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Second Appeal Letter
PA ID# 000-00B86-00; Illinois Department of Natural Resources
PW ID# 710; Scope of Work
June 16, 2011
David L. Smith, Chief
Disaster Assistance & Preparedness
Illinois Emergency Management Agency
1035 Outer Park Drive
Springfield, IL 62704-4462
Re: Second Appeal–Illinois Department of Natural Resources, PA ID 000-00B86-00, Scope of Work, FEMA-1416-DR-IL, Project Worksheet (PW) 710
Dear Mr. Smith:
This letter is in response to your letter dated June 1, 2010, which transmitted the referenced second appeal on behalf of the Illinois Department of Natural Resources (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) deobligation of $63,131 for roadway repairs and is requesting total project funding of $587,580.
Following heavy rains in Jersey County, Illinois, between April 21, 2002, and May 23, 2002, the Applicant sustained damage to Graham Hollow Road in Pere Marquette State Park. The road subgrade became saturated and failed, causing approximately 200 linear feet of 20-foot-wide asphalt paved roadway to settle and drop approximately six inches. FEMA prepared PW 710 for $63,131 to conduct a geotechnical study to determine the cause of the road failure and the best way to stabilize the road to prevent future slips and settlement. This estimate included: the cost of the study and engineering services ($9,918); the estimated cost of using steel sheet piling to stabilize the road ($47,250); and other necessary costs such as pavement removal, the cost of aggregate base course, and bituminous binder. FEMA obligated PW 710 Version 0 on November 11, 2002, stating that adjustments in the method of repair and costs could be made later following the geotechnical and engineering reviews. In the PW, FEMA further stipulated that any changes to the scope of work would require re-submission through the State to FEMA and reevaluation for compliance with national environmental policies. The Applicant did notify the State and FEMA of its intent to change the scope of work, but never provided the requested project plans and specifications. The road repair was completed by the Applicant without getting approval from the State or FEMA for the change in scope.
FEMA prepared PW 710 Version 1 on October 8, 2008, to deobligate $63,131 from Version 0, and to document the completed scope of work. The work the Applicant completed included: excavation of more than 30,000 cubic yards (CY) of unstable materials and 1,120 CY of rock; removal of two culverts; installation of storm water piping, 1,068 feet of new culvert, an under drain system, 2,924 CY of aggregate base, roadway base, bituminous surface, aggregate shoulders, ditch checks, guard rail, and erosion control; reconstruction of the embankment; and shaping of new ditches. In PW 710 Version 1, FEMA deobligated all the funding in Version 0, stating that the Applicant did not submit project scope of work changes to FEMA for review, nor did it provide documentation demonstrating compliance with national environmental requirements.
The Applicant submitted its first appeal on January 28, 2010, asserting that FEMA was notified and made aware of all major improvements at the site through the Applicant’s correspondence with the Illinois Emergency Management Agency (IEMA). The Applicant stated that as early as May 2006, the construction estimate had already increased to $450,000 and that notice of this was given to FEMA. Additionally, the Applicant stated that on July 12, 2006, the Applicant, IEMA, and FEMA met to discuss this project. The Applicant emailed its Comprehensive Environmental Review Process (CERP) certification to FEMA at FEMA’s request and stated that FEMA did not request additional documentation. FEMA denied the first appeal in a letter dated March 29, 2010, acknowledging that the Applicant provided notification of its intention to change the scope of work in the July 2006 meeting, but failed to submit revised plans and specifications for review as requested. As a result, FEMA was unable to fulfill its obligations under the National Environmental Policy Act (NEPA), National Historic Preservation Act (NHPA), and 44 CFR Part 10 because the project had been completed.
On May 27, 2010, the Applicant submitted its second appeal, stating that there was no change in the scope of work and that the completed scope of work was presented to FEMA and IEMA during the July 2006 meeting. The Applicant claimed that it provided proper notification that the project costs had increased substantially and never received a request for the project specifications. The Applicant also stated that it regularly provided project details through its Quarterly Reports and time extension requests. According to the Applicant, it satisfied NHPA requirements through its own environmental review prior to construction, which determined that there were no significant historic properties in the project area. In a letter dated September 10, 2009, the Applicant stated that it did not contact the State Historic Preservation Office (SHPO) during completion of this project, because the environmental review did not identify anything of interest to the SHPO. The Applicant submitted copies of its Quarterly reports, time extension requests, CERP certification, and its correspondence with IEMA and FEMA with its appeal.
The Applicant did not have sufficient funding for this project for several fiscal years and continuously requested and received time extensions. The Applicant notified IEMA and FEMA that costs had increased as a result of the study; however, the Applicant did not provide revised plans and project specifications as requested. FEMA granted the time extensions, but believed that the increased costs were due to the engineering study, not the actual repair of the roadway. Pursuant to 44 CFR §206.202(d), the Applicant is responsible for ensuring that it has identified all eligible work and submitted all costs for disaster-related damages for funding. Further, if the Applicant decides to make improvements to the original predisaster design, the Grantee’s approval must be obtained, in accordance with 44 CFR §206.203(d)(1). The Public Assistance Guide, dated June 2007, page 140 outlines the process for a change in scope:
The Applicant should request a change in scope of work from the State. The request should contain justification for the additional work or costs. The State will forward the request to FEMA with a written recommendation. FEMA will render a decision and notify the State either with an amended PW for additional funds or a written denial of the request.
The Applicant completed the project without requesting a change in scope from the State and receiving approval from FEMA to proceed with the new scope of work. By completing the work prior to approval, FEMA did not have an opportunity to perform the necessary environmental reviews required by statute, regulations, and executive orders. FEMA determined that the completed project fell under a NEPA Category Exclusion (CATEX). This category of action, e.g., work performed to repair the roadway, is generally categorically excluded from the preparation of an environmental assessment or an environment impact statement. However, a CATEX still requires that FEMA perform an environmental consultation prior to the Applicant beginning construction of the work. The Applicant performed a State environmental review prior to construction, but no coordination occurred between FEMA or with another Federal agency. FEMA Response and Recovery Policy 9650.1, Environmental Policy Memoranda, dated August 17, 1999, clarifies that, “CATEX documentation, as with any NEPA documentation, must be completed prior to the initiation of the action.” Therefore, the work is not eligible for Public Assistance funding.
I have reviewed the information submitted with the appeal and have determined that the Regional Administrator’s decision in the first appeal is consistent with Public Assistance regulations and policy. Accordingly, I am denying the second appeal.
Please inform the Applicant of my decision. This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals.
cc: Andrew Velasquez, III
FEMA Region V