Immediate Threat

Appeal Brief

Summary Paragraph

In response to the COVID-19 pandemic, the Applicant requested Public Assistance (PA) for various costs related to emergency protective measures including the contract costs for claimed cleaning and disinfection of its facilities. On March 14, 2023, FEMA issued a Determination Memorandum (DM) denying $506,063.91 in contract costs, on the basis that such costs were ineligible increased operating costs. FEMA found that the Applicant did not demonstrate that the work eliminated or lessened immediate threats to life, public health, or safety because access to the cleaned areas (the high-voltage electrical and mechanical equipment) is highly controlled for safety reasons and its personnel can only access those areas in limited circumstances. The Applicant appealed, arguing that the claimed cleaning and disinfecting work performed at its facilities was for its offices and high-touch areas, and not for secluded electrical equipment, as previously stated in FEMA’s DM. On January 18, 2024, the FEMA Region 4 Regional Administrator denied the requested contract costs for work completed at the facilities, finding the Applicant had not demonstrated the costs were directly tied to the performance of eligible work, reasonable and necessary, or exceeded the Applicant’s regularly budgeted costs. The Applicant appealed, reiterating first appeal arguments.

Authorities

• Stafford Act § 403.
• 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(3)(i).
• PAPPG, at 19, 21-22, and 57.
• O&O Policy, at 3-5.
• City of Biloxi, FEMA-4528-DR-MS, at 5; Simpson College, FEMA-4483-DR-IA, at 4; Hillsborough County, FEMA-4486-DR-FL, at 6.

Headnotes

• FEMA may provide PA funding for cleaning and disinfection in excess of the applicant’s regularly budgeted costs, done in accordance with CDC guidance or that of an appropriate public health official available at the time the work was completed. To be eligible, costs must be, among other requirements, directly tied to the performance of eligible work, reasonable and necessary to respond to the COVID-19 pandemic, and adequately documented.
  • The Clean Harbor invoices contain generic work descriptions such as “Decon of Equipment” and “miscellaneous hand tools,” and generic labor descriptions like “foreman” with no accompanying detail that do not demonstrate the costs were directly tied to eligible work or reasonable and necessary to respond to the COVID-19 pandemic. The costs associated with the claimed cleaning and disinfection work performed by Environmental Restoration are not in excess of the regularly budgeted costs.

Conclusion

The Applicant has not demonstrated that the Clean Harbor contract costs were directly tied to the performance of eligible work or reasonable and necessary to respond to the COVID-19 pandemic. The Environmental Restoration contract costs are also not eligible as the Applicant has not demonstrated these were in excess of the Applicant’s regularly budgeted costs. Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the state of Georgia on March 29, 2020, with an incident period of January 20, 2020, to May 11, 2023. Relevant to this appeal, the City of Atlanta (Applicant) requested $506,063.91 in Public Assistance (PA) reimbursement for contract costs it stated it incurred for cleaning and disinfecting its Department of Watershed Management (DWM) facilities and equipment. The Applicant stated that the incurred costs eliminated or lessened the immediate threat of COVID-19 and that the measures it implemented followed the Centers for Disease Control and Prevention’s (CDC) guidance. The Applicant provided, among other documentation, predisaster 2018 bids and contracts with Clean Harbors Environmental Services, Inc. (Clean Harbors) and Environmental Restoration, LLC (Environmental Restoration) for waste transportation and disposal at its DWM facilities and invoices from Clean Harbors ($381,375.42) and Environmental Restoration ($124,688.49) for the aforementioned requested costs that were associated with work performed between March 10 and August 17, 2020. 

On March 14, 2023, FEMA issued a Determination Memorandum (DM) denying $506,063.91 in contract costs. FEMA found that the Applicant did not demonstrate that the work performed by Clean Harbors and Environmental Restoration was necessary to eliminate or lessen immediate threats to life, public health, or safety because access to the cleaned areas (the high-voltage electrical and mechanical equipment) was highly controlled for safety reasons and its personnel could only access those areas in limited circumstances. FEMA determined the costs were ineligible increased operating costs.

First Appeal

On May 12, 2023, the Applicant submitted its first appeal seeking $506,063.91 for COVID-19 work performed at the DWM facilities. The Applicant asserted that the work performed at its DWM facilities was for cleaning and disinfecting its offices and high-touch areas, and not for secluded electrical equipment, as previously stated in FEMA’s denial. The Applicant stated that its DWM manages critical infrastructure that provides an essential service to the community, and as such, the DWM facilities needed to maintain normal operations during the pandemic. The Applicant explained that its water systems cannot be managed remotely, but rather must be managed in person by highly skilled workers. On June 29, 2023, the Georgia Emergency Management and Homeland Security Agency (Recipient) transmitted the first appeal with its support.

On January 18, 2024, the FEMA Region 4 Regional Administrator denied $506,063.91 in requested contract costs for work performed at the DWM facilities by Clean Harbors and Environmental Restoration. FEMA found that the Applicant did not demonstrate that the work: (1) was required to address an immediate threat as a result of the declared incident; (2) was done in accordance with CDC guidance or that of an appropriate public health official available at the time the work was completed; or (3) was associated with costs that were directly tied to the performance of eligible work, reasonable and necessary, and exceeded the Applicant’s regularly budgeted costs. 

Second Appeal

On March 18, 2024, the Applicant submitted its second appeal requesting $506,063.91 in contract costs for claimed cleaning and disinfection work performed at its DWM facilities between March 10 and August 17, 2020. The Applicant reiterates its prior argument that the work performed was in response to the immediate threat of COVID-19 and it contends that that it had to implement strict infection control protocols including the disinfection services which required skilled personnel and strict adherence to CDC and Environmental Protection Agency (EPA) regulations. The Applicant argues that without an efficient or adequate sewer and potable water system, the City's residents, including hospitals and first responders, would not have been able to effectively respond to the COVID-19 impact nor mitigate its spread. Additionally, the Applicant states that it only requested Clean Harbors and Environmental Restoration to perform disinfection work after confirmed COVID-19 cases were reported in a facility. 

On August 2, 2024, FEMA sent the Applicant a Request for Information (RFI), seeking documentation clarifying: 1) whether it entered into COVID-19-specific contracts with Clean Harbors and Environmental Restoration and copies of the contracts; 2) its pre-pandemic regularly budgeted costs for the cleaning and disinfection of DWM facilities, and documentation noting how these expenses changed, if at all, from March 10 through August 17, 2020; 3) documentation specifying the type of pre-pandemic cleaning and/or disinfection work done at its DWM facilities, and how, if at all, it differed from the work associated with the costs claimed on appeal; and 4) additional information regarding the generic entries (e.g., “Stake Body/Utility Truck,” “Decon Station,” “Decon of Equipment,” “drum disposal,” “miscellaneous hand tools,” “non-hazardous waste fee incineration,” “General Task-Covid 19,” “Project Manager,” “field technician,” and “foreman”) in Clean Harbors’ invoices that demonstrates these entries are directly tied to eligible work for COVID-19 and are reasonable and necessary.

On August 30, 2024, the Applicant responded, stating it did not enter into COVID-19-specific contracts with Clean Harbors and Environmental Restoration. The Applicant states that its pre-pandemic cleaning budget was for janitorial services, not including disinfection and decontamination work, for its DWM facilities, and was capped at $350,000.00. The Applicant states its pre-pandemic contract with its janitorial service included pressure washing, cleaning supplies, restroom supplies, and related equipment. Further, the Applicant states that prior to the pandemic, Clean Harbors performed work such as mold remediation, hazardous and asbestos testing/disposal, waste removal/disposal, and non-hazardous spill cleanup. The Applicant contends the work performed by Clean Harbors as a result of the disaster was for decontamination using foggers to spray disinfectant, however, the Applicant acknowledges that Clean Harbors provided only a general description of each laborer’s duties and did not provide details as to the type of work completed. 

Discussion

FEMA is authorized to provide assistance for emergency protective measures to save lives and protect public health and safety.^[1] 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.^[2] In response to COVID-19, eligible emergency protective measures may include certain specific, limited measures implemented to facilitate the safe opening and operation of eligible facilities, including cleaning and disinfection in excess of the applicant’s regularly budgeted costs, done in accordance with CDC guidance or that of an appropriate public health official available at the time the work was completed.^[3] To be eligible, costs must be, among other requirements, directly tied to the performance of eligible work, reasonable and necessary to respond to the COVID-19 pandemic, and adequately documented.^[4]

Here, the Applicant states that the $506,063.91 in contract costs with Clean Harbors and Environmental Restoration were incurred to clean and disinfect the interior surfaces of DWM facilities, specifically its offices and high-touch areas, to facilitate the safe opening and operation of those eligible facilities. In support, the Applicant provides invoices and a list of serviced facilities, including administration offices, water reclamation centers, and pumping stations throughout the city. 

Regarding Clean Harbors’ invoices, the Applicant acknowledges that Clean Harbors did not provide detailed information for the work performed and did not explain what staff performed the work. The Clean Harbor invoices contain generic work descriptions such as “Decon of Equipment” and “miscellaneous hand tools,” and generic labor descriptions like “foreman” with no accompanying detail. Therefore, the Applicant has not provided documentation that demonstrates the costs were directly tied to eligible work (i.e., cleaning and disinfection done in accordance with CDC guidance or that of an appropriate public health official available at the time the work was completed) or reasonable and necessary to respond to the COVID-19 pandemic.[5] As such, the $381,375.42 in contract costs associated with Clean Harbors is not eligible for PA funding. 

Regarding the Environmental Restoration invoices, these provided slightly more detail than Clean Harbors’ invoices in that they included a timeline generally describing the work performed. For example, the April 3, 2020 invoice stated that from 1110 to 1155 hours, team members used hand wipes and solution on the fourth floor due to the amount of electronics, and from 1215 to 1315 hours, team members used a fogger and wipes and solution on the second floor. However, the Applicant has not demonstrated the claimed cleaning and disinfection costs associated with Environmental Restoration were in excess of the Applicant’s regularly budgeted costs. In its response to FEMA’s RFI, the Applicant states that its regularly budgeted cleaning costs for its DWM facilities were $350,000.00. Therefore, the $124,688.49 associated with the claimed cleaning and disinfection work performed by Environmental Restoration is not in excess of the regularly budgeted costs and as such, is not eligible for PA funding.[6]

Conclusion

The Applicant has not demonstrated that the Clean Harbor contract costs were directly tied to the performance of eligible work or reasonable and necessary to respond to the COVID-19 pandemic. The Environmental Restoration contract costs are also not eligible as the Applicant has not demonstrated these were in excess of the Applicant’s regularly budgeted costs. Therefore, this appeal is denied.