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Second Appeal Brief
PA ID# 027-52500-00; City of Norman
PW ID# Multiple Project Worksheet; Category of Work – Pre-Disaster Condition – Codes and Standards
During the incident period of May 5 – June 22, 2015 severe storms and straight-line winds affected the City of Norman (Subrecipient). Record-breaking rainfall resulted in flooding that damaged roads and culverts throughout the Subrecipient’s jurisdiction. FEMA developed Project Worksheets (PW) 1479, 1480, 1481, and 1482 to cover repairs to the roads and culverts at four locations. FEMA obligated Public Assistance (PA) funding for the repairs and hazard mitigation improvements, as Category C, permanent work for roads and bridges. FEMA issued a Determination Memo denying certain Direct Administrative Costs as well as some repair costs for proposed upgrades that the Subrecipient asserted were mandated by codes and standards. The Subrecipient filed a first appeal claiming that FEMA should re-write the PWs as Category B emergency work and write new PWs for the proposed upgrades as Category C permanent work. FEMA sent two Requests for Information seeking documentation to support that the codes and standards required the upgrades in question, specifically that they were uniformly applied to all similar facilities within the Subrecipient’s jurisdiction. In response, the Subrecipient provided examples of other culvert improvement projects without providing specifics as to critical information such as location, size, materials, standards, or engineering recommendations. FEMA denied the first appeal stating that the Subrecipient had not completed work within the regulatory timeframe for emergency work and that the Subrecipient had not demonstrated that the codes and standards were uniformly applied to other facilities. On Second Appeal, the Subrecipient posed similar arguments.
Authorities and Second Appeals
- 44 C.F.R. § 206.204(c)(1); 206.226(d).
- 2 C.F.R. pt. 225, app. A § C.1.a.-j.
- PA Guide, at 4, 34-35, 66, 98, 124.
- DAP 9526.1, Hazard Mitigation Funding Under Section 406 (Stafford Act), at 1.
- DAP 9527.4, Construction Codes and Standards.
- 44 C.F.R. § 206.204(c)(1) provides that emergency work must be completed within the six months following a major disaster declaration.
- The Subrecipient did not complete work for the PWs until almost one year after the declaration.
- 44 C.F.R. § 206.226(d) states that costs associated with work that changes the pre-disaster construction of a facility may be eligible for PA funding if work is done to comply with codes or standards.
- The Subrecipient did not demonstrate that the codes and standards were uniformly applied to similar facilities within the Subrecipient’s jurisdiction.
ConclusionFEMA was correct in designating all PWs as Category C, Permanent Work for Roads and Bridges because the work was not completed to prevent an immediate threat to public health or safety. Additionally, the Subrecipient has not demonstrated that its codes and standards apply to all similar facilities within its jurisdiction; therefore, additional funding for proposed upgrades is not eligible. Accordingly, the second appeal is denied.