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Codes and Standards

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1649-DR
ApplicantLuzerne County
Appeal TypeSecond
PA ID#079-99079-00
PW ID#Multiple Project Worksheets
Date Signed2009-06-05T04:00:00
Citation:FEMA-1649-DR-PA and FEMA-1684-DR-PA Luzerne County, Multiple PWs

Summary: As a result of severe flooding associated with FEMA-1649-DR-PA and 1684-DR-PA, Luzerne County (Applicant) sustained damage to numerous roadway structures. The Applicant requested assistance from the Federal Emergency Management Agency (FEMA) to replace and upgrade several roadway structures. The Applicant stated that the upgrades were requirements of the Pennsylvania Department of Environmental Protection (DEP) and the Pennsylvania Department of Transportation (PNDOT). In January of 2008, the Applicant submitted its first appeals for the expanded scope of work and cost estimates for the roadway structures projects. The Regional Director denied the first appeals stating that the proposed upgraded roadway structures represented substantial improvements over the pre-disaster design, function, and capacity. It was also noted that the first appeals were submitted well beyond the regulatory time frame. In its second appeal, the Applicant reiterated its position that the costs associated with the expanded scope of work should cover the cost estimate of the design and construction of the upgraded structures. In addition, the Applicant argues that the 60-day timeline to file the first appeal from when the projects were obligated by FEMA were not reasonable in relation to project formulation. The Applicant has not provided documentation of a written and formally adopted standard that specifies upgrades to the roadway structures. Furthermore, the Applicant did not prove that the DEP permit requirement or the PNDOT highway bridge requirements required the Applicant to upgrade its structures.

Issues: Is the change in scope of work to the upgraded structures an eligible code and standard upgrade?

Findings: No.

Rationale: 44 CFR §206.226 (d)

Appeal Letter

Mimi Myslewicz
Governor’s Authorized Representative
Pennsylvania Emergency Management Agency
2605 Interstate Drive
Harrisburg, Pennsylvania 17110-9364

Re: Second Appeal–Luzerne County, PA ID 079-99079-00, Codes and Standards,
FEMA-1649-DR-PA and FEMA-1684, Multiple Project Worksheets (PWs)

Dear Ms. Myslewicz:

This is in response to your letters dated September 19, 2008, which transmitted the referenced eleven (11) second appeals on behalf of Luzerne County (Applicant). The Applicant appealed the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) decision to deny funding to upgrade several roadway structures based on current codes and standards.

As explained in the enclosed analysis, I have determined that the Regional Administrator’s decision in the first appeal is consistent with Public Assistance regulations and policy. Accordingly, I am denying the second appeal.

Please inform the Applicant of my decision. My determination constitutes the final decision on this matter pursuant to 44 CFR §206.206, Appeals.

Sincerely,
/s/

James A.Walke
Acting Assistant Administrator
Disaster Assistance Directorate

Enclosure

cc: Jonathan Sarubbi
Regional Administrator
FEMA Region III

Appeal Analysis

BACKGROUND As a result of severe flooding associated with FEMA-1649-DR-PA and 1684-DR-PA, Luzerne County (Applicant) sustained damage to numerous roadway structures. The Applicant requested assistance from the Federal Emergency Management Agency (FEMA) to replace and upgrade several roadway structures. The Applicant stated that the upgrades were requirements of the Pennsylvania Department of Environmental Protection (DEP) and the Pennsylvania Department of Transportation (PennDOT). FEMA worked with the Applicant to determine the eligible scope of work reflected on 11 Project Worksheets (PWs). In the final review, FEMA adjusted the PWs to authorize only in-kind replacement of the damaged roadway structures. FEMA obligated $1,317,735 in the 11 PWs. In March 2006, the Applicant submitted its required quarterly reports that informed the Pennsylvania Emergency Management Agency (PEMA) that it was requesting an expanded scope of work and cost estimate based on engineering designs. The Applicant requested an additional $3,272,759 for the 11 PWs. First Appeal In January 2008, the Applicant submitted its first appeals for the expanded scope of work and cost estimates for the roadway projects on the 11 PWs. The appeals were the Applicant’s first formal request to expand the scopes of work and cost estimates for the projects. The Applicant claimed the DEP general permitting process, along with PennDOT bridge standards, warranted the funding of the design and construction of the upgraded structures. The Regional Administrator denied the first appeals stating that the proposed upgraded roadway structures represented substantial improvements over their pre-disaster design, function, and capacity. The Regional Administrator also stated that the Applicant submitted the first appeals well beyond the regulatory 60-day period for submitting appeals. However, the Regional Administrator did revise the cost estimates for various line items in the approved scopes of work.

Second Appeal In July 2008, the Applicant submitted its second appeals. The Applicant reiterated its request to expand the scopes of work and the cost estimates of the design and construction of the upgraded structures. In addition, the Applicant stated that the 60-day period to file the first appeals was not reasonable in relation to project formulation.

Second Appeal Analysis, FEMA-1649-DR-PA, PA ID 079-99079-00, Page 1 of 2
Luzerne County, Multiple PWs

DISCUSSION

Title 44 of the Code of Federal Regulations (CFR) Section 206.226(d), Standards, authorizes the repair of disaster damages in accordance with current codes and standards. The codes and standards must be reasonable, in effect at the time of the disaster, and apply uniformly to all similar types of buildings in the jurisdiction.

The DEP is responsible for issuing permits for constructing roadway culverts. The documentation that the Applicant submitted did not indicate that the DEP had established and uniformly applied criteria for roadway structures upgrades. The Applicant has not demonstrated that the DEP required the Applicant to upgrade its roadway structures. The DEP general permit requirements do not specify engineering design standards or performance criteria. Rather, the DEP general permit requirement process allows the permitting authority discretion to make decisions on a case-by-case basis upon review of plans and specifications that an applicant submits. As such, this is a discretionary decision of the permitting agency and not consistent with 44 CFR§206.226(d).

PennDOT highway bridge standards are only applicable to roadway structures that are classified as highway bridges. PennDOT classifies a highway bridge as a structure with a 20-foot or greater span from bearing to bearing. With the exception of PW 3616 and PW 3118, the roadway structures in these PWs are large culverts, not highway bridges. It is not normal practice to use highway bridge standards for structures that are not highway bridges. In addition, the upgraded scopes of work in PW 3616 and PW 3118 do not appear to be consistent with the PennDOT requirements of highway bridge standards.
CONCLUSION The Applicant has not provided documentation of a written and formally adopted code or standard that requires the Applicant to upgrade to the roadway structures. Therefore, the Applicant’s appeals are denied.