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Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4204
ApplicantBuffalo
Appeal TypeSecond
PA ID#029-11000-00
PW ID#PW 256
Date Signed2021-05-21T16:00:00

Summary Paragraph

From November 17 through November 26, 2014, severe winter storms caused heavy snow throughout western New York State, including in the City of Buffalo (Applicant).  In the process of removing the snow, the Applicant sustained damages to roadside curbs, sidewalks, streetlights, fences, guide rails, a traffic signal controller, fire hydrants and a bridge joint (Facility).  The Applicant requested $760,158.39 in its Large Project Final Accounting, but on September 24, 2019, FEMA responded, approving $286,080.85 in funding and excluding the remainder because the work was completed on roads that were the responsibility of the Federal Highway Administration (FHWA).  On November 22, 2019, the Applicant appealed, seeking $469,357.72 in denied costs, and arguing that much of the work was completed on non-FHWA roads and the remainder should be eligible as emergency protective measures.  The FEMA Region II Regional Administrator responded to the appeal on April 1, 2020, granting $281,730.74 in funding for work documented to have been performed on non-FHWA roads but denying the request with regard to FHWA roads and engineering costs not directly tied to eligible work.  The Applicant submitted a second appeal dated August 25, 2020, reiterating its first appeal arguments and submitting new documentation tying engineering costs to specific work, requesting $187,626.98 in total.

Authorities and Second Appeals

  • Stafford Act §§ 102, 406.
  • 23 U.S.C. § 125.
  • 44 C.F.R. §§ 206.221(h), 206.226(a)(1).
  • PA Guide, at 26, 29, 40, 56.
  • PA Policy Digest, at 54.
  • DAP 9523.1, at 6.

Headnotes

  • Public Assistance for the permanent repair of FHWA is not available.  FEMA may assist with limited emergency repairs to FHWA roads only for those cases in which there is an immediate threat to public health and safety.
    • The Applicant has not demonstrated that an immediate threat to public safety necessitated the work completed on FHWA roads.
  • FEMA may reimburse basic engineering and design services tied to the performance of eligible work.
    • On second appeal, the Applicant submits documentation tying $7,980.00 in engineering costs to eligible work performed on non-FHWA roads.

Conclusion

Work completed on FHWA roads is ineligible for PA funding.  However, the Applicant has documented the eligibility of $7,980.00 in engineering costs related to work performed on non-FHWA roads and the appeal is granted in that amount.

Appeal Letter

Anne Bink

Deputy Commissioner

New York State Division of Homeland Security and Emergency Services

1220 Washington Avenue

Building 7A, 4th Floor

Albany, New York 12242

 

Re:  Second Appeal – Buffalo, PA ID: 029-11000-00, FEMA-4204-DR-NY, Project Worksheet 256 – Other Federal Agency

 

Dear Ms. Bink:

This is in response to a letter from your office dated September 11, 2020, which transmitted the referenced second appeal on behalf of the City of Buffalo (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding in the amount of $187,626.98 for repairs to roadside curbs, sidewalks, streetlights, and other roadside appurtenances (Facility).  

As explained in the enclosed analysis, I have determined that the Applicant has not demonstrated that work to repair the parts of the Facility under the authority of the Federal Highway Administration was necessary as emergency repairs due to an immediate threat to public health and safety, and is therefore ineligible for PA funding.  However, the Applicant’s additional documentation submitted on second appeal tied $7,980.00 in engineering costs to eligible work.  Therefore, this appeal is partially granted, in the amount of $7,980.00.  By copy of this letter, I am requesting the Regional Administrator to take appropriate action to implement this decision. 

Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.

 

                                                                        Sincerely,

                                                                           /S/

                                                                        Ana Montero

                                                                        Division Director

                                                                        Public Assistance Division

 

Enclosure

cc:  Thomas Fargione  

Acting Regional Administrator

FEMA Region II

Appeal Analysis

Background

From November 17 through 26, 2014, severe winter storms caused heavy snow throughout western New York State, including in the City of Buffalo (Applicant).  In the process of removing the snow, the Applicant sustained damages to roadside curbs, sidewalks, streetlights, fences, guide rails, a traffic signal controller, fire hydrants, and a bridge joint (Facility).

FEMA developed Project Worksheet (PW) 256 to document permanent work to repair the Facility, which the Applicant completed by September 30, 2016.  FEMA subsequently issued a Request for Information (RFI) on June 4, 2019, seeking documentation that clarified whether any completed work was the responsibility of the Federal Highway Administration (FHWA), and stating that if any work was completed on an FHWA road, the Applicant must identify that work in the supporting documentation and resubmit documentation for only the work completed on non-FHWA roads, including any associated hydrant, sidewalk, curb, bridgework, and direct administrative costs claimed.  

The Applicant responded to the RFI on June 28, 2019, with documentation including work orders and a spreadsheet coinciding with the locations where the work was performed, a statement from the Applicant’s Commissioner of Public Works stating that the work did not fall within or under the purview of the FHWA, and a copy of a February 6, 2015 FHWA letter stating that FHWA funding was not available for this disaster.  In a letter dated September 24, 2019, FEMA partially approved requested costs of $286,080.85 for eligible work, but denied the remaining requested expenses as ineligible because the Applicant completed work on roads falling under the authority of FHWA.

 

First Appeal

The Applicant submitted a first appeal dated November 22, 2019, seeking $469,357.72 in denied costs for PW 256.  The Applicant supplied spreadsheets tying work and costs to specific sites.  The Applicant stated that $281,730.74 of work was completed on streets that were not eligible for FHWA funding, comprising 68 percent of the initial amount claimed.  The Applicant applied the 68 percent to its request for funding of associated engineering inspections, to total $24,085.60.  Finally, the Applicant requested that work completed on FHWA streets, though acknowledged as permanent in nature, be funded as emergency protective measures, for an additional $163,541.38. 

The New York State Division of Homeland Security and Emergency Services (Grantee) forwarded the Applicant’s appeal with a letter of support on January 7, 2020.  The Grantee relied on Public Assistance (PA) Policy Digest 321 to submit that FEMA may fund emergency repairs to FHWA roads on a case-by-case basis when the FHWA Emergency Relief (ER) program is not activated.[1]  The Grantee asserted that FHWA funds were unavailable for the repairs at issue for multiple reasons.  First, it stated that as a result of the deep snow obscuring the Facility during the snow removal process, unavoidable damages occurred during the eligible work.  Therefore, the work on appeal did not fall within or under the purview of FHWA because the damages were not caused by a natural disaster.  Second, even assuming the damages were caused by the disaster, the Grantee stated FHWA still would not have authority for any restorations because “snow storm” is not included as a disaster in the statutes that outlines the provision of FHWA ER.  Third, the Grantee argued that the sidewalks and other appurtenances are not within FHWA’s authority as that agency’s authority only extends to the repair and reconstruction of roads and bridges.  Last, the Grantee confirmed that FHWA did not make funding available.

The FEMA Region II Regional Administrator responded to the Applicant’s first appeal on April 1, 2020, partially granting the appeal in the amount of $281,730.74.  FEMA found that the Applicant’s documentation established work associated with those costs was performed on non-FHWA roads and was eligible for PA funding.  FEMA, however, denied the remaining $187,626.98 in requested funding.  FEMA countered the Applicant’s argument that FHWA funding could not extend to sidewalks or other appurtenances, relying on the FHWA ER manual, which states that all elements within the road cross section are eligible for repair under the FHWA ER program.[2]  Additionally, FEMA found no documentation to support that the damage to the Facility caused an immediate threat to public health and safety, as required to fund the repairs as emergency protective measures.  Finally, FEMA rejected the Applicant’s request for $24,085.60 in engineering costs as the request was based on an estimate and was not supported with documentation directly tying the costs to eligible work. 

 

Second Appeal

The Applicant appealed, requesting $187,626.98, which consisted of $7,980.00 in engineering costs tied to non-FWHA sidewalks and roads and $179,646.98 in work performed on FHWA roads.  The Applicant submitted spreadsheets tying the engineering costs to specific locations, separating out work performed on FHWA and non-FHWA roads, as well as the underlying invoices supporting the spreadsheets.  In support of its request for funding of work completed on FHWA roads, the Applicant states the event was a non-FHWA declaration and the damages were unrelated to direct damages sustained from the event.  The Grantee forwarded the appeal with a letter reiterating its first appeal arguments and expressing its support on September 11, 2020.

 

Discussion

Other Federal Agency

Section 406 of the Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act authorizes FEMA to fund the restoration of public facilities damaged or destroyed by a major disaster.[3]  The Stafford Act defines a “public facility” to include any “non-Federal-aid street, road, or highway” owned by a local government.[4]  FEMA PA funding is generally not available when another Federal agency has specific authority to restore facilities damaged or destroyed by a major disaster.[5]  Damage caused during the performance of eligible work may be eligible.[6]  FEMA may assist with limited emergency repairs to FHWA roads only for those cases in which there is an immediate threat to public health and safety.[7] 

On second appeal, the Applicant and Grantee request reconsideration of costs associated with permanent repairs to FHWA roads, arguing that the damages were caused not by the disaster itself but by the Applicant’s snow removal work, making the repairs part of the cost of eligible emergency work, in reliance on policy stated in the Public Assistance Program and Policy Guide (PAPPG).[8]  Though the PAPPG was not in effect for this disaster, the PA Guide, which was, states the same rule–that damage caused during the performance of eligible work may be eligible.  The PA Guide goes on to clarify that for federal-aid roads, only emergency repairs would be eligible in cases when damage is caused during emergency response efforts.[9]  Although FEMA may assist with limited emergency repairs to FHWA roads, the Applicant has not submitted documentation demonstrating an immediate threat to public health and safety necessitating the work on FHWA roads as emergency repairs.  Repair costs for damages caused by emergency work on FHWA roads are therefore not eligible for PA funding.

 

Engineering Costs

FEMA may reimburse basic engineering and design services associated with complex construction projects, such as roads.[10]  Generally, costs that can be directly tied to the performance of eligible work are eligible for FEMA reimbursement.[11]

On first appeal, the Applicant estimated the portion of its engineering costs associated with eligible work performed on non-FHWA roads by prorating the costs based on the total cost of repairs to non-FHWA roads, a sum of $24,085.60.  On second appeal, however, the Applicant submits timesheets and invoices as well as a table summarizing the engineering costs by location, separating costs and tying $7,980.00 in engineering costs to work performed on non-FHWA roads.  The Applicant has documented the eligibility of $7,980.00 in engineering costs related to work performed on non-FHWA roads and the appeal is granted in that amount.

 

Conclusion

Work completed on FHWA roads is ineligible for PA funding.  However, the Applicant has documented the eligibility of $7,980.00 in engineering costs related to work performed on non-FHWA roads and the appeal is granted in that amount.

 

[1] Public Assistance Policy Digest, FEMA 321, at 54 (Jan. 2008) [Hereinafter PA Policy Digest].

[2] Federal Highway Administration Emergency Relief Manual at 3, 9 (May 31, 2013).

[3] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act § 406(a)(1)(A), Title 42, United States Code (42 U.S.C.) § 5172(a)(1)(A) (2012). 

[4] Stafford Act § 102(10) (Supp. I 2013), 42 U.S.C. § 5122(10) (Supp. I 2013). See also Title 44, Code of Federal Regulations (44 C.F.R.) § 206.221(h) (2014).

[5] 44 C.F.R. § 206.226(a)(1). 

[6] PA Guide at 29.

[7] Id. at 26, see also PA Policy Digest at 54.

[8] Public Assistance Program and Policy Guide, FP 104-009-2, at 81 (Jan. 1, 2016).

[9] Id. at 31

[10] PA Guide, at 56, 59.

[11] Id. at 40.

Last updated May 7, 2021