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Second Appeal Brief
PA ID# 023-46620-00; Borough of Milltown
PW ID# 2362; Permanent Relocation
Second Appeal: FEMA-4021-DR-NJ, Borough of Milltown, Project Worksheet 2362 – Permanent Relocation
Conclusion: A facility must be destroyed, meaning more than fifty percent damaged, to be eligible for permanent relocation funding. The Applicant’s electric substation was four percent damaged and does not qualify for relocation.
The Applicant is appealing FEMA’s determination in Project Worksheet (PW) 2362 that denied $11,752,880.00 to fund the permanent relocation of the Washington Avenue electrical substation (Facility) out of a floodplain. Hurricane Irene flooding damaged the Facility circuit breaker components. PW 2362, awarded for $219,657.83, funded those repairs. PW 3835, awarded for $120,296.00, funded repair for other elements at the Facility, making the total eligible funding $339,953.83. The Applicant requested $11,752,880.00 from FEMA’s Flood Mitigation Assistance (FMA) program to relocate the Facility. The State Closeout Manager from the State of New Jersey Department of Public Safety (Grantee) requested closeout on May 13, 2014. FEMA agreed with the Grantee that the final project amount was $219,657.83, equal to the amount originally obligated. In February 2015, the Grantee submitted a request to withdraw the project from closeout and the Applicant submitted a change request, seeking permanent relocation. The Grantee noted that the project did not receive FMA funding because all available funds had been allocated. On March 10, 2015, FEMA prepared a benefit cost analysis (BCA) for the requested relocation, resulting in a benefit cost ratio (BCR) of 1.82. The BCA was later recalculated, resulting in a BCR of 1.5. On March 24, 2015, the Grantee requested conversion of the project to a permanent relocation. FEMA denied the request, finding the relocation cost not reasonable when compared with the repair cost and stating that to be eligible for relocation a facility must be destroyed. The Applicant appealed, arguing that according to FEMA’s own policy, the Facility can be “damaged or destroyed” and the 1.5 BCR establishes that the relocation is cost effective. The FEMA Region II Regional Administrator (RA) denied the appeal, finding that a facility must be destroyed or damaged beyond repair to be eligible and that in the instant case the Facility was less than fifty percent damaged, not destroyed or damaged beyond repair. The Applicant filed a second appeal, renewing the assertion that a facility may be “damaged or destroyed” according to FEMA Fact Sheet RP9580.102, the PA Policy Guide and PA Policy Digest. FEMA finds the RA correctly denied the relocation request and appropriately determined that the Facility is repairable and therefore not eligible for relocation.
Authorities and Second Appeals
Stafford Act § 406(a)(1)(A), 42 U.S.C. § 5172.
44 C.F.R. §§ 206.226(f)-(g).
RP9580.102, Permanent Relocation at 1.
PA Guide at 7.
City of Tallahassee, FEMA-1785-DR-FL at 2.
Palo Cooperative Telephone Association, FEMA-1763-DR-IA, at 3.
City of Valdosta, FEMA-1833-DR-GA, at 4.
Pursuant to 44 C.F.R. § 206.226(f), a facility is considered repairable when disaster damages do not exceed fifty percent of the cost of replacing a facility to its predisaster condition. If a damaged facility is not repairable approved restorative work may include replacement.
44 C.F.R. § 206.226(g) delegates authority to the Regional Administrator to approve funding and require restoration of a destroyed facility at a new location when certain requirements are met.