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Road and Embankment Damages
Appeal Brief
Appeal Letter
Citation: Appeal Brief; Second Appeal; Westmont College; FEMA-1046-DR-CA; PA #083-90001
Cross-Reference: DSR 19668; Permanent Restoration; Road Repairs; Category C
Summary: Following the winter storms of 1995 in Santa Barbara County, California, Westmont College (College) repaired a roadway embankment, pavement and utilities. The repair work was completed at the time of the damage survey report (DSR) inspection, at a cost of $160,409. These repairs were substantial improvements to the damaged facility beyond its pre-disaster condition. FEMA prepared DSR 19668 for $33,144 to restore the facility to the pre-disaster condition based on photographs and information provided by the College. The State forwarded the first appeal on June 17, 1996, requesting full funding of the actual costs of $160,409. The basis of this appeal was that the costs to repair the facility were higher because additional work was required to meet current codes and standards. However, the State recognized that the project included some improvements. On October 1, 1996, the Regional Director denied the first appeal. The denial was based on the fact that the standards followed apply to new construction and not the repair of existing facilities; therefore, the improvements made by the College were not eligible for FEMA funding. On March 17, 1997, the State forwarded the second appeal requesting the DSR be increased to $140,000 to cover the costs of work required to obtain permits from Santa Barbara County, the California Department of Fish and Game (CDFG), the Clean Water Act and the Americans with Disabilities Act. A Streambed Alteration Agreement with the CDFG, which required certain conditions be met, was submitted in support of the appeal. The basis of this appeal was that the use of FEMA unit pricing understates the true costs because it does not take into account increased costs associated with imposed required work beyond the pre-disaster condition by the various governmental agencies. The Regional Director acknowledged that costs associated with stream diversion and permits were not accounted for in the original DSR and may be eligible for FEMA funding. However, documentation to identify these costs was not provided. She also indicated that the improvements were undertaken by the subgrantee without compliance with National Environmental Policy Act requirements. However, further checking with the Region IX Environmental Officer revealed that there were no environmental concerns.
Issue: Were the repairs beyond the pre-disaster condition required by regulatory agency standards and, therefore, eligible for FEMA funding?
Findings: No. The documentation provided identifies work proposed and completed, but does not establish the regulatory standards for repairs to an existing facility or a cost breakdown of repairs. The standards apply to new construction, not repair to damaged facilities.
Rationale: 44 CFR 206.226 (b)(1) requires that standards which change the pre-disaster construction of the facility must apply to the type of repair required, standards may be different for repair work versus new construction. No documentation was submitted to establish the standards, which mandated the additional repair work.
Appeal Brief
| Disaster | FEMA-1046-DR |
| Applicant | Westmont College |
| Appeal Type | Second |
| PA ID# | 083-90001 |
| PW ID# | 19668 |
| Date Signed | 1997-12-23T05:00:00 |
Cross-Reference: DSR 19668; Permanent Restoration; Road Repairs; Category C
Summary: Following the winter storms of 1995 in Santa Barbara County, California, Westmont College (College) repaired a roadway embankment, pavement and utilities. The repair work was completed at the time of the damage survey report (DSR) inspection, at a cost of $160,409. These repairs were substantial improvements to the damaged facility beyond its pre-disaster condition. FEMA prepared DSR 19668 for $33,144 to restore the facility to the pre-disaster condition based on photographs and information provided by the College. The State forwarded the first appeal on June 17, 1996, requesting full funding of the actual costs of $160,409. The basis of this appeal was that the costs to repair the facility were higher because additional work was required to meet current codes and standards. However, the State recognized that the project included some improvements. On October 1, 1996, the Regional Director denied the first appeal. The denial was based on the fact that the standards followed apply to new construction and not the repair of existing facilities; therefore, the improvements made by the College were not eligible for FEMA funding. On March 17, 1997, the State forwarded the second appeal requesting the DSR be increased to $140,000 to cover the costs of work required to obtain permits from Santa Barbara County, the California Department of Fish and Game (CDFG), the Clean Water Act and the Americans with Disabilities Act. A Streambed Alteration Agreement with the CDFG, which required certain conditions be met, was submitted in support of the appeal. The basis of this appeal was that the use of FEMA unit pricing understates the true costs because it does not take into account increased costs associated with imposed required work beyond the pre-disaster condition by the various governmental agencies. The Regional Director acknowledged that costs associated with stream diversion and permits were not accounted for in the original DSR and may be eligible for FEMA funding. However, documentation to identify these costs was not provided. She also indicated that the improvements were undertaken by the subgrantee without compliance with National Environmental Policy Act requirements. However, further checking with the Region IX Environmental Officer revealed that there were no environmental concerns.
Issue: Were the repairs beyond the pre-disaster condition required by regulatory agency standards and, therefore, eligible for FEMA funding?
Findings: No. The documentation provided identifies work proposed and completed, but does not establish the regulatory standards for repairs to an existing facility or a cost breakdown of repairs. The standards apply to new construction, not repair to damaged facilities.
Rationale: 44 CFR 206.226 (b)(1) requires that standards which change the pre-disaster construction of the facility must apply to the type of repair required, standards may be different for repair work versus new construction. No documentation was submitted to establish the standards, which mandated the additional repair work.
Appeal Letter
December 23, 1997
Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
74 North Pasadena Avenue, West Annex, Third Floor
Pasadena, California 91103
Dear Mr. Najera:
This is in response to your letter dated March 17, 1997, to the Federal Emergency Management Agency (FEMA). With that letter, you forwarded a second appeal of damage survey report (DSR) 19668 under FEMA-1046-DR-CA on behalf of Westmont College (College) requesting FEMA to reimburse the College for roadway embankment repair costs beyond the approved amount of $33,144 for costs associated with meeting codes and standards.
FEMA prepared DSR 19668 for $33,144 to repair a roadway embankment, pavement and utilities. The repair work was completed at the time of the damage survey report (DSR) inspection and included substantial improvements beyond the pre-disaster condition. The DSR estimate of $33,144 was developed based on photographs and information provided by the College of the pre-disaster condition. On June 17, 1996, the State forwarded the first appeal requesting full funding of their actual costs of $160,409. The basis of this appeal was that the costs to repair the facility were higher because additional work was required to meet current codes and standards. The State acknowledged the repair costs to be higher than the DSR estimate and recognized that the work performed included some improvements. The Regional Director denied the first appeal on October 1, 1996, because the standards apply to new construction and not the repair of existing facilities. Therefore, the upgrades made by the College were not eligible, pursuant to Title 44 of the Code of Federal Regulations (CFR), section 206.226 (b)(1).
On March 17, 1997, the State forwarded the second appeal, requesting the DSR be increased to $140,000 to cover the costs to perform work required to obtain permits from Santa Barbara County and the California Department of Fish and Game (CDFG), and to comply with the Clean Water Act and the Americans with Disabilities Act. A Streambed Alteration Agreement (Agreement) with the CDFG, which required certain conditions be met, was submitted in support of the appeal. The basis of this appeal is that repair work beyond the pre-disaster condition was required by the regulatory agencies. Also the applicant maintains that the use of FEMA unit pricing was too conservative, since it did not take into account the actual costs associated with complying with the conditions imposed by the regulatory agencies.
Upon review of the documentation submitted, two of the applicant's claims remain unsubstantiated. Although the Agreement provided identifies the conditions agreed to by the College, it does not identify specific regulatory standards that mandate specific improvements beyond the pre-disaster condition. Further, no documentation was provided establishing the costs associated with the unidentified mandated improvements. The appeal submission did not contain sufficient documentation to support the subgrantee's claim, as required by 44 CFR 206.206. As a result, we have determined that the Regional Director's decision on the first appeal is consistent with program statute and regulations. Therefore, I am denying the second appeal.
Please inform the subgrantee of my determination. The applicant may submit a third appeal to the Director of FEMA. The appeal must be submitted through your office and the Regional Director within 60 days of receipt of this determination.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
cc: Ray Williams
Acting Regional Director
Region IX
Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
74 North Pasadena Avenue, West Annex, Third Floor
Pasadena, California 91103
Dear Mr. Najera:
This is in response to your letter dated March 17, 1997, to the Federal Emergency Management Agency (FEMA). With that letter, you forwarded a second appeal of damage survey report (DSR) 19668 under FEMA-1046-DR-CA on behalf of Westmont College (College) requesting FEMA to reimburse the College for roadway embankment repair costs beyond the approved amount of $33,144 for costs associated with meeting codes and standards.
FEMA prepared DSR 19668 for $33,144 to repair a roadway embankment, pavement and utilities. The repair work was completed at the time of the damage survey report (DSR) inspection and included substantial improvements beyond the pre-disaster condition. The DSR estimate of $33,144 was developed based on photographs and information provided by the College of the pre-disaster condition. On June 17, 1996, the State forwarded the first appeal requesting full funding of their actual costs of $160,409. The basis of this appeal was that the costs to repair the facility were higher because additional work was required to meet current codes and standards. The State acknowledged the repair costs to be higher than the DSR estimate and recognized that the work performed included some improvements. The Regional Director denied the first appeal on October 1, 1996, because the standards apply to new construction and not the repair of existing facilities. Therefore, the upgrades made by the College were not eligible, pursuant to Title 44 of the Code of Federal Regulations (CFR), section 206.226 (b)(1).
On March 17, 1997, the State forwarded the second appeal, requesting the DSR be increased to $140,000 to cover the costs to perform work required to obtain permits from Santa Barbara County and the California Department of Fish and Game (CDFG), and to comply with the Clean Water Act and the Americans with Disabilities Act. A Streambed Alteration Agreement (Agreement) with the CDFG, which required certain conditions be met, was submitted in support of the appeal. The basis of this appeal is that repair work beyond the pre-disaster condition was required by the regulatory agencies. Also the applicant maintains that the use of FEMA unit pricing was too conservative, since it did not take into account the actual costs associated with complying with the conditions imposed by the regulatory agencies.
Upon review of the documentation submitted, two of the applicant's claims remain unsubstantiated. Although the Agreement provided identifies the conditions agreed to by the College, it does not identify specific regulatory standards that mandate specific improvements beyond the pre-disaster condition. Further, no documentation was provided establishing the costs associated with the unidentified mandated improvements. The appeal submission did not contain sufficient documentation to support the subgrantee's claim, as required by 44 CFR 206.206. As a result, we have determined that the Regional Director's decision on the first appeal is consistent with program statute and regulations. Therefore, I am denying the second appeal.
Please inform the subgrantee of my determination. The applicant may submit a third appeal to the Director of FEMA. The appeal must be submitted through your office and the Regional Director within 60 days of receipt of this determination.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
cc: Ray Williams
Acting Regional Director
Region IX