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Second Appeal Brief
PA ID# 000-UCT2E-00; Department of Environmental Protection
PW ID# (PW) 4504 and 4510 ; –Appeal Timeliness, Scope of Work, 50 Percent Rule, Codes and Standards
Conclusion: The State of New Jersey Department of Environmental Protection (Applicant) did not receive prior approval for a change in scope of work (SOW) before demolishing three buildings. In addition, the Applicant failed to demonstrate that two of the buildings were eligible for replacement.
The Applicant requested Public Assistance (PA) to repair three buildings after Hurricane Sandy. FEMA prepared PW 4510 to document damage and repairs to a Concession Building, and PW 4504 to document damage and replace a Maintenance Office and repair an Office/Toilet building. The Applicant’s consultants prepared cost estimates for the repair and replacement of the three buildings. FEMA used agency cost codes that reflected lower repair estimates and found the consultants’ cost estimates to contained work for items that were not damaged by the disaster. The Applicant requested an improved project designation from the State of New Jersey Office of Emergency Management (Grantee) to demolish the facilities and consolidate the three buildings into one. FEMA requested a detailed SOW for the improved project in October 2014. However, prior to obtaining approval, the Applicant demolished the buildings in May 2015. In June 2015, the Applicant submitted a request for a SOW change, and designations of an improved and an alternate project for the three buildings. FEMA denied the request as untimely because applicants must file an appeal within 60 days of a PA determination and the Applicant did not receive approval to change the SOW prior to demolition of the facilities. The Applicant appealed and argued that FEMA was afforded the opportunity to reevaluate the facilities before they were demolished. The FEMA Region II Regional Administrator denied the appeal, and determined that the SOW was an untimely appeal. He also found that FEMA determined the facilities were not eligible for replacement, and after the Applicant demolished the buildings, it deprived FEMA of the opportunity to re-evaluate damages. The Applicant again appeals and states that damage was missing from the PWs, which also would have made the facilities eligible for replacement.
Authorities and Second Appeals
Stafford Act § 406(e)(1), 423.
44 C.F.R. §§ 9.11(d)(3), 13.30, 60.3(c)(3); 206.206(c)(1), 206.223(a), 206.226(d) and (f).
PA Guide, at 36-38, 79, 140.
DAP 9524.4, at 2-3.
DAP 9525.5, at 1.
DAP 9527.4, at 3.
Pulaski Cty., FEMA-4144-DR-MO, at 6.
PA Program Appeal Procedures, at 11.
Pursuant to 44 C.F.R. § 13.30(d)(1), applicants or grantees must obtain prior approval from FEMA whenever there is a revision of the scope of a project. Additionally, 44 C.F.R. § 13.30(c)(2) requires applicants and grantees to obtain prior written approval from FEMA for any budget revision that would require additional funds.
Per the PA Guide, when an applicant discovers additional work necessary to complete a project, a SOW change request should be made “as soon as possible so that damages can be inspected before they are covered up or repaired”
44 CFR § 206.206 (c) allows Applicants 60 days after the date which the Applicant is notified of a decision to appeal it. FEMA’s procedures require the agency to provide notice of appeal rights to an applicant in an eligibility determination.
Upgrades required by a code or standard are eligible for funding only if all five elements of 44 C.F.R. § 206.226(d) are satisfied.