Public Assistance Program and Policy Guide, FP 104-009-2, at 19, 57 (Apr. 1, 2018) [hereinafter PAPPG].

[6] FEMA Policy (FP) 104-21-0003, Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance (Interim) (Version 2), at 4-5 (Sept. 8, 2021).

[7] Air Disinfection Memorandum, at 1.

[8] Id. at 2.

[9] PAPPG, at 43.

[10] 2 C.F.R. § 200.403; PAPPG, at 21-22.

[11] See Air Disinfection Memorandum, at 2.

[12] See Proposal Prepared for Lake Area Industries, UV Angel, at 5 (Feb. 15, 2022) (listing the spaces where the ultraviolet germicidal irradiation units are proposed to be installed, including office/assembly area, break area, restrooms, basement, and warehouse).

[13] FEMA Second Appeal Analysis, PR Aqueduct and Sewer Authority, FEMA-4339-DR-PR, at 3-4 (Apr. 16, 2021).