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Second Appeal Analysis
PA ID# 031-99031-00; Essex County
PW ID# 4059; Predisaster Conditions, Codes and Standards
From August 26 to September 5, 2011, Hurricane Irene’s rainfall overflowed a tributary of the Ausable River, washing away a multi-plate steel arch culvert, causing damage to the culvert’s supporting structures, and the collapse of a portion of Hesseltine Road covering the culvert. By September 15, 2011, Essex County (Applicant) completed installation of a new culvert, identical to the one that existed predisaster, and repaired a portion of the two-lane roadway to facilitate traffic on one lane. On April 19, 2012, FEMA obligated $62,219.30 for Project Worksheet (PW) 4059 as Category C permanent work,  for the repair work completed in September 2011 to the culvert and road (Facility).
On February 14, 2013, the Applicant transmitted its request to the New York State Division of Homeland Security and Emergency Services (Grantee) to change the SOW in PW 4059 and replace the installed culvert with a reinforced concrete box culvert. The Applicant attached two estimates from an engineering firm, one of which included installation of the reinforced concrete box culvert while the other involved replacing the current 46.46 foot long multi-plate arch culvert with a 60 foot long steel plate arch culvert. The Grantee forwarded the Applicant’s request to FEMA with a memorandum in support, arguing the SOW described in PW 4059 failed to restore the Facility to its predisaster condition, and asking for a second PW to be written, returning the now one-lane road to a two-lane roadway.
FEMA Region II denied the Applicant’s request in a letter dated August 16, 2013. FEMA determined the project was not eligible for a SOW change because the project was 100 percent complete as of September 15, 2011.
Through a letter dated September 17, 2013, the Applicant appealed FEMA’s determination. On January 29, 2014, the Grantee forwarded the Applicant’s first appeal, along with a supporting memorandum dated December 3, 2013. The Grantee argued that FEMA erred when it wrote PW 4059 as Category C work rather than as Category B emergency protective measures, because the repairs completed by the Applicant were temporary, merely done to allow residents to access their property following the disaster. The Grantee pointed out that prior to the disaster the road was a two-lane roadway, but the temporary repairs resulted in narrowing the road down to a single lane road with jersey barriers, and no shoulders. As such, the Grantee requested a new Category C PW be written to include a SOW for permanent work that would restore the road to its predisaster condition.
On March 27, 2015, FEMA transmitted a Final Request for Information (RFI) to the Grantee and notified it there was insufficient information in the administrative record to support the assertion that a new Category C PW should be written for the permanent restoration of the Facility. As such, FEMA requested: (1) a detailed SOW (including a line item cost estimate) for the replacement of the culvert on the basis of its predisaster design and associated roadway repairs; (2) any engineering or geotechnical reports or other documentation supporting the proposed requests; (3) any codes or standards that required the replacement of the culvert with either a longer replacement arch culvert or box culvert design as submitted in the original estimates; (4) identification and justification of any hazard mitigation measures; and (5) a description of any work the Applicant initiated or completed at the Facility in addition to the SOW approved in PW 4059.
The Applicant responded to FEMA’s Final RFI in July 2015 and provided reports from a second engineering firm. This additional documentation included an engineering report, field measurements, plans/drawings, and two detailed cost estimates, which both involved restoring the road to a two-lane roadway, but differed on the proposed work to the culvert and ancillary structures. The first proposal, which totaled $441,500.00, entailed keeping the culvert it installed after the disaster, and completing additional repairs to restore the roadway and supporting structures. The engineering firm noted that this was not the preferred option, as it did not protect the Facility against a 100-year flood. The second proposal included replacing the multi-plate arch culvert and installing a concrete bridge culvert in its place to allow for increased water flow in the event of a future disaster. This proposal, which included additional repair work to restore the roadway and improve the supporting structures, was the preferred option because it protected the Facility against a 100-year flood and was estimated to cost $721,200.00.
On February 19, 2016, the FEMA Region II Regional Administrator (RA) denied the appeal, finding the Applicant had not provided the required documentation to support its claim for additional repairs. The RA acknowledged PW 4059 did not restore the Facility to its predisaster condition, and that additional work was required to restore the driving surface to the predisaster width of 30 feet to allow for two lanes of traffic. However, the RA determined the Applicant had not provided the required documentation, such as a detailed SOW proposal or justification for the costs of the proposed work, to support its requests for the concrete box culvert or 60 foot long steel plate arch culvert.
In a letter dated March 15, 2016, the Applicant appealed the RA’s decision. In its May 11, 2016 endorsement, the Grantee concurs and argues PW 4059 should be amended to include additional work to restore the Facility to its predisaster condition. The Grantee acknowledges this result will be accomplished by both of the proposals advanced by the second engineering firm, but advocates for the second, as it includes hazard mitigation.
Pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) § 406, as implemented by Title 44 Code of Federal Regulations (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. Local officials, such as the Applicant, are responsible for identifying damage, and providing sufficient data for FEMA to develop an accurate scope and cost estimate for perform the repair work. Regardless of whether FEMA approves funding for repair/restoration work, contingency line items in a construction estimate are ineligible for Public Assistance (PA).
The Applicant and Grantee argue PW 4059 did not include the SOW necessary to restore the Facility to its predisaster condition and requests FEMA amend the SOW in PW 4059 to accomplish this. Before the disaster, the portion of Hesseltine Road crossing the culvert was a two-lane roadway. After the disaster, the Applicant created a temporary one-lane road for residents to access property. FEMA obligated funding for these completed repairs but did not include funding for additional work to restore the road to a two-lane roadway. As such, the RA properly determined on first appeal that PW 4059 did not restore the Facility to its predisaster condition.
The Applicant submitted two estimates from an engineering firm with its original request and two additional detailed proposals from a second engineering company in response to the Final RFI, to support its request to change the SOW. The first estimate from the initial engineering firm involves replacing the current culvert with a reinforced concrete box culvert, which would not restore the Facility to its predisaster multi-plate steel arch design. That company’s second estimate proposes installation of a 60 foot long steel plate culvert, but is not accompanied by either a detailed SOW or engineering reports. As such, the Applicant has not produced documentation demonstrating that either of the estimates that accompanied its original request would restore the Facility to its predisaster design.
Regarding the second engineering firm’s first proposal, it: (1) keeps the existing multi-plate steel arch culvert, which is the same type of culvert that existed predisaster, and involves completing additional repairs to its supporting structures (i.e. restoring the headwalls and cut-off walls to their predisaster condition); and (2) restores the road to a two-lane roadway. As part of the second appeal process, FEMA had a Professional Engineer on staff review this set of proposals and the administrative record. Based on such, FEMA finds the Applicant provided documentation that showed most of the work and costs proposed will restore the Facility to its predisaster design. However, the Applicant supported only 1,200 not 2,100 cubic yards (CYs) for both excavation and for backfill work needed to restore the Facility to its predisaster condition. Finally, as contingency line items are not eligible for PA, the contingency percentage within the estimate is ineligible. Consequently, the proposed work and costs included in the first proposal, excluding 900 CYs in backfill and excavation, and the contingency percentage, are eligible for PA funding.
In contrast, that company’s second proposal included replacing the existing multi-plate steel arch culvert with a concrete bridge design to increase the flow capacity; and restoring the road to a two-lane roadway. Similar to the estimates submitted with the Applicant’s original request, this option involves modifying the predisaster design of the culvert, and as such, would not restore the Facility to its predisaster condition.
Codes and Standards
Under 44 C.F.R. § 206.226(d), costs associated with work that changes the predisaster construction of a facility may be eligible for PA funding if the codes or standards: (1) apply to the type of repair or restoration required (standards may be different for new construction and repair work); (2) are appropriate to the predisaster use of the facility; (3) are found reasonable, in writing, and formally adopted and implemented by the State or local government on or before the disaster declaration date, or be a legal Federal requirement applicable to the type of restoration; (4) apply uniformly to all similar types of facilities within the jurisdiction of the owner of the facility; and (5) were enforced during the time it was in effect. All five prongs must be met in order to be eligible for PA funding. Generic guidance is not equivalent to a mandatory code or standard. “Design standards, guidelines, policies, industry practices, or other non-mandatory provisions” do not satisfy 44 C.F.R. § 206.226(d)(3).
Although the original estimates and the second engineering company’s second proposal involve changing the predisaster design of the culvert, the Applicant argues the improvements are necessary to better protect against future floods and be compliant with codes and standards. The original estimates, however, lack necessary supporting documentation, such as a detailed SOW proposal, or documentation demonstrating that the modifications are required by codes or standards. As such, the RA properly determined neither estimate justified the Applicant’s request to change the SOW.
Regarding the second company’s second proposal, the Applicant asserts the proposed design change is based on NYS DEC and USACE permitting requirements. While the NYS DEC and the New York State Department of Transportation (when providing guidance on the USACE’s permit conditions) do recommend a culvert crossing be 1.25 times the bank-full width of the stream, the Applicant has not demonstrated it was required at the time of the disaster. While this method of constructing a culvert is a best practice, the Applicant has not produced documentation this is a mandatory code/standard formally adopted and implemented by the State or local government, or a Federal requirement applicable to the requested repairs. Consequently, it does not meet the requirements of 44 C.F.R. § 206.226(d).
The Applicant demonstrated that the second engineering firm’s first proposal, in part, restores the Facility to its predisaster condition. As a result, funding in the amount of $316,845.76 is eligible for PA. FEMA Region II may also engage the Applicant to determine if the project is eligible for hazard mitigation or whether the Applicant would like to pursue an improved project.
 Project Worksheet 4059, Essex County, Version 0, at 1, 3 (Apr. 19, 2012) (noting the predisaster culvert was a 46.46 foot long elliptical 19.67 foot x 12.67 foot multi-plate arch culvert, damaged beyond repair and that the culvert installed after the disaster was a 46.46 foot long elliptical 19.67 foot x 12.67 foot multi-plate arch culvert).
 See Public Assistance Guide, FEMA 322, at 79-80 (2007) [hereinafter PA Guide] (noting that Category C work is a designation FEMA assigns for permanent work to roads, bridges, and associated facilities (e.g. culverts) that restores a damaged facility to its predisaster design, function and capacity in accordance with applicable codes or standards).
 Letter from Assistant Civil Eng’r, Essex Cnty. Dep’t of Pub. Works, to Disaster Assistance Officer, N.Y. State Office of Emergency Mgmt. (NYSOEM) (Sept. 17, 2013).
 See PA Guide, at 71, 74 (defining Category B emergency protective measures as “activities undertaken by a community before, during, and following a disaster that are necessary to … eliminate or reduce an immediate threat to life, public health, or safety.”).
 Report from Principal, Schoder Rivers Associates, to Essex Cnty. Dep’t of Pub. Works, at 2-3 (July 15, 2015) [hereinafter Engineer’s Report], (proposing to keep the existing multi-plate steel arch culvert that was installed as part of the original authorized work and provide additionalreinforcement/support by repairing the headwalls, excavating and replacing the compromised backfill around the existing culvert, providing cast-in-place concrete cut-off walls and slope collars at the inlet and outlet of the pipe, repairing the headwalls at both ends of the culvert, and providing heavy stone riprap slope protection. Lastly, it involves repairing the damaged paved roadway surface of the road to return the road to its original width and stabilize the roadway and culvert.).
 Engineer’s Report, at 3-4 (proposing a replacement option that seeks to substitute the existing culvert with a steel girder bridge with a cast-in-place concrete deck on cast-in-place abutments and wingwalls. To accomplish the work, this option involves excavating and removing the existing culvert and portions of the road to accommodate the new structure. Additionally, portions of the tributary immediately upstream and downstream of the new bridge would be regraded to accommodate the new opening width. In order to protect the traffic traveling on the road, new box beam guiderails and steel curbless box beam two-rail bridge rails would be installed. Lastly, this option also involved returning the road to a two-lane roadway.).
 FEMA First Appeal Analysis, Essex Cnty., FEMA-4020-DR-NY, at 4 (Feb. 19, 2016) (the RA does not address the second engineering firm’s proposals, provided by the Applicant in its response to FEMA’s Final RFI, in his analysis).
 Letter from Dep. Supt., Essex Cnty. Dept. of Pub. Works, to Disaster Assistance Officer, NYSOEM (March 15, 2016).
 The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 406, 42 U.S.C. 5172 (2007); Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.226 (2010).
 FEMA Second Appeal Analysis, San Diego Cnty., FEMA-1952-DR-CA, at 3 (Mar. 25, 2013).
 FEMA engaged a civil engineer who holds a Professional Engineer (PE) license [hereinafter FEMA Civil Engineer].
 Engineering Assessment, FEMA Civil Engineer, at 2-3 (Mar. 9, 2017).
 Email from FEMA Civil Engineer, to FEMA Appeals Analyst (Mar. 10, 2017; 03:01 PM).
 PA Guide, at 34; Disaster Assistance Policy DAP 9527.4, Codes and Standards, at 3 (Feb. 5, 2008).
 FEMA Second Appeal Analysis, City of Petaluma, FEMA-1628-DR-CA, at 4 (Aug. 13, 2012).
 See N.Y. St. Dept. of Environmental Conservation, http://www.dec.ny.gov/permits/49060.html (last visited May 1, 2017) (noting that a culvert “should be at least 1.25 times the width of the stream channel bed”) (emphasis added); See also N.Y. St. Dept. of Transp. Engineering Instruction, https://www.dot.ny.gov/portal/pls/portal/mexis_app.pa_ei_eb_admin_app.show_pdf?id=10539, at 4 (last visited May 1, 2017) (providing guidance for complying with the USACE’s regional conditions for nationwide permits and stating, in 2010, the preferred option for determining bank-full width to calculate the required culvert span, is to use the average of the: (1) actual bank-full width (measured directly); (2) channel width at ordinary high water, multiplied by1.25; and (3) width of flow at the 2-year design storm).
 See N.Y. St. Dept. of Environmental Conservation, http://www.dec.ny.gov/permits/49066.html (last visited May 1, 2017) (including within its guidelines and best management practices, that the width of a culvert should be 1.25 times the normal width of the streambed).
 FEMA denies 900 CYs of the requested 2100 CYs in backfill, 900 CYs of the requested 2100 CYs in excavation, and the contingency line item, which modifies the amounts allocated for general conditions, overhead/profit, engineering/design, and quality assurance.