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Second Appeal Letter
PA ID# 125-14600-00; City of Coffeyville
PW ID# 718; Change in the Scope of Work
March 22, 2012
Maj. Gen. (KS) Lee Tafanelli-Kansas Adjutant General
Director of Emergency Management
Kansas Division of Emergency Management
2800 SW Topeka Blvd
Topeka, Kansas 66611-1287
Re: Second AppealCity of Coffeyville, PA ID 125-14600-00,
Change in the Scope of Work, FEMA-1711-DR-KS, Project Worksheet (PW) 718
Dear General Tafanelli:
This letter is in response to a letter from your office dated February 18, 2011, which transmitted the referenced second appeal on behalf of the City of Coffeyville (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding in the amount of $83,239 for road repairs.
From June 26 through July 25, 2007, severe storms and flooding damaged the City of Coffeyville. On October 18, 2007, FEMA prepared PW 718 to estimate road damages for 11 asphalt city streets and three Applicant-owned parking lots throughout the City of Coffeyville.
In a letter dated March 1, 2010, the Applicant submitted its first appeal requesting changes in scopes of work and Improved Project and Alternate Project classifications on several project sites. The Regional Administrator partially approved the first appeal in a letter dated December 10, 2010. FEMA approved actual costs for work completed on approved scopes of work. For project sites designated as Improved Projects, FEMA approved the estimated project cost or the actual cost to complete the work, whichever was less. Additionally, FEMA required environmental and historical reviews for all work that was not included in the original scope of work.
The Applicant submitted its second appeal on February 4, 2011, asking FEMA to reclassify several of its project sites as alternate projects and again states that it disagrees with the original scopes of work that FEMA used to approve improved projects in the first appeal. The Applicant
feels that FEMA’s approved scopes of work were insufficient to complete the repair work as estimated by its engineering firm. The Applicant submitted a spreadsheet comparing the actual cost of the improved project repairs to the Federal share of the approved estimate of eligible costs with the second appeal.
The Applicant stated that it disagreed with the original scopes of work for the sites that have been approved as improved projects. Specifically questioning the statement in the first appeal response that stated, “FEMA will consider these to be improved projects, capped at the estimated PW amount, and reimbursed at either the capped amount or the actual cost of completing the improved scope of work whichever is less.” The Public Assistance Guide, FEMA 322, dated June 2007 states:
When performing permanent restoration work on a damaged facility, an applicant may decide to use the opportunity to make improvements to the facility while still restoring its pre-disaster function and at least its pre-disaster capacity. Funding for such [improved] projects is limited to the Federal share of the costs that would be associated with repairing or replacing the damaged facility to its pre-disaster design, or to the actual costs of completing the improved project whichever is less.
The scopes of work for Sites 2, 4, 5, 7, and 8 (approved by FEMA as improved projects) on PW 718 reflect the eligible work necessary to repair the roads to pre-disaster condition. The Applicant performed additional work at these sites that was outside the approved scopes of work. Therefore, pursuant to 44 Code of Federal Regulations (44 CFR) §206.203(d)(1) Federal grant assistance Funding options—Improved projects, “Federal funding for such improved projects shall be limited to the Federal share of the approved estimate of eligible costs”.
The Applicant also requested changes to the scopes of work for Sites 3 and 12 and reclassification of these projects to alternate projects. Pursuant to 44 CFR §206.203(d)(2)(v) Federal grant assistance Funding options—Alternate projects, alternate projects must be approved by the Regional Administrator prior to the start of construction and applicants are required to document compliance with special requirements including, but not limited to floodplain management, environmental assessment, hazard mitigation, protection of wetlands, and insurance. The Applicant has not provided documentation demonstrating that it complied with the National Environmental Policy Act and any other environmental laws and executive orders that may have been required.
I have reviewed all information the Applicant submitted with the appeal and determined that the Regional Administrator’s decision in the first appeal is consistent with Public Assistance Program regulations and policy. Accordingly, I am denying the second appeal.
Please inform the Applicant of my decision. This determination constitutes the final decision on this matter as set forth in 44 CFR §206.206, Appeals.
cc: Beth Freeman
FEMA Region VII