Structural damage to foundation of #900 wing

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-845-DR-
ApplicantAntioch Unified School District
Appeal TypeThird
PA ID#013-91034
PW ID#89659
Date Signed1998-07-23T04:00:00
PURPOSE: To obtain signature on a letter denying the Antioch Unified School District's third appeal.

DISCUSSION: In October 1989, the Loma Prieta earthquake (845-DR-CA) damaged the Antioch Unified School District's (District's) facilities. The District applied to FEMA for disaster assistance to repair the damaged school facilities. FEMA referred the District's application to the Department of Education (ED), which was the federal agency with statutory authority to restore public elementary and secondary school facilities at the time. The District received $20,284 of an estimated $36,061 in eligible repairs from ED, but later declined the grant and returned the funds.

Five years later, the District discovered damage to the foundation of the #900 wing while performing a structural evaluation of the Antioch High School. When the District requested the reinstatement of the ED disaster grant, ED replied that the case was closed and the funds were no longer available. The District appealed to FEMA for a new DSR to fund the repairs nearly six years after the disaster.

Prior to October 1, 1991, FEMA deferred authority for providing assistance to repair disaster-damaged academic facilities owned by public school districts to ED. Effective November 24, 1993, federal regulation 44 CFR 206.226(a) was amended giving FEMA regulatory authority to fund repairs of elementary and secondary school facilities. In the third appeal, the District claims that because ED refuses to reinstate the original grant and additional damages were reported to OES prior to the change in regulation, FEMA is the federal agency responsible for providing assistance. By regulation, FEMA deferred authority for the restoration of public schools damaged by 845-DR-CA to ED; therefore, ED is the federal agency with specific responsibility to restore the District's damaged facilities.

RECOMMENDED ACTION: Sign the letter denying the District's third appeal.

Appeal Letter

July 22, 1998

Mr. D. A. Christain
Governor's Authorized Representative
Governor's Office of Emergency Services
Disaster Assistance Branch
P.O. Box 419023
Rancho Cordova, CA 95741

Dear Mr. Christian:

This is in response to your letter dated February 9, 1998, to the Federal Emergency Management Agency (FEMA). With that letter, you forwarded a third appeal of Damage Survey Report (DSR) 89659, under FEMA-845-DR-CA on behalf of the Antioch Unified School District (District). The District is requesting that FEMA prepare a new DSR to cover Architectural and Engineering services as well as repair costs of damages to school facilities.

After the Loma Prieta earthquake damaged the District's facilities in October 1989, the District applied to FEMA for assistance. FEMA prepared DSR 89659, found it ineligible, and referred the District's application to the U.S. Department of Education (ED). ED awarded the District $20,284, which represented 75% of the Federal government's 75% contribution of the $36,061 in eligible damage. By letter dated December 11, 1991, the applicant declined the grant and returned the funds to ED, citing an inability to supplement the grant with the local contribution.

In February 1995, Thomsen Consulting Engineers discovered damage to the foundation of the #900 wing while performing a structural evaluation of the Antioch High School. The consultant concluded, in the building assessment report, that the damage was attributable to the Loma Prieta earthquake. When the District appealed to ED to reinstate the 1991 grant, ED denied the request stating that the case had closed and the funds were no longer available. Subsequently, the District submitted an appeal to the Governor's Office of Emergency Services (OES) on June 22, 1995, almost six years after the disaster, requesting that FEMA prepare a new DSR to cover the costs of repairing the damages. The Regional Director denied the applicant's extremely late first appeal because ED was the Federal agency with the specific authority to restore school facilities damaged by 845-DR-CA.

In the second appeal letter dated June 5, 1997, the applicant incorrectly claimed that FEMA was the Federal agency responsible for granting the $20,284 in damage repair funds. The Executive Associate Director denied the appeal because ED was the agency that had specific authority to restore damaged classroom facilities at the time of the disaster, and was the agency that had awarded the funds. Although both FEMA and ED had statutory authority to grant assistance to repair school facilities, FEMA by regulation deferred to the other agency's program for many years. As of October 1, 1991, by mutual agreement, FEMA assumed all responsibility for providing disaster assistance to public elementary and secondary schools. This policy change was formalized by a change in the Code of Federal Regulations (CFR) on November 23, 1993; however, the change was not retroactive.

In its third appeal letter, the District claims that because it discovered and reported the additional damages to OES before the change in regulation, FEMA is the federal agency responsible for providing assistance. In fact, the applicant submitted its first appeal of DSR 89659 on June 22, 1995, one and a half years after the implementation of the amendment to the regulation. Regardless of when the District made the request, the only factor for determining the agency responsible for assistance is the situation on the date of the disaster. At the time of the disaster, FEMA by regulation and policy deferred authority for the restoration of public schools to ED; therefore, ED was the Federal agency with specific statutory responsibility to restore the District's damaged facilities. Accordingly, I am denying this appeal.

Please inform the applicant of this decision, which constitutes the final level of appeal in accordance with 44 CFR 206.206(e).

Sincerely,
/S/
James L. Witt
Director

cc: Martha Z. Whetstone
Regional Director
FEMA Region IX
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