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Second Appeal Analysis
PA ID# 000-UXL4N-00; Southern University of New Orleans
PW ID# Multiple Project Worksheets; Temporary Relocation Facilities
The Southern University of New Orleans (SUNO) campus consists of 11 buildings, all of which sustained damages due to Hurricane Katrina. FEMA mission assigned the U.S. Army Corps of Engineers (USACE) to provided 45 temporary modular buildings as temporary facilities for 2,000 students.
FEMA prepared 14 Category E Project Worksheets (PW) for approximately $25.5 million to replace one building, the Central Heating Plant, and to repair 10 other buildings. These PWs include funding for the repair of flood damages to the ground floors and the disaster-related damages to the upper floors. FEMA also prepared five Category B PWs for approximately
$3.3 million for campus-wide emergency roof repairs, emergency mechanical and electrical repairs, mold remediation, and dehumidification.
The Applicant and the State assert that the temporary modular facilities accommodated only 1,500 students, creating a space shortage on the damaged campus. Rather than requesting additional temporary modular facilities, on April 22, 2008, the Applicant requested funding under new Category B PWs for temporary repairs to the upper floors of the main campus buildings to use the upper floors as additional temporary facilities to address increasing enrollment while permanent repairs were completed. As justification, the Applicant stated that, “it would be of greater economic benefit to temporarily repair the upper floors of the damaged buildings at the park campus as we develop a long range plan for the permanent repairs or relocation of the main campus.”
On May 22, 2008, the Applicant provided additional information to support its request, including the anticipated repair completion dates for the stabilization measures funded under the five Category B PWs and the proposed temporary repairs. The Applicant indicated all stabilization measures were scheduled for completion by June 2008 and that the temporary repairs were scheduled to be completed by mid-August 2008. In addition, the Applicant indicated that it initiated the temporary repairs in mid-May, prior to FEMA’s response to the request for additional PWs.
The Applicant submitted enrollment figures and projections showing enrollment increases from the spring of 2006 (2,037 students) through the spring 2007 (2,847 students), to near 3,000 students for the fall 2008 semester. The Applicant also predicted a 5 percent enrollment growth each semester from fall 2008 through fall 2011.
On July 11, 2008, FEMA denied the request for funding for the repairs to the upper floors of the main campus buildings. FEMA agreed that additional temporary facilities were needed to enable SUNO to meet the fall 2008 enrollment needs, but stated that according to the repair completion dates summarized in the documentation the Applicant provided, seven of the 11 SUNO buildings would be renovated to a condition that would be partially functional for educational use (upper floors) by August 19, 2008. Thus, the Applicant met the space requirements for the fall semester. FEMA further stated that, although the Applicant did not provide a definitive scope of work for the “temporary” repairs, the repairs appeared to include many of the same repairs funded under the existing Category E PWs. In the denial letter, FEMA stated, “To avoid a duplication of benefits for these projects, FEMA cannot obligate additional Category B funds to partially restore the five SUNO buildings for which Category E funds have already been provided.” FEMA conducted a site visit in response to the first appeal in September 2008 and determined that many of the repairs made to the upper floors included completion of finishes and other work that are included in the Category E PWs. FEMA concluded that additional funding for the repairs would duplicate the funding previously provided for permanent work. The Regional Administrator denied the Applicant’s first appeal in a letter dated November 6, 2008.
The Applicant submitted a second appeal on February 14, 2009, requesting reimbursement for the temporary work performed to accommodate the SUNO enrollment needs. The State’s Appeal Analysis, transmitted to FEMA by letter dated April 13, 2009, concurred with the Applicant’s position that FEMA did not provide adequate temporary facility space, the repairs that the Applicant completed provided a cost-effective solution and are temporary in nature, and the repairs were not funded under the 14 Category E PWs.
The Applicant did not include a specific amount of funds in the appeal. The Applicant stated that the State of Louisiana had spent $25 million to date, “providing temporary repairs to the upper floors of some of the buildings in order to provide temporary classroom space….” The Applicant stated that the temporary repair option cost less and was more suitable than providing additional modular space and was able to be completed within the necessary timeframe.
Both the Applicant and the State claimed that the Applicant provided architectural and actual cost documentation to FEMA previously. The Applicant did not provide cost or scope of work documentation with the appeal.
Section 403(a)(3)(E), Essential Assistance, of the Stafford Act authorizes the provision of temporary facilities for schools when a declared disaster damages or destroys existing buildings and renders them unusable. Response and Recovery Directorate Policy 9523.3, Provision of Temporary Relocation Facilities, dated July 16, 1998, provides specific guidance on the types of facilities that are eligible for temporary relocation, the types of facilities that can be used as temporary facilities, the duration of time for using temporary facilities, and the process applicants must follow to extend the timeframe for using temporary facilities. Section 7B of the policy states that temporary facilities are eligible for the duration of eligible disaster-related repair or construction of a new facility that begins and proceeds on a work plan. Section 7C states that the temporary relocation assistance may be provided for six months and the Grantee may extend the period of assistance for another six months. The Regional Administrator may approve temporary assistance for more than 12 months provided an applicant begins construction within the initial 12-month period. Section 7D of the policy allows leased purchased or constructed facilities to serve as eligible temporary facilities. Temporary facilities may be up to the same capacity that existed at the time of the disaster.
Immediately after Hurricane Katrina, the Applicant requested direct Federal assistance from FEMA to provide temporary facilities for the damaged buildings on SUNO’s campus (the State of Louisiana owns all buildings on campus). FEMA directed the U.S. Army Corps of Engineers to purchase and install 45 modular buildings on SUNO’s north campus to allow the continued matriculation of approximately 1500 to 2000 students. USACE completed the installation of the temporary units in January 2006. Although SUNO served over 3600 students when Hurricane Katrina struck, presumably, SUNO and the Applicant concluded that the 45 modular units would be sufficient to meet SUNO’s immediate needs until the Applicant could repair and return some of the damaged buildings to service.
The Applicant completed a number of emergency protective measures on the buildings to stabilize them in the months following Katrina. FEMA inspected the buildings and prepared project worksheets to repair 10 of the 11 buildings and replace one building. The Applicant believed that all 11 buildings on campus qualified for replacement in accordance with Response and Recovery Directorate Policy 9524.4, Eligibility of Facilities for Replacement under 44 CFR 206.226(d)(1), dated September 24, 1998. This policy states that a disaster-damaged facility is eligible for replacement if the cost to repair the disaster damage equals or exceeds 50 percent of the cost to construct a new facility of the same capacity. Ostensibly, the Applicant chose not to initiate any permanent repairs to the buildings until it resolved with FEMA whether the buildings qualified for replacement. The Applicant initiated some repairs in the spring of 2008, over 30 months after the disaster, when SUNO requested more temporary space to meet the enrollment projections in the fall. The Applicant characterized the 2008 repairs as temporary repair (Category B), the minimum effort required to make the building useable by the fall of 2008.
The record indicates that the Applicant requested that FEMA consider the repairs it initiated to several buildings on campus as temporary repairs (Category B) in a letter dated April 22, 2008. Therefore, it requested funds in addition to those FEMA had obligated for Category E permanent repairs. The Applicant stated that SUNO needed more space to accommodate the projected student enrollment for the fall 2008 semester and that it could complete certain temporary repairs to the upper floors of some buildings to ready them for occupancy by the fall of 2008. The Applicant asserted that the repairs were the most cost effective way to meet SUNO’s needs.
Response and Recovery Directorate Policy 9523.3 contemplates that applicants will take reasonable steps to initiate repair or reconstruction of their damaged facilities as soon as possible. Notwithstanding the widespread impacts Hurricane Katrina had on the area, the Applicant did not initiate any permanent repairs to the buildings for over 30 months after the disaster. Further, it did not take any action to resolve with FEMA the dispute over repair versus replacement until August 2008, almost three years after the disaster. The file indicates that the Applicant submitted the first substantive information on the repair versus replacement issue to FEMA in a letter dated August 26, 2008. This information was a report that RS Means prepared that purportedly showed that the cost to repair disaster damage to each of the buildings on campus exceeded 50 percent of the cost to construct new buildings; therefore, the buildings qualified for replacement. After review of the report and extensive coordination with the Applicant, FEMA agreed in October 2009 that four buildings on campus (Old Science, New Science, Multipurpose and Clark Education) qualified for replacement. The Applicant continues to repair the buildings. SUNO is currently using the upper floors of Old Science, New Science, and Multipurpose buildings for educational purposes.
Title 44 CFR § 206.206, Appeals, states that “The appeal shall contain documented justification supporting the appellant’s position, specifying the monetary figure in dispute and the provisions in Federal law, regulation, or policy with which the appellant believes the initial action was inconsistent.” The Applicant’s appeal does not comply with this provision.
The Applicant has demonstrated that it met SUNO’s space requirements by completing repairs to the main campus buildings that FEMA funded with the Category E project worksheets. The Applicant is not eligible for additional Category B funding for the repairs. The appeal is denied.