Immediate Threat, Snow Assistance

Appeal Brief

Summary Paragraph

From December 23-28, 2022, a severe winter storm impacted the state of New York. The Village of Akron (Applicant) used force account labor, equipment and contracts for snow removal, initially to locate and rescue stranded motorists and thereafter to clear local roadways. It also opened a shelter to assist rescued motorists. The Applicant selected the 48-hour period of December 26-27, 2022, for eligible snow-related activities. FEMA created Grants Manager Project 715853 to document the claim but denied $13,948.87 for costs the Applicant incurred from December 23-25, 2022. FEMA found that the associated work occurred outside of the 48-hour period established by the Applicant and was therefore ineligible. The Applicant appealed, asserting that it incurred the initial snow removal costs to support its search and rescue effort, clearing snow from roads only when necessary to locate motorists or to reach a local grocery store to purchase supplies for the shelter. The FEMA Region 2 Regional Administrator partially granted the appeal, approving $1,332.05 for supplies used in the shelter. However, FEMA denied $12,616.82 for snow removal as the Applicant performed the work outside of the designated 48-hour period. FEMA also found that the work was not eligible as an emergency protective measure. The Applicant submits a second appeal requesting FEMA approve $12,616.82. The Applicant reiterates its first appeal arguments and asserts that its claim only includes work that was essential to the search and rescue and sheltering operations.

Authorities

• Stafford Act § 403(a)(3).
• 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(1), (a)(3)(i), 206.227.
• PAPPG, at 19, 57, 134-135.
• Town of Secaucus, FEMA-4264-DR-NJ, at 4.

Headnotes

• When the President authorizes snow assistance in a declaration for a severe winter storm, FEMA provides Public Assistance (PA) funding for impacts related to snow, but the assistance is limited. Snow-related activities are eligible for a continuous 48-hour period to address the most critical emergency needs. Limited snow-related activities necessary to carry out emergency protective measures are eligible outside the designated 48-hour time period.
  • The claimed snow removal work occurred outside the 48-hour period designated by the Applicant and approved by FEMA.
  • Additionally, the Applicant has not explained why the amount of cleared roadway was necessary to conduct the search and rescue operation and has therefore not demonstrated that the work was associated with eligible emergency protective measures.

Conclusion

The Applicant has not demonstrated that the snow removal work performed between December 23-25, 2022, was associated with eligible emergency protective measures. Consequently, it is not eligible for PA funding as a snow-related activity. Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

From December 23-28, 2022, a severe winter storm impacted the state of New York, resulting in a major disaster declaration that authorized snow assistance for several counties.[1] This included Erie County in western New York, where the Village of Akron (Applicant) is located. The Applicant used force account and contract labor for snow removal, initially to locate and rescue stranded motorists, and thereafter to clear local streets and parking lots. It also opened a temporary shelter to assist rescued motorists and residents in need. The Applicant stated that snow removal for rescue operations occurred between December 23-25, 2022, with general road clearance occurring after this period. It selected the 48-hour period of December 26-27, 2022, for Public Assistance (PA) eligible snow-related activities.[2] The Applicant requested $30,516.97 for overtime labor, equipment, materials, and contract costs. FEMA created Grants Manager Project 715853 to document the claim.

In a Determination Memorandum issued on November 27, 2023, FEMA denied $13,948.87 for costs the Applicant incurred from December 23-25, 2022. FEMA found that the associated work occurred outside of the 48-hour period established by the Applicant and was therefore ineligible.

First Appeal

In a letter dated January 11, 2024, the Applicant submitted a first appeal requesting FEMA approve $13,948.87. The Applicant explained that severe weather from December 23-25, 2022, resulted in the closure of a nearby highway, stranding 105 motorists within or near its municipal boundaries. It stated that its police and fire department personnel mounted an operation to search for and rescue the motorists, and opened the fire station as a temporary shelter for the motorists and local residents. The Applicant stated that its Department of Public Works (DPW) employees incurred overtime labor costs to support the rescue effort by clearing snow from the roads only when necessary to locate stranded motorists or to access a local grocery store to purchase food and supplies for the shelter. Similarly, it stated that it used contracted snow removal to assist with the search and rescue operation, to keep the fire department parking lots clear, to recover fire department equipment, and to assist with opening the road to the grocery store. Finally, the Applicant stated that costs for food and supplies used to establish the temporary shelter were eligible under PA policy. To support its claim, the Applicant provided police and fire department call logs from the incident period, a narrative summary of the search and rescue operation, and a sign-in log from the temporary shelter, among other documents. In a transmittal letter dated March 15, 2024, the New York State Division of Homeland Security and Emergency Services (Recipient) expressed support for the appeal.

FEMA issued a Request for Information seeking documentation identifying the locations the Applicant’s DPW employees performed work, and any documentation showing such work was required for the search and rescue operation. In response, the Applicant provided a narrative summary of the work and a map highlighting the roads cleared by DPW employees from December 23-25, 2022.

On September 24, 2024, the FEMA Region 2 Regional Administrator partially granted the appeal, approving $1,332.05 for food and supplies used in the temporary shelter. However, FEMA denied $12,616.82 for overtime labor, equipment, and contract costs associated with snow removal, as the Applicant performed the work outside of the designated 48-hour period for eligible snow-related activities. FEMA also found that the work was not eligible as one of the other emergency protective measures that FEMA may fund outside of the 48-hour period, as it was not actual search and rescue or sheltering work. Further, FEMA stated that although limited snow removal outside of the designated 48-hour period may be eligible when needed in the immediate area of an eligible emergency protective measure, the Applicant had not documented any work performed in the immediate area of the stranded motorists.[3]

Second Appeal

In a letter dated November 13, 2024, the Applicant submitted a second appeal requesting FEMA approve $12,616.82 and reiterating its first appeal arguments. Additionally, the Applicant asserts that its DPW employees acted as agents of the police and fire departments, coordinating with first responders to only perform work that was essential to the search and rescue operation.[4] To that end, the Applicant asserts that the DPW’s work consisted of snow removal to create and maintain an “emergency access lane.”[5] Finally, the Applicant states that contracts were necessary for snow removal, as heavy snow drifts rendered the plows used by DPW employees ineffective. In a transmittal letter dated January 16, 2025, the Recipient expresses support for the appeal.

Discussion

Eligible emergency work includes emergency protective measures necessary to save lives and protect public health and safety.[6] 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.[7] When the President declares an incident as a snowstorm or specifically authorizes snow assistance in a declaration for a severe winter storm, FEMA provides PA funding for impacts related to snow, but the assistance is limited.[8] Snow-related activities, including snow removal, de-icing, salting, snow dumps, and sanding of roads and other eligible facilities, are eligible for a continuous 48-hour period to address the most critical emergency needs.[9] Other emergency protective measures including, but not limited to, search and rescue and sheltering are also eligible and are not restricted to the limited time period.[10] Limited snow-related activities necessary to carry out emergency protective measures are eligible outside the designated 48-hour time period.[11]

On second appeal, the Applicant claims $12,616.82 for overtime labor, equipment, and contract costs associated with snow removal work performed between December 23-25, 2022. However, this work occurred outside of the 48-hour period designated by the Applicant and approved by FEMA. The Applicant asserts that the snow removal work was part of an eligible emergency protective measure to search for, rescue, and shelter the stranded motorists. It provides a map of the roadways and other areas cleared between December 23-25, 2022. This included the entirety of several main roads through and extending from the town center; a road to the local grocery store; the DPW vehicle lot; and indefinite lengths of various outlying roads beyond the Applicant’s municipal boundaries.[12] FEMA limits eligible snow-related activities outside the 48-hour period to those necessary to carry out emergency protective measures.[13] Here, while the Applicant has documented requests for assistance from stranded motorists (e.g., in the police department call log[14]), it has not provided information explaining why the amount of cleared roadway depicted in the map was necessary to conduct the search and rescue operation. Thus, the Applicant has not demonstrated that the claimed work was associated with eligible emergency protective measures; it is not eligible for PA funding as a snow-related activity.

Conclusion

The Applicant has not demonstrated that the snow removal work performed between December 23-25, 2022, was associated with eligible emergency protective measures. Consequently, it is not eligible for PA funding as a snow-related activity. Therefore, this appeal is denied.