Snow Removal

Appeal Brief

Winter Storm Jonas impacted New Jersey during the incident period of January 22 to 24, 2016.  Hudson County, where the Town of Secaucus is located, was designated to receive snow assistance.  The eligible scope of work (SOW) for the disaster was initially described as including both (1) snow clearance for one lane of road during active snowfall, and (2) snow clearance of all roadways within the Applicant’s jurisdiction for a 48-hour period designated by the Applicant.  Here, the Applicant designated the period from January 25 to 26, 2016.  In Project Worksheet (PW) 169 the Applicant requested reimbursement for all of its snow clearance costs incurred before the designated 48-hour window from January 22 to 24, 2016.  FEMA partially obligated PW 169, but limited eligible costs to snow clearance for one lane of roadway during active snowfall, in accordance with the approved SOW.  The Applicant appealed, asserting that there was no basis for FEMA to limit reimbursement because the work qualified as emergency protective measures.  The Regional Administrator (RA) determined that the obligated funds matched the SOW in the PW, but PW 169 as a whole was not eligible for reimbursement because snow removal costs incurred outside the designated 48‑hour window were ineligible.  The RA found that FEMA was precluded from seeking repayment of the incorrectly-obligated funds in accordance with the Stafford Act § 705(c), but determined that no additional funding could be approved.  The Applicant filed a second appeal, in which it argues that the SOW in PW 169 qualifies as an emergency protective measure, and is eligible for Public Assistance funding.  It also asserts that reimbursement in PW 169 should not be limited to one lane of snow clearance during active snowfall.

Authorities and Second Appeals

• Stafford Act §§ 325, 403.
• 44 C.F.R. §§ 206.225, 206.227.
• PAPPG at 77-78.

Headnotes

• 44 C.F.R. § 206.227 limits Public Assistance funding available for snow related activities to a period of time specified by the conditions of the disaster.  The PAPPG provides for funding only for a continuous 48-hour period, designated by applicants, to address the most critical emergency needs.
  • PW 169’s SOW incorrectly stated that clearing one lane of snow during active snowfall was eligible work, even if it was outside the 48-hour window.  FEMA also erroneously obligated funding in accordance with this SOW.
  • Despite this, the Applicant’s snow removal work performed outside its designated 48-hour window are ineligible, and FEMA is not authorized to provide the additional funding that the Applicant seeks on appeal.  

Appeal Letter

Appeal Analysis

Background                                        

From January 22 through 24, 2016, Winter Storm Jonas caused record or near-record snowfall, resulting in a March 2016 major disaster declaration for several counties in the state of New Jersey.  Certain counties were specifically designated to receive snow assistance, including Hudson County, where the Town of Secaucus (Applicant) is located.[1]  In describing the eligible scope of work (SOW) covered by this disaster declaration, FEMA stated, in error and contrary to policy, that applicants in all affected counties were eligible for reimbursement of costs for clearance of one lane of roadway to allow access for emergency vehicles during the period of snowfall as an emergency protective measure.[2]  Counties authorized for snow assistance were additionally eligible to request reimbursement of snow removal expenditures for all roadways under their responsibility during a designated, continuous 48-hour period.[3]  The Applicant designated the 48-hour period covering January 25 to 26, 2016.[4]

FEMA initially prepared three PWs for the Applicant: (1) PW 83, entitled “Snow Removal (48 hours),” documenting $90,860.17 in work associated with the Applicant’s 48‑hour period; (2) PW 169, entitled “EPM,” with $143,202.76 for work incurred outside of the 48 hour period; and (3) PW 170, entitled “Donated Resources,” for $1,793.23 in volunteer labor.[5]  On July 7, 2016, FEMA informed the Applicant that it would approve PWs 83 and 170, but that PW 169 needed to be recalculated because: (1) the expenses were incurred outside the designated 48-hour window, and (2) the Applicant submitted costs to clear more than one lane of roadway, as well as costs incurred outside the time of active snowfall.[6]

On July 25, 2016, FEMA issued a determination memorandum for PW 169.  The determination memorandum stated that reimbursement for expenses incurred outside the 48-hour window were limited to clearance of one lane of road during active snowfall.[7]  FEMA applied a reduction of $36,530.34 for costs outside the 48 hour period, and a reduction of 50 percent of the lane clearance costs in the amount of $55,268.30.[8]  Accordingly, it determined that $51,404.12 of the Applicant’s claimed expenses were eligible for reimbursement, but $91,798.64 were ineligible.

First Appeal

On July 12, 2016, the Applicant appealed FEMA’s determination.^[9]  The Applicant agreed that all of the costs claimed in PW 169 took place outside the 48-hour window, but argued that this time frame was irrelevant because this PW was written for emergency protective measures, not “48-hour snow removal.”[10]  It also argued that there should not have been a 50 percent reduction in eligible expenses because the single lane clearance limitation should not apply to emergency protective measures.[11]

On August 9, 2016, FEMA sent a Final Request for Information (RFI).  The Final RFI requested: (1) documentation demonstrating what emergency measures occurred between Jan. 22 and 24, 2016, during active snowfall, and why plowing the second lane of snow was necessary to complete those measures; and (2) documentation demonstrating that the emergency measures were required as a direct result of the disaster.[12] 

The Applicant responded to the Final RFI on August 25, 2016.  Regarding the request for documentation that the specific emergency protective measures were required as the result of the declared event, the Applicant quoted a portion of the State’s emergency declaration, and provided copies of the applicable disaster declarations.[13]  Additionally, the Applicant asserted that the approved SOW in PW 169 did not match the work that it actually performed, as demonstrated by the documentation that it had already submitted.[14]  It then argued that all of its snow clearance work was eligible because it had the legal responsibility to maintain the roads, and clearing only one lane of roadway was inadequate to meet the disaster. 

On November 23, 2016, the FEMA Region II Regional Administrator (RA) denied the appeal.  The RA explained that, as a general rule, PA funding was only available for snow related activities during a continuous 48-hour period to address the most critical emergency needs.[15]  Because PW 169 encompassed work outside the Applicant’s designated 48-hour period, it would generally not be eligible.[16]  The RA noted the narrow exception for snow removal where snow related activities are necessary to carry out other eligible work, such as clearing snow in the immediate area of a downed power line.  The RA found that the Applicant did not provide the requested documentation regarding the work performed during the relevant period, nor an explanation as to why additional snow clearance was necessary to complete that work.[17]

The RA concluded that FEMA incorrectly obligated $51,404.12 because none of the work that occurred outside the designated 48-hour window qualified for PA.[18]  The RA concluded, however, that FEMA awarded these funds based on an approved SOW, the New Jersey Office of the Attorney General, Department of Law and Public Safety, Division of State Police (Grantee) had drawn down the funds, the costs were reasonable, the work was completed when funding was awarded, and the purpose of the project was accomplished.[19]  Accordingly, the RA determined that FEMA was prohibited from seeking repayment of the incorrectly-obligated funds.[20]  Nevertheless, no additional funds could be obligated.  

Second Appeal

The Applicant’s second appeal is undated.[21]  The Applicant argues that the RA incorrectly concluded that the work approved in PW 169 as a whole was ineligible, asserting that all of the snow removal was eligible for funding as an emergency protective measure.[22]  It argues that the provision of 48-hours of “snow assistance” was not the only funding available for snow removal, but was instead funding that was additional to what was generally available.[23]  The Grantee transmitted the Applicant’s second appeal on February 8, 2017, supporting its position.[24]

Discussion

Section 403 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 (Stafford Act) grants FEMA authority to provide assistance “essential” to meet immediate threats to life and property resulting from a disaster.[25]  Implementing this authority, Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.225(a) authorizes emergency protective measures necessary to eliminate or lessen immediate threats to life, public health, or safety, as well as threats of significant additional damage to improved property.[26]  Section 206.227, however, limits both emergency and major disaster declarations that are based on snow or blizzard conditions to cases of record or near-record snowstorms, and federal assistance in qualifying disasters to a period of time specified by the circumstances of the event.[27]

Interpreting these statutes and regulations, FEMA’s Public Assistance Program and Policy Guide (PAPPG), establishes that snow related activities are eligible for funding as an emergency protective measure for a continuous 48-hour period, designated by applicants, to address the most critical emergency needs.[28] 

A narrow provision in this policy exists for very limited snow related activities only when they are necessary to the completion of otherwise eligible PA work performed outside the 48-hour window, or in counties not designated for snow assistance.[29]  The PAPPG provides snow removal in the immediate area of eligible work to repair a downed power line as an example.[30]

It is important to note that FEMA already obligated funding for the Applicant’s snow removal activities during its designated 48-hour window, as well as its expenses that fell within PW 169’s approved SOW (namely, clearing one lane of roadway during active snowfall).  The Applicant has not alleged that FEMA incorrectly calculated any of these amounts.[31]  Instead, it argues that funding for snow removal activities should not have been limited to 48 hours, nor to clearing one lane of roadway during active snowfall.[32]  Accordingly, the issue presented in this second appeal is whether FEMA should reimburse the Applicant’s additional snow removal expenses incurred outside the designated 48‑hour window, and which were beyond the approved SOW.

Contrary to the Applicant’s argument, 44 C.F.R. § 206.227 does not authorize FEMA to provide the Applicant with funding that is additional to other PA funding.  Instead, with respect to snow related work, it limits PA funding under Category B, emergency protective measures, to a specified period of time.[33]  FEMA policy generally sets this time at 48 hours.[34]  Here, the Applicant designated the 48-hour period covering January 25 and 26, 2016.  The snow clearance that the Applicant performed outside of this time period was not eligible for reimbursement.[35]

Because all of the work encompassed in PW 169 occurred outside the Applicant’s designated 48‑hour window, it was ineligible for reimbursement.  For this reason, PW 169 should not have been approved and no additional funding can be obligated.

Conclusion

Under FEMA’s regulations and policy, the $91,798.64 in snow removal expenses that the Applicant seeks is not eligible for reimbursement under the PA Program.  Accordingly, this appeal is denied.