Immediate Threat

Appeal Brief

Summary Paragraph

On December 10, 2021, severe storms impacted areas in central Illinois. On December 13, 2021, the President issued an emergency declaration authorizing Public Assistance for Category B (emergency protective measures) work in several counties. The Menard Electric Cooperative (Applicant), a Private Nonprofit, claimed work to repair damages to its electrical power distribution system with associated costs totaling $139,662.31. FEMA created Grants Manager Project 661760 to document the project. The Applicant provided an explanation of the work completed, which included replacing 80 utility poles and other items of work. FEMA denied all funding for the project, finding that the work was permanent in nature and could not be considered eligible emergency protective measures. The Applicant submitted a first appeal, asserting that restoring electrical power during the emergency was necessary to lessen an immediate threat to lives, public health, and safety. The FEMA Region 5 Regional Administrator denied the appeal. FEMA determined that the Applicant had not provided information showing that the work at issue could be categorized as emergency protective measures. The Applicant submitted a second appeal, removing some materials costs from its claim and reducing the amount in dispute to $129,918.81. It asserts that the work to restore its electrical power distribution system is considered eligible emergency protective measures under FEMA’s policy.

Authorities

• Stafford Act § 403, 42 U.S.C. § 5192.
• 44 C.F.R. §§ 206.62, 206.63, 206.201(b), 206.223(a)(1), 206.225(a).
• PAPPG, at 51, 110, 135.

Headnotes

• Emergency repair or stabilization of an eligible facility is eligible as emergency work if it eliminates or lessens an immediate threat.
  • The Applicant provides information establishing an immediate threat to public health and safety stemming from the loss of electrical power due to the emergency. 
  • It also provides information showing that it limited its claim to the work it performed during and in the immediate aftermath of the emergency.
  • The work at issue constituted emergency repairs to the Applicant’s electrical power distribution system, in order to eliminate or lessen the effects of the immediate threat. As such, the work is considered emergency work under FEMA policy.
  • Furthermore, the eligibility of emergency protective measures is not dependent on whether the work is temporary or permanent in nature; rather, it is work that is required due to an immediate threat resulting from the declared incident.

Conclusion

The Applicant has demonstrated that work to repair its electrical power distribution system is eligible as emergency protective measures. Therefore, this appeal is granted.

Appeal Letter

Appeal Analysis

Background

On December 10, 2021, severe storms, straight-line winds, and tornados impacted areas in Illinois. On December 13, 2021, the President issued an emergency declaration authorizing Public Assistance (PA) for Category B (emergency protective measures) work in several counties. The Menard Electric Cooperative (Applicant), a Private Nonprofit, requested funding for work performed from December 10-12, 2021, to repair its electrical power distribution system. The Applicant claimed contract, force account labor (FAL), force account equipment, and materials costs totaling $139,662.31.

FEMA created Grants Manager Project 661760 to document the Applicant’s work and requested costs. FEMA issued a Request for Information (RFI) dated March 7, 2022, requesting the Applicant provide: (1) procurement or material purchasing policies; (2) FAL timesheets, work orders, and a union contract; (3) contractor information; (4) a map of the repair sites and a list of the types of repairs completed; and (5) the location of the disposal site for damaged materials.

In response, the Applicant provided descriptions of its materials purchasing process and the mutual aid agreement and contract it utilized during the emergency. The Applicant explained that it incurred FAL and materials costs under a “blanket work order that was open at the time of the storm,” but that “[t]here were no formal work orders prepared … as the work was performed in an emergency scenario.”[1] It provided a narrative explanation of the work it performed to restore electrical service, which included replacing or repairing 80 utility poles “and attached facilities.”[2] Finally, the Applicant explained that it could not provide a map of the repair sites in a timely manner, and stated that damaged materials were brought to its corporate office for disposal. Separately, the Applicant noted that it had previously provided employee timesheets and a union contract.[3]

In a Determination Memorandum dated May 4, 2022, FEMA denied all costs for the project. FEMA noted that permanent work was not authorized for the declared event; it determined that the work to replace 80 utility poles “was permanent in nature and cannot be considered to be an eligible temporary emergency protective measure” and therefore “does not meet FEMA eligibility criteria.”[4]

First Appeal

The Applicant submitted a first appeal dated June 30, 2022, stating that restoring electrical power during the emergency was necessary to lessen an immediate threat to lives, public health, and safety. It stated that the work at issue was not limited to replacing utility poles, but also included “many man-hours spent assessing facility damage, removing broken poles and damaged facilities, clearing downed wires and electric system debris” and other items of work.[5] The Applicant questioned FEMA’s finding that the work was ineligible because it was permanent work. It stated that it could not restore electrical power temporarily, and could not have completed the work without replacing the utility poles.[6] In a transmittal letter dated July 6, 2022, the Illinois Emergency Management Agency (Recipient) recommended FEMA consider all of the information submitted with the appeal.

On April 26, 2023, the FEMA Region 5 Regional Administrator denied the appeal. FEMA determined that the Applicant had not demonstrated the work at issue was an eligible emergency protective measure. Specifically, FEMA found that the work to replace 80 utility poles restored the Applicant’s electrical distribution system to its pre-incident design and function, and was thus permanent work.[7] Additionally, FEMA found that the Applicant had not provided information showing the other items of work claimed could be categorized as emergency protective measures.[8]

Second Appeal

The Applicant submitted a second appeal dated June 23, 2023, requesting FEMA approve $129,918.81[9] for work and costs incurred in the 48-hour period immediately following the declared emergency. The Applicant asserts that electrical power restoration is considered eligible emergency work under FEMA’s policy, and cites a September 6, 2022 guidance memorandum, in which FEMA recognizes the importance of power restoration following a declared incident.[10] The Applicant states that the distinguishing feature of emergency work is “whether the work was performed to protect the public health and safety or improved property,” not its temporary nature.[11] Thus, it asserts that the work at issue is eligible, as it protected “the health and safety of the residents, businesses, and critical facility operators within its service territory.”[12] The Applicant attaches supporting documentation to the appeal, including cost summaries, employee timesheets, invoices, and a local weather report from the incident period.[13] In a transmittal letter dated August 10, 2023, the Recipient expresses support for the appeal.

Discussion

FEMA is authorized to provide assistance for emergency protective measures that eliminate or lessen immediate threats to lives, public health, or safety required as a result of the declared incident.[14] This includes emergency repair or stabilization of an eligible facility, if it eliminates or lessens an immediate threat.[15] 

Here, the Applicant provides descriptions of the work it performed, which included securing and clearing hazards from downed power lines, isolating line segments to restore service, resetting salvageable utility poles and, where this was not possible, replacing broken poles.[16] It provides a photograph dated December 12, 2021, showing an area of broken utility poles and downed electrical lines in its service area.[17] The Applicant states that the incident caused power outages to more than 60 percent of its customer accounts,[18] and that

[w]ithout electric service, consumers would have been unable to heat their homes and shelters, evacuate water by use of sump pumps, prepare meals, or protect against food spoilage. Businesses would have similarly been unable to function. Most urgent was that, without electric service restoration, certain critical facilities, including [water] treatment plants, water distribution structures, and healthcare facilities would have been in jeopardy.[19]

To demonstrate this point, the Applicant explains that freshwater service facilities in Petersburg and Virginia, Illinois, and a rural water cooperative in Menard County, were affected by electrical power loss during the incident.[20] Finally, the Applicant states that the work at issue was completed within 48 hours of the declared incident, and “was the minimum work necessary to restore power.”[21] In support, it provides documentation, including employee timesheets, invoices, and other summaries, demonstrating that it incurred the claimed costs between December 10-12, 2021.

Based on the above, the Applicant has established the presence of an immediate threat to public health and safety stemming from the loss of electrical power due to the declared incident. Further, the Applicant limited its claim to the work it performed during and in the immediate aftermath of the emergency.[22] Therefore, the Applicant has demonstrated that the work at issue constituted emergency repairs to its electrical power distribution system in order to eliminate or lessen the effects of the immediate threat. As such, the work constitutes eligible emergency protective measures. The eligibility of emergency protective measures is not dependent on whether the work is temporary or permanent in nature;[23] rather, emergency protective measures must eliminate or lessen immediate threats to, among other categories, lives, public health, or safety.[24]

Conclusion

The Applicant has demonstrated that work to repair its electrical power distribution system is eligible as emergency protective measures. Therefore, this appeal is granted.