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Second Appeal Analysis
PA ID# 025-U4988-00; Delaware County Department of Public Works
PW ID# 7989 ; Scope of Work
From August 26 to September 5, 2011, heavy rains from Hurricane Irene caused increased volume and velocity of water flowing down Vly Creek, destroying the superstructure and east abutment of a pedestrian bridge owned by Delaware County Department of Public Works’ (DPW) (Applicant), known as County Bridge 101P (facility), and eroding 20-feet of the supporting embankment on the eastern side. Originally constructed as a vehicular bridge in the early 1900s, the facility was reconstructed in 1996 as a pedestrian bridge above the dry laid stone abutments that were remnants of the old bridge. Due to the unknown structural stability of the old dry laid stone abutments, the applicant built new abutments behind the existing stone abutments to serve as the structural base for the new pedestrian bridge. At the time of disaster, the distance between the new abutments was 56-feet, the beams for the superstructure were 60-feet long, and the deck was wood.
FEMA drafted Project Worksheet (PW) 7989 to replace the section of the facility that carried pedestrian traffic from Old Halcott Road over Vly Creek to Lake Street in the Village of Fleischmanns. Work to be completed included: 1) constructing a large spread footing abutment on the east side to support the deck and serve as a retaining wall for the filled-in east embankment; 2) replacing the superstructure comprised of two 60-foot long steel girders with assorted diaphragms; 3) installing deck and handrails comprised of 2-inch thick pressure-treated wood; 4) repaving approaches; and 5) building 200-linear feet of 3-rail wooden fence. Based on costs derived from the Cost Estimating Format (CEF), PW 7989 was originally prepared for $570,933.65. An alternative CEF was also developed that extended the span of the bridge to 90 feet, thus repositioning the abutments and alleviating both the need for massive retaining structures and potential constrictions of flow in the channel.
Upon further review, FEMA found the cost to replace the facility— a wooden bridge for pedestrians—excessive. Ultimately, FEMA concluded that the in-kind estimate, as presented by the Applicant, represented a facility that was “grossly over designed,” primarily by constructing large spread footings and an accompanying abutment that utilized 356 cubic yards (CY) of concrete with 57,000 pounds of reinforcing steel. In addition, FEMA determined that the CEF included some items that were not in-kind replacements, but rather, mitigation measures. FEMA noted a lack of any obstacles that would prevent the structure from being rebuilt on its original footprint. Finally, FEMA noted that the Applicant failed to identify any codes or standards that would justify the magnitude of the proposed replacement structure. Accordingly, the CEF scope and costs were subsequently revised to a total in-kind replacement cost of $222,176.00.
In its first appeal, dated February 25, 2013, the Applicant noted that the photos referenced by the FEMA reviewer did not show where the original west abutment was located. The Applicant stated, “[w]ith the loss of that abutment, the new abutment in the same location will have to be massive.” The Applicant also asserted that the size of the abutment depended more on the fact that it is a retaining wall than a bridge abutment. Consequently, the Applicant argued that the final cost to restore the facility would be closer to the original $570,933.65 figure than the revised $222,176.00 figure.
In a letter, dated November 1, 2013, the Region II Acting Regional Administrator (RA) denied the first appeal, determining that the Applicant had not provided sufficient documentation to support its claim that the revised FEMA repair cost and scope was not accurate. The Acting RA concluded that the Applicant could request a change in scope of work with an adjusted cost estimate, if necessary, once an approved engineering study was conducted.
In its second appeal, dated February 6, 2014, the Applicant requests $621,824.00 in additional funding to replace its pedestrian bridge. The Applicant again asserts that, as currently written, the PW scope of work does not accurately reflect the work necessary to restore its facility to predisaster design. In addition, the Applicant states that it hired an engineering consultant to perform engineering services regarding the project described in PW 7989. The Applicant asserts that the consultant determined that an in-kind replacement of the facility is not feasible due to costs and the need to be Americans with Disabilities Act (ADA) compliant. The Applicant asserts that the cost to replace the facility to predisaster design (Alternative A) is approximately $403,000.00. However, to bring the facility up to ADA compliance (Alternative B), the Applicant estimates the construction cost to be $554,000.00. In addition, the Applicant requests funding for right-of-way taking costs, engineering costs, construction inspection costs, and a more detailed hydraulic and hydrology (H&H) study. The Applicant’s consultant provided two plans, with estimates. Factoring in the additional costs, the Applicant estimates Alternative A will cost $683,000.00 and Alternative B will cost $844,000.00. For both plans, the replacement structures will have the same span length, clear span opening, and horizontal alignment as the predisaster structure. The vertical alignments vary from the original pre-disaster grades to ADA-compliant grades with ramps to meet statutory requirements. Following its completion of a topographic survey, the Applicant proposes a third plan, Alternative C, in which the structure would be replaced with a 90-foot span length following the original horizontal alignment estimated to cost $419,000.00.
Facility Design, Function, and Capacity
The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) Section 406(e) authorizes FEMA to fund the cost of repairing, restoring, reconstructing, or replacing an eligible facility. Eligible costs are based on “the design of [the] facility as it existed immediately prior to the major disaster” and in conformity with current applicable codes and standards. FEMA regulation refers to this as the facility’s “predisaster design,” which is defined at Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.201(k), as the size or capacity of a facility as originally designed and constructed or subsequently modified by changes or additions to the original design. FEMA policy adds the additional requirements that permanent work repairs or restores a damaged facility to predisaster function and predisaster capacity. As such, FEMA funds the cost of repairing, restoring, reconstructing, or replacing an eligible facility to predisaster design, function and capacity. FEMA policy defines “predisaster function” to mean the function the facility was performing immediately prior to the disaster. FEMA policy defines “predisaster capacity” to mean the same capacity available before the disaster. It is important to note that FEMA policy does not modify or restrict the regulatory definition of “predisaster design.”
The Applicant has sufficiently demonstrated through engineering reports and documentation submitted with the second appeal that the current obligated amount, $222,176.00, does not accurately reflect the costs associated with restoring the facility to predisaster design, function and capacity. In regard to the spread footings, the amount of concrete included in the design may seem large or appear to be excessive, but drawings provided by the applicant and a description of the eroded eastern embankment reveals that a large abutment and retaining wall would be necessary to restore the bridge to its predisaster design. The abutment and retaining wall would not be considered hazard mitigation because their purpose is not to reduce the threat of future flood damage to the bridge, but rather to restore the facility to its predisaster design, function, and capacity.
FEMA does not require an applicant to replace the destroyed bridge with an in-kind bridge that strictly matches the shape, size, footprint, and dimensions of the predisaster bridge in all instances. For a facility to be restored to “predisaster design” the new facility must match the same “size” or “capacity” of the original facility. In this case, the Applicant proposes to replace the 60-foot span bridge with a 90-foot span bridge. Therefore, the analysis is: does the 90-foot span bridge match the same size or capacity of the 60-bridge while maintaining the predisaster function as a pedestrian foot bridge. While the 90-foot span bridge does not restore the bridge back to its predisaster size (60-foot span increased to 90-foot span), it still satisfies the requirement of returning the bridge to predisaster design because the 90-foot span bridge maintains the same capacity (i.e., supporting equivalent pedestrian traffic loads). Moreover, the proposed 90-foot span bridge does not alter the predisaster function of the bridge (i.e. creating a vehicular bridge), but preserves the predisaster function as a foot bridge. Therefore, the 90-foot span bridge is a viable scope of work to return the bridge to predisaster design, function, and capacity.
When presented with multiple alternatives that would restore a facility back to predisaster design, function, and capacity, FEMA should consider good engineering practices, cost effectiveness, extenuating circumstances, and environmental impacts, among other requirements. In this case, the Applicant has demonstrated that, Alternative C, the 90-foot span bridge alternative, would restore the bridge in the most cost-effective manner by lengthening the span of the bridge so that the bridge foundations can be embedded farther back and not have to retain a large amount of dirt and soil in addition to supporting pedestrian loads. The Applicant supports this assertion with a letter from its consulting engineers, stating, “[f]rom an engineering perspective, it was immediately obvious that the replacement structure should utilize a much larger span than the original bridge in order to increase the hydraulic opening and provide for a more cost-effective replacement of the east abutment.” In addition, the Applicant’s consultant demonstrates that replacing the 60-foot span bridge with an in-kind bridge (i.e., Alternatives A and B) that strictly matches the shape, size, footprint, and dimensions of the predisaster bridge is not consistent with good engineering practices. An in-kind replacement would require a massive retaining wall, not already accounted for in PW 7989’s scope or work, thus increasing costs. Placement of the east abutment would need additional verification by hydraulic analysis, which has not been performed to date, and will likely drive up costs. The Applicant verified these assertions with engineering reports and pictorial evidence. In short, FEMA agrees that Alternative C should be the preferred replacement method because it is cost effective, easily constructible, will withstand future storms with calibers as great as Hurricane Irene, and, as discussed below, is compliant with the ADA. Accordingly, Region II will prepare a version of PW 7989 that incorporates the revised scope of work and associated engineering and design services.
The 90-foot span bridge should not be considered “hazard mitigation.” Federal regulations define “hazard mitigation” as any cost effective measure which will reduce the potential for damage to a facility from a disaster event. Typically, these measures include adding new features, installing extra components, or realigning or relocating structures. The 90-foot span bridge would not incorporate any of these measures, nor does it intentionally reduce risk from similar future events. Accordingly, the revised scope is not “hazard mitigation” pursuant to FEMA regulation and policy.
Americans with Disabilities Act (ADA) Requirements
Although Public Assistance funding is typically only available to restore a facility to its predisaster design, FEMA may authorize funding for compliance with certain codes and standards. In order to be eligible for such funding, a facility must meet applicable ADA access requirements. According to Response and Recovery Directorate Policy (RRDP) 9525.5, Americans with Disabilities Act (ADA) Access Requirements, new facilities receiving FEMA funding and constructed as replacement facilities must be readily accessible to and useable by individuals with disabilities. Accordingly, FEMA will provide funds to comply with reasonable ADA requirements whether or not the facility met compliance prior to the disaster.
It is important to note that the compliance issue does not concern the width of the bridge, but the grade or slope of the bridge. The predisaster design of the bridge tied in directly to the existing earth. As such, the slope of the bridge was steeper than the allowable grade under the ADA. The current scope of work in PW 7989 does not fully address applicable ADA requirements because the shorter span, requiring massive retaining walls, would require major adjustments to the abutments to achieve an ADA-compliant slope. However, Alternative C proposal meets ADA requirements because lengthening the span of the bridge makes the slope more gradual. As such, the revised scope of work for PW 7989, based on Alternative C, ensures that the facility is ADA compliant.
The Applicant provided sufficient documentation to demonstrate that a change in the scope of work of PW 7989 is warranted. Contingent upon EHP review and approval, Region II should develop a scope of work to fully address the work necessary to replace the bridge with a 90-foot span and meet ADA standards. The Applicant has substantiated that the Alternative C proposal, included in the second appeal, best accomplishes these requirements and should be the new scope of work for PW 7989. In accordance with 44 C.F.R. § 206.206, the Applicant maintains the right to appeal any new issues that arise in determining eligible costs.
 See Letter from Associate and Professional Engineer, Modjeski and Masters, to Commissioner, Delaware County Department of Public Works, at 1 and Appendix F (June 18, 2014) [hereinafter June 2014 Letter].
 The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 406, 42 U.S.C. § 5172 (2007).
 44 C.F.R. § 206.201(k) (2011).
 Public Assistance Guide, FEMA 322, at 79 (June 2007) [hereinafter PA Guide].
 44 C.F.R. § 206.201(f).
 See generally OFFICE OF MGMT. & BUDGET, EXEC. OFFICE OF THE PRESIDENT, OMB CIRCULAR A-87, COST PRINCIPLES FOR STATE, LOCAL, AND INDIAN TRIBAL GOVERNMENTS (2004) (codified at 2 C.F.R. § 225); see also PA Guide, at 40 (stating eligible costs must be reasonable and necessary to accomplish the work. Moreover, a cost is reasonable if it is both fair and equitable for the type of work being performed.)
 See generally Lewis County, FEMA-1734-DR-WA, at 3 (Mar. 25, 2010) (holding that although a bridge standard required adjusting the predisaster size, the standard: (1) did not change the bridge’s predisaster function or capacity, (2) was reasonable, (3) allowed engineers to use their professional judgment, (4) and constituted a good construction practice intended to reduce the likelihood of future disaster-related damage); see also Brooktrails Township Community Services District, FEMA-1628-DR-CA, at 3-4 (Apr. 27, 2009) (finding that additional work items could be added to the scope of work based on sound engineering practices, in accordance with 44 C.F.R. § 206.226).
 June 2014 Letter, at 1.
 See June 2014 Letter at Appendix F; see also Modjeski and Masters, Bridge 101P Quantity Calculations (Feb. 5, 2014).
 44 C.F.R. § 206.201(f).
 Recovery Policy 9526.1, Hazard Mitigation Funding Under Section 406 (Stafford Act) at Appendix A (Mar. 30, 2010).
 See 44 C.F.R. § 206.226(d) (stating a standard that changes the predisaster construction of a facility is eligible if it is a legal Federal requirement applicable to the type of restoration); see also 36 C.F.R. pt. 1190 and 28 C.F.R. pt. 35; see generally PA Guide, at 33-36.
 Response and Recovery Policy 9525.5, Americans with Disabilities Act (ADA) Access Requirements, at 1 (Oct. 26, 2000).
 Id. at 2; see also PA Guide, at 35.