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Second Appeal Brief
PA ID# 111-99111-02; Ulster County Department of Public Works
PW ID# 3629; Scope of Work
Conclusion: On second appeal, the Ulster County Department of Public Works (Applicant) submitted sufficient documentation to demonstrate that the scope of work in PW 3629 does not fully address the work required to restore its culvert to pre-disaster design, function, and capacity. Accordingly, FEMA authorizes a change to the scope of work and is remanding the appeal to Region II to determine eligible costs associated with the work and to reconsider the HMP.
Hurricane Irene caused major damage to the Applicant’s culvert and the road supported by the culvert. In order to restore the culvert to its pre-disaster condition, the Applicant requested funding to excavate, remove and replace panels of the culvert. The Applicant also submitted a Hazard Mitigation Proposal (HMP) that proposed excavating and removing the multi-plate steel arch culvert, creating and stabilizing abutments using sheet piling and fill, installing beam seats and precast concrete bridge decking, and installing box guardrails in lieu of W-panel guardrails. In PW 3629, FEMA allocated $36,695.59 to repair the culvert. However, FEMA determined that the HMP, as written for $61,152.73, was ineligible because the mitigation was 168 percent of the total eligible cost. In its first appeal, the Applicant asserted that FEMA did not draft the scope of work in PW 3629 to accurately reflect the work necessary to repair its custom made culvert which requires considerable effort to attach and assemble the individual pieces of the culvert before it can function properly. The FEMA Region II Acting Regional Administrator (RA) denied the first appeal because she determined that the Applicant needed to request a net small project overrun because PW 3629 was a small project. In addition, she determined that the HMP exceeded 100 percent of the project cost and was not cost effective. In the second appeal, the Applicant, again, asserts that the scope of work was not written to properly address the work necessary to repair its culvert.
- Stafford Act § 406, 42 U.S.C. § 5170b.
- 44 C.F.R. § 206.202(d)(1)(i).
- 44 C.F.R. § 206.226(e).
- PA Guide, at 95, 101, and 109.
- Recovery Policy 9526.1, Hazard Mitigation Funding Under Section 406 (Stafford Act) (Mar. 30, 2010).
- 44 C.F.R. § 206.202(d)(1)(i) provides that the Project Worksheet must identify the eligible scope of work and must include a quantitative estimate for the eligible work.
- The PW explains the disaster-related damage in the Damage Description and Dimensions section and necessary repair work in the Scope of Work section.
- The PA Guide states that regarding small projects, if there are omissions or changes in scope, FEMA may revise an initial PW, which may result in changes in funding level and/or category.
- The scope of work in PW 3629 does not demonstrate the necessary repair work to restore the Applicant’s culvert to pre-disaster condition, and should be revised
- 44 C.F.R. § 206.226(e) authorizes FEMA to fund additional measures that will enhance a facility’s ability to resist similar damage in future events.
- RP 9526.1 states mitigation measures that replace, realign, or relocate culverts are predetermined to be cost effective if they do not exceed 100 percent of project cost.
- The Applicant submitted a HMP with PW 3629 to mitigate future damage to the culvert.
- The Acting RA determined the HMP to not be cost effective because it exceeded 100 percent of the project cost.
- HMP should be re-evaluated once the scope of work and cost are revised.