Region I News Releases

FEMA.gov

  • Time Extension - Work

    Appeal Type: 
    2nd
    Report Type: 
    PW
    Appeal Categories: 
    Applicant Name: 
    University of Iowa
    Disaster Number: 
    1763-DR-IA
    DSR: 
    10546
    Date Signed: 
    Monday, April 6, 2015
    PA ID: 
    103-03027-00
    Summary/Brief: 

    Conclusion:  FEMA grants a time extension to restore the convenience store.  The RA has granted a time extension to complete repairs to the Mayflower Dormitory, and the Applicant has shown that the store has not yet been restored to the pre-disaster design, function, and capacity.

    Summary Paragraph

    Severe storms and flooding from DR-1763 damaged building contents at the University of Iowa Mayflower dormitory on May 25 to August 13, 2008.  FEMA prepared PW 10546 to replace the contents of the building.  The Applicant submitted a time extension request to complete the replacement of building contents.   FEMA denied the time extension citing that the hazard mitigation proposal should not impact the replacement of the contents.  In a first appeal letter, the Applicant appealed FEMA’s denial and requested a time extension through February 28, 2015.  The Applicant cited PW 1102 for the Mayflower dormitory building repairs, which received a time extension through January 31, 2015 and stated that it wanted to wait until the repairs were complete to replace the contents.  The Regional Administrator (RA) denied the first appeal based upon the fact that PW 1102 states that the building repairs were completed prior to January 2009.  The RA states that a time extension for PW 1102 was approved because a Hazard Mitigation Proposal was recently approved, not because the repair work was ongoing.  The RA maintained that the convenience store (C-Store) was permanently restored to the pre-disaster function, noting that the Applicant made repairs to the C-Store and “has continued to operate the facility for more than five years.”  The Applicant submitted a second appeal stating that a temporary C-Store was built for the immediate school year and that permanent repairs are still needed to restore it to the pre-disaster condition.

    Authorities and Second Appeals

    • 44 C.F.R. § 206.204(d).
    • 44 C.F.R. § 206.226.
    • PA Guide, at 29, 139.

    Headnotes

    • 44 C.F.R. § 206.204(d) and the Public Assistance Guide provide the RA the authority to grant time extensions appropriate to the situation.
    • 44 C.F.R. § 206.226 and the Public Assistance Guide state that work to restore eligible facilities to the pre-disaster design, function, and capacity as they existed immediately prior to the disaster is eligible.
      • The Applicant demonstrated through a design report that the C-Store has not yet been restored to the pre-disaster design, function, and capacity.
    Letter: 

    April 06, 2015

    Mark Schouten
    Administrator
    Iowa Homeland Security and Emergency Management Division
    7105 NW 70th Avenue
    Camp Dodge, Bldg. W-4
    Johnston, Iowa 50131-1824

    Re:  Second Appeal – University of Iowa, PA ID 103-03027-00, FEMA-1763-DR-IA, Project Worksheet 10546 – Time Extension - Work

    Dear Mr. Schouten:

    This is in response to your letter dated April 10, 2014, which transmitted the referenced second appeal on behalf of the University of Iowa (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of a time extension to replace the contents of the Mayflower dormitory.

    As explained in the enclosed analysis, I have determined that the Applicant has provided sufficient justification to warrant a time extension.  Accordingly, I am granting the appeal.  By copy of this letter, I am requesting the Regional Administrator to take appropriate action to implement this determination.

    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/

    William W. Roche
    Director
    Public Assistance Division                                                                      

    Enclosure

    cc: Beth Freeman
          Regional Administrator
          FEMA Region VII

    Analysis: 

    Background

    Severe storms and flooding from FEMA-1763-DR-IA damaged building contents at the University of Iowa (Applicant) Mayflower dormitory on May 25 to August 13, 2008.  Floodwaters inundated the building, flooding the first floor with three feet of water and completely submerging the basement and sub-basement.  On June 16, 2010, FEMA prepared PW 10546 to replace the contents of the Mayflower dormitory, including commercial kitchen shelving, kitchen equipment, an ice cube maker, and an expresso machine.  The cost was $96,942.00 in contents and $850.00 in Direct Administrative Costs (DAC).  Anticipated National Flood Insurance Program proceeds were deducted in the amount of $96,942.00.  As a result, FEMA obligated $850.00.  Work was to be completed by May 27, 2012.

    In a May 31, 2011 letter, the Applicant requested a time extension until September 30, 2013 to complete the work.  The same day, the Grantee granted a time extension until May 27, 2012 and requested that FEMA extend the deadline until September 30, 2013 due to the size and complexity of the scope of work of the project.  On August 31, 2011, FEMA denied the time extension request citing that the repairs to the dormitory were completed in January 2010 and a recently submitted Hazard Mitigation Proposal (HMP) for the Mayflower Dormitory building PW should not impact the replacement of the building contents.[1]  On September 1, 2011, the Grantee notified the Applicant of the time extension denial.  The Applicant submitted a second time extension request on July 10, 2012.  On April 11, 2013, FEMA denied this second time extension request.

    First Appeal

    In a first appeal letter submitted June 5, 2013, the Applicant appealed FEMA’s denial of the time extension and requested a time extension through February 28, 2015.  The Applicant states that temporary repairs were made to the dormitory “to quickly accommodate immediate needs and to be operational in time for fall classes in 2008.”  The Applicant was “waiting for the final permanent recovery and mitigation to be approved before purchasing the contents.”  FEMA PW 1102, version four, captures the permanent work to repair the convenience store (C-Store)[2] on the first floor of the Mayflower dormitory.  The Applicant seeks to purchase the building contents in connection with the permanent repairs as it is more costly to purchase and store the contents before the building is ready for them.  Reporting of the completion of the permanent recovery and mitigation projects for the Mayflower dormitory is scheduled to occur in April, 2015 and the Applicant plans to install the contents after the work is complete.

    The Applicant states that it did not appeal the first time extension denial because it seemed insignificant “in light of the magnitude of the ongoing issues with the flood recovery and mitigation construction project” and the Applicant “believed that the denial was based upon a misunderstanding of the project.”[3]  The Applicant “was under the impression that the denial would be resolved logically in connection with the final resolution of repair and mitigation issues and a new extension on those projects.”[4]

    On July 16, 2013, the Grantee forwarded the first appeal to FEMA, supporting the appeal.  The Grantee points out that while FEMA states that the permanent repairs to the building were completed in January 2010, an April 15, 2013 letter from the Applicant requested a time extension until May 31, 2014 for the permanent repairs to the Mayflower dormitory on PW 1102.

    On August 5, 2013, FEMA submitted an RFI requesting the permanent work completed to date, the date the approved mitigation was started, and the work remaining to complete the mitigation.  FEMA also asked for the contents purchased as of May 27, 2012, which was the current work deadline.  The Applicant responded on September 5, 2013 with a timeline, a list of contents purchased, and a list of contents to be purchased.  The list of contents purchased includes “items that were not identified/obligated on PW 10546 [version 0], as noted in writing by the University when the Project Worksheet was signed on June 24, 2010.”[5]  The timeline provided by the Applicant is reflected below.

    • “August 2008 – Completed immediate recovery sufficient to reoccupy student dorm rooms.  Included building mechanical and control systems, fire protection system, IT service, building electrical supply, security system, electrical distribution to the southern [third] of the lobby, four elevators, two staff apartments, replaced  first floor doors and hardware, repaired broken exterior windows and repaired student mailbox/post office.”[6]
    • “January 2009 – Completed recovery of the north half of the lobby including front desk, staff offices and remaining 14 student/staff apartments located on the first floor and created temporary C-[S]tore.  No other construction work has been done since January 2009.”[7]
    • “July 2013 – All remaining permanent recovery and flood mitigation work approved and obligated by FEMA.  This includes the construction of a permanent and portable flood wall system, de-watering wells, storm sewer and storm water pumping station, back-up electrical generators for the mitigation systems, permanent recovery of the C-Store, removal of the temporary C-Store and restoration of the remaining lobby where the C-Store is currently located.  This project was publicly bid on July 30, 2013 and … construction activities will begin the first two weeks of September.”[8]
    • “[Work] is scheduled to be completed on or before January 31, 2015.”[9]

    On December 16, 2013, Region VII issued a first appeal response denying the appeal based upon the fact that PW 1102, written for the Mayflower dormitory, states that the building repairs were completed prior to January 2009.  The Regional Administrator (RA) reasoned that since the repairs to the building were complete, there is no reason to delay purchasing the contents.  The RA stated that time extensions for the Mayflower dormitory in PW 1102 were approved because the Hazard Mitigation Proposal was recently approved, not because the repair work was ongoing.  The RA maintained that the initial repairs to the C-Store restored it to the pre-disaster function and were therefore permanent repairs.  This is supported by the assertion that the Applicant made repairs to the C-Store and “has continued to operate the facility for more than five years.”[10]

    Second Appeal

    On February 13, 2014, the Applicant submitted a second appeal for a time extension for PW 10546.  To prove that the repairs to the Mayflower dormitory were not completed prior to January 2009, the Applicant cites a February 8, 2010 consultant report that states “[t]he remaining component to recover is the Convenience Store.”[11]  The Applicant goes on to explain that a September 9, 2011 letter to the Grantee addresses the discrepancies found in version four of PW 1102.  “In the letter, the [Applicant] notes that the initial work performed to re-open the Mayflower dormitory … was not the permanent repairs to recover the building to its condition prior to the flood and that this work was also not captured in the project worksheet.”  The Grantee responded to the Applicant, “suggesting that when the project worksheet was obligated, [it] could be appealed.”  During this period, there were many discussions between FEMA, the Grantee, and the Applicant.  The Applicant was told that discrepancies could be resolved at closeout, and, therefore, it did not appeal version four of the PW.  While most of the contents listed in PW 10546 have already been ordered, the remaining contents to be ordered are associated with the C-Store.  “The final work to reconfigure the C-[S]tore back to the format that existed prior to the flood, and install the contents … [is] to be completed with the construction project for the building.”

    On April 10, 2014, the Grantee forwarded the second appeal to FEMA and supported the Applicant’s position.  The Grantee states that FEMA “denied the [Applicant’s] … [first] appeal due to the apparent misunderstanding that permanent repairs to the facility were completed.”  “As explained by the [Applicant] in an email dated April 4, 2014 … a temporary Convenience Store was erected within the lobby as the permanent repairs could not be completed until the design of the permanent repairs to the facility as well as the HMP were finalized. … The permanent repairs to the Convenience Store and lobby are ongoing to date.”  Although PW 1102 does not mention the construction of a temporary Convenience Store, the Applicant pointed this out to the Grantee and was under the impression this discrepancy could be resolved at closeout.  The Grantee noted that page three of the Schematic Design Report, Mayflower Hall – Permanent Flood Recovery and Mitigation report dated July 3, 2012, also indicates that permanent repairs to the Convenience Store are still needed:

    “Recovery of the majority of the damaged interior to the Mayflower was completed immediately after the flood to allow the building to reopen for the 2008 Fall School Semester.  The only spaces remaining to be recovered are the Convenience Store, Vending and Lounge areas.  Recovery for this project will include restoring these spaces to pre-flood conditions.”

    On April 17, 2014, Region VII forwarded the second appeal to FEMA HQ.

    Discussion

    44 C.F.R. § 206.204(d) states that “[r]equests for time extensions beyond the Grantee’s authority shall be submitted by the Grantee to the Regional Administrator” with a “detailed justification for the delay and a projected completion date.”[12]  The Applicant requested a time extension through February 28, 2015 and explained that the delay was so that building contents can be purchased in conjunction with permanent repairs to the C-Store since the RA granted a time extension until January 31, 2015 for PW 1102 to complete the permanent repairs.  The RA has authority to grant extensions appropriate to the situation.[13]  The RA claims that the Applicant has completed all permanent repairs to the facility and the time extension to complete the permanent repairs was granted solely due to the Applicant’s Hazard Mitigation Proposal. 

    44 C.F.R. § 206.226 states that “[w]ork to restore eligible facilities on the basis of the design of such facilities as they existed immediately prior to the disaster … is eligible.”[14]  Permanent work includes restoring the facility back to its pre-disaster design, function, and capacity.[15]  In the second appeal, the Applicant provides a Schematic Design Report that shows the current location of the interim C-Store and the pre-disaster location of the store.[16]  The interim C-Store is smaller, located in a different section of the lobby of the Mayflower Dormitory, and is displacing a space that served as a lounge prior to the disaster.[17]  Therefore, permanent repairs are still needed to restore the Mayflower Dormitory lobby and the C-Store to the pre-disaster design, function, and capacity.  It is not reasonable to require the Applicant to purchase building contents before the building is restored.  Even though the first appeal decision states that the time extension for permanent repairs for PW 1102 was solely due to an HMP and permanent repairs to the C-Store were completed, this limitation was the result of a factual misunderstanding.  The Schematic Design Report delineates the temporary nature of the C-Store and consequently justifies granting an extension for all building repairs.  Since the RA granted a time extension for the building repairs, a time extension should have also been granted for the building contents.

    Conclusion

    The RA has granted a time extension for the Applicant to complete repairs to the Mayflower Dormitory.  The Applicant has shown that the convenience store has not yet been restored to the pre-disaster design, function, and capacity.  Therefore, it is appropriate to the situation for FEMA to have granted a time extension until February 28, 2015 to restore the convenience store contents.  Due to the timeframe in which FEMA responded to this appeal, if a further time extension is required, the Applicant should submit one and the RA should consider it.  Such an extension is warranted.         



    [1] PW 1102, for permanent repairs to the Mayflower Dormitory, states that work was completed by Jan. 1, 2009.  Upon further review, the work had not been completed at any of the identified completion dates.

    [2] In this document, C-Store and Convenience Store are used interchangeably.

    [3] First Appeal Letter from Chief Risk Officer, University of Iowa, to Alternate Governor’s Authorized Representative, Iowa Homeland Security and Emergency Management Division Recovery Bureau, at 1 (June 5, 2013).

    [4] Id.

    [5] RFI Response from University of Iowa to FEMA, at 2 (Sept. 5, 2013).

    [6] Id. at 1.

    [7] Id.

    [8] Id.

    [9] Id.

    [10] FEMA First Appeal Analysis, University of Iowa, FEMA-1763-DR-IA, at 2 (Dec. 16, 2013).

    [11] While the Applicant did not provide a copy of the February 8, 2010 report, a revised report was provided.  See Schematic Design Report, Mayflower Hall – Permanent Flood Recovery and Mitigation, at 3 (July 3, 2012).

     

    [12] 44 C.F.R. § 206.204(d)(2) (2007).

    [13] Public Assistance Guide, FEMA 322, at 139 (June 2007) [hereinafter PA Guide].

    [14] 44 C.F.R. § 206.226 (2007).

    [15] PA Guide, supra note 13, at 29.

    [16] See Schematic Design Report, Mayflower Hall – Permanent Flood Recovery and Mitigation, at 5 (July 3, 2012).

    [17] Id.

     

  • Legal Responsibility

    Appeal Type: 
    2nd
    Report Type: 
    PW
    Appeal Categories: 
    Applicant Name: 
    Clarksville Gas and Water
    Disaster Number: 
    1909-DR-TN
    DSR: 
    2418
    Date Signed: 
    Tuesday, March 31, 2015
    PA ID: 
    125-U00B3-00
    Summary/Brief: 

    Conclusion:  Pursuant to 44 C.F.R. § 206.223(a), the Applicant sufficiently demonstrated that it was legally responsible for two exterior high-voltage transformers and related switches located within its wastewater treatment plant at the time of the disaster.  Accordingly, the cost associated with replacing the transformers and related switches is eligible for PA funding. 

    Summary Paragraph

    Beginning on April 30, 2010, severe storms, tornadoes, heavy rains, high winds, flooding, and flash flooding affected the City of Clarksville.  FEMA prepared PW 2418 to document damage to the Administration, Laboratory, and Mechanical Building (Facility) within the Applicant’s wastewater treatment plant.  FEMA denied funding for the Facility because, using GPS coordinates, it determined that the Facility was found to be within the boundaries of a United States Army Corps of Engineers (USACE) easement.  In the first appeal, the Applicant asserted that the easement did not contain an indemnification provision in favor of the United States.  In addition, the Applicant asserted that two transformers and related switches were excluded from the scope of work in PW 2418, but were eligible for PA funding.  As such, the Applicant requested an additional $82,000.00 in funding for the cost of the transformers and related switches.  The Regional Administrator (RA) partially approved PW 2418 for $3,005,187.90 for replacement of the Facility.  However, the RA determined that the Applicant was not legally responsible for the transformers and related switches and denied funding associated with their replacement.  In the Applicant’s second appeal, it asserts that it owned the transformers; thus, it is legally responsible for them.


    Authorities and Second Appeals

    • Stafford Act § 406, 42 U.S.C. § 5172.
    • 44 C.F.R. § 206.223(a).
    • OMB Circular A-87, 2 C.F.R. § 225.
    • PA Guide, at 23, 30-31.

    Headnotes

    • Pursuant to 44 C.F.R. § 206.223(a), an eligible item of work must be the legal responsibility of the Applicant. 
    • In addition, the PA Guide provides that legal responsibility can be conveyed through a lease or other legal instrument.
      • Based on a signed and notarized affidavit and other supporting documents, the Applicant demonstrated that it was legally responsible for the replacement of the transformers and related switches.     
    • Pursuant to OMB Circular A-87, allowable costs must be, among other things, reasonable.
      • Using RS Means, FEMA established that the Applicant’s request for $82,000.00 to replace two high-voltage transformers and related switches is reasonable. 
    Letter: 

    March 31, 2015

    David Purkey
    Director
    Tennessee Emergency Management Agency
    3041 Sidco Drive, P.O. Box 41502
    Nashville, Tennessee 37204-1502

    Re: Second Appeal – Clarksville Gas and Water, PA ID 125-U00B3-00, FEMA-1909-DR-TN, Project Worksheet (PW) 2418 – Legal Responsibility

    Dear Mr. Purkey:

    This is in response to a letter from your office dated July 10, 2014, which transmitted the referenced second appeal on behalf of Clarksville Gas and Water (Applicant).  The Applicant appealed a total of seven PWs; the remaining PWs will be addressed in separate determination letters.  Regarding PW 2418, the Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $82,000.00 in Public Assistance (PA) funding for two exterior high-voltage transformers and related switches located within its wastewater treatment plant.

    As explained in the enclosed analysis, I have determined that, pursuant to 44 C.F.R. § 206.223, the Applicant is legally responsible for the transformers and related switches.  In addition, the Applicant’s request for $82,000.00 in PA funding to replace the transformers and related switches is reasonable.  Therefore, I am granting the appeal.  By copy of this letter, I am requesting the Regional Administrator take appropriate action to implement this determination. 

    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/


    William W. Roche
    Director
    Public Assistance Division

    Enclosure

    cc:  Garcia Szczech
           Regional Administrator
           FEMA Region IV

    Analysis: 

    Background

    Beginning on April 30, 2010, severe storms, tornadoes, heavy rains, high winds, flooding, and flash flooding affected the City of Clarksville.  FEMA prepared PW 2418 to document disaster-related damage to the Administration, Laboratory, and Mechanical Building (Facility) within the Clarksville Gas and Water’s (Applicant) wastewater treatment plant.  Pursuant to FEMA policy regarding repair versus replacement, FEMA determined that the Facility was eligible for replacement.  During the preparation of PW 2418, FEMA, using GPS coordinates and United States Army Corps of Engineers (USACE) overlay flooding boundary maps, determined that the Facility was located within a USACE easement.  Subsequently, FEMA denied all costs to replace the Facility. 

    First Appeal

    In the first appeal letter, dated June 24, 2011, the Applicant asserted that, while the Facility was located within the USACE easement boundary line, the easement did not include a “hold harmless” provision in favor of the United States Government.  In addition, the Applicant asserted that the easement did not preclude FEMA from providing PA funding for disaster-related claims.  Since FEMA previously determined that the work was a result of the disaster and otherwise eligible for PA funding, the Applicant argued that $3,005,187.90 should be reinstated to PW 2418.  The Applicant also requested additional funding for two exterior high-voltage transformers and related switches excluded from the original scope of work in PW 2418. 

    In a letter dated May 13, 2014, the Region IV Regional Administrator (RA) partially granted the appeal, approving $3,005,187.90 for costs associated with the replacement of the Applicant’s Facility, because he concurred with the Applicant’s position that the provisions of the USACE easement did not apply to the issue of eligibility regarding PW 2418.  However, the RA denied $82,000.00 in costs associated with the two transformers and switches maintained by the Applicant because it could not demonstrate ownership.  The RA stated, “[t]he appeal… did not provide the level of information necessary to make eligibility determinations on the transformers and switches, therefore these costs have been determined ineligible unless the Subgrantee is prepared to provide ownership documents at project close-out.”

    Second Appeal

    In the second appeal, dated June 30, 2014, the Applicant again requests reimbursement for the two transformers and related switches in the amount of $82,000.00.  With the second appeal, the Applicant provides a notarized affidavit from the Clarksville Department of Electricity’s (CDE) General Manager and other documentation to demonstrate legal responsibility.[1]  In the affidavit the General Manager explains that CDE conveyed the transformers to the Applicant in June 2000.  

    Discussion

    Legal Responsibility

    The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), Section 406, authorizes FEMA to make contributions to an eligible Applicant to restore eligible facilities on the basis of the design of such facilities as they existed immediately prior to the disaster.[2]  In addition, if equipment and furnishings located within a facility are damaged beyond repair, comparable items are eligible as replacement items.[3]  Pursuant to Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.223(a), an eligible item of work must be required as the result of the disaster event, be located within a designated disaster area, and be the legal responsibility of the applicant.[4] The Applicant has fulfilled the first two requirements of § 206.223(a); the issue on appeal is whether the Applicant is legally responsible for the replacement of the transformers.  The legal responsibility to repair a facility usually resides with the owner of the facility, unless the owner has transferred the responsibility to another party by lease or other legal instrument.[5]

    The Applicant asserts that it purchased the transformers from CDE in 2000 as part of a renovation project.[6]  As Work Order Number 1215, dated February 22, 2001, demonstrates, the two transformers at issue were located within the Applicant’s wastewater treatment plant.[7]  The Applicant also submitted a notarized affidavit from CDE’s General Manager, in which the General Manager affirms that CDE sold the two transformers to the Applicant prior to the disaster.  In addition, the General Manager states that a standard CDE practice is that all equipment behind the primary electric meter belongs to the customer (i.e., in this instance, the Applicant).  The Applicant admits that copies of the invoices related to the purchase cannot be located; however, the Applicant submitted records that summarize the invoices related to the sale, including History Inquiry statements.[8]  Finally, the Applicant provides a 2001 memorandum of costs associated with the wastewater treatment plant expansion project.  It states, “[t]his cost includes poles, wire, underground cables, and metering equipment to complete the project.” 

    FEMA notes that the Applicant has not provided precise documentation demonstrating its legal responsibility for the two transformers for which it seeks reimbursement.  However, FEMA also recognizes that precise documentation is not always available.  Based on the totality of the information provided (i.e., the location of the transformers behind the Applicant’s Facility, the signed and notarized affidavit, Work Order Number 1215, and the History Inquiry statements), FEMA concludes that the Applicant’s documentation is sufficient to demonstrate that it was legally responsible for the transformers at the time of the disaster.  As such, replacement of the transformers is eligible for PA funding.

    Allowable Costs

    Pursuant to the Stafford Act § 406, FEMA is authorized to provide reimbursement for the associated expenses incurred by a local government during the repair, restoration reconstruction, or replacement of a facility damaged as the result of a declared disaster.[9]  Generally, costs that can be directly tied to the performance of eligible work are eligible for FEMA reimbursement.[10]  However, these costs must, among other things, be reasonable and necessary to accomplish the work, comply with applicable federal, state, and local laws, regulations and procurement requirements, and be adequately documented.[11]  Although the Applicant did not submit invoices, receipts, or other documentation that state the cost of the two transformers, FEMA researched the average cost of transformers[12] and determined that the cost requested by the Applicant is reasonable.[13]  Accordingly, the cost to replace the transformers in the Applicant’s Facility is eligible for PA funding.

    Conclusion

    The Applicant provided sufficient documentation to demonstrate the replacement of two transformers and related switches is eligible for PA funding.  In addition, the requested cost associated with these items is deemed reasonable.   



    [1] General Manager Affidavit, notarized June 23, 2014 [hereinafter Affidavit].

    [2] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 406, 42 U.S.C. § 5172 (2007).

    [3] See 44 C.F.R. § 206.226(h) (2009).

    [4] 44 C.F.R. § 206.223(a).

    [5] See generally Public Assistance Guide, FEMA 322, at 23, 30-31 (June 2007) [hereinafter PA Guide].

    [6] See Affidavit (stating that, in conjunction with 2000 and 2001 upgrades, the Applicant asked CDE to move the primary electric meter at the wastewater treatment plant, placing it before two transformers and switch gear equipment servicing the plant.)

    [7] Second Appeal, Clarksville Gas and Water, FEMA-1909-DR-TN, at Exhibit 2 (June 30, 2014).

    [8] Id.

    [9] Stafford Act § 406(a)(1)(A), 42 U.S.C. § 5172.

    [10] PA Guide, at 40.

    [11] See Office of Mgmt. & Budget, Exec. Office of the President, OMB Circular A-87, Cost Principles for State, Local, and Indian Tribal Governments, at Attachment A  (2004) (codified at 2 C.F.R. § 225).

    [12] Using RS Means, FEMA researched the average cost for high-voltage transformers.  The range in cost for these transformers is from $20,000 to $147,000 per transformer.  The Applicant requested $41,000 per transformer which falls on the low end of that range. 

    [13] See PA Guide, at 41  (explaining that FEMA will generally analyze cost reasonableness by use of historical documentation for similar work, average costs for similar work in the area, published unit costs from national estimating databases, and FEMA cost codes).

     

  • Insurance Reductions

    Appeal Type: 
    2nd
    Report Type: 
    PW
    Appeal Categories: 
    Applicant Name: 
    Nashville-Davidson County
    Disaster Number: 
    1909-DR-TN
    DSR: 
    PWs 2244, 2636, and 4669
    Date Signed: 
    Friday, March 27, 2015
    PA ID: 
    037-52004-00
    Summary/Brief: 

    Conclusion:  The Applicant’s insurance policy does not provide coverage for the damaged elements of water system tunnels and a recreation trail for which three Project Worksheets were written; therefore, the reductions in the PWs for anticipated insurance proceeds should be reinstated. DAC remains ineligible.

    Summary Paragraph

    Between April 30, 2010 and May 18, 2010, severe storms, flooding, straight-line winds, and tornadoes caused damage throughout the state of Tennessee, resulting in a major disaster declaration (FEMA-DR-1909-TN).  Floodwaters caused damage to electrical components of water system tunnels and a recreation trail operated by the Metropolitan Government of Nashville-Davidson County (Applicant).  FEMA prepared two Project Worksheets (PWs) to address the damage to the tunnels, and one PW to address the damage to the recreation trail and Direct Administrative Costs (DAC).  During project formulation, FEMA determined that the Applicant’s property insurance policy provided coverage for the damage to the tunnels and trail and, accordingly, determined that the Applicant was not eligible for Public Assistance funding to restore the damage. FEMA also adjusted DAC costs for PW 4669.  The Applicant appealed these decisions, asserting that, under its insurance policy, the tunnels and trails should be considered “Infrastructure” and that the policy does not afford “Infrastructure” coverage when the damage is caused by flood.  The Region IV Regional Administrator denied the appeals, concluding that policy covered the damage because the damage was located at an “Insured Location” and/or “Miscellaneous Unnamed Location” under the policy and that “Infrastructure” coverage includes damage caused by flood.  The RA also denied DAC as unreasonable and not supported. On second appeal, the Applicant reasserts that its policy does not provide coverage for “Infrastructure” when the damage is caused by flood.

    Authorities

    • Stafford Act § 312(a), 42 U.S.C. § 5155(a)
    • Public Assistance Guide, FEMA 322 at 119 (June 2007)
    • DAP9525.9, Section 324 Management Costs and Direct Administrative Costs, at 6.

    Headnotes

    • Under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, an applicant for federal disaster assistance cannot obtain assistance with respect to any part of a loss if the applicant has received financial assistance “under any other program or from insurance or any other source.”  Thus, under the Public Assistance Program, FEMA is required to reduce the amount of assistance for eligible work by the amount of any actual or anticipated insurance proceeds available for that work.
      • The Applicant’s insurance policy does not provide coverage for the damage under the two PWs written for the tunnels and the PW written for the recreation trail.  Therefore, the reductions in the PWs for anticipated insurance proceeds was not warranted.
    • DAP9525.9 states that administrative   costs must be directly attributable to the project and must be reasonable.
    Letter: 

    March 27, 2015


    James H. Bassham
    Director
    Tennessee Emergency Management Agency
    3041 Sidco Drive, P.O. Box 41502
    Nashville, Tennessee  37204

    Re: Second Appeals—Nashville-Davidson County, Insurance Reductions, FEMA-1909-DR-TN, Project Worksheets 2244, 2636, and 4669

    Dear Mr. Bassham:

    This is in response to a letter from your office dated September 18, 2012, which transmitted the referenced second appeal on behalf of the Metropolitan Government of Nashville-Davidson County (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency (FEMA) reduction of anticipated insurance proceeds from the amounts awarded under three Project Worksheets addressing damage to water system tunnels and a recreation trail caused by flooding in 2010.

    As explained in the enclosed analysis, the Applicant’s insurance policy does not provide coverage for the damage under the three PWs.  Consequently, that portion of the Applicant’s appeal is granted and $213,401.63 reductions to the subject named Project Worksheets should be restored. However, the applicant did not provide justification for its Direct Administrative Costs, and therefore that portion of the appeal is denied.

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

    Sincerely,

    /s/

    William W. Roche
    Director
    Public Assistance Division

    Enclosure

    cc: Garcia Szczech
          Regional Administrator
          FEMA Region IV


     

    Analysis: 

    Background

    Between April 30, 2010 and May 18, 2010, severe storms, flooding, straight-line winds, and tornadoes caused damage throughout the state of Tennessee. A major disaster (FEMA-DR-1909-TN) was declared on May 4, 2010.  Floodwaters from the Cumberland River caused damage to a water system tunnel and recreation trail operated by the Metropolitan Government of Nashville-Davidson County (Applicant). 

    The floodwaters entered the Applicant’s steam and chilled water system tunnels located approximately 30 feet under the streets of Nashville, Tennessee. The tunnels supply steam and chilled water energy to businesses in downtown Nashville. The tunnels also contain  a “leaky feeder” communication system required by federal standards for the safety of personnel that enter the tunnels.  The floodwaters damaged splitters, repeaters, a transmitter, a PCB assembly, a handset, a rack assembly, a radio, and cable associated with the communication system.  The Cumberland River flooding also damaged the tunnels’ main power system, ventilation systems, lighting systems, sump pumps, and a meter that monitors energy use.

    FEMA prepared two Project Worksheets (PWs) addressing the damage to the tunnels: PW 2244 for the leaky feeder communications system and PW 2636 for the tunnels’ power, lighting, and ventilation systems.  During project formulation, FEMA determined that the Applicant’s property insurance policy provided coverage for the damage on the PWs and, accordingly, determined that the Applicant was not eligible for Public Assistance funding to restore the damage.  FEMA deducted $41,272.44 in anticipated insurance proceeds from PW 2244, leaving only direct administrative costs applicable to the PW, and deducted $170,256.00 in anticipated proceeds from PW 2636.

    Separately, floodwaters from Mill Creek overtopped the Mill Creek Greenway Trail, a 10-foot-wide trail with two inches of asphalt surface and six inches of aggregate base. The floodwaters washed out the trail embankment and the aggregate base at four locations, leaving the asphalt surface unsupported, causing it to collapse.  FEMA prepared PW 4669 to address the damage to the trail, and, again, during project formulation, determined that the Applicant’s property insurance policy provided coverage for the damage.  FEMA deducted $1,873.19 in anticipated insurance proceeds from PW 4669, as well as $1,385.06 in direct administrative costs (DAC), leaving $576.59 in eligible DAC. 

    First Appeal

    On May 27, 2011, the Applicant submitted separate first appeals to the Grantee challenging FEMA’s reductions to PWs 2244 and PW 2636 for anticipated insurance proceeds. On May 27 and June 8, 2011 the Applicant submitted two additional appeals challenging FEMA’s $1,385.06 DAC reduction and $1,873.19 anticipated insurance proceeds reduction for PW 4669.  In the appeals for PWs 2244 and 2636, the Applicant asserted that its insurance policy did not cover the damage to the water system tunnels because the tunnels should be considered “Infrastructure” under the policy and that the policy does not afford “Infrastructure” coverage when the damage is caused by flood.  In the appeal for PW 4669, the Applicant asserted the same argument—that the damage to the recreation trail should be considered “Infrastructure” under the policy and, therefore, not covered.

    The Region IV Regional Administrator (RA) denied the appeals for PWs 2244 and 2363 in a single response dated November 10, 2011.  The RA determined that the policy covered the damage because it was located at an “Insured Location” and/or “Miscellaneous Unnamed Location” under the policy.  The RA also cited an analysis prepared by the Applicant’s insurance adjuster indicating that the policy does allow coverage for “Infrastructure” damage caused by flood—when the damage is at a “Location” under the policy’s “Schedule of Locations.”  The RA also issued two responses to the PW 4669 appeals. The first response was dated November 10, 2011, similarly noting that the policy allows for coverage for “Infrastructure” damage caused by flood and that the policy provides this coverage for “Infrastructure” when the damage is located within 1,000 feet of a location listed on the “Schedule of Locations.”  The RA concluded that the damage to the Mill Creek Greenway Trail was located within 1,000 feet of such a location and, therefore, covered by the policy. The second response, addressing DAC, was dated April 23, 2012. The RA concluded that the total claimed amount of $1,961.64 for DAC was unreasonable for asphalt surface failures on a project estimated at $2,677.88. The RA also stated that based on its appeal letter, the Applicant requested DAC to track procurement and payment activities, payments to vendors and similar procurement actions that were not directly attributable to preparing and documenting the PW and, therefore, not eligible for DAC reimbursement.

    Second Appeal

    The Applicant submitted a second appeal for PWs 2244 and 2636 and a second appeal for PW 4669 in letters dated July 23, 2012.  The Applicant asserts that the damaged tunnels are “Infrastructure” not located at a “Location” listed in the policy’s “Schedule of Locations” and that the Regional Administrator’s conclusion that being within 1,000 feet of a listed location is sufficient for coverage does not apply to “Infrastructure.”  The Applicant states that there is only coverage for damage to “Infrastructure” caused by flood when the “Infrastructure” is located at a “Location” listed on the policy’s “Schedule of Locations.”  Because the tunnels are not so listed, the Applicant argues, the policy does not cover the damage addressed in PWs 2244 and 2636.  The Applicant’s second appeal for PW 4669 asserts the same argument—that because the recreation trail is not a “Location” listed on the policy’s “Schedule of Locations,” there is no coverage for the flooding damage to the trail.

    The Tennessee Emergency Management Agency (Grantee) transmitted the second appeal for PWs 2244 and 2636 and the second appeal for PW 4669 to the FEMA Region IV Regional Administrator in letters dated September 18, 2012.  The Grantee supports the appeal.

    Discussion

    Under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, an applicant for federal disaster assistance cannot “receive such assistance with respect to any part of [a] loss as to which he has received financial assistance under any other program or from insurance or any other source.”[1]  Therefore, under the Public Assistance Program, “FEMA is required to reduce the amount of assistance for eligible work by the amount of any actual or anticipated insurance proceeds available for that work.”[2]

    A review of the Applicant’s insurance policy and associated materials submitted with its appeal indicates that the policy does not cover the damage captured in PWs 2244, 2636, and 4669 and, therefore, reductions for anticipated insurance proceeds should not have been applied.

    Insured Location

    The policy insures property, including real property in which the insured has an insurable interest, “located at an Insured Location or within 1,000 feet thereof, to the extent of the interest of the insured in such property.”  The policy also states that coverage under it applies to an “Insured Location” unless otherwise provided.  Relevant here, an “Insured Location” is a location (1) listed on “Schedule of Locations” on file with the insurer or (2) “covered as a Miscellaneous Unnamed Location.” 

    The “Schedule of Locations” lists sixteen specific locations on two appendixes.  The tunnels for the leaky feeder communications system and power, lighting, and ventilation systems are not included on the lists, nor is the Mill Creek Greenway Trail.  Therefore, they are not “Insured Locations” stemming from inclusion on the “Schedule of Locations.”

    Under the policy, a Miscellaneous Unnamed Location is a “Location” that is “owned, leased, or rented by the Insured, but not specified in the Schedule of Locations.”  The policy further defines a “Location” as either “as specified in the Schedule of Locations” or, if not so specified, “a building, yard, dock, wharf pier or bulkhead (or any group of the foregoing) bounded on all sides by public streets, clear land space or open waterways, each not less than fifty feet wide.”  As discussed, the tunnels and recreation trail are not included on the “Schedule of Locations,” and they are not a building, yard, dock, wharf pier or bulkhead.  Therefore, they are not “Insured Locations” nor are they an insured location through the “Miscellaneous Unnamed Locations.”

    Infrastructure

    The policy provides “Additional Coverages” for physical loss or damage insured by the policy under several different types of categories, including “Infrastructure.”  “Infrastructure” under the policy includes “street lighting, traffic signals, and control systems,” “underground piping,” “streets, roads, highways, sidewalks, bridges, tunnels, trestles, piers and docks,” and “street signs, traffic signs, and signs not attached to buildings.”  The types of damage elements addressed in PWs 2244, 2636  and 4669—a communication system and power, lighting, and ventilation systems within tunnels, as well a recreation trail (i.e., a “sidewalk”)—fall under the “Infrastructure” definition set forth in the policy.

    Coverage for “Infrastructure” only applies to “physical loss or damage to Infrastructure caused by or resulting from fire, lightening, explosion, riot or civil commotion, vandalism or malicious mischief, aircraft, or vehicles.”  Thus, the “Infrastructure” coverage does not include coverage for physical loss or damage caused by flood because flood is not a listed peril associated with coverage for “Infrastructure.”  In addition, the “Infrastructure” coverage applies only when such “Infrastructure” is “not at a Location per the Schedule of Locations on file with the Company.”

    According to a 2010 coverage analysis provided to the Applicant by an adjuster for the insurer, the “net effect” of (1) the policy’s omission of the flood peril in the general grant of coverage for “Infrastructure” and (2) the requirement that the “Infrastructure” not be at a “Location” on the “Schedule of Locations” is that “there is coverage for infrastructure due to Flood that is otherwise insured, while at a Location per the Schedule of Locations on file with the Company.” (Emphasis in original.)  Applying this reasoning, there is no coverage for the flood-damaged tunnel systems and recreation trail, as neither the tunnels nor the trail are listed on the policy’s “Schedule of Locations.”  Whether any elements of the tunnels or trail are located within 1,000 feet of a “Location” listed on the “Schedule of Locations” is irrelevant; because neither item of infrastructure is listed on the schedule.

    DAC

    The Applicant requests DAC for PW 4669, but provides no new justification or documentation to support their request. Applicable FEMA policy states that “[d]irect administrative costs include costs that can be tracked, charged, and accounted for directly to a specific project, such as staff time to complete field inspections and preparation of a PW. Direct costs are limited to actual reasonable costs incurred for a specific project.”[3] As such, the RA’s conclusion that DAC totaling $1,961.64 for asphalt surface failures on a project estimated at $2,677.88 are unreasonable is correct.

    Conclusion

    The damaged elements of the water system tunnels’ leaky feeder communications system and power, lighting, and ventilation systems, as well as the Mill Creek Greenway Trail, constitute “Infrastructure” under the Applicant’s insurance policy.  However, coverage for infrastructure only applies to flood-related damage when the infrastructure is at a “Location” listed in the policy’s “Schedule of Locations;” and the tunnels and trail are not so listed.  The Applicant’s policy does not provide coverage for the damaged tunnels and recreation trail and, therefore, the reductions in PWs 2244, 2636, and 4669 for anticipated insurance proceeds should be reinstated. In addition, the Applicant’s request for reinstatement of $1,385.05 in DAC in PW 4669 is not substantiated and, therefore, is denied.



    [1]  See The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 312(a), 42 U.S.C. § 5155(a).

    [2]  Public Assistance Guide, FEMA 322 at 119 (June 2007).

    [3] Disaster Assistance Policy DAP9525.9, Section 324 Management Costs and Direct Administrative Costs, at 6 (March 12, 2008).

  • Private Nonprofit

    Appeal Type: 
    2nd
    Report Type: 
    PW
    Appeal Categories: 
    Applicant Name: 
    Philadelphia Ministries
    Disaster Number: 
    1603-DR-LA
    DSR: 
    PWs 20245, 20246, 20247, and 20248
    Date Signed: 
    Tuesday, April 7, 2015
    PA ID: 
    071-ULNET-00
    Summary/Brief: 

    Conclusion: The two facilities do not meet PNP facility eligibility requirements as set forth in regulations and policies.  The contents of ineligible facilities are also ineligible for PA funding.

    Summary Paragraph

    On August 29, 2005, heavy rains, winds, and flooding from Hurricane Katrina damaged the Applicant’s two facilities located at 5301 and 5330 St. Claude Avenue, across the street from each other in New Orleans.  FEMA provisionally approved the Applicant’s Request for Public Assistance in April 2011, but the Applicant did not submit adequate documentation to substantiate Public Assistance (PA) eligibility of the two facilities.  FEMA prepared PWs 20245, 20246, 20247, and 20248 for the two facilities and their contents, and obligated all four PWs for zero-dollars in February 2013.  In its first appeal, the Applicant provided additional documentation to support the eligibility of its two buildings.  The Regional Administrator denied the first appeal based on a determination that neither facility had any eligible PA activities as outlined in 44 C.F.R. §206.221(e).  In its second appeal, the Applicant requests reconsideration and provides additional documentation to support its claim that the two facilities were used as an eligible community center and homeless shelter.  FEMA finds that neither facility meets private nonprofit (PNP) facility eligibility requirements as set forth in applicable regulations and policies.

    Authorities and Second Appeals

    • 44 C.F.R. § 206.221(e).
    • 44 C.F.R. § 206.222(b)
    • 44 C.F.R. § 206.223(a)(3)
    • Recovery Division Policy (RDP) 9521.3, Private Nonprofit Facility (PNP) Eligibility
    • Response and Recovery Directorate Policy (RRDP) 9521.1, Community Center Eligibility

    Headnotes

    • Eligible PNP facilities are defined in 44 C.F.R. § 206.221(e) and include facilities providing essential government type services such as community centers and homeless shelters.
    • RDP 9521.3 provides that a PNP facility must be primarily used for one of the eligible PNP services to be eligible for PA funding. Primary use is determined by first considering the space that a facility is used for eligible services. Over 50 percent must be used for eligible activities.
    • The facility at 5301 St. Claude Avenue is a mixed-used facility that includes a homeless shelter.  Approximately 31 percent of the space at this facility is dedicated for homeless shelter services, but this does not meet the primary use requirement. 
    • RRDP 9521.1 defines an eligible community center as a facility open to the general public, established and primarily used as a gathering place for a variety of social, educational enrichment, and community service activities.  The policy also specifies that facilities “established or primarily used for religious…activities are not eligible PNP community centers.”
    • The other 69 percent of the facility at 5301 St. Claude Avenue is purportedly used as a community center.  However, with only one activity qualifying as an eligible community center activity, this facility does not qualify as an eligible community center.
    • The main feature of the facility at 5330 St. Claude Avenue is a large church sanctuary, and the facility was established as a church.  As such, the facility is not an eligible community center.
    Letter: 

    April 06, 2015

    Kevin Davis
    Director
    Governor’s Office of Homeland Security and Emergency Preparedness
    7667 Independence Boulevard
    Baton Rouge, Louisiana 70806

    Re:      Second Appeal – Philadelphia Ministries, PA ID 071-ULNET-00, FEMA-1603-DR-LA, Project Worksheets (PWs) 20245, 20246, 20247, and 20248

    Dear Mr. Davis:

    This is in response to your letter dated April 11, 2014, which transmitted the referenced second appeal on behalf of Philadelphia Ministries (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding for the repairs and contents of two mixed-use facilities.

    As explained in the enclosed analysis, I have determined that neither facility meets private nonprofit (PNP) facility eligibility requirements pursuant to 44 C.F.R. §206.221(e) and Recovery Division Policy (RDP) 9521.3 Private Nonprofit Facility (PNP) Eligibility.  As such, the contents of ineligible facilities are also ineligible.  Therefore, I am denying this appeal. 

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

    Sincerely,

    /s/

    William W. Roche
    Director
    Public Assistance Division

    Enclosure

    cc: George A. Robinson
          Regional Administrator
          FEMA Region VI

     

    Analysis: 

    Background

    On August 29, 2005, heavy rains, winds, and flooding from Hurricane Katrina damaged Philadelphia Ministries’ (Applicant) two facilities located across the street from each another in New Orleans, Louisiana.  One facility, located at 5330 St. Claude Avenue, consisted of an 11,268 square foot (SF) one-story building with a slab-on-grade foundation, which the Applicant reported was used as a church and a community center.  The other facility, located at 5301 St. Claude Avenue, consisted of a 4,344[1] SF two-story building with a slab-on-grade foundation, which the Applicant reported was used as a community center and a homeless shelter.  Both facilities sustained over twelve feet of floodwaters for several weeks. 

    From November 16, 2010, to October 7, 2011, FEMA accepted new Requests for Public Assistance (RPA) from faith-based private nonprofit (PNP) organizations that had not previously applied for Public Assistance (PA) due to extenuating circumstances in the aftermath of Hurricane Katrina.  The Applicant applied for Public Assistance during this timeframe, as a non-critical, faith-based PNP organization.  In addition to religious activities and programs, the Applicant claimed to have provided various community service activities including after school tutoring, community meeting space, annual health fairs, food/clothing drives, drug counseling, and homeless shelter programs.

    On April 15, 2011, FEMA provisionally approved the Applicant’s RPA.  At the time of the FEMA inspection, all interior surfaces for both facilities were demolished, with the destroyed building contents removed.  During the Project Worksheet (PW) development process, the Applicant did not submit adequate documentation to support PA eligibility of its two facilities.  On July 27, 2012, FEMA made a final request to the Applicant for supporting documentation.  After receiving no response from the Applicant, FEMA prepared the following four PWs and obligated them for zero dollars on February 12, 2013:

    • PW 20245 for Community Center/Homeless Shelter building;
    • PW 20247 for Community Center/Homeless Shelter building contents;
    • PW 20248 for Church/Community Center building; and
    • PW 20246 for Church/Community Center building contents.

    First Appeal

    In its first appeal, dated May 30, 2013, the Applicant claimed that both facilities were eligible community centers, and submitted supporting documentation.  The Applicant asserted that it provided all documents previously requested by FEMA, but did not hear from FEMA again until the zero-dollar obligation of the four PWs.  The submitted supporting documentation consisted of flyers for various services and letters from members of the church and community attesting that the Applicant provided community services, including career orientation for young women, after school tutoring program, and a General Educational Development (GED)  program.

    The FEMA Region VI Regional Administrator (RA) denied the first appeal on
    December 2, 2013, based on a determination that neither facility had any eligible PA activities as outlined in Title 44 of Code of Federal Regulations (C.F.R.) § 206.221.  The RA stated that due to a lack of documentation to support when and where the claimed activities occurred, FEMA was unable to complete the required time and space use analysis.  The RA also noted that the Applicant did not supply documentation for any repairs already completed at the facilities.

    Second Appeal

    On April 11, 2014, the Grantee transmitted the Applicant’s second appeal letter dated February 10, 2014, indicating its support of the appeal.  In the second appeal, the Applicant reiterates its request for reconsideration of the denied funding for the damaged facilities and their contents.  The Applicant provides additional supporting documentation, including spreadsheets showing some time and space use information for the two facilities.  The Applicant also clarifies that no repairs to either facility have ever been started or completed, which is why it has not supplied documentation for any repairs.

    During the second appeal evaluation, FEMA discovered that many of the supporting documentation for the RPA were not in the Applicant’s legal name (Philadelphia Ministries).  FEMA issued a Request for Information (RFI) seeking clarification, and the Applicant provided sufficient documentation to explain legal organizational name changes over the years.  Accordingly, the Applicant eligibility has been verified.  The remainder of this appeal discusses the eligibility of the Applicant’s two facilities.

    Discussion

    Facility Eligibility

    Pursuant to 44 C.F.R. § 206.222(b) and § 206.223(a)(3), to be eligible for PA funding, a PNP applicant must own or operate an eligible PNP facility, and it must have legal responsibility for disaster-related damages.[2]  Eligible PNP facilities are defined in 44 C.F.R. § 206.221(e) and include facilities providing essential governmental type services such as community centers and homeless shelters.[3]  PNP facility eligibility requirements are clarified in Recovery Division Policy (RDP) 9521.3, Private Nonprofit Facility (PNP) Eligibility, which provides that a PNP facility must be primarily used for one of the eligible PNP services or facilities listed in 44 C.F.R. § 206.221(e) to be eligible for PA funding.[4]  Primary use is determined by first considering the space that a facility is used for eligible services, whereby over 50 percent of a facility’s space must be dedicated to an eligible purpose.[5]  For mixed-use facilities, primary use is determined by the amount of time that the facility is used for eligible services.[6]

    FEMA reviewed all supporting documentation for the first and second appeals in detail.  Each building was independently considered for PNP facility eligibility, as follows:

    1. Church/Community Center at 5330 St. Claude Avenue

    Response and Recovery Directorate Policy (RRDP) 9521.1, Community Center Eligibility specifies that “[f]acilities established or primarily used for religious, political, athletic, recreational, vocational or academic training, the arts, conference, or similar activities are not eligible PNP community centers.”  The same policy further defines the term established as the following:

    “Established…” refers to the purpose for which a facility was instituted.  This should be determined by reviewing the organization’s (pre-disaster) charter, bylaws, and amendments or other well-documented evidence of longstanding, routine (day-to-day) use of such facilities as a community center. A facility offering a wide range of activities for only a brief period or at irregular intervals would not be eligible.  As a general rule, a facility that was not founded as a community center would not be an eligible community center.[7]

    The policy also states:

    Materials such as the organizational charter, articles of incorporation, minutes of board meetings, activity logs, and other documents that existed prior to the disaster and evidence the facility activities and uses prior to the disaster should be obtained and reviewed to ensure that a facility is not being identified as a community center for the first time only after the disaster. …Another approach is to ask the question: “If all community activities were eliminated, would the facility still function?”  If, stripped of all community activities, a facility would be a performing arts center, church, or gymnasium; it is more likely to have been established for that purpose, not as a community center.  Conversely, if ending all community activities would result in an empty, unused building, the facility is more likely to have been established as a community center.[8]

    Based on a thorough review of all available information, the Church/Community Center facility does not meet PNP community center eligibility requirements as set forth in the policy. To reach this determination, FEMA first reviewed the Applicant’s Articles of Incorporation, dated May 1, 1987, which explains that Philadelphia Ministries was incorporated as a religious organization primarily for the purpose of worship.  Specifically, the Articles of Incorporation states:

    The general purpose of this corporation shall be the Worship of the True God; teaching, preaching and spreading the Gospel in accordance with the instructions, laws and commandments laid down in the Holy Bible as interpreted by the PENTECOSTAL ASSEMBLIES OF WORLD, INC. … To organize, encourage and promote group fellowship among Christians in the furtherance of the gospel of Jesus Christ…to sponsor the organization and establishment of churches; and assist benevolent, charitable, educational or missionary undertakings, and church related activities…[9]

    The Articles of Incorporation includes no mention of the community center or any secular community center activities independent of church activities.  It supports FEMA’s determination that this facility was founded as a church, rather than a community center.  FEMA also notes that the Applicant’s own insurance policy lists the facility as “Church” under the Occupancy field of the insurance coverage declarations page.[10]  Based on the Applicant’s description of the facility’s rooms and all religious and secular activities that took place within the facility, if all community activities were eliminated, the facility would still function as a church for its members.  As such, the facility does not meet PNP facility eligibility requirements and is ineligible for any PA funding. 

    1. Community Center/Homeless Shelter at 5301 St. Claude Avenue

    The Applicant refers to the property at 5301 St. Claude Avenue as Community Center/Homeless Shelter.  The total area of the facility is 4,344 SF, which consists of 3,358 SF of non-common space (consisting of two separate open spaces on the first floor and bedrooms on the second floor) and 986 SF of common space (consisting of hall areas, bathrooms, and kitchen).  Of the 3,358 SF of non-common space, the Applicant claimed that 2,306 SF (69 percent) were used as a community center and 1,052 SF (31 percent) were used as a homeless shelter.  Although the space occupied by the homeless shelter was dedicated to an eligible service, at only 31 percent, it does not meet the policy requirement that a PNP facility must be primarily used for one of the eligible PNP services.[11]

    For the remaining 69 percent of the space purportedly used for the community center, FEMA considered each service offered to determine whether services provided at the community center met eligibility requirements pursuant to RRDP 9521.1 Community Center Eligibility.[12]  The community center in question offered three services: a study program to prepare for the GED tests; a drug program; and a clothing giveaway program.  Of these, the study program for the GED is not an eligible community center activity, due to the academic nature of the activity.  The policy specifically excludes academic training as part of eligible community center activities.[13]

    Next, FEMA considered whether the drug program offered at the facility qualified as an eligible community center activity, and determined that it did qualify.  The Applicant characterized the drug program as a counseling program provided by church staff for individuals “within the ministry,” in contrast with the homeless shelter program, which it referred to as a program for individuals “in and out of the ministry.”[14]  Based on the Applicant’s description, FEMA interprets the term “ministry” to mean “within the church” or “among the church congregation.”  Further, the supporting documentation submitted with the second appeal includes letters from a local television station and a Christian radio station, attesting that the Applicant provided various services including the GED program and the homeless shelter; distinctly absent from these letters is any mention of the drug program. The Applicant also submitted the Rules and Guidelines of the homeless shelter, as well as a separate homeless shelter information sheet.  However, the Applicant did not provide any similar documentation related to the drug program.  While the drug program was likely offered at the facility, there is insufficient documentation to demonstrate that it was open to the general public.  Pursuant to policy, a community center and its services must be open to the general public in order to be eligible for PA assistance.[15]  As a service for individuals within the ministry, the drug program is not an eligible community center service.

    With the GED program and the drug program determined ineligible, the only remaining activity is the clothing giveaway program.  This type of activity is generally considered an eligible community service activity provided at an eligible community center.  However, this single eligible activity is insufficient to consider a facility an eligible community center.  Pursuant to RRDP 9521.1, an eligible community center is defined as a facility open to the general public, established and primarily used as a gathering place for a variety of social, educational enrichment, and community service activities.[16]  A community center must involve many different activities, serving many diverse groups to be considered eligible.[17]  A facility used for only one or two activities or limited to a narrow range of activities, however worthwhile or socially redeeming, would not ordinarily serve a sufficiently broad and varied segment of the community to constitute an eligible community center.[18]  In this regard, a single clothing giveaway program does not constitute a variety of activities of an eligible community center. Thus, the facility does not meet policy requirements to be an eligible community center.

    As the facility is neither an eligible homeless shelter nor an eligible community center, it does not qualify as an eligible PNP facility primarily used for one of the eligible PNP services.  FEMA also notes that the Applicant’s own insurance policy lists the facility as “Fellowship Hall” under the Occupancy field of the insurance coverage declarations page, which does not support the Applicant’s assertion that this facility was established and used as a community center and a homeless shelter.[19]  As such, the facility is ineligible for PA funding.

    Building Contents

    Policy states that “[c]ontents that are the responsibility of an ineligible occupant are not eligible for reimbursement if damaged.”[20]  Regulations state that a PNP applicant that owns or operates an eligible PNP facility is eligible for PA assistance.[21]  Accordingly, without an eligible facility, the Applicant is effectively considered an ineligible occupant of the damaged facility for the purposes of PA assistance.  Therefore, the Applicant is not eligible to receive PA funding for any contents within the two ineligible facilities damaged during the disaster.

    Conclusion

    Philadelphia Ministries was incorporated as a religious institution for the specific purpose of worship.  Although the Church/Community Center facility may have been used for some community center activities, this facility was established primarily as a church with its main interior feature being the church sanctuary.  As such, this facility is not an eligible community center.  The Applicant’s other facility—the Community Center/Homeless Shelter—does not meet the policy requirement for a PNP facility to be primarily used for one of the eligible PNP services or facilities.  Therefore, the two facilities are ineligible for PA funding.  Furthermore, without an eligible facility, any contents therein are also ineligible for PA funding. 



    [1] Project Worksheet 20245 states the building’s area as 3,542 SF. However, the Applicant-provided building details show that the actual area of the building is 4,344 SF.

    [2] 44 C.F.R. §§ 206.222(b), 206.223(a)(3) (2005).

    [3] 44 C.F.R. § 206.221(e).

    [4] Recovery Division Policy RDP9521.3, Private Nonprofit Facility (PNP) Eligibility, at 2 (May 23, 2003).

    [5] Id., at 3.

    [6] Id., at 4.

    [7] Response and Recovery Directorate Policy RRDP9521.1 Community Center Eligibility, at 2 (Aug. 11, 1998).

    [8] Id., at 3.

    [9] Articles of Incorporation of Philadelphia Assembly of Christ (May 1, 1987).  Note: the Applicant has legally changed its name several times since the initial incorporation.  It is now known as Philadelphia Ministries.

    [10] Church Mutual Insurance Company, Policy Number 0167833-02-442446 for Philadelphia Ministries (Jan. 5, 2005).

    [11] RDP 9521.3, Private Nonprofit Facility (PNP) Eligibility, at 2.

    [12] RRDP 9521.1 Community Center Eligibility, at 1-6.

    [13] Id., at 4 (stating: “Educational enrichment activities include a wide variety of activities, but not vocational, academic, or professional training.”).

    [14] The Applicant described its programs and used the quoted phrases during a conference call held on November 20, 2014.

    [15] Id., at 1 (stating: “An eligible community center is defined as a facility open to the general public…”).

    [16] Id.

    [17] Id., at 4.

    [18] Id.

    [19] Church Mutual Insurance Company, Policy Number 0167833-02-442446 for Philadelphia Ministries (Jan. 5, 2005).

    [20] RDP 9521.3, Private Nonprofit Facility (PNP) Eligibility, at 4.

    [21] 44 C.F.R. §§ 206.222(b).

  • Duplication of Benefits

    Appeal Type: 
    2nd
    Report Type: 
    PW
    Appeal Categories: 
    Applicant Name: 
    Roman Catholic Diocese of Brooklyn
    Disaster Number: 
    4020-DR-NY
    DSR: 
    Multiple PWs
    Date Signed: 
    Tuesday, March 31, 2015
    PA ID: 
    047-UGYND-00
    Summary/Brief: 

    Conclusion:  Pursuant to the Stafford Act § 312, FEMA funding to repair the Roman Catholic Diocese of Brooklyn’s facilities is prohibited as it constitutes a duplication of benefits due to the Applicant’s secondary insurance policy.    

    Summary Paragraph

    Hurricane Irene caused flooding throughout Queens and Kings Counties, New York.  Several of the Applicant’s facilities were impacted by the disaster.  FEMA prepared PWs 5098, 5357, 5411, 5419, 5439, 5657, 5662, 5944, 6212, 6218, 6477, 6483, 7117, 7816 and 7889 to address repairs necessary to restore the facilities to pre-disaster condition.  A FEMA Insurance Specialist reviewed the PWs and made cost reductions based on anticipated and actual insurance proceeds.  The Applicant had two insurance policies in place at the time of the disaster.  The primary insurance policy was in the amount of $70 million with a deductible of $250,000.  The secondary policy was with Peter Turner Insurance Company (PTIC).  The PTIC policy provided $250,000 of coverage with a $750 deductible.  All, but one, of the PWs were obligated for a zero-dollar amount based on the duplication of benefits—PTIC policy payout and Public Assistance funding—that would result if the PWs were obligated. The PTIC deductible—$750.00 per occurrence—was funded in PW 5419.  In the first appeal, the Applicant asserted that the PTIC policy provided self-insurance retention coverage, and thus, not a duplication of benefits.  The Region II Acting Regional Administrator (RA) denied the first appeal because she determined that PTIC was licensed and regulated by the New York State Insurance Department.  As such, PTIC issued a policy covering the facilities listed for damage caused by Hurricane Irene.  The total amount of damage was under the $250,000 coverage amount; therefore, under the Stafford Act § 312, Duplication of Benefits, was not eligible for PA funding.  In the second appeal, the Applicant argues that its contract with PTIC does not constitute insurance because there is no risk shifting or risk distribution involved.  Accordingly, the Applicant contends that there is no duplication of benefits.

    Authorities and Second Appeals

    • City of Chicago v. FEMA, 2013 U.S. Dist. LEXIS 41633 (2013).
    • Stafford Act § 312, 42 U.S.C. § 5155.
    • 44 C.F.R. § 206.250(c).
    • Catholic Bishop of Chicago, FEMA-1800-DR-IL, 18 PWs
    • PA Guide, at 41.

    Headnotes

    • Stafford Act § 312 prohibits FEMA from providing assistance to any entity for any loss for which financial assistance has already been received from any other program, from insurance, or from any other source.
      • The Stafford Act does not define “insurance.”  However, based on the ordinary meaning of “insurance,” the Applicant’s subsidiary policy with PTIC constitutes insurance.
    • According to the PA Guide and City of Chicago v. FEMA, the Stafford Act § 312 applies to a duplicative benefit for the same item of work from “any other source,” including a private contract where consideration was given for a benefit incurred.

    Here, even if FEMA determined that the PTIC policy was not insurance, it would still constitutes a duplication of benefits because PTIC is obligated to compensate the Applicant for losses incurred with respect to the facilities in the PWs listed.  

    Letter: 

    March 31, 2015


    Mr. Andrew X. Feeney
    Alternate Governor’s Authorized Representative
    New York State Office of Emergency Management
    1220 Washington Avenue, Building 7A, Suite 710
    Albany, New York 12242  

    Re: Second Appeal – Roman Catholic Diocese of Brooklyn, PA ID 047-UGYND-00, FEMA-4020-DR-NY, Project Worksheets (PWs) 5098, 5357, 5411, 5419, 5439, 5657, 5662, 5944, 6212, 6218, 6477, 6483, 7117, 7816 and 7889  – Duplication of Benefits

    Dear Mr. Feeney:

    This is in response to a letter from your office dated March 21, 2014, which transmitted the referenced second appeal on behalf of the Roman Catholic Diocese of Brooklyn (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $228,630.16 in Public Assistance (PA) funding.

    As explained in the enclosed analysis, I have determined that, pursuant to the Stafford Act § 312, PA funding to repair the Applicant’s facilities is prohibited as it constitutes a duplication of benefits due to the Applicant’s insurance policy with Peter Turner Insurance Company.  Therefore, I am denying the appeal. 

    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/

    Alex Amparo
    Assistant Administrator
    Recovery Directorate

    Enclosure

    cc: Jerome Hatfield

          Regional Administrator

          FEMA Region II

    Analysis: 

    Background

    From August 26, 2011 thru September 5, 2011, Hurricane Irene caused flooding throughout Queens and Kings Counties, New York.  Several of the Roman Catholic Diocese of Brooklyn’s (Applicant) facilities were impacted by the disaster.  At the time of the disaster, the Applicant either owned or leased each of the facilities.  The leased facilities were subject to a lease agreement that stipulated that the Applicant was responsible for all repairs excluding the structure exteriors.

    FEMA prepared PWs 5098, 5357, 5411, 5419, 5439, 5657, 5662, 5944, 6212, 6218, 6477, 6483, 7117, 7816 and 7889 for an aggregate amount of $228,630.16 to address repairs necessary to restore the facilities to pre-disaster condition.  A FEMA Insurance Specialist reviewed the PWs and made cost reductions based on anticipated and actual insurance proceeds.  The Applicant had two insurance policies in place at the time of the disaster.  The primary insurance policy was with Lexington Insurance Company in the amount of $70 million with a deductible of $250,000.  The secondary policy was with Peter Turner Insurance Company (PTIC).  This policy was designed as a deductible buy-down policy, which is a supplemental policy established by the insured to cover part or all of the primary insurance policy’s deductible per occurrence.  The PTIC policy provided $250,000 of coverage with a $750 deductible.  FEMA obligated the PWs for a zero-dollar amount based on the duplication of benefits—PTIC policy payout and Public Assistance funding—that would result if the PWs were obligated.  However, the PTIC deductible—$750.00 per occurrence—was funded in PW 5419.

    First Appeal

    In its first appeal, dated January 28, 2013, the Applicant asserted that it had a property policy with Lexington Insurance Company.  However, the PTIC policy provided self-insurance retention coverage.  The Applicant stated, “it [the PTIC policy] is a funding mechanism for the deductible of $250,000.”  The Applicant also stated that PTIC was a captive insurer formed and wholly owned by the Applicant to provide insurance programs for its parishes, schools, and affiliated agencies.  Finally, the Applicant asserted that because it was self-insured for the first $250,000, the projects in the PWs should be obligated for the full amounts. 

    In a letter, dated October 21, 2013, the Region II Acting Regional Administrator (RA) denied the first appeal because she determined that PTIC was licensed and regulated by the New York State Insurance Department.  As such, PTIC issued a policy covering the facilities listed for damage caused by Hurricane Irene.  The total amount of damage in the PWs was $228,630.16—under the $250,000 coverage amount; therefore, under the Stafford Act § 312, Duplication of Benefits, funding to repair the Applicant’s facilities was not eligible for FEMA assistance.  

    Second Appeal

    In the second appeal, dated January 27, 2014, the Applicant argues that its contract with PTIC does not constitute insurance; accordingly, the Applicant concludes that there is no duplication of benefits.  The Applicant asserts the contract is an alternative risk management tool meant to “manage claims and specifically fund the Lexington deductible.”  The Applicant contends that, because the Stafford Act does not define “insurance” and FEMA policy guidance does not provide guidance regarding the use of alternative risk management tools, FEMA must follow the Supreme Court ruling in Helvering v. LeGierse.[1]  The Applicant argues that, under LeGierse, both risk shifting and risk distribution must be present for an arrangement to constitute insurance for federal income tax purposes.  

    Discussion

    Duplication of Benefits

    Pursuant to the Stafford Act § 312, “… no such person, business concern, or other entity will receive such assistance with respect to any part of such loss as to which he has received financial assistance under any other program or from insurance or any other source.”[2] (emphasis added).  FEMA analyzes each clause of Section 312 of the Stafford Act separately when determining whether a duplication of benefits exists.     

    1. Insurance

    The Stafford Act § 312 prohibits FEMA funding for items of work covered by insurance.  In addition, Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.250 states “actual and anticipated insurance recoveries shall be deducted from otherwise eligible costs.”[3]  The Applicant argues that, because “insurance” is not defined by the Stafford Act or any FEMA regulations or policy, FEMA should use the definition provided in LeGierse.  However, the definition of insurance used in LeGierse is specific to federal income tax collected by the Internal Revenue Service (IRS).  It is important to note that the LeGierse decision is limited to interpreting the Revenue Act of 1926 and not explicitly applicable to other statutory authority.

    The Applicant is correct in asserting that the Stafford Act does not define “insurance.”  However, when a term goes undefined in a statute, courts give the term its ordinary meaning.[4]  Black’s Law Dictionary defines “insurance” as “a contract whereby, for a stipulated consideration, one party undertakes to compensate the other for loss on a specified subject by specified perils.”[5]  The Merriam-Webster dictionary defines “insurance” as “coverage by contract whereby one party undertakes to indemnify or guarantee another against loss by a specified contingency or peril.”[6]

    At the time of the disaster, the Applicant’s policy with PTIC, entitled Contractual Indemnification Policy Declarations, stated that PTIC would indemnify the Applicant for all losses attributable to its obligations under deductibles and self-insured retentions with respect to primary commercial property.[7]  Based on the ordinary meaning of “insurance,” the policy between the Applicant and PTIC does constitute insurance because it is a contract whereby PTIC agreed to indemnify and compensate the Applicant for losses incurred if certain conditions were met. 

    In addition, the Applicant’s assertion that the PTIC policy is equivalent to self-insurance or a “rainy day fund” because PTIC is wholly owned by the Applicant is not supported by the facts.[8]  PTIC was incorporated on August 31, 2004 under the laws of the State of New York as a stock company.[9]  As such, PTIC issues 100,000 shares of $1 par value per share common stock.[10]  PTIC was formed to insure the Applicant (the parent) and its affiliates for various risks as a means to fund such potential losses.[11]  PTIC was formed under Articles of Incorporation and must comply with set by-laws.[12]  PTIC’s net income is drawn from, both, net premiums earned and investment income.[13]  Finally, although the Applicant argues PTIC is not an insurance company, it is subject to the insurance laws of New York State.  For example, in 2012, PTIC was examined by a New York State Senior Insurance Examiner who issued a Report of Examination.[14]  It must be noted that throughout the Report, the examiner refers to PTIC’s operations as “insurance.”[15]  Accordingly, the Acting RA correctly concluded that PTIC is an insurance company that provided an insurance policy to the Applicant. 

    1. Any Other Source

    Even if, arguendo, FEMA did not determine that the policy between the Applicant and PTIC is “insurance,” Section 312 of the Stafford Act still applies because it clearly states financial assistance from “any other source” is a duplication of benefits if it is used for the same project funded by FEMA funds.[16]  “Any other source” includes any source from which a financial benefit covering the same purpose would derive, including a private contract, such as the one at issue in this appeal.[17]  Here, the Applicant paid premiums to PTIC for coverage that indemnified against property losses if certain conditions were met.  Hurricane Irene triggered such conditions.  Accordingly, the Applicant—through its policy with PTIC—incurred a benefit that addressed the same work outlined in the PWs at issue in this appeal.  Thus, a duplication of benefits would occur if FEMA funding was obligated.    

    Conclusion

    The subsidiary policy between the Applicant and PTIC meets the ordinary meaning of “insurance.”  Accordingly, FEMA funding towards payment of the deductible of the primary insurance policy constitutes a duplication of benefits pursuant to the Stafford Act § 312.  Therefore, the appeal is denied.   


    [1] Helvering v. LeGierse, 312 U.S. 531 (1941). 

    [2] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 312, 42 U.S.C. § 5155 (2007).  

    [3] 44 C.F.R. § 206.250(c) (2010).

    [4] See Taniguchi v. Kan Pacific Saipan, Ltd., 132 S. Ct. 1997, 2002 (2012) (citing Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995)).

    [5] Black’s Law Dictionary 802 (6th ed. 1990).

    [6] Merriam-Webster (May 27, 2014, 9:50 AM), http://www.merriam-webster.com/dictionary/insurance.

    [7] See Peter Turner Insurance Company Contractual Indemnification Policy Declarations at 3, signed June 20, 2011.

    [8] This appeal can be distinguished from a previous FEMA appeal determination where a self-insurance retention fund was not deemed a duplication of benefits; see FEMA Second Appeal Analysis, Catholic Bishop of Chicago, FEMA-1800-DR-IL, at 2 (Dec. 20, 2010) (finding that the Applicant’s self-insured retention fund was not a duplication of benefits because the Applicant utilized its own money, and a third-party merely acted as an administrator, debiting the Applicant’s bank account as necessary to pay claims).

    [9] See Second Appeal Letter, Roman Catholic Diocese of Brooklyn, FEMA-4020-DR-NY, at 2 (Jan. 27, 2014).

    [10] See Report from Wei Cao, Senior Insurance Examiner, Report of Examination of the Peter Turner Insurance Company as of December 31, 2010 (Aug. 14, 2012).

    [11] Id.

    [12] Id.

    [13] Id.

    [14] Id.

    [15] Id.

    [16] See Public Assistance Guide, FEMA 322 at 41 (June 2007) (stating “An applicant may not receive funding from two sources for the same item of work”; see also, City of Chicago v. FEMA, No. 08 CV 4234, 2013 U.S. Dist. LEXIS 41633, at *17-19 (N.D. Ill. Mar. 21, 2013)(holding that FEMA’s determination that a contract for snow removal services constituted duplicate benefits was a reasonable interpretation of the Stafford Act).

    [17] City of Chicago, 2013 U.S. Dist. LEXIS at *21.