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Roadway Shoulder Repairs

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-0979-DR
ApplicantCity of Palmdale
Appeal TypeSecond
PA ID#037-55156
PW ID#17644,59520,84310,83787,59519
Date Signed1999-03-12T05:00:00
Citation: FEMA-979-DR-CA; City of Palmdale Roadway Shoulder Repairs

Cross-Reference: Restoration of Damaged Facilities - Standards

Summary: Heavy rains and floods from the 979-DR caused severe erosion of dirt shoulders along both sides of 30th Street East and the west side of 50th Street West. The city requested funding for restoring the shoulders based on City Standard D-8, which includes paved drainage swales. DSRs 17644 and 84310 were written to propose repairing the shoulders with paved drainage swales. After the repairs were completed, a request for supplemental funding was submitted by the City and City Standard D-8 was reviewed for conformance with 44 CFR 206.226(b). It was determined that City Standard D-8 did not meet the requirements of an applicable code or standard and funding was reduced to reflect costs for restoring the dirt shoulders to their pre-disaster condition. In the second appeal, the City argues that City Standard D-8 is an applicable code or standard under 44 CFR 206.226(b) and is requesting funding for actual project costs. The State supports the appeal, concurring that City Standard D-8 is an applicable code or standard.

Issues: Does City Standard D-8 meet the requirements of 44 CFR 206.226(b)?

Findings: No. City Standard D-8 does not apply uniformly to all similar types of facilities within the jurisdiction of the City of Palmdale.

Rationale: City Standard D-8 is not an applicable code or standard pursuant to 44 CFR 206.226(b)(4) and (5).

Appeal Letter

March 12, 1999

Mr. Gilbert Najera
Governor's Authorized Representative
Disaster Field Office-Public Assistance Section
74 North Pasadena Avenue
West Annex, 2nd Floor
Pasadena, CA 91103-3678

Dear Mr. Najera:

This letter is in response to your September 16, 1998, submittal of the City of Palmdale's (subgrantee's) second appeals of Damage Survey Reports (DSRs) 17644/59520 and 84310/83787/59519 under FEMA-979-DR-CA. These DSRs documented costs associated with repairing the shoulders of 30th Street East and 50th Street West to City Standard D-8 (Standard D-8) and were subsequently reduced to repairs to pre-disaster condition. The subgrantee is appealing the determination that Standard D-8 does not meet the minimum criteria as set forth in Section 206.226(b) of Title 44 of the Code of Federal Regulations.

In response to the subgrantee's appeals, City Resolution No. 92-150 (Resolution) was again reviewed for conformance with 44 CFR 206.226(b). As explained in the enclosed analysis, the Resolution, which implements Standard D-8, does not satisfy criteria (4) and (5) of 44 CFR 206.226(b). Accordingly, the construction of paved shoulders in accordance with the minimum standard established by the Resolution is not eligible for funding as code-mandated upgrade work under 44 CFR 206.226(b). Therefore, the appeal is denied.

Please inform the applicant of my determination. In accordance with the appeal procedure governing appeal decisions made on or after May 8, 1998, my decision constitutes the final decision on this matter. The current appeal procedure was published as a final rule in the Federal Register on April 8, 1998. It amends 44 CFR 206.206.

Sincerely,

/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate

Enclosure

cc: Martha Z. Whetstone
Regional Director
FEMA Region IX

Appeal Analysis

BACKGROUND
As a result of the 979-disaster event, heavy rains and floods eroded the dirt portions of the shoulders on both 30th Street East and 50th Street West in the City of Palmdale (subgrantee). An inspection team consisting of representatives from the Federal Emergency Management Agency (FEMA), the California Governor's Office of Emergency Services (OES), and the subgrantee, prepared Damage Survey Reports (DSRs) 17644 and 84310 for $32,820 and $52,392, respectively. Both DSRs proposed repairing the damaged dirt shoulders with the construction of paved drainage swales in accordance with City Standard D-8 (Standard D-8).

Upon completion of the projects, the subgrantee submitted requests for supplemental funding based on actual contract repair costs. In reviewing these requests, FEMA also reviewed Standard D-8 for conformance with Section 206.226(b) of Title 44 of the Code of Federal Regulations (44 CFR) and determined that Standard D-8 does not meet the requirements of an applicable code or standard. As such, the subgrantee's requests for additional funding were denied. It was also noted that the facility covered by DSR 84310 was damaged in the previous disaster event (935-DR), and the repairs to pre-disaster condition funded under the 935-DR event (DSR 16599) were not completed at the time of the 979-DR event. In light of this information, DSR 83787 was prepared to de-obligate all funding provided by DSR 84310. The facility covered by DSR 17644 was not damaged in the 935-DR event.

First Appeal
The subgrantee appealed the determination that Standard D-8 does not meet the requirements of an applicable code or standard and submitted arguments in support of their position. FEMA reviewed the arguments presented by the subgrantee and found no reason to overturn its original determination. DSR 59520 was prepared to de-obligate $21,016 and revised the scope of work in DSR 17644 to the repair to pre-disaster condition of the dirt shoulders. Additionally, DSR 59519 provided supplemental funding for DSR 84310, in the amount of $6,858, to cover restoration to pre-disaster condition of the portion of the facility damaged in the 979-DR event. As a result of the first appeal determination, funding was provided to restore the dirt shoulders at both facilities to pre-disaster condition.

Second Appeal
The subgrantee submitted second appeals reiterating their first appeal position that Standard D-8 is an applicable code or standard and is requesting funding for actual project costs.

DISCUSSION
The subgrantee's position is that City Resolution No. 92-150 (Resolution), implementing Standard D-8, should be recognized by FEMA as a "current applicable code or standard" for purposes of determining the scope of restoration work eligible for disaster assistance funding.

Based on our review of the Resolution and other relevant information, we have determined that the Resolution does not satisfy 44 CFR 206.226(b) and is not, therefore, an applicable code or standard for purposes of determining the scope of restoration work eligible for FEMA funding.

Section 406(a) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, P.L. 93-288 as amended (Stafford Act) authorizes FEMA to make contributions for the repair, restoration, reconstruction or replacement of public facilities damaged or destroyed by a major disaster. Section 406(e) recognizes as eligible costs required to repair, restore, reconstruct or replace an eligible facility on the basis of its pre-disaster design and "in conformity with current applicable codes, specifications and standards". Section 406 is implemented by 44 CFR 206.226, which permits FEMA to fund code-mandated work which changes the pre-disaster designed construction of a facility (i.e., upgrade work), if the code or standard satisfies the five criteria set forth in subsection "b" of that regulation.

For the cost of a formally adopted repair or replacement standard which changes the pre-disaster construction of facilities to be eligible, the standard must apply uniformly to all similar types of facilities within the Subgrantee's jurisdiction. If the standard was in effect at the time of the disaster, it must have been enforced by the Subgrantee. Taken together, subsections (4) and (5) of 44 CFR 206.226(b) require that to serve as a basis for FEMA funding, a code or standard must be uniformly applied and enforced.

The determination of whether and when to apply an upgrade standard, however, cannot be based solely on the exercise of discretionary authority by a City official or employee. At a minimum, standards must be objective for there to exist even an expectation of its uniform application and enforcement.

The Resolution calls for the construction of paved shoulders that will serve as "storm drains" wherever required for "drainage purposes" and where determined necessary by the City Engineer. The City Resolution does not reference or otherwise establish objective standards that govern when or under what circumstances it will be used or applied. Instead, the City Resolution simply states that it will be used, as and where determined necessary by the City Engineer. Indeed, Standard D-8 itself leaves several design criteria to the discretion of the City Engineer.

The Resolution does not require that this work be performed. Instead, the requirement that shoulder construction work be performed is imposed by the City Engineer and this determination is, in turn, based solely on his/her discretionary authority. As such, the provisions of the Resolution can only be applied subjectively. Because compliance is based solely on the City Engineer's subjective determination, there is no clear way to determine whether the City Engineer has complied with the Resolution. Thus, there is no mechanism built into the Resolution that allows for objective and uniform enforcement of the Resolution standards.

The fact that the application and enforcement of the Resolution is so heavily dependent upon the subjective exercise of authority by a City official/employee promotes an unavoidable inequity in application. The Resolution represents the very type of standard that the criteria set forth in 44 CFR 206.226(b) are intended to preclude from use as a determinant of the amount of the federal contribution for facility upgrades.

CONCLUSION
At a minimum, a code or standard, which changes the pre-disaster construction of a facility, must satisfy the criteria of 44 CFR 206.226(b) to be considered an "applicable code, specification or standard" for purposes of determining the scope of work eligible for Federal disaster assistance. As discussed above, the Resolution does not satisfy criteria (4) and (5) of 44 CFR 206.226(b). Accordingly, the construction of paved shoulders in accordance with the minimum standard established by the Resolution is not eligible for funding as code-mandated upgrade work under 44 CFR 206.226(b). Therefore, the subgrantee's appeal is denied.

Please note that the determination by FEMA of the scope of work eligible for disaster assistance funding is not intended to address the authority of the Subgrantee to determine and enforce standards which it feels are necessary and appropriate for its facilities.