Track improvements at Saugus, Sylmar, and Humphreys

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1008-DR
ApplicantLos Angeles County Metropolitan Transportation Authority
Appeal TypeThird
PA ID#037-91170
PW ID#73963
Date Signed1999-03-26T05:00:00
PURPOSE: To obtain signature on a letter responding to the Los Angeles County Metropolitan Transportation Authority's (MTA's) third appeal.

DISCUSSION: Following the Northridge Earthquake, MTA applied for federal disaster assistance for improving the siding at Sylmar, improving signals and communication between Saugus and Sylmar, and the construction of a siding at Humphreys. FEMA prepared DSR 73963 and found it ineligible because a Federal Transportation Administration (FTA) consultant determined that the project was not essential to providing temporary emergency rail service. MTA appealed the DSR claiming that the improvements were undertaken to ensure the safety and reliability of added trains. The DRM denied the first appeal on the grounds that the project was not essential. The Executive Associate Director denied the 2nd appeal because the work on two sidings was initiated three months after the earthquake and were completed after the emergency period had closed, while work at the third site started one month after the emergency period ended when highways reopened on July 7, 1994. In the third appeal letter, the applicant objects to FEMA's repeated denials based on the FTA consultant's determination and contends that FEMA regulations addressing emergency public transportation do not explicitly require work be essential. MTA asserts that they committed to this project soon after the disaster because FEMA made verbal assurances that the project was initially approved and would be funded. The applicant claims that the work was essential because it reduced the long commute time between Northern and Southern LA County by two hours. A review of the documentation indicates that FEMA did not approve this project and the reduction in commute time represents an improvement in convenience rather than an emergency work.

RECOMMENDED ACTION: Sign the letter denying the subgrantee's third appeal.

Appeal Letter

March 26, 1999

Mr. Gilbert Najera
Governor's Authorized Representative
74 North Pasadena Avenue, West Annex, 2nd Floor
Pasadena, California 91103

Dear Mr. Najera:

This is in response to your May 18, 1998, letter forwarding the third appeal of Damage Survey Report (DSR) 73963 under FEMA-1008-DR-CA on behalf of the Los Angeles County Metropolitan Transportation Authority (MTA). MTA is requesting $1,509,000 for the scope of work defined on DSR 73963. The Federal Emergency Management Agency (FEMA) prepared the DSR for improving the siding at Sylmar, improving signals and communication between Saugus and Sylmar, and the construction of a siding at Humphreys. The DSR was prepared as ineligible because FEMA's Federal Transportation Administration (FTA) consultant determined that the work was not essential to the provision of emergency temporary rail services following the disaster.

As a result of the January 1994, Northridge earthquake, MTA applied for disaster assistance to repair its earthquake-damaged facilities as well as various projects intended to supplement the public transportation needs of the disaster-impacted area. The instant project was proposed to provide public transportation between Northern LA County to Southern LA County and was 25% completed when FEMA prepared the DSR. Work on two sidings was initiated three months after the disaster in April and was completed in August/September 1994, while work at the third site started in August, one month after the emergency period ended when highways reopened on July 7, 1994. Upon recommendation from the FTA consultant, the FEMA and state inspectors determined that the work was not eligible for federal disaster assistance.

The Disaster Recovery Manager sustained the determination that this project was not essential to the provision of temporary emergency public transportation, and denied MTA's first appeal submitted on December 30, 1996. In the second appeal letter submitted May 29, 1997, the applicant claimed that the improvements were essential to the safe and efficient operation of the trains and that the delays to the project were due to unavailability of resources. The Executive Associate Director denied the second appeal on the grounds that existing MTA rail lines afforded the residents of the area an adequate alternative means of transportation to circumvent the damaged sections of roadway.

In the third appeal letter transmitted by OES on May 18, 1998, the applicant objects to FEMA's repeated denials based on the FTA consultant's determination that the work was not essential and further contends that FEMA regulations addressing emergency public transportation do not explicitly require work be essential. MTA vigorously asserts that they committed to this project soon after the disaster because FEMA made verbal assurances that the project was initially approved and would be funded. The applicant claims, in the additional information submitted subsequent to the third appeal letter, that the work was essential because it reduced the long commute time between Northern and Southern LA County by two hours.

44 CFR 206.225 (d), Emergency public transportation, states in part, "FEMA funding for such transportation will be discontinued as soon as the needs have been met." Following the earthquake, FEMA considered the transportation needs met when I-5 reopened. Although officials originally estimated a 12-to-18 month construction period for I-5, the timeframe for completing the work was revised as early as April 1994. FEMA discussed the eligibility of emergency transportation activities at all meetings of the Transportation Task Force during the months immediately following the earthquake. Although I-5 was reopened on July 7, FEMA allowed emergency transportation cost through July 31, 1994.

Our consultant stated that the improvements to the three sidings were not essential to the provision of emergency rail service along the track. The applicant stated that the word "essential" is not contained in section 419 of the Stafford Act. Further, that FEMA is second - guessing the professional judgement of the applicant by applying this arbitrary standard to deny assistance. FEMA is responsible for determining what is eligible for assistance consistent with program statute and regulations. All eligible work must be reasonable and cost effective.

I have reviewed all information that the applicant submitted to support its appeal, as well as our previous appeal responses, and have concluded that the previous decisions were correct. I can not find anything in the record that leads to a different conclusion. Regretably, I must deny the appeal.

Please inform the applicant of my decision, which constitutes the final level of appeal in accordance with 44 CFR 206.206(e). Nonetheless, I am pleased that FEMA provided over $45 million to the Metropolitan Transit Authority to meet the emergency transportation needs of Southern California following the Northridge earthquake.

Sincerely,
/S/
James L. Witt
Director

cc: Christina Lopez
Federal Coordinating Officer
Northridge Long-Term Recovery Area Office
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