Replacement of Bauder Hall and Physics Building

Appeal Brief Appeal Letter

Appeal Brief

Disaster1810-DR-CA
ApplicantWestmont College
Appeal TypeSecond
PA ID#083-UB2BD-00
PW ID#172 and 208
Date Signed2013-10-22T00:00:00

Citation:  FEMA-1810-DR-CA, Westmont College, Project Worksheets (PWs) 172 and 208

Cross-Reference:  Improved project

Summary:  Wildfires between November 13 and 28, 2008, caused extensive damage to Bauder Hall and the Physics Building at Westmont College (Applicant).  FEMA prepared PW 172 with a cost estimate of $494,956 for demolition and reconstruction of Bauder Hall and $107 in Direct Administrative Costs (DAC), but reduced the eligible amount by $484,956 in anticipated insurance proceeds. FEMA also prepared PW 208 for $903,170 for demolition and reconstruction of the Physics Building, and included $120 in DAC, but reduced the total by $903,170 in anticipated insurance proceeds.  On May 26, 2010, the Applicant requested an improved project to move the functions of Bauder Hall and the Physics building into the planned construction project of Winter Hall.  As the construction of Winter Hall was already complete at the time of the improved project request, FEMA was unable to verify the project’s compliance with the National Environmental Protection Act (NEPA) and National Historic Preservation Act (NHPA) and deobligated $10,107 and $120 with versions to PWs 172 and 208, respectively.

On February 9, 2012, the Applicant appealed FEMA’s determination, stating that incorporating the functions of the two completely destroyed buildings into Winter Hall was in the Applicant’s best interest.  The Applicant claimed that it complied with environmental and historic preservation requirements through an analysis and Environmental Impact Report.  The Regional Administrator denied the appeal on March 29, 2012, noting that in accordance with 44 CFR §10, FEMA must evaluate environmental consequences of improved projects prior to construction.

In a second appeal, submitted on August 20, 2012, the Applicant states that the improved project did not have a negative effect on the environment.  The appeal letter notes previous instances in which FEMA conducted after-the-fact environmental and historic reviews. The Applicant has not submitted documentation that would satisfy FEMA’s environmental and historic preservation legal commitments.

Issues:  Does the Applicant’s documentation satisfy FEMA’s requirement to conduct reviews of improved projects in order to ensure compliance with all applicable federal environmental and historic preservation laws and executive orders?

Findings:  No.

Rationale:  Title 44 of the Code of Federal Regulations (44 CFR) §10.4, Policy; 36 CFR §800.1, Purposes and 50 CFR §402, General

Appeal Letter

October 22, 2013

Mark S. Ghilarducci
Secretary
California Emergency Management Agency
3650 Schriever Avenue
Mather, California 95655

Re: Second Appeal-Westmont College, PA ID 083-UB2BD-00, Replacement of Bauder Hall and Physics Building, FEMA-1810-DR-CA, Project Worksheets (PWs) 172 and 208

Dear Mr. Ghilarducci:

This letter is in response to a letter from your office dated October 2, 2012, which transmitted the referenced second appeal on behalf of Westmont College (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) decision to deny a request for an improved project and is requesting funding in the amount of $120,672 for the replacement of Bauder Hall and the Physics Building.

Background

Wildfires that occurred from November 13 through November 28, 2008, destroyed five buildings on the Applicant’s campus.  On March 18, 2009, FEMA prepared PW 172 with a cost estimate of $495,063 to demolish the remaining portion of Bauder Hall, remove debris, and replace the building.  Upon review of the Applicant’s insurance policy, FEMA estimated anticipated insurance proceeds of $484,956 and reduced the PW’s eligible amount to $10,107, which represented a campus-wide insurance deductible of $10,000 and $107 in direct administrative costs.  On March 25, 2009, FEMA prepared PW 208 for $903,290 to demolish the remaining portion of the Physics building, remove debris, and replace the building.  After applying anticipated insurance proceeds of $903,170, the total eligible amount for PW 208 consisted of $120 in direct administrative costs.

On May 26, 2010, the Applicant requested an improved project for having moved the functions of Bauder Hall and the Physics building into Winter Hall, a new construction project that the Applicant had planned prior to the disaster.  At the time of the Applicant’s improved project request, the facility was fully constructed.  California Emergency Management Agency (Grantee) notified FEMA of its approval of the Applicant’s request on October 25, 2010.  As construction of the improved project was completed prior to FEMA conducting the necessary reviews to ensure compliance with the National Environmental Policy Act (NEPA) and National Historic Preservation Act (NHPA) as required by Title 44 of the Code of Federal Regulations (44 CFR) §10.4, Policy, FEMA de-obligated $10,107 from PW 172 and $120 from PW 208.

First Appeal

In a first appeal letter dated February 9, 2012, the Applicant claimed that the consolidation of the functions of the two damaged buildings into one structure is in the Applicant’s best interest.  The Applicant asserted that the architectural plans for Winter Hall included an Environmental Impact Report (EIR) and addressed the Santa Barbara County’s environmental and historic preservation requirements.  The Applicant also explained that the site for Winter Hall did not have any historic structures that would have impacted the improved project.  The appeal noted that pursuant to 36 CFR §800.4(d)(1), Results of identification and evaluation, FEMA has discretionary authority to issue a determination that no historic properties were affected by the improved project.  Finally the Applicant claims that during de-obligation process, FEMA de-obligated the campus wide insurance deductible.  The Grantee transmitted the Applicant’s appeal to FEMA on April 10, 2012, with a letter indicating the Grantee’s support.

FEMA’s Region IX Regional Administrator responded to the Applicant’s appeal with a letter dated May 29, 2012.  The Regional Administrator determined that in accordance with 44 CFR Part 10, FEMA must evaluate all environmental consequences related to the construction of the improved project.  The determination is also consistent with 36 CFR §800.1, Purposes and 50 CFR §402, General. The Regional Administrator further stated that since the construction of the project was already completed, it was impossible to measure the project’s adverse effects on resources whether natural or cultural.  FEMA acknowledged the error related to the insurance deductible and on June 1, 2012, reinstated the Applicant’s $10,000 insurance deductible with Version 1 of PW 179, a project which documented the repair of dormitory roofs.

Second Appeal

The Applicant submitted a second appeal on August 20, 2012, which states that FEMA’s letter responding to the first appeal contained errors.  Primary among the errors is that the initial cost estimates of the damaged buildings documented on the respective PWs were inaccurate and should be revised to reflect the costs documented at closeout.  The Applicant claims that the actual insurance settlement and administrative costs identified at project closeout result in an eligible cost of $120,672.17.  The Applicant contends that it conducted all of the reviews of the construction of Winter Hall necessary for compliance with both Santa Barbara County’s and the California Environmental Quality Act’s (CEQA) requirements.  According to the Applicant’s report there were no protected resources, nor environmental or historic sites at the improved project site.  Therefore, the Applicant concludes that because FEMA has previously conducted after-the-fact environmental and historic reviews on projects, it should consider the EIR as satisfactory documentation of FEMA’s compliance with all applicable federal environmental and historic preservation laws.

Discussion

FEMA’s environmental and historic preservation reviews not only analyze the impacts of a given action on natural and cultural resources, but identify and evaluate alternatives to the proposed action in order to minimize any adverse effects.  As the Applicant did not notify FEMA of the improved project until after construction was completed, FEMA was unable to satisfy the national environmental and historic preservation statutes and executive orders.  While the Applicant’s EIR documents the compliance with the requirements of CEQA and Santa Barbara County, the documentation is insufficient to demonstrate that FEMA complied with its obligations as codified in 44 CFR Part 10.

Conclusion

I have reviewed the information submitted with the appeal and have determined that the Regional Administrator’s decision in the first appeal regarding the Applicant’s request for an improved project is consistent with Public Assistance regulations and policy.  Accordingly, I am denying the Applicant’s second appeal requesting an additional $120,672.

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

Sincerely,

/s/

Deborah Ingram
Assistant Administrator
Recovery Directorate


cc: Nancy Ward
     Regional Administrator
     FEMA Region IX

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