Washington State Legislative Building

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	FEMA-1361-DR
Applicant	The State of Washington Department of General Administration
Appeal Type	Second
PA ID#	000-U5P35-00
PW ID#	1567
Date Signed	2006-04-26T04:00:00

Citation:

FEMA-DR-1361-WA; State of Washington Department of General Administration; Washington State Legislative Building, PW 1567

Cross-reference:

ADA Eligible Repairs

Summary:

The 6.8 Nisqually Earthquake (February 28, 2001, DR-1361-WA) caused both exterior and interior damages to the Washington State Legislative Building. The State Department of General Administration (Applicant) requested assistance to repair the damages and to perform certain upgrades pertaining to the Americans with Disability Act (ADA) accessibility requirements. FEMA prepared PW 1567, including two versions, to fund eligible repairs in the amount of $11,171,098. The Applicant further requested funding in the amount of $2,522,967, or approximately 20% of the total project amount, for their assessment of ADA relevant upgrades. FEMA documented this request in a Version 3 PW, but concluded the work to be ineligible and obligated the PW at $0. The Applicant submitted a first appeal requesting FEMA allow the 20% additional funding for ADA upgrades. The Regional Director denied the appeal indicating that the nature of the damages to the structure did not trigger ADA relevant repairs. The Applicant’s second appeal again requests FEMA allow 20% additional funding for ADA improvements to the Legislative Building in the amount of $2,522,967. The appeal did not provide any new information or documentation to support their position beyond that submitted with the first appeal. EMD forwarded the Applicant’s appeal requesting partial funding of the Applicant’s request. EMD reassessed what they believe are ADA relevant repairs (limited to $2,416,605 of the total eligible funding) and concluded that the Applicant should receive funding for 20% of these costs for ADA upgrades. Thus, EMD is requesting FEMA to reimburse the Applicant in the amount of $483,321.02 for ADA upgrades.

Issues:

(1) Do the facility repairs affect both a structural element of the facility and the usability or accessibility of the facility?

Findings:

(1) Numerous structural repairs are required as a result of the disaster-related damages. However, other than for safety reasons during the conduct of the actual repair work, the disaster-related structural damages did not affect the usability of or accessibility to the facility as it relates to the criteria for ADA relevant repairs.

Rationale:

FEMA Policy 9525.5, 28 CFR Parts 35 and 36, American with Disabilities Act

Appeal Letter

Appeal Analysis

BACKGROUND
The 6.8 Nisqually Earthquake (February 28, 2001, DR-1361-WA) caused both exterior and interior damages to the Washington State Legislative Building. The Legislative Building, constructed in 1926, is a four-story, 235,500 square-foot, steel, un-reinforced masonry and stone structure. The structure is listed on the National Register of Historic Places. It is occupied by the Washington State Legislature and four executive offices, including the Office of the Governor. The building is operated and maintained by the State Department of General Administration (GA or the Applicant). The Applicant requested assistance from the Federal Emergency Management Agency (FEMA) to repair the damages and to perform certain upgrades pertaining to the Americans with Disability Act (ADA) accessibility requirements.

Exterior damage from the earthquake included displaced column capitals, out-of-plumb segmented stones of column shafts, cracked mortar joints and spalled colonnade column bases of the building colonnade system. There were cracks and damage to mortar joints throughout the exterior of the building and grout and mortar damage at the north stairs.

Interior damage included cracked plaster shell on the inner colonnade, cracked plaster, and chipped molding and soffits to the interior drum wall. In the Senate and House chambers and other floors of the building there were cracked fine ornate molding and plaster walls throughout. The State Reception Room sustained a cracked ceiling, soffit, frieze and cornice. There were cracked concrete walls in the sub-basement level. Additionally, some mechanical system and electrical fixture damage occurred.

The FEMA Project Officer prepared Project Worksheet (PW) 1567 on March 19, 2002, to fund the repair of specific earthquake related damages. The PW was obligated on March 3, 2003, in the amount of $5,169,403. During the conduct of the repair work additional damages were identified. These damages were similar to the damages identified in the original PW, but included additional portions of the building and hidden damages in portions where the repairs had begun. As a result, FEMA prepared two versions of PW 1567 to provide additional funding: Version 1 was obligated on March 3, 2003, in the amount of $5,210,867; Version 2 was obligated on January 16, 2004 in the amount of $790,820. The total project amount obligated is $11,171,098.

Throughout the process of developing the original PW and its various versions, meetings were among representatives of FEMA, Washington Emergency Management Division (EMD) and the Applicant regarding ADA triggers for FEMA work as identified in Title 28 of the Code of Federal Regulations (28 CFR), Part 36 and FEMA Policy 9525.5, Americans with Disabilities Act Access Requirements, Americans with Disabilities Act (ADA). FEMA noted on many occasions that a FEMA repair to existing facility elements is not necessarily an ADA relevant repair that triggers ADA upgrades to a facility.

The Applicant requested a Version 3 of PW 1567 be prepared in the amount of $2,522,967, or approximately 20% of the total project amount for ADA relevant upgrades required to be completed in conjunction with the eligible scope of work approved for the project. FEMA documented this request in a Version 3 PW, but concluded the ADA work to be ineligible and obligated the PW for $0 on June 29, 2004.

First Appeal
The Applicant submitted an appeal to the EMD on September 2, 2004, requesting FEMA allow 20% additional funding for ADA improvements to the Legislative Building in the amount of $2,522,967 (as documented in PW 1567, Version 3). EMD forwarded the appeal to FEMA on October 25, 2004, with no comment beyond a recommendation to approve the full amount requested by the Applicant.

The Regional Director denied the first appeal in a letter dated November 23, 2004, indicating that the nature of the damages to the structure did not trigger ADA-relevant repairs, as defined in FEMA Policy 9525.5. Accordingly, no funding could be provided for ADA upgrades to the facility.

Second Appeal
The Applicant submitted a second appeal on January 28, 2005, again requesting FEMA allow 20% additional funding for ADA improvements to the Legislative Building in the amount of $2,522,967 (as documented in PW 1567, Version 3). The Applicant’s second appeal did not provide any new information or documentation to support their position beyond that submitted with the first appeal. EMD forwarded the Applicant’s appeal to the Regional Director on February 7, 2005, requesting partial funding of the Applicant’s request. EMD reassessed what they believe are ADA relevant repairs (limited to $2,416,605 of the total eligible funding) and concluded that the Applicant should receive funding for 20% of these costs for ADA upgrades. Thus, EMD is requesting FEMA to reimburse the Applicant in the amount of $483,321.02 for ADA upgrades.

DISCUSSION
The primary issue of the Applicant’s second appeal is FEMA’s determination that the disaster-related damages do not trigger ADA relevant repairs.

The Applicant states they do not believe an appropriate decision was made under the provisions of Section 406 of the Stafford Act, Title 44 of the Code of Federal Regulations (44 CFR) Section 206.226, FEMA Policy 9525.5, 42 USC 12101 et seq., and ADA provisions in 28 CFR Parts 35 and 36. The Applicant is seeking $2,522,967.00 in additional funds, calculated as twenty percent of what the department concluded is ADA relevant repair costs of $12,614,839. The EMD recommends approval of $483,321.02 in additional funds under this appeal, calculated as twenty percent of what they concluded as ADA relevant repair costs of $2,416,605.08.

To support their appeal, the Applicant has submitted discussion regarding their position, similar to that provided in the first appeal, as well as plans and specifications detailing the repair work to be performed. The appeal includes discussion regarding path of travel, primary function areas, assessment of structural damages, and usability. Within their appeal, the Applicant indicates that if additional information is needed for FEMA to complete their review that they will provide such documentation at FEMA’s request. It is noted that the information provided to-date is found to be sufficient to complete the review of this appeal.

ADA Funding under the Public Assistance Program
FEMA concurs that the ADA applies to restoration of damaged facilities under the Stafford Act wherein the ADA requires that any building or facility that is accessible to the public or any residence or workplace containing disabled persons be accessible to and useable by disabled persons. FEMA Policy 9525.5 provides guidance in determining the eligibility of costs for federally required ADA access compliance as they relate to Public Assistance program grants. In general, for buildings eligible for repair, FEMA will fund the full cost of ADA relevant repairs to the damaged elements of the facility. In addition, FEMA may fund ADA relevant repairs to non-damaged elements associated with a path of travel for a primary function area that is damaged. A primary function area is where a major activity occurs for which the facility is intended, such as the dining area of a cafeteria. For primary function areas, FEMA will fund ADA relevant repairs for providing an accessible travel path and service facilities up to 20 percent of the total cost of repair to the primary function area. Non-damaged areas of a damaged facility are not required to meet ADA requirements unless they are part of the travel path or service facility to a damaged primary function area requiring ADA relevant repairs, as described above.

As indicated earlier, not all repairs to exildA upgrades to the facility by FEMA. Rather, to qualify as an ADA relevant repair, the repair must both affect a structural element of the facility and affect the usability or accessibility of the facility (referred to as an “alteration” in the ADA). FEMA has determined that, generally, work that affects structural elements of a building might qualify as an ADA relevant repair since the methods of repair could have an impact on ADA accessibility. However, the usability component of this analysis must also be satisfied.

Regarding usability, or alteration, the ADA, specifically 28 CFR Part 36, ADA Standards for Accessibility Design, Section 3.5, defines alteration as a change to a building or facility made by, on behalf of, or for the use of a public accommodation or commercial facility, that affects or could affect the usability of the building or facility or part thereof. Alterations include, but are not limited to remodeling, renovation, rehabilitation, changes or rearrangement of the structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions. Normal maintenance, re-roofing, painting and wallpapering or changes to the mechanical and electrical systems are not considered alterations unless they affect the usability of the building or facility. FEMA acknowledges the definition for an alteration in 28 CFR and uses it as the definition of an ADA relevant repair in FEMA Policy 9525.5.

Assessment of Eligible ADA Repairs
In response to the Applicant’s second appeal, a comprehensive review of the appeal documentation submitted by the Applicant has been completed. In particular, the review focused on the specific work items found eligible in PW 1567 and their applicability in meeting the criteria described above for ADA relevant repairs wherein the repair must both affect a structural element of the facility through alternation or change, and this alteration must affect the usability or accessibility of the facility.

The Applicant asserts that the requirement to remove and replace damaged plaster (item 5.1 in Version 1) constitutes a structural repair that does affect the usability of the facility. The Applicant indicated that the 1-inch thick plaster layer is an integral part of the wall structure and may have prevented the actual collapse of these walls during the earthquake. The Applicant concludes, therefore, that these plaster damages are considered “load-bearing elements” that meet FEMA’s criteria for ADA relevant repairs. In response to this position, we have researched the use of plaster with members of the architectural and engineering community as well as a plaster supplier. While the 1-inch thickness may be greater than what is normally applied in today’s practice, our review has found that there is no technical basis to conclude the plaster itself can be considered to have any structural integrity. Plaster is known for its hard durable finish and texture, and is utilized as a finish applied on a structural substrate, not a structural component.

The Applicant submitted a table with their second appeal, titled “ADA Relevant Repairs” detailing their position on other damages and the affect of these damages on usability. Comments within the table include statements such as “Further movement of columns may have precipitated a partial or complete collapse of this building feature, endangering the occupants of the facilities below. Disabled individuals were denied access without this repair.” It is noted that these comments focus on the usability of the facility as they relate to safety precautions for disabled individuals (or any building users) due to the disaster-related damages or safety concerns during the conduct of the repair work. As described in the previous section, the criteria for usability focuses not on the ability to use the facility prior to or during the conduct of the repairs, but relative to how a repair may alter or change the building or facility. As such, the positions described in the Applicant’s table do not satisfy the criteria for ADA relevant repairs.

The Applicant further states in its appeal discussion that the building required closure during the repairs of the various structural items concluding that, “There is no greater demonstration of an affect on building access or usability than the complete closure of the building.” Please note that the need to limit access to an area undergoing repair work does not satisfy the intent of demonstrating that the usability of an area has been affected as it relates to ADA relevant repairs.

Exhibit A, attached to this analysis, provides a summary of our review and analysis of the primary work items as they relate to ADA relevant repairs. This review found that other than for safety reasons during the conduct of the actual repair work, the disaster-related structural damages did not alter or affect the usability of the facility as it relates to the criteria for triggering ADA relevant repairs.

CONCLUSION
Based on a review of the information provided in the Applicant’s second appeal, we have concluded that the Applicant has not demonstrated that the damage and eligible scope of repair work affected ADA accessibility and usability. Although the extent of the damage incurred forced the building to be closed to all occupants during the conduct of repair work, this should not be misconstrued as affecting access and usability for ADA purposes. Accordingly, the Applicant’s appeal is denied.

EXHIBIT A - SECOND APPEAL LEGISLATIVE BUILDING PW 1567, VERSIONS 0, 1, 2,3

YES

VERSION	ITEM No.	ITEM DESCRIPTION	PW AMOUNT	ACTUAL COST	IS THIS A STRUCTURAL REPAIR?			REPAIR AFFECTS ADA USABILITY?	FEMA COMMENTS
					Applicant	EMD	FEMA
0	1.1	COLUMN SHAFTS AND CAPITALS	769,752.28	269,008.00	YES	YES	YES	NO	Did not affect ADA access or usability other than for safety reasons.
0	1.2	REINSTALL REMOVED STONES @ BUTTRESS #7	261,536.31	91,400.00	YES	YES	YES	NO	Did not affect ADA access or usability other than for safety reasons.
0	1.3	REPAIR BUTTRESS #7 ORNATE CARVING	286.14	100.00	YES	YES	YES
0	1.6	REMOVAL OF COLUMN BRACES	24,842.81	8,681.90	YES	YES	NO	NO	Did not affect ADA access or usability other than for safety reasons.
0	1.7	BUTTRESS STONE BRACES	10,351.17	3,617.46	YES	YES	YES	NO	Did not affect ADA access or usability other than for safety reasons.
0	1.8	RE-INSTALL STONE CORES COLUMN/BUTTRESS	18,885.55	6,600.00	YES	YES	YES	NO	Did not affect ADA access or usability other than for safety reasons.
0	1.8a	REPAIR STONE CORES FROM LINTEL	5,150.61	1,800.00	YES	YES	YES	NO	Did not affect ADA access or usability other than for safety reasons.
0	1.9	DISPLACED BUTTRESSES	746,265.52	260,800.00	YES	YES	YES	NO	Did not affect ADA access or usability other than for safety reasons.
0	2.1	DOME RIB REPAIRS	157,379.61	55,000.00	YES	YES	YES	NO	Did not affect ADA access or usability other than for safety reasons.
0	2.4	REPAIR/DAMAGED MORTAR JOINTS	4,120.48	1,440.00	NO		NO	NO	Did not affect ADA access or usability other than for safety reasons.
0	3.4	CRACKS -HUNG PLASTER WALLS @ HOUSE/SENATE SKYLIGHT	3,374.00	1,179.33	YES	YES	NO	NO	Did not affect ADA access or usability other than for safety reasons.
0	6.2	BUTTRESS CAVITY MASONRY CRACK	876,246.77	306,225.00	YES	YES	YES	NO	Did not affect ADA access or usability other than for safety reasons.
0	3.1-3.1C	HOUSE/SENATE CEILING-ORNATE REPAIR	182,417.28	19,546.00	YES	YES	NO	NO	EMD - NO ESTIMATE FOR VERSION 0 NUMBERED 3.1-3.1C IN VERSION 1. ITEM 3.1-3.1C IS FOR PAINTING AND FRIEZE PAINTING AND REPAIR. VERSION 0 PROVIDES FOR CROWN MOLDING REPAIRS FOR FINE AND MEDIUM ORNATE CRACKS IN ITEMS 3.1 AND 3.2 FOR THE SENATE AND HOUSE CHAMBERS. ASSOCIATED COSTS ARE NOTED.
1	3.7	HOUSE CURVED WALL	279,364.07	97,630.33	YES	YES	NO	NO	Did not affect ADA access or usability other than for safety reasons.
1	4.2	DISPLACED COLUMN CAPITALS	30,903.63	10,800.00	NO		NO	NO	Did not affect ADA access or usability other than for safety reasons.
1	5.1	REMOVE/ REPLACE DAMAGED PLASTER	2,774,581.00	0.00	YES	YES	NO	NO	Did not affect ADA access or usability other than for safety reasons.
1	7.3	RESET LOOSE PANELS 3 quote X5 quote	68,987.21	24,109.20	NO		NO	NO	Did not affect ADA access or usability other than for safety reasons.
1	7.4	RESET LOOSE PANEL 4 quote X7 quote	16,097.02	5,625.48	NO		NO	NO	Did not affect ADA access or usability other than for safety reasons.
1	HM 1-1 -HM 1.10	SHOTCRETE IN BUTTRESSES	369,704.00	0.00	YES	YES	NO	EMD - HAZARD MITIGATION PROVISIONS ARE NOT CONSIDERED A REQUIRED STRUCT. REPAIR.
1	HM 2 1-9	METAL FABRIC. BUTTRESS REIN.	227,702.55	0.00	YES	YES	YES	NO	EMD - HAZARD MITIGATION PROVISIONS ARE NOT CONSIDERED A REQUIRED STRUCT. REPAIR.
2	3.7e 1a-3.7h.3	HOUSE CURVED WALL	144,018.44	22,814.32	YES	YES	YES	NO	Did not affect ADA access or usability other than for safety reasons.
2	5.1a	ADD. DELAM. PLASTER	349,413.90	122,110.68	YES	YES	YES	NO	Did not affect ADA access or usability other than for safety reasons.
2	6.8a.1	ADD. DELAM. PLASTER.- PRIVATE ELEVATORS	94,088.97	32,881.59	YES	YES	YES	NO	Did not affect ADA access or usability other than for safety reasons.
2	6.9a-c	HOLLOW CLAY TILE REPAIRS	217,323.56	75,948.90	YES	YES	YES	NO	Did not affect ADA access or usability other than for safety reasons.
2	6-10a-e	1STFLR. MAS. ARCH REPLACEMENT	75,235.97	26,292.97	YES	YES	YES	NO	Did not affect ADA access or usability other than for safety reasons.
2	H1a-b	ANCHOR HOUSE CURVED WALL	35,716.60	0.00		NO		NO	EMD - NOT CONSIDERED REQUIRED STRUCTURAL REPAIR.
SUB TOTAL			7,748,280.34	1,443,611.16
+ TAX & OH TOTAL			12,970,621.29	2,416,605.08
20%	GA REQUEST		2,594,124.26	483,321.02					EMD ADA FUNDING RECOMMENDED
TOTAL	FEMA FUNDING VERS. 0-3		11,171.098.00	0.00					FEMA ADA FUNDING RECOMMENDED