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Scope of Work

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4020-DR-NY
ApplicantUlster County Department of Public Works
Appeal TypeSecond
PA ID#111-99111-02
PW ID#3629
Date Signed2014-07-07T00:00:00

Conclusion:  On second appeal, the Ulster County Department of Public Works (Applicant) submitted sufficient documentation to demonstrate that the scope of work in PW 3629 does not fully address the work required to restore its culvert to pre-disaster design, function, and capacity. Accordingly, FEMA authorizes a change to the scope of work and is remanding the appeal to Region II to determine eligible costs associated with the work and to reconsider the HMP.

Summary Paragraph

Hurricane Irene caused major damage to the Applicant’s culvert and the road supported by the culvert.  In order to restore the culvert to its pre-disaster condition, the Applicant requested funding to excavate, remove and replace panels of the culvert.  The Applicant also submitted a Hazard Mitigation Proposal (HMP) that proposed excavating and removing the multi-plate steel arch culvert, creating and stabilizing abutments using sheet piling and fill, installing beam seats and precast concrete bridge decking, and installing box guardrails in lieu of W-panel guardrails.  In PW 3629, FEMA allocated $36,695.59 to repair the culvert.  However, FEMA determined that the HMP, as written for $61,152.73, was ineligible because the mitigation was 168 percent of the total eligible cost.  In its first appeal, the Applicant asserted that FEMA did not draft the scope of work in PW 3629 to accurately reflect the work necessary to repair its custom made culvert which requires considerable effort to attach and assemble the individual pieces of the culvert before it can function properly.  The FEMA Region II Acting Regional Administrator (RA) denied the first appeal because she determined that the Applicant needed to request a net small project overrun because PW 3629 was a small project.  In addition, she determined that the HMP exceeded 100 percent of the project cost and was not cost effective.  In the second appeal, the Applicant, again, asserts that the scope of work was not written to properly address the work necessary to repair its culvert.

Authorities

  • Stafford Act § 406, 42 U.S.C. § 5170b.
  • 44 C.F.R. § 206.202(d)(1)(i).
  • 44 C.F.R. § 206.226(e).
  • PA Guide, at 95, 101, and 109.
  • Recovery Policy 9526.1, Hazard Mitigation Funding Under Section 406 (Stafford Act) (Mar. 30, 2010).

Headnotes

  • 44 C.F.R. § 206.202(d)(1)(i) provides that the Project Worksheet must identify the eligible scope of work and must include a quantitative estimate for the eligible work.
    • The PW explains the disaster-related damage in the Damage Description and Dimensions section and necessary repair work in the Scope of Work section.
  • The PA Guide states that regarding small projects, if there are omissions or changes in scope, FEMA may revise an initial PW, which may result in changes in funding level and/or category.
    • The scope of work in PW 3629 does not demonstrate the necessary repair work to restore the Applicant’s culvert to pre-disaster condition, and should be revised
  • 44 C.F.R. § 206.226(e) authorizes FEMA to fund additional measures that will enhance a facility’s ability to resist similar damage in future events.
  • RP 9526.1 states mitigation measures that replace, realign, or relocate culverts are predetermined to be cost effective if they do not exceed 100 percent of project cost.
    • The Applicant submitted a HMP with PW 3629 to mitigate future damage to the culvert.
    • The Acting RA determined the HMP to not be cost effective because it exceeded 100 percent of the project cost.
    • HMP should be re-evaluated once the scope of work and cost are revised.


 

Appeal Letter

July 7, 2014

William R. Davis, Jr.
Acting Director
New York Office of Emergency Management
1220 Washington Avenue
Building 22, Suite 101
Albany, New York 12226

Re: Second Appeal – Ulster County Department of Public Works, PA ID 111-99111-02, Scope of Work, FEMA-4020-DR-NY, Project Worksheet (PW) 3629

Dear Mr. Feeney:

This is in response to a letter dated January 10, 2014, from the New York State Division of Homeland Security and Emergency Services, which transmitted the referenced second appeal on behalf of Ulster County Department of Public Works (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) determination regarding the scope of work in PW 3629.

As explained in the enclosed analysis, I have determined that the scope of work in PW 3629 does not accurately reflect the work required to repair the Applicant’s culvert.  Therefore, I am approving the appeal with respect to the change in the scope of work.  In addition, I am remanding the appeal to FEMA Region II to develop an appropriate scope of work, determine eligible costs, and reconsider the Hazard Mitigation Proposal (HMP) in light of the change in scope of work.  By copy of this letter, I am requesting the Regional Administrator take appropriate action to implement this determination.  In accordance with 44 CFR §206.206 (b)(1), Appeals, Levels of Appeal, the Applicant may appeal, to the Regional Administrator, any new issues that arise in determining eligible costs and reconsidering the HMP.

Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.

Sincerely,

/s/

William W. Roche
Director
Public Assistance Division

Enclosure

cc: Jerome Hatfield
      Regional Administrator
      FEMA Region II

Appeal Analysis

Background

From August 26 to September 5, 2011, Hurricane Irene caused substantial rainfall in Ulster County, New York.The storm caused a section of the shoulder and paved surface over a multi-plate steel arch culvert on County Road 24 to washout, leaving an undermined traffic lane, and the loss of the roadside guardrail.The road is owned and maintained by Ulster County through the Ulster County Department of Public Works (Applicant) and is not designated as a federal aid road.

In order to restore the road and culvert to their pre-disaster condition, the Applicant requested funding to repave and fill in the road, install a guardrail, and excavate, remove and replace panels of the culvert.The Applicant also submitted a Hazard Mitigation Proposal (HMP) that proposed excavating and removing the multi-plate steel arch culvert, creating and stabilizing abutments using sheet piling and fill, installing beam seats and precast concrete bridge decking, and installing box guardrails in lieu of W-panel guardrails.

In Project Worksheet (PW) 3629, FEMA allocated $36,695.59 to repair the culvert, fill and repave the road, and replace the guardrail.  The estimated cost for the proposed hazard mitigation was $61,152.73.  FEMA determined that the HMP, as written, was ineligible because the mitigation was 168 percent of the total eligible cost.  The PW noted that there was no history of damage to the site, which would be information relevant to a Benefit Cost Analysis (BCA).

First Appeal

In a first appeal letter submitted July 20, 2012, the Applicant asserted that the road and culvert experienced the same type of damage as the facilities referenced in two other PWs,[1] obligated by FEMA, in response to Hurricane Irene.  The Applicant also asserted that its policy was to replace this type of structure with sheet piling abutments and precast concrete decks because it can withstand backfill erosion without any damage to the superstructure.

The FEMA Region II Acting Regional Administrator (RA) denied the first appeal on July 23, 2013.  Pursuant to FEMA policy, the Acting RA determined that the Applicant would need to request a net small project overrun for any additional FEMA funding because the work to repair the culvert was determined to be a small project.[2]  In addition, the Acting RA determined that the original PW was consistent with PA regulations and policy because FEMA policy allows for mitigation measures that do not exceed 100 percent of the cost of the eligible repair work on the project.  At the Applicant’s request, the Acting RA subtracted $7,500 from the HMP cost estimate because the item of work was not necessary for the repair of the culvert.  Accordingly, the Acting RA determined that the original PW was for $36,695.59 and the revised HMP cost estimate was $53,652.73, making the HMP cost estimate 146.21 percent of the total eligible cost. 

Second Appeal

In a second appeal letter, dated October 18, 2013, the Applicant again asserts that PW 3629 was not written properly and should have been written in the same manner as the two other PWs, referenced above, because all three PWs involve the same type of damage.  In a memorandum, dated December 23, 2013, the Grantee makes several assertions regarding this appeal.  The Grantee asserts that, unlike conventional corrugated metal pipe installations, the pipe-arch requires considerable effort to attach and assemble the individual pieces before it can function as an integral unit and is capable of supporting the design load.  In addition, the Grantee states that the Applicant objected to the way the scope of work was written, but was told that there was no time to change the PW.   Finally, the Grantee states that new documentation demonstrates that the project referenced in PW 3629 is a large project, and the cost for the project should be considered individually.

Discussion

Scope of Work

Pursuant to Section 406 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), FEMA Public Assistance funding may be provided to a state or local government for the repair, restoration, and replacement of damaged or destroyed facilities under a major disaster.[3]  The PW explains the disaster-related damage in the Damage Description and Dimensions section and necessary repair work in the Scope of Work section.[4]  The scope of work must include the necessary repair work that corresponds directly to the cause of damage in quantifiable and descriptive terms.[5]  Other information documented in the scope of work includes, but is not limited to, eligible codes and standards; evidence of pre-disaster damage; pre-disaster inspection reports noting deficiencies; ineligible work, maintenance, or ineligible facilities; reference to a HMP; and any special equipment or construction approaches.[6]   Regarding small projects, if there are omissions or changes in scope, FEMA may revise an initial PW, which may result in changes in funding level and/or category.[7]  A change to the scope of work does not require the Applicant to appeal for a net small project overrun.[8]       

The Applicant has consistently stated that the original scope of work in PW 3629 does not accurately and completely address the repair work necessary to restore its culvert to pre-disaster condition.  The Grantee asserts that the Applicant’s culverts are custom made, and repair of these culverts differs from the standard repair of typical culverts.  With its second appeal, the Applicant submitted a document entitled, Repair and Replacement of Ulster County Box Culverts, and plans and cost estimates reflective of the work associated with the repair of the Applicant’s culverts.[9]  In addition, the Applicant provided a Project Description for the replacement of the culvert in 2010.[10]  Analyzed together, these documents purport to demonstrate the additional work that is needed to repair the culvert, including excavating the culvert, taking it to a separate location, repairing it by hand, and reinstalling the culvert. 

Upon considering the second appeal, a FEMA civil engineer reviewed the documents and plans submitted by the Applicant.  Based upon that review, it was determined that the original scope of work in PW 3629 does not fully address the repairs needed to restore the culvert to pre-disaster design, function, and capacity.  In short, the Applicant’s assertions regarding repair of the culvert and the need to revise the scope of work to reflect the additional work to repair the culvert to its pre-disaster condition are reasonable.  However, based on available information, the civil engineer was unable to determine the reasonableness of the Applicant’s cost estimates for labor and equipment to repair the culvert. 

Hazard Mitigation

Pursuant to Title 44 of the Code of Federal Regulations (C.F.R.) § 206.226, Restoration of damaged facilities, FEMA is authorized to fund additional measures that will enhance a facility’s ability to resist similar damage in future events.[11]  Mitigation measures that replace, realign, or relocate culverts are pre-determined to be cost effective if they: 1) do not exceed 100 percent of project cost, 2) are appropriate to the disaster damage, 3) will prevent similar damage, 4) are directly related to the eligible damaged elements, 5) do not increase risks or cause adverse effects on property elsewhere, and 6) are not otherwise prohibited by FEMA regulations or policy.[12]

During the formulation of PW 3629, the Applicant submitted an HMP to replace the culvert with sheet pile abutments and a precast concrete superstructure.  In both PW 3629 and the first appeal determination, FEMA determined that the mitigation measures were not cost effective, as they exceeded 100 percent of the project cost.  Based on the revision to the scope of work of PW 3629, it is likely the cost associated with the revised scope of work will also change.  Accordingly, the HMP must be reconsidered in light of the changes to PW 3629, as it may no longer exceed 100 percent of the project cost.

Conclusion

The Applicant provided sufficient documentation to demonstrate that a change in the scope of work of PW 3629 is warranted.  Accordingly, Region II must develop an appropriate scope of work to fully address the work necessary to restore the culvert to pre-disaster condition, determine eligible costs associated with repair of the culvert, and, based on the revised scope, reconsider the HMP submitted by the Applicant.  In accordance with 44 C.F.R. § 206.206, the Applicant maintains the right to appeal any new issues that arise in determining eligible costs and reconsidering the HMP.


[1] See Project Worksheet 4103, Ulster County Department of Public Works, Version 0 (June 14, 2012); see also Project Worksheet 5276, Ulster County Department of Public Works, Version 1 (Sept. 19, 2013).

[2] The Acting RA cited to the Public Assistance Guide, FEMA 322 at 113 (June 2007) [hereinafter PA Guide] in her discussion of requests for net small project overruns.

[3] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 § 406, 42 U.S.C. § 5170b (2007). 

[4] See 44 C.F.R. § 206.202(d)(1)(i) (2011).

[5] PA Guide, at 101.

[6] Id.

[7] Id. at 95.

[8] Id. at 109 (noting a request for a net cost overrun concerns additional funding for small projects, but not mentioning changes to the scope of work).

[9] See Second Appeal, Ulster County Public Works Department, PA ID 111-99111-02, FEMA-4020-DR-NY, at Appendices B and D (Oct. 18, 2013).  

[10] Id. at Appendix D (stating the replacement of the culvert would include excavation in or around the stream, installation of two cofferdams, removal of the existing culvert pipes, installation of a corrugated aluminum box culvert, installation of corrugated aluminum headwalls, backfill with suitable well graded material, and removal of the cofferdams).

[11] 44 C.F.R. § 206.226(e).

[12] Recovery Policy 9526.1, Hazard Mitigation Funding Under Section 406 (Stafford Act) at Appendix A (Mar. 30, 2010).