Emergency Operations Center

November 4, 2013

Mr. Charley English
Director
Georgia Emergency Management Agency
P.0. Box 18055
Atlanta, Georgia 30316-0055

Re:  Second Appeal-McIntosh County, PA ID 191-99191-00, Emergency Operations Center, FEMA-1761-DR-GA, Project Worksheet (PW) 311

Dear Mr. English:

This is in response to your October 11, 2012, letter which transmitted the referenced second appeal on behalf of McIntosh County (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $801,467 in funding associated with replacement of its Emergency Operations Center (EOC) that was destroyed by an EF4 tornado.

Background

On May 11-12, 2008, severe storms, including an EF4 tornado, caused extensive damage in McIntosh County, Georgia, and destroyed the Applicant’s EOC.  FEMA prepared PW 311 for $1,728,015 to replace the 70' x 150' x 16' metal building.  Upon final inspection, FEMA discovered that the Applicant had full insurance coverage on the facility and had received insurance proceeds of $1,071,107 for the replacement of the 10,500 square-foot metal structure.  FEMA de-obligated all federal funding for the project with Version 1 of PW 311 and informed the Applicant that pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), FEMA is not authorized to provide financial assistance when an Applicant has received financial assistance under any other program or from insurance.

First Appeal

With a letter dated May 30, 2012, the Georgia Emergency Management Agency (GEMA) transmitted the Applicant’s first appeal to FEMA.  In the letter, GEMA pointed out that while the Applicant’s insurance company paid $1,071,107 for replacing the destroyed metal building, the funds were insufficient to construct a facility that would meet the current state-mandated codes for an EOC.  Consequently, the Applicant built two concrete structures that were in compliance with the International Code Council (ICC) Code 500/FEMA P-361 design requirements.  The total cost to build the new buildings was $1,872,574.

The FEMA Region IV Regional Administrator denied the Applicant’s first appeal for the following reasons:

1. FEMA provides funds for restoring disaster-damaged facilities as they existed immediately prior to the disaster, including work to meet current codes and standards.  The Applicant did not provide information to indicate that any codes, standards or other conditions were required;
2. FEMA was not authorized to provide funding because the Applicant had received proceeds from its insurance policy covering the full replacement costs of the destroyed facility;
3. When an applicant desires to make improvements but still restore the pre-disaster function of the damaged facility the applicant must obtain the Grantee’s approval.

Second Appeal

In a letter dated October 5, 2012, the Applicant’s representative conceded that the Applicant did not follow the procedure for requesting approval to make improvements during the construction of the EOC, but reiterates that the facility could not have been constructed to its pre-disaster design.  The letter points out that the hardening of the structure was required by Section 8-2-25 of the Official Code of Georgia (O.C.G.A.) and the building plans state that the new structure was designed for compliance with 2006 International Building Code and FEMA P-361 - Design and Construction Guidance for Community Safe Rooms.  GEMA transmitted the appeal to FEMA with a letter dated October 11, 2012.

Discussion

FEMA provides funding to restore eligible disaster-damaged facilities as they existed immediately prior to the disaster pursuant to applicable codes and standards.  The regulations governing the implementation of applicable standards that change the pre-disaster design of a facility, codified at 44 CFR § 206.226 (d)(1) Restoration of damaged facilities, Standards, and §206.201(1c), pre-disaster design, require that when a damaged building is eligible for replacement, upgrades to current codes and standards apply throughout the facility.  Applicable codes and standards must be appropriate to the pre-disaster use of the facility; and must be reasonable, in writing, formally adopted, and in effect prior to the disaster declaration date.  Furthermore, codes and standards must apply uniformly to all facilities of the type being repaired by the Applicant as a result of the disaster, and the codes must have been enforced during the time they are in effect.

FEMA also recognizes that applicants choose, during the course of repair work, to use their own funds to improve a disaster-damaged facility, whether to increase its capacity or expand its function.  The procedural requirements for an applicant requesting approval from a grantee for an improved project are codified in 44 CFR § 206.203(d)(1) Federal grant assistance, Funding options.  In both cases, the applicant should work with both FEMA and the grantee to ensure that the approved scope of work documented on the PW accurately reflects the actual work to be performed.  In addition to enabling FEMA to conduct the necessary eligibility reviews to ensure compliance with the Stafford Act, this coordination allows FEMA the opportunity to perform an environmental and historic preservation review to ensure that the project is in compliance with applicable federal environmental laws and executive orders.

For the restoration of the Applicant’s EOC as documented with PW 311, the eligible scope of work was to “[r]eplace the applicant's 70' x 150' x 16' (10,500 SF) metal building to pre-disaster design. The building was designed by an architect in 1988 and constructed in 1990 on a 4" slab” and “[u]pon completion, this site will be returned to its [sic] original design, function and capacity within the original footprint.”  The scope of approved work also noted that the “Applicant understands any increase in building size or any interior changes that would be improvements would not be eligible for FEMA reimbursement.”  While the State of Georgia’s adoption of the design criteria of ICC 500/ FEMA P-361 to protect EOCs from 200 MPH wind loads may have met the regulatory requirements for codes and standards, the Applicant has not submitted any documentation that demonstrates that it requested approval of the grantee for an improved project, or notified FEMA of its intent to modify the scope of work based on applicable codes and standards before the start of construction of the hardened facility.

As the Applicant’s actual insurance proceeds of $1,071,107 covered the costs associated with the approved scope of eligible work on PW 311, FEMA de-obligated funding in accordance with 44 CFR§ 206.250, which requires that insurance proceeds must be deducted from the eligible costs in order to avoid a duplication of benefits.  The Applicant’s insurance policy contained coverage of additional costs of up to $1,000,000 to meet laws and ordinances relating to buildings and structures.  If the change from metal building to concrete buildings are building code requirements, then these costs would be fully covered by insurance up to the Applicant’s additional limit of $1,000,000.

Conclusion

FEMA was not notified of the change of scope of work and was therefore unable to conduct the required eligibility review of the applicable codes and standards, and to conduct the necessary environmental review prior to the start of construction.  In addition, the Applicant’s insurance policy included $1,000,000 of coverage for building code requirements.  Therefore, I have determined that the Applicant’s appeal should be denied.  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:   Major P. May
       Regional Administrator
       FEMA Region IV