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Second Appeal Brief
PA ID# 031-99031-00; Essex County
PW ID# 4059; Predisaster Conditions, Codes and Standards
Conclusion: Essex County (Applicant) timely submitted a request to change the scope of work (SOW) in Project Worksheet (PW) 4059 and demonstrated one of its requested work proposals will restore the culvert and road (Facility) to its predisaster condition. Accordingly, the appeal is partially granted.
From August 26 to September 5, 2011, Hurricane Irene’s rainfall caused flooding, washing away a multi-plate steel arch culvert, causing the collapse of the two-lane road covering the culvert. By September 15, 2011, the Applicant installed a replacement culvert, identical to the one that existed predisaster, and repaired the roadway to a one-lane road to allow residents to access their property. FEMA obligated PW 4059, with the SOW reflecting the repair work completed in September, 2011 to the Facility. On February 14, 2013, the Applicant requested a SOW change to replace the culvert with either a reinforced concrete box culvert or a longer steel plate arch culvert. The N.Y. State Division of Homeland Security and Emergency Services (Grantee) supported the Applicant’s request, and argued the SOW in PW 4059 failed to restore the Facility to its predisaster condition. FEMA denied the Applicant’s request to change the SOW, finding that PW 4059 was ineligible for consideration of a SOW change because the project was 100 percent complete. The Applicant appealed on September 17, 2013 and restated its prior arguments that PW 4059 did not restore the road to its predisaster condition. FEMA sent a Final Request for Information seeking a detailed SOW, engineering report(s) and codes/standards applicable to the different culvert designs. The Applicant responded with new construction estimates, and a detailed SOW engineering report and plans, from its engineering firm. The first proposal keeps the existing culvert that was installed after the disaster, repairs the culvert’s supporting structures, and restores the road to a two-lane roadway. The second proposal replaces the multi-plate steel arch culvert with a concrete bridge design and restores the road to a two-lane roadway. While the Regional Administrator (RA) determined that PW 4059 had not restored the Facility to its predisaster condition, he denied the appeal on February 19, 2016, because the Applicant had not provided the required documentation, such as a detailed SOW or justification for the costs of additional permanent work, to support its request to change the SOW. In its second appeal, the Applicant and Grantee request FEMA amend PW 4059 to include the additional work that complies with codes and standards and restores the Facility to its predisaster condition.
Authorities and Second Appeals
- Stafford Act § 406.
- 44 C.F.R. §§ 206.206, 206.226.
- PA Guide, at 4, 34, 71, 74, 79-80, 124, 139-140.
- Village of Waterford, FEMA-4020-DR-NY, at 4 (Sept. 4, 2014), San Diego Co., FEMA-1952-DR-CA, at 3 (Mar. 25, 2013), City of Petaluma, FEMA-1628-DR-CA, at 4 (Aug. 13, 2012).
- DAP 9527.4, at 3, 6 (Feb. 5, 2008).
- Under Stafford Act § 406, implemented by 44 C.F.R. § 206.226, FEMA may reimburse eligible applicants for the repair, restoration, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster on the basis of the facility’s design as it existed immediately prior to the disaster. However, 44 C.F.R. § 206.226(d) provides that work which does not restore a facility to its predisaster condition may still be eligible for Public Assistance (PA) if the work is required by current applicable codes, specifications, and standards.
The Applicant submitted documentation demonstrating the work and associated costs contained in the first proposal restores the Facility to its predisaster condition because it involves keeping the same type of culvert that existed predisaster and returning the road to a two-lane roadway. As such, this work is eligible for PA. In contrast, the Applicant did not submit documentation demonstrating the remaining proposals, which involve modifying the predisaster design of the culvert, are required by codes, specifications, or standards.