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Second Appeal Letter
PA ID# 245-99245-00; Jefferson County
PW ID# 3316 ; Mosquito Aircraft Hangar Replacement
January 4, 2010
Mr. Philip Anders
Alternate State Coordinating Officer
Governor’s Division of Emergency Management
5425 Polk Suite O
Houston, TX 77023
Re: Second Appeal–Jefferson County, PA ID 245-99245-00, Mosquito Aircraft Hangar Replacement, FEMA-1606-DR-TX, Project Worksheet (PW) 3316
Dear Mr. Anders:
This letter is in response to your letter dated December 17, 2008, which transmitted the referenced second appeal on behalf of Jefferson County (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) deobligation of $143,426 for the replacement of a destroyed Mosquito Control Department aircraft hangar. The Applicant is requesting the actual replacement cost of $195,369.
Hurricane Rita destroyed a metal mosquito aircraft hangar (60 feet by 75 feet). FEMA obligated PW 3316 for $143,426 to replace the hangar. FEMA subsequently deobligated the funding, because the Applicant initiated an improved project by relocating the hangar 138 feet from the pre-disaster location. The Applicant did not submit a request for relocation or improved project and did not provide FEMA with the opportunity to perform an environmental review of the revised scope of work.
The Applicant submitted a first appeal for the actual costs of the reconstruction of the hangar ($195,369) stating that it rebuilt a hangar of the same size as the original and in substantially the same design and location as approved in the PW. The Applicant relocated the hangar inside of a fenced area on the same property for security purposes. The new hangar was built on an existing concrete taxiway and no soil was disturbed at the new location. The Regional Administrator denied the appeal, because the Applicant’s justification of increased security, minimal alteration, and no known effects on the environment does not supersede FEMA’s legal responsibilities under the National Environmental Policy Act (NEPA).
The Applicant submitted a second appeal, acknowledging that it did not follow the correct process of requesting approval for the relocation. The Applicant claims that it was overwhelmed by the efforts to recover from Hurricane Rita and considered the change in location a minor change. Further, the Applicant contends that relocating a facility by 138 feet to an existing concrete slab within the same property should qualify for an exclusion from NEPA review.
FEMA’s regulations at 44 CFR § 10.8(d)(2)(xv) states that projects associated with the “…reconstruction, restoration,…or replacement of any facility in a manner that substantially conforms to the preexisting design, function, and location” is excluded from the requirement of the preparation of an environmental assessment or environmental impact statement. This project involves the reconstruction of the hangar on the same property within close proximity of the original footprint on an existing concrete slab in a manner that restores the facility substantially to its condition prior to the event. This would fit the categorical exclusion in Section 10.8(d)(2)(xv). FEMA must also evaluate whether there are extraordinary circumstances that may change the NEPA determination to an environmental assessment or environmental impact statement determination. FEMA performed an evaluation of the environmental conditions near the project and any potential impacts to the human environment, including effects to the natural physical environment, public safety and historic properties. The evaluation also took into account any violations of other environmental planning and historic preservation laws that would be triggered by the action. The evaluation found that there were no adverse impacts to the human environment; therefore, there were no extraordinary circumstances present that would change the NEPA determination.
The first appeal letter submitted by the Applicant states that there were design changes in the reconstruction of the hangar that better accommodate the aircraft. The Applicant did not provide details regarding the design improvements; therefore, the improved project designation remains. FEMA’s initial approved cost estimate under PW 3316 of $143,426 is eligible because the relocation of the hangar qualifies for a categorical exclusion from NEPA and no further NEPA documentation is required. Therefore, I am partially granting the second appeal. By copy of this letter, I am requesting the Acting 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 CFR §206.206, Appeals.
Elizabeth A. Zimmerman
Disaster Assistance Directorate
cc: Gary Jones
Acting Regional Administrator
FEMA Region VI