On June 1, 2011, from approximately 4 p.m. to 10 p.m., severe
thunderstorms and tornadoes touched down in Western Massachusetts,
leaving a 39-mile path of destruction across nine local communities
in Hampden and Worcester counties.1
The National Weather Service estimated the most significant
tornado to be an EF 3 (winds between 135 and 165 miles an hour on
the Enhanced Fujita Scale), with a maximum wind speed of about 160
m.p.h. and a maximum width of half a mile. The tornadoes destroyed
homes, businesses and school buildings, as well as thousands of
trees. Hundreds of people were injured, and there were four
fatalities.2
Individuals, businesses, nonprofits and government property owners
hardest hit by the storms will be awarded federal aid. The Federal
Emergency Management Agency (FEMA) will provide aid in the form of
reimbursement for much of the storm-related infrastructure damage,
debris removal and emergency response costs incurred by local
communities, eligible private nonprofit organizations and state
agencies.
From this event and its aftermath, an attorney can learn how
little they know about the applicable law concerning natural
disasters. Getting up to speed is the first order of
business.
This article is intended to provide an outline overview of the law
as to public assistance to local governments and private
nonprofits. This article does not address issues related to
assistance for individuals. While tornadoes are not a common
occurrence in Massachusetts, other natural disasters, such as
hurricanes and blizzards, are a more common occurrence, often just
as deadly, and likely to require legal advice to local government
clients.
STATUTORY AND REGULATORY AUTHORITY
Public assistance (PA) is authorized by the Robert T. Stafford
Disaster Relief and Emergency Assistance Act, applicable
regulations and policies.3 Under section 406 of the act,
FEMA will pay 75 percent of the eligible cost of permanent
restorative work and for emergency work under section 403 and
section 407 of the act.
The federal cost share may be increased from 75 percent to not
more than 90 percent of the eligible cost of permanent work
whenever a disaster is so extraordinary that actual federal
obligations under the act, excluding FEMA administrative cost, meet
or exceed a qualifying threshold under the
regulations.4
ELIGIBILITY
To be eligible for public assistance, the applicant's facilities,
and the work to be performed at those facilities, all must satisfy
particular eligibility requirements in order to qualify for
disaster relief.
Under applicable law, the applicant is the basis for
eligibility. The applicant must be eligible for the
facility to be eligible. The facility must be eligible for
the work to be eligible. The work must be eligible for the
cost to be eligible. Each is discussed in this memo.
Eligible applicants
There are four types: 1) state agencies; 2) local government
entities; 3) private nonprofit (PNP) organizations, or institutions
that own or operate facilities open to the general public and
providing certain services otherwise performed by a government
agency, such as education, utility, emergency, medical, custodial
care and other essential governmental services; and 4) federally
recognized Indian tribes.
Eligible facility
Any building, works, system or equipment built or manufactured, or
any improved and maintained natural feature that is owned by an
eligible public or private nonprofit (PNP) applicant, with certain
exceptions.
The facility must: be the responsibility of an eligible applicant;
be located in a designated disaster area; not be under the specific
authority of another federal agency; and be in active use at the
time of the disaster. Examples of eligible public facilities
include: roads (non-federal aid); sewage treatment plants;
airports; irrigation channels; schools; buildings; bridges and
culverts; and utilities.
Eligible work
Work performed on an eligible facility must: be required as the
result of a major disaster event; be located within a designated
disaster area; and be the legal responsibility of an eligible
applicant.
FEMA will not provide assistance when another federal agency has
specific authority to restore or repair facilities damaged by a
major disaster; for example, where federal highway funds may be
available. If negligence by another party results in damages,
assistance may be provided on the condition that the applicant
agrees to cooperate with FEMA in all efforts to recover the cost of
such assistance from the negligent party.5
No assistance is provided for damages caused by an applicant's own
negligence through failure to take reasonable protective
measures.6
All work requires documentation showing compliance with act
requirements, as well as compliance with other federal laws
protecting endangered species, historical interests and other
special requirements, including: floodplain management,
environmental assessments, hazard mitigation, protection of
wetlands and insurance.7
Work is broken down by FEMA into several categories as either
"emergency" or "permanent."
Emergency work includes8:
- Category A: Debris removal, such as: clearance of trees, woody
debris; certain building wreckage; damaged/destroyed building
contents; sand, mud, silt and gravel; vehicles; and other
disaster-related material deposited on public property and, in very
limited cases, private property.
- Category B: Emergency protective measures taken before, during
and after a disaster to eliminate/reduce an immediate threat to
life, public health or safety, or to eliminate/reduce an immediate
threat of significant damage to improved public and private
property through cost-effective measures.
Permanent work includes:
- Category C: Repair of roads, bridges and associated features,
such as shoulders, ditches, culverts, lighting and signs;
- Category D: Repair of water facilities, including drainage
channels, pumping facilities and some irrigation facilities. Repair
of levees, dams and flood control channels fall under Category D,
but the eligibility of these facilities is restricted;
- Category E: Repair or replacement of buildings, including their
contents and systems; heavy equipment; and vehicles;
- Category F: Utility repair of water treatment and delivery
systems; power generation facilities and distribution facilities;
sewage collection and treatment facilities; and
communications;
- Category G: Repair and restoration of parks, playgrounds,
pools, cemeteries, mass transit facilities and beaches. This
category is also used for any work or facility that cannot be
characterized adequately by Categories A-F.
Eligible costs9
Costs directly tied to the performance of work, including labor,
materials, equipment and contracts awarded for the performance of
eligible work are eligible.
Costs must be: reasonable and necessary to accomplish the work;
compliant with federal, state and local requirements for
procurement; reduced by all applicable credits, such as insurance
proceeds and salvage values.
A cost is "reasonable" if, in its nature and amount, it does not
exceed that which would be incurred by a prudent person under the
circumstances prevailing at the time the decision was made to incur
the cost.
Reasonable costs can be established through: the use of historical
documentation for similar work; average costs for similar work in
the area; published unit costs from national cost estimating
databases; and FEMA cost codes.
Applicants must adhere to all federal, state and local procurement
requirements. Funding from two federal sources to repair disaster
damage is considered a duplication of benefits. A state disaster
assistance program is not considered a duplication of federal
funding. Insurance proceeds, donated grants from banks, private
organizations, trust funds and contingency funds must be evaluated
individually to determine whether they constitute a duplication of
benefits.
Contracts will normally be competitively bid unless one of the
following instances apply: the item is available only from a single
source; the awarding agency authorizes noncompetitive proposals;
after solicitation of a number of sources, competition is
determined inadequate; or the contract will eliminate or reduce an
immediate threat to life, public health or safety.
A "statutory administrative allowance" is provided to lessen the
financial impact of administering the disaster recovery effort,
including preparation of the project worksheet, related field
inspections, project applications, final inspection reports and
final audits.
Necessary costs of requesting, obtaining and administering federal
disaster assistance are covered by this allowance. No other
administrative costs are eligible. Good fiscal management and
record keeping are essential to controlling the indirect costs
associated with FEMA-reimbursed projects.
PROCESS OVERVIEW
The PA program is implemented through a number of steps summarized
here, but described in detail in FEMA publications on the websites
previously cited. It begins with a preliminary damage assessment
(PDA),10 as well as an immediate needs funding (INF)
analysis11 and the identification of need for expedited
payments.12 A PDA is performed to document the impact
and magnitude of the disaster on individuals, families, businesses
and public property, and to gather information for disaster
management purposes. FEMA, the state and an applicant
representative participate in this effort.
The information gathered during the PDA process is used to
determine whether federal assistance should be requested by the
governor and forms the basis for the disaster declaration.
Applicant's briefing
This is conducted by a representative of the state for potential
public assistance applicants after an emergency or major disaster
has been declared, and addresses application procedures,
administrative requirements, funding and program eligibility
criteria. Each applicant should send representatives from
management, public works, finance and legal.13
Request for public assistance
This is the applicant's official notification to FEMA of the
intent to apply for public assistance. The request for public
assistance is available online at the PA forms library. Typically,
the request form is submitted at the applicant's briefing. If an
applicant is unable to submit the request at the briefing, the
applicant must submit the form within 30 days of the date of
designation of the area (county, parish, etc.) for public
assistance.14 An applicant need not wait until all
damage is identified before requesting assistance.
Assignment of the public assistance coordination (PAC)
crew leader
Once the request has been forwarded to FEMA, the PAC crew leader
is assigned to the applicant. The PAC crew leader serves as the
applicant's customer service representative on PA program matters,
and manages the processing of the applicant's projects.
Kickoff meeting15
This differs from the applicant's briefing conducted by the state
at the onset of disaster operations, and is conducted by the PAC
crew leader and designed to provide a much more detailed review of
the PA program and the applicant's needs. The PAC crew leader also
discusses insurance, hazard mitigation opportunities and compliance
with environmental and historic preservation laws, including
floodplain management issues, that could potentially affect the
type and amount of assistance available and the documentation
needed.
Project formulation
This is the process of identifying the eligible scope of work and
estimating the costs associated with that scope of work for each
project. A "project" is a "logical method of performing work
required as a result of the declared event." The applicant is
responsible for identifying all work that is required as a result
of the disaster.16
The project worksheet (PW)
An applicant has 60 days following the first substantive meeting,
which is usually the kickoff meeting with FEMA, to identify and
report damaged facilities to FEMA. The PW is the primary form used
to document the location, damage description and dimensions, scope
of work and cost estimate for each project. It is the basis for the
grant.17 The project worksheet and other FEMA forms are
available online at
www.fema.gov/government/grant/pa/forms.shtm.
Identifying the damaged facility and description of damage
on the PW
The exact location of the damaged facility or area must be
identified. Damage sustained as a direct result of the disaster
event should be differentiated from pre-existing or non-disaster
related damage. The specific cause of damage must relate to the
incident for which the disaster was declared. It is important to
completely describe the cause of damage because it can affect
eligibility determinations.
Scope of work
This must be completely described and correspond directly to the
cause of damage. The work should be specified as an action with
quantifiable (length, width, depth, capacity) and descriptive
(brick, wood, asphalt, timber deck bridge) terms. The scope of work
should not be described only as "restore to pre-disaster design."
If part of the work is completed prior to project approval, the
work that has been completed should be distinguished from the work
remaining.
If additional damage to the facility is found after the PW is
completed, it is necessary to document that damage, show how the
damage is disaster-related, and request a re-inspection by
FEMA.
Cost estimate
FEMA may grant funds on the basis of actual costs or on estimates
of work to be completed. The three primary methods for determining
costs are: time and materials; unit cost; and contracts. FEMA uses
a methodology called the cost estimating format (CEF) for large
projects to better estimate the total cost of large projects. There
are tables online which depict the hierarchy of preferred pricing,
with actual costs for the eligible completed work favored first and
R.S. means cost data favored least. (Go to
www.fema.gov/government/grant/pa/resources and select from among
the cost estimating format resources.)
Validation
The applicant may prepare PWs for small projects. Large projects
are developed by the project specialist, working with the
applicant, and are submitted directly to the PAC crew leader for
review and processing.18
Improved projects
When performing permanent restoration work on a damaged facility,
an applicant may decide to use the opportunity to make improvements
to the facility while still restoring its pre-disaster function and
at least its pre-disaster capacity. For example, the applicant may
decide to lay asphalt on a gravel road or replace a firehouse that
originally had two bays with one that has three. Projects that
incorporate such improvements are called improved
projects.19
Funding for such projects is limited to the federal share of the
costs that would be associated with repairing or replacing the
damaged facility to its pre-disaster design, or to the actual costs
of completing the improved project, whichever is less.
Alternate projects
An applicant may determine that the public welfare would not be
best served by restoring a damaged facility or its function. In
this event, the applicant may use the PA grant for that facility
for other eligible purposes. (See FEMA Policy 9525.13, alternate
projects.)
The alternate project must serve the same general area that was
being served by the originally funded project. The original
facility must be rendered safe and secure, sold or demolished. If
an applicant opts to keep a damaged facility for a later or another
use, it will not be eligible for FEMA funding in a subsequent
disaster unless it is repaired to meet codes and standards, and
mitigation measures that would have been approved are
applied.20
Administrative appeals (See 44 CFR
§206.206)
The appeals process is the opportunity for applicants to request
reconsideration of FEMA determinations regarding application for or
the provision of assistance. There are two levels of appeal.
The first-level appeal is to the regional administrator.
Massachusetts is in Region 1, and the address is:
Federal Emergency Mgmt. Agency
99 High St., 6th floor
Boston, MA 02110
(617) 956-7506
The second-level appeal is to FEMA headquarters. According to
the website:
W. Craig Fugate, administrator
Federal Emergency Mgmt. Agency
500 C Street S.W.
Washington, D.C. 20472
(800) 621-FEMA (3362)
An online appeals database containing FEMA responses to
applicant appeals for assistance is available at:
www.fema.gov/appeals.
CLOSEOUT
The PA program is considered closed when FEMA assures that all of
the grants awarded under the PA program for a given disaster meet
the statutory and regulatory requirements governing the program.
FEMA may conduct an audit of the program during or after grant
closure. After an audit, FEMA can request reimbursement of
previously disbursed grant funds.21
1The nine communities included Southbridge, West
Springfield, Agawam, Springfield, Brimfield, Monson, Wilbraham,
Sturbridge and Westfield.
2See MEMA Reports, vol. 10, Issue 6 (July 5,
2011), which can be found at
www.mass.gov/eopss/docs/mema/mema-reports/mema-reports-10-6.pdf.
3The act can be found at 42 U.S.C. §§ 5121-5205.
Regulations are published in Title 44 of the Code of Federal
Regulations (44 CFR) Part 206 to implement the statute. Policies
are written to apply the statute and regulations to specific
situations and provide clarification on a range of issues. The FEMA
Public Assistance Policy Reference Manual can be found online at
www.fema.gov/government/grant/pa/9500toc.shtm. FEMA has also
developed a series of standard operating procedures (SOPs) that
provide guidance for FEMA, the state and applicants on the
processes discussed in this chapter. SOPs are available at
www.fema.gov/government/grant/pa/sop.shtm.
4The federal regulation as to cost sharing, found at 44
C.F.R. § 206.47, sets a qualifying threshold of $100 per capita of
state population, adjusted annually for inflation using the
Consumer Price Index for All Urban Consumers published annually by
the Department of Labor for increased federal cost share and may
even recommend up to one hundred percent (100 percent) federal
funding for emergency work for a limited period in the initial days
of the disaster irrespective of the per capita impact.
5See 44 CFR 206.223. Work must also be
completed within deadlines to be eligible for reimbursement. The
initial deadlines are established according to the type of work
performed: Debris removal: six months; Emergency protective
measures: six months; Permanent repair work: 18 months. See 44 CFR
206.204. Time extensions may be granted for extenuating
circumstances. For debris removal and emergency work, an additional
six months may be granted by the state. For permanent restoration
work, an additional 30 months may be granted by the state. See 44
CFR 206.202.
6See 44 CFR 206.223.
7See Section 316 of the Stafford Act
(Protection of Environment) 42 U.S.C. §5159; 44 CFR Part 10
(Environmental Considerations), 40 CFR Parts 1500-1508 (NEPA
Regulations), Environmental Policy Memoranda, FEMA Policy 9560.1,
dated Aug. 17, 1999, Public Assistance Guide, FEMA 322, pages
128-130 (www.fema.gov/government/grant/pa/pag07_t.shtm). See also
36 CFR 800 (Protection of Historic Properties) Section 106 of the
National Historic Preservation Act Model Programmatic Agreement -
Historic Review, FEMA Policy 9560.3, dated May 29, 2002, Public
Assistance Guide, FEMA 322, pages 130-131.
8See Public Assistance Guide, FEMA 322, pages
66-87.
9See Office of Management and Budget Circulars
A-21, A-87, Attachment A.C.2 and A-122. Public Assistance Guide,
FEMA 322, pages 40-41, 51.
1044 CFR §206.202(d)(ii). See also Public Assistance
Guide, FEMA 322, pages 89, 90, 94, 96, 107 and 111.
11Public Assistance Guide, FEMA 322, pages 90-91.
12Section 407(e) of the Stafford Act, (42 U.S.C. §
5173). Public Assistance Guide, FEMA 322, pages 90-91.
13Public Assistance Guide, FEMA 322, pages 64,
91-92.
1444 CFR §206.202(c). Public Assistance Guide, FEMA
322, pages 92, 93.
15Public Assistance Guide, FEMA 322, pages 89, 90, 94,
96, 107 and 111.
16See Definitions listed in 44 CFR §
206.201.
17See 44 CFR § 206.202(d). Public Assistance
Guide, FEMA 322, pages 96-97 Public Assistance Applicant Handbook,
FEMA 323, pages 17-33.
18Refer to FEMA Policy 9570.6, Standard Operating
Procedures on Validation of Small Projects, and Public Assistance
Guide, FEMA 322, pages 96, 106-108.
1944 CFR §206.203(d)(1) Public Assistance Guide, FEMA
322, pages 79, 110-111.
20Section 406 (c) of the Stafford Act , 44 CFR
§206.203(d)(2) , Public Assistance Guide, FEMA 322, pages 79,
111-112, 134.
2144 CFR §13.50. Office of Management and Budget
Circular A-110 Public Assistance (PA) Program Grants Administration
Post Award Monitoring and Closeout Processes, FEMA Policy 8610.8,
dated Aug. 29, 2006, Public Assistance Guide, FEMA 322, page
114.
Edward M. Pikula, the city solicitor for Springfield, is
vice chair of the Massachusetts Bar Association's Public Law
Section Council. He is also on the executive council for the City
Solicitors and Town Counsel Association.