Updates to Disaster Law from the Sandy Recovery Improvement Act

Vol. 37 No. 2

By

Lai Sun Yee is chair of the Section’s Emergency Management and Homeland Security Committee and the senior policy advisor to the director of the National Training, Education, and Exercises of the Department of Homeland Security and Emergency Management.

Andrew Phelps is the emergency manager for the City of Santa Fe, New Mexico.

At the 2013 Fall Meeting of the ABA Section of State and Local Government Law, the Emergency Management and Homeland Security Committee presented a panel, “Updates to the Disaster Law from the Sandy Recovery Improvement Act.” George Heidke, general counsel to New Mexico Department of Homeland Security and Emergency Management; Andrew Phelps, emergency manager for the City of Santa Fe, New Mexico; and Rose Whitehair, director of Emergency Management for the Navajo Nation presented the perspectives of state, local, and tribal governments in responding to disasters. In addition, Leo Bynum, a senior engineer from Sandia National Laboratories, demonstrated the breakthrough web-based FASTMAP tool for geospatial visualization and sharing of critical infrastructure to assist in determining the impacts of disasters and helping first responders with real time information.

Emergency management and disaster response tends to be a reactive enterprise. Innovation and process improvements typically result from something not going right, or as well as expected, during an emergency or disaster. The terrorist attacks of September 11, 2001, and Hurricane Katrina inspired widespread changes in emergency response and organization planning. Part of the responsibility of emergency managers, incident commanders, and policymakers following an emergency or disaster is to examine existing resources, plans, guidelines, procedures, and systems and to evaluate their efficacy in meeting the primary emergency response priorities of saving lives, protecting property and the environment, and stabilizing the incident.

Following Hurricane Sandy’s devastating impact on the Mid-Atlantic/Metro New York area of the United States in late October 2013, part of the recovery process was to review what worked and what did not. As a result of these discussions at the local, state, and federal levels, several changes to existing federal recovery programs were proposed, leading Congress to pass the Sandy Recovery Improvement Act, 2013 (Pub. L. No. 113-2) (SRIA). The primary goal of the Act was to improve the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Pub. L. No. 93-288) (the “Stafford Act”), the federal government’s mechanism for providing disaster assistance to local, state, and tribal entities.

Changes to the Public Assistance Program

Mr. Heidke and Mr. Phelps discussed the amendments to the Public Assistance Program, which is administered by the Federal Emergency Management Agency (FEMA) to assist state and local governments and private nonprofits to clear debris and to rebuild facilities. SRIA amended Stafford Act §§ 403(a)(3)(A), 406, 407, and 502(a)(5) and sets forth a new appeals process.

SRIA § 1102 provides the FEMA Administrator with optional Alternative Procedures for Public Assistance Programs, another tool in the toolbox of disaster recovery that the federal government can now use. Among the new provisions is one giving the FEMA Administrator discretion to issue grants for Public Assistance (PA) projects, such as repairs to public infrastructure, based on estimated costs of all eligible projects. These alternative procedures also include increasing the federal cost share for post-disaster debris removal above the normal 75% based on the speed at which the debris is removed. That cost share is also increased if the jurisdiction has a FEMA-approved debris removal plan. If that debris is recycled, local governments can now keep the proceeds from selling scrap material to recycling facilities. In addition, all work hours of staff assisting with debris removal are now reimbursable under the PA program, not just overtime costs, provided that the employee’s typical job duties do not include a similar type of work.

For the award of grants based on fixed price estimates, once the parties agree on the estimated amount, it becomes the final award amount. If the parties cannot agree on an estimate within 60 days of the initial kickoff meeting with FEMA, then FEMA will only reimburse for actual costs.

Applicants may keep any funds that were not used on FEMA approved projects. The applicant, however, is responsible for any additional costs beyond the grant award. FEMA will provide the entire grant award at once, instead of providing partial percentage awards.

For PA appeals, any applicant is entitled to appeal any decision that FEMA makes regarding eligibility for assistance. If an eligibility dispute arises, applicants may use a two-tiered appeal process. The first step of the appeal is processed at the FEMA regional office where the disaster occurred, and the second step of the appeal goes to FEMA headquarters for adjudication.

For the first appeal step, there is a formal eligibility determination in which the applicant should state why he or she did not receive the assistance sought. The period of time to file an appeal is 60 days from the time of the receipt of the denial. The appeal must contain documented justification supporting the applicant’s position and cite relevant statutes, regulations, or policies that the applicant believes were misapplied. The applicant should include everything that he or she would like for the record because the record is closed when the FEMA regional office issues its decision. On receipt of the appeal, the FEMA regional office has 90 days to issue its decision.

For the second appeal, the applicant may choose between the new arbitration process or the submission of the appeal to FEMA headquarters. The applicant has 60 days to submit his or her appeal to FEMA headquarters, and it must contain the same information and issues in dispute and authority citations as submitted in the first appeal.

SRIA § 1105 requires the FEMA Administrator to establish a pilot program so that applicants can avail themselves of alternative dispute resolution as a means to make the appeals process more efficient. The Dispute Resolution Pilot Program allows PA applicants for all disasters declared on or after October 30, 2012, an option to request binding arbitration for debris removal (emergency work), repair, restoration, and replacement of disaster-damaged public/nonprofit facilities (permanent work).

An applicant may choose to use arbitration under the Dispute Resolution Pilot Program instead of pursuing a second appeal. The amount in dispute must be over $1 million, must be subject to nonfederal cost share, and must relate to a disaster occurring on or after October 30, 2012. The applicant has 15 days to submit a request for arbitration simultaneously to FEMA, the grantee, and the arbitration sponsor. The applicant has 60 days to submit a formal arbitration statement of claim.

Changes to Individual Assistance

SRIA § 1103 amended the Stafford Act to allow FEMA to enter into lease agreements with owners of multi-family housing and apartment units to house disaster survivors. This provision also allows FEMA to fund repairs and improvements to privately owned multi-family housing units provided that the housing is made available to disaster survivors, with the cost of the repairs and improvements being deducted from the lease amount. This change will allow those impacted by a disaster to remain in the community and maintain a community’s economic base, while providing lasting improvements to rental housing stock.

Another cost that is now eligible for federal dollars following a disaster is child care expenses for those impacted by a disaster under SRIA § 1108. Under the same program that funds temporary housing, transportation, and disaster-related medical costs, families impacted by a disaster can now receive assistance with the cost of child care, allowing working parents and caregivers an opportunity to get back to work and help the community get back on its feet.

Individual Assistance (IA)—that is, assistance provided to individuals and families—is considered following a disaster by evaluating six factors: concentration of damages, trauma (to include mass casualties), the impact on special populations, the availability of assistance from volunteer organizations, existing insurance coverage, and the amount of IA typically awarded to states. SRIA directs FEMA to review its existing criteria for awarding IA and to consider adding more weight to the “trauma” factor as part of its decision process. This may increase the frequency with which IA is awarded following disasters.

Hazard Mitigation

SRIA § 1104 amends Stafford Act § 404, which governs the Hazard Mitigation Grant Program (HMGP), in order to expedite HMGP assistance. In its Advance Assistance Pilot, FEMA is now authorized to provide an advance of up to 25% of estimated approved hazard mitigation project costs before work begins, possibly allowing jurisdictions to begin work sooner and without having to front as much of the costs to get shovels in the ground.

In addition, SRIA authorizes the FEMA Administrator to waive notice and rulemaking procedures to expedite procedures for states to administer the HMGP. It directed FEMA to implement a pilot HGMP program administration by states for FEMA and the states to efficiently implement HMGP.

Changes for Tribal Government

Ms. Whitehair spoke about the impact of severe flooding in September 2013 on the Navajo Nation, which caused approximately $2 million in damages. She spoke about how SRIA allows a tribal government to make a request for a disaster or emergency declaration from the President.

Specifically, SRIA § 1110 amends the Stafford Act §§ 401 and 501, which govern the process for disaster declaration requests. Before the amendment, tribes were treated as local governments and could not go directly to the federal government to request a major disaster and emergency declaration. The tribes had to make the disaster declaration request through the governor of the state where the territory was located. The amended language provides that the “Chief Executive of an affected Indian tribal government” may request a major disaster or an emergency declaration from the President. In addition, in the “Savings Provision,” an Indian tribal government may receive assistance through a declaration made by the President at a state’s request, if the President does not make a declaration for the same incident. Under SRIA, an Indian tribal government means the “governing body of any Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian tribe under the Federally Recognized Indian Tribe List Act of 1994.”

Under SRIA, the President may make cost share adjustments for Indian tribal land by waiving or adjusting any payment of a nonfederal contribution if (1) the President has the authority to waive or adjust the payment under another provision and (2) the President determines that is necessary and appropriate. Ms. Whitehair explained, however, the FEMA procedures and the Code of Federal Regulations have not been revised to address this change.

Ms. Whitehair raised several key issues that the Navajo Nation faces, including the need to increase the Navajo Nation’s capabilities to respond like a state because it is a sovereign nation; its need to fight for IA; that the $1 million threshold of the PA program that is required for states should be lowered for tribes; and the need to build Incident Management Teams to assist people in the Navajo Nation and possibly to assist others. Moving forward, Ms. Whitehair plans to develop a rapid response policy, to apply for rapid response grants, and to develop and build partnerships to rebuild stronger. She also intends to write a strategic plan for obtaining funding from various federal departments and agencies.

Although challenges remain, these changes to the Stafford Act serve to improve the processes that are often the most critical and with which state, local, and tribal governments are least familiar following a disaster. A community’s ability to quickly return government operations to a state of normalcy while allowing a community to return to work, school, and its pre-disaster way of life is important. These changes to the Stafford Act through SRIA will help many of those processes, and it is important for communities to understand these changes before they need them.

Conclusion

As the esteemed panelists explained, SRIA made significant and necessary changes to the Stafford Act that will assist state, local, and tribal governments in responding to, and recovering from, disasters. The Section’s Emergency Management and Homeland Security Committee will continue to follow the implementation of SRIA and to provide further updates of the federal disaster relief statutes, regulations, and funding mechanisms.

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