Road Repairs and Inspection

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 August 4, 1997, letter that transmitted the second appeal of damage survey report (DSR) 44932 on behalf of the City of Santa Monica under FEMA﷓1008﷓DR﷓CA. FEMA prepared DSR 44932 for $1,287,771 to repair various roads that were damaged during demolition, construction and rehabilitation activities following the Northridge earthquake, as well as safety inspections and engineering costs. Upon review, FEMA determined that the DSR was ineligible because the damaged roads were either Federal-aid system (FAS) or the damage was not caused directly by the earthquake. Further, FEMA determined that the safety inspections were in fact damage assessments, which are covered by the subgrantee's statutory administrative allowance. The Federal Coordinating Officer for FEMA-1008-DR-CA sustained this decision on the first appeal.

The City reported that streets in the immediate vicinity of four major projects were damaged during demolition and rehabilitation activities following the earthquake. The four projects and the estimated cost to repair streets associated with each are: Henshey's Department Store and PEP BOYS ($1,017,108); Champagne Tower ($55,860); and St. John's Hospital ($59,022). The cost to repair streets in other locations was estimated to be $80,000. The City asserted that the demolition, rehabilitation and construction activities were the direct result of the earthquake. Further, those activities increased the types, frequency, and weight of construction traffic, which ultimately resulted in damage to the streets. Damage consisted of settlement and cracking of pavement, walkways and curbs. The regional staff denied funding because many of the damaged roads were on the FAS, which is under the authority of the Federal Highway Administration (FHWA). The remaining damage streets were non-FAS roads, which were ineligible because the damage resulted from specific demolition, construction, and rehabilitation activities not directly attributable to the earthquake. FEMA determined that the only eligible, earthquake-related work under DSR 44932 was for $650 to repair damage to a local road (23rd Street). Because the eligible work was less than the $1,000 minimum amount, zero dollars were obligated.
First appeal
The City submitted a first appeal by letter dated March 31, 1997. They did not contest that many of the roads are under the authority of the FHWA, but asserted that the repairs were not eligible for the FHWA's Emergency Relief Program. Therefore, the applicant concluded that FEMA should provide funding for repair of the Federal﷓aid roads. In addition, the applicant stated that damages to local roads were a result of the earthquake and that repair of such damages was, therefore, eligible for FEMA assistance. The Regional Director responded to the first appeal, stating that FEMA would not fund permanent restoration of FAS roads and that, for the damage to the non -FAS roads, there was no evidence of a direct causal relationship to the earthquake.
Second Appeal
The California Governor's Office of Emergency Services (OES) forwarded the applicant's June 6, 1997, second appeal in a letter dated August 4, 1997. The applicant states that section 312 of the Stafford Act allows FEMA to provide assistance when other Federal funds are not available. They also contend that prior determinations made by FEMA set a precedent for FEMA funding earthquake-response-related damages to public infrastructure.

DISCUSSION

Federal-aid streets, roads, and highways are specifically excluded from the definition of "public facilities" in section 102(8) of the Stafford Act. Therefore, FAS roads are under the specfic authority of the FHwA.

The applicant also argues that section 312 of the Stafford Act gives FEMA authority to provide assistance when other Federal funds are not available at the time of application to FEMA. In that provision the recipient must agree to repay all FEMA assistance when the other Federal Assistance is provided. Our General Counsel has opined that the above section of the law applies to assistance to individuals, not public entities. The situation in this case is not one of duplication of benefits, but rather that section 102(8) of the Stafford Act does not authorize FEMA to provide assistance for permanent restoration of FAS roads. Therefore, the cost to repair FAS roads ($1,155,324) is not eligible.

The applicant is also requesting $56,465 for repair of a damages to a non-FAS road. The affected road is Ocean Court, which is contiguous to Champagne Tower, a 16-story apartment building that was damaged during the earthquake. In support of this request, the applicant made reference to DSRs for similarly damaged facilities that FEMA funded in other disasters. FEMA has funded the repair of roads that were damaged during the performance of eligible emergency work. While Ocean Court is an eligible facility, the demolition, rehabilitation, and/or construction of the privately owned Champagne Tower is not eligible emergency work under the Stafford Act. Therefore, damage resulting from repair of this facility is not eligible for funding.

The "safety inspection" costs removed from the DSR represent contract-labor costs that were incurred during the month of February 1994, more than two weeks after the seismic event. The regional staff determined that these resources were used to conduct damage assessments, not safety inspections. Damages assessments are not included in the subgrantee's statutory administrative allowance. Based on my review of the record, I support the region's determination.
CONCLUSION

The Stafford Act does not authorize FEMA to fund permanent restoration of Federal﷓aid roads. Additionally, the damage to the local road was not the result of the performance of eligible work. Therefore, there are no eligible permanent restoration costs. The inspection services are determined to be damage assessments, which are included in the subgrantee's statutory administrative allowance. Not all damages resulting from a disaster-event are necessarily eligible for Public Assistance funding. Only those activities authorized in the Stafford Act are eligible for funding. Therefore, the City's appeal is denied.

Please inform the applicant 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 Deputy Director
Response and Recovery Directorate

cc: Leland R. Wilson
Federal Coordinating Officer
FEMA-1008-DR-CA