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Greene County/Drury University, Safe Room

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

ApplicantMissouri Emergency Management Agency
Appeal Type2nd
Project Number6
Date Signed2011-07-11T00:00:00
1st Appeal
• Issue
o The Missouri State Emergency Management Agency (SEMA) submitted an application on behalf of Drury University for the construction of a community safe room. The terms of the HMGP grant approval noted that use of the funds were permitted for design activities and that construction activities were not permitted until FEMA had approved the detailed design. Construction was initiated prior to design approval, and the Grantee was not provided by FEMA the notice to proceed. FEMA Region VII sent a Termination notice and determined that construction costs were ineligible.
• Reason for Denial
o Region VII based the denial of the 1st appeal on the fact that the construction had been initiated prior to design approval by FEMA per terms of the grant and that the construction costs were not eligible.
• Reference(s)
o 44 CFR 206.434 Eligibility;   44 CFR 206.440 Appeals, 44 CFR 206.436(d) Application Procedures; 44 CFR 13.30 Changes; FEMA 361
2nd Appeal
• Issue
o SEMA filed a second appeal, stating that the grant had been fully approved, the design was eventually approved, the building was designed and constructed in accordance with FEMA 361, reimbursement of construction costs did not violate MRR-2-07-1, and that the mitigation objective had been obtained.
• FEMA Findings
o FEMA HQ approved the 2nd appeal, overturning Region VII’s decision to deny the 1st appeal.
o Rationale: A remedy for noncompliance, per 44 CFR 13.43, is to allow the grantee or subgrantee an opportunity to correct the deficiency and meet the grant objective. The safe room was properly designed and constructed in accordance with FEMA 361 and thereby met the grant objective to save lives.
Reference(s):  44 CFR 206.440 Appeals; 44 CFR 206.434 Eligibility; 44 CFR 206.436(d) Application Procedures; 44 CFR 13.43; FEMA 361.

 

Appeal Letter

JUL 11 2011
 
Paul Parmenter
Director
State Emergency Management Agency
Post Office Box 116
Jefferson City, Missouri 65102

Re: Second Appeal: Greene County/Drury University, Safe Room, FEMA DR-1676-MO, HMGP
Project #006

Dear Mr. Parmenter:

Thank you for your letter dated March 2011, to the Department of Homeland Security, Federal Emergency Management Agency (FEMA), regarding the Drury University Safe Room Project in
Greene County, Missouri. The County is requesting that FEMA restore funding under a Hazard Mitigation Grant Program (HMGP) award for this project.

Background:
On July 2008, the State Emergency Management Agency (SEMA) submitted an application to the FEMA Region VII Office (Regional Of11ce) for construction of a community safe room at Drury University in Greene County, Missouri. On May 2009. the Regional Office approved the application with conditions for the design and construction of a tornado safe room. The project cost included a Federal share of$225,000 and a non-Federal share of$75,000. Terms of grant award stated that drawdown of funds was permitted for design of the safe room facility and that construction was not to proceed until until the detailed design was approved by the Regional Office. On April 14 ,2010, the Regional Office notified SEMA that the design for the safe room project was approved and a notice to proceed with construction was issued. On April 15, 2010, the Regional Office sent an email to the State to inquire about the status of construction as reported in the Quarterly Progress Report, which reported the safe room was 96 percent complete. On April 21, 2010, the State confirmed that the safe room construction was 96 percent complet. The State also reported that they had not provided notice to proceed with construction to the sub-applicant.
Consequently, on September 23, 2010, the Regional Office sent a Termination for Noncompliance notice to the State because the State and county did not comply with the conditions of the award. The Regional Office based its decision on Title 44 Code of Federal Regulations, Section 13.43(a)(2)(44 C.F.R. § 13.43(a)(2), Enforcement. The Regional Office approved $20,223 for design costs and denied $204,777 for construction costs. The Region VII Administrator sustained this decision on first appeal in a letter dated January 27, 2011. The State submitted a second appeal to FEMA Headquarters on March 28, 2011.
 
Analvsis:
The issue in this appeal is not the eligibility of safe rooms or whether Drury University constructed the safe room in accordance with FEMA 361, Design and Construction Guidance for Comrnunity Safe Rooms, as required by program guidelines. Rather, the issue is whether the county and the university are eligible for the grant when they did not comply with a condition of the grant award. Specifically, FEMA awarded a grant with the condition that construction of the safe room was not to begin until FEMA reviewed the design to ensure that it was consistent with the standards in FEMA 361. Drury University began construction of the safe room several months before FEMA completed its review and approved the design. The county and Drury University did not comply with this condition of the grant.

All grant recipients are required to comply with all terms and conditions of the grant. 44 CFR 13.43(a) states in part: "If a grantee or sub-grantee materially fails to comply with any term of an award, whether stated in a Federal statute or regulation, an assurance, in a State plan or application, a notice of award, or elsewhere, the awarding agency may take one or more of the following actions: ( 1) Temporarily withhold cash payments pending correction of the deficiency by the grantee or subgrantee or more severe enforcement action by the awarding agency, (2) Disallow (that is, deny both use offunds and matching credit for) all or part of the cost of the activity or action not in compliance ... " The Region VII Administrator exercised discretion to deny funding pursuant to 44 C.F.R. § 13.43(a)(2), even though FEMA determined that the University's safe room design complied with the requirements of FEMA 361.
 
Conclusion:
Based on review of all information submitted with the appeal, I have determined that the county and Drury University did not comply with all conditions of the grant. 44 C.F.R. § 13.43 allows the awarding agency several remedies when a grantee or subgrantee does not comply with the terms of the grant. One remedy, pursuant to 44 C.F.R. § 13.43(a)(l), is to MRR-2-07-1 by allowing the subgrantee to correct the difficiency and meet the grant objective. Properly designed and constructed safe rooms save lives. Since FEMA determined that the University's safe room design was in compliance with FEMA 361. I have determined that the University is eligible for construction costs for the safe room. Accordingly, the second appeal is granted. By copy of this letter, I ask the Regional Administrator to take action to implement this determination.
 
Please inform the county and Drury University of my determination. My determination is FEMA's final decision on this matter persuant to 44 C.F.R. § 206.440. Appeals.
 
Sincerely,
 
 
Sandra K. Knight, PhD, PE
Deputy Federal Insurance and Mitigation Administrator, Mitigation
 
cc: Beth Freeman, Regional Administrator FEMA Region VII

 

Appeal Analysis

The issue was whether the county and the university remain eligible for the grant when they did not comply with a condition of the grant award. FEMA awarded a grant with the condition that construction of the safe room was not to begin until FEMA reviewed the design to ensure that it was consistent with the standards in FEMA 361. Drury University began construction of the safe room several months before FEMA completed its review and approved the design. The county and Drury University did not comply with this condition of the grant.
All grant recipients are required to comply with all terms and conditions of the grant. 44 CFR 13.43(a) states in part: "If a grantee or sub-grantee materially fails to comply with any term of an award, whether stated in a Federal statute or regulation, an assurance, in a State plan or application, a notice of award, or elsewhere, the awarding agency may take one or more of the following actions: ( 1) Temporarily withhold cash payments pending correction of the deficiency by the grantee or subgrantee or more severe enforcement action by the awarding agency, (2) Disallow (that is, deny both use offunds and matching credit for) all or part of the cost of the activity or action not in compliance ... " The Region VII Administrator exercised discretion in the 1st appeal to deny funding pursuant to 44 C.F.R. § 13.43(a)(2), even though FEMA determined that the University's safe room design complied with the requirements of FEMA 361. FEMA HQ decided to approve the 2nd appeal by an allowing SEMA to correct the deficiency and meet the grant objective, to save lives.
Last updated Aug 19, 2014