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Second Appeal Analysis
PA ID# 055-1433C-00; Napa Valley Unified School District
PW ID# (PW) 191 ; Codes and Standards
During the incident period of August 24 through September 8, 2014, a 6.0 magnitude earthquake and subsequent aftershocks caused damage throughout Napa County. Because there was no alternative location for 900+ students and staff, and the Napa Valley Unified School District (Applicant) was concerned about the public health and safety hazard posed by damaged suspended light fixtures and ceiling systems, it acted quickly to replace them. The Applicant requested Public Assistance (PA) funding for work to replace the damaged suspended lighting and ceiling systems at six school campuses, asserting that the California Division of the State Architect (DSA) required the complete replacement of damaged systems in accordance with code-compliant systems.
FEMA advised the Applicant of the requirement that for code upgrades to be eligible for PA funding, they must meet certain eligibility criteria. The Applicant responded with a letter from the DSA, which indicated that, when reviewing the project, it applied code requirements specified in the California Building Standards Code (CBC). FEMA advised the Applicant that the DSA letter did not establish that any written codes or standards required replacement of the systems. The Applicant submitted a second letter from DSA, which stated that based on CBC requirements, the damaged suspended ceiling and lights have to be replaced as a system, not in parts, to ensure that corrective action complies with DSA’s procedure and applicable Interpretations of Regulations (IR).
On March 9, 2015, FEMA prepared Project Worksheet (PW) 191 to document the reported earthquake damage. FEMA approved replacement for fallen suspended lighting fixtures, and repair to predisaster condition for the remaining damaged suspended lighting and ceiling systems. FEMA’s PA Determination Memorandum found the Applicant failed to identify codes or standards that prohibited repair and required complete replacement of suspended lighting and ceiling systems, and designated the restoration as an improved project because the scope of work (SOW) performed by the Applicant exceeded eligible work. FEMA capped the eligible funding based on estimated costs to repair the suspended lighting and ceiling systems, and direct administrative costs, obligating PW 191 for $127,586.63. In a letter dated May 5, 2015, the California Governor’s Office of Emergency Services (Grantee) notified the Applicant of the obligation of PA funds and outlined the appeal process.
The Applicant submitted first appeal letters dated July 1 and July 30, 2015, requesting reimbursement totaling $1,851,876.29. The Applicant asserted the suspended lighting system was no longer code compliant, and replacement was the only factory warranted repair. The Applicant indicated components to repair damaged suspended ceiling elements were no longer available and noted the DSA would not allow fabrication and testing of components to modify the outdated suspended ceiling. They had no choice but to replace the suspended ceiling which was not code compliant in accordance with DSA requirements. The Applicant attached letters from several parties involved in the project to support its claim. A consulting structural engineer cited DSA IR 25-2.13, Metal Suspension Systems for Lay-in Panel Ceilings, noting suspended ceiling grid systems could not be modified or repaired unless brought up to code. The engineer noted testing each and every damaged connection of the suspended lighting and ceiling systems, and the significant engineering effort that would be required to repair the suspended ceiling, made replacement a more economical choice. A consulting electrical engineer reported observing suspended light fixtures either completely or partially fallen in numerous locations and broken mounting hardware and fixtures during inspection, and cited professional judgement in recommending suspended lighting fixtures be replaced with new units to provide a safe environment. A letter from the lighting system manufacturer stated suspended fixtures could not be repaired and indicated it could not “guarantee the safety and warranty of [repaired] lighting fixtures.” A letter from the DSA described the agency’s powers, duties and responsibilities for carrying out provisions of the Field Act, which established the procedure for reviewing and approving design and construction of school buildings, and which mandated adoption of and compliance with strict seismic resistant standards. The letter stated that the affected suspended lighting and ceiling systems are required to be reconstructed in compliance with Section 4-309(e) of the CBC, quoting “when structural damage due to an earthquake is repaired, all portions of the structure associated to this damage shall be retrofitted to comply with currently effective regulations.” The letter also stated that reconstructed suspended lighting systems must comply with the California Electrical Code, the California Energy Code and the “intent” of the CBC, and identified IR 25-2.13 and IR 16-9, Pendant Mounted Lighting Fixtures, as providing guidelines for methods that were acceptable to comply with the applicable codes. The Grantee supported the Applicant’s appeal, and asserted the Applicant’s project met FEMA’s five criteria set forth in 44 C.F.R. § 206.226(d) for code and standard eligibility.
FEMA’s Final Request for Information (Final RFI) advised the Grantee the information in the administrative record did not sufficiently demonstrate that the code provisions cited in the first appeal met the five criteria set forth in 44 C.F.R. § 206.226(d), which could result in denial or only partial approval, and afforded the Applicant an opportunity to provide additional documentation or information for consideration. The Applicant’s response reiterated the nature of damages to components of the suspended lights and ceiling assemblies, and explained that the DSA’s authority under the Field Act to enforce the CBC is the code or standard requiring upgrade, and meets the five criteria.
The FEMA Region IX Regional Administrator (RA) denied the appeal on April 5, 2017.
The RA determined Section 4-309(e) did not satisfy the requirement that a code or standard apply to the type of repair or restoration criterion set forth in 44 C.F.R. § 206.226(d)(1), because Section 4-309(e) triggered upgrades on the basis of structural damage and, citing the Guide and Checklist for Nonstructural Earthquake Hazards in California Schools, suspended light fixtures and ceiling systems are nonstructural building components. With regard to DSA’s general authority under the Field Act to enforce the CBC, cited by the Applicant as requiring the upgrades, the RA determined, in the absence of a formally adopted code requiring the upgrades, a decision to require upgrades rested on an official’s discretion and not on objective written standards. The RA noted determinations to require upgrades could not rest on an official’s discretion; that, at a minimum, standards must be objective and in writing for there to be an expectation of uniform application and enforcement. For these reasons the RA found that the eligibility criteria set forth in by 44 C.F.R. § 206.226(d)(3), (4) and (5) were not satisfied. Finally, the RA, noting the Applicant appeared to suggest it was not feasible to repair the damaged components without providing objective evidence in support, cited an article written by the Applicant’s principal architect, whose firm and consulting engineers evaluated 31 campuses after the earthquake. The RA noted the article provided FEMA with reason to question whether much of the damage attributed to the earthquake didn’t instead result from pre-existing inadequacies, i.e. improperly secured ceiling or fixture attachment points on aircraft cable-supported pendant light fixtures. The RA concluded the Applicant had not established the upgrades were required by a code or standard that met the eligibility criteria set forth in 44 C.F.R 206.226(d), or that the damaged components could not be repaired. The RA concluded the Applicant performed an improved project and FEMA correctly limited funding to the approved estimate of eligible repair costs. The Grantee forwarded the RA’s decision to the Applicant.
In a second appeal dated July 11, 2017, the Applicant reiterates arguments made on first appeal, and argues the FEMA representative assigned to the project lacked pertinent experience, provided inadequate and incorrect guidance, recommended repairs that would not be approved, and failed to appreciate the damage done to the suspended components. The Applicant is critical of the RA for rejecting DSA findings specific to this event and instead relying on the Guide and Checklist, which it claims generalizes suspended pendant lights and ceilings as not structural. The Applicant notes in this instance the original ceiling was designed as a structural system that supported operable and fixed interior partitions such as doors and casework and that has proven to fail in earthquakes. The Grantee supports the Applicant’s second appeal, again arguing the replacement standard to upgrade the damaged systems meets the five eligibility criteria of 44 C.F.R. § 206.226(d).
Pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act
§ 406, as implemented by federal regulations, 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 design of such facility as it existed immediately prior to the disaster and in conformity with current applicable codes, specifications and standards. For the costs of Federal, State, and local repair or replacement standards which change the predisaster construction of a facility to be eligible, the standards must: (1) apply to the type of repair or restoration required; (2) be appropriate to the predisaster use of the facility; (3) be 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 owner of the facility; and (5) for any standard in effect at the time of a disaster, it must have been enforced during the time it was in effect. All five prongs must be met in order to be eligible for PA funding. If a code does not meet the five criteria, upgrades will not be eligible and funding will be limited to repairs necessary to bring the facility back to its predisaster design or construction.
Section 4-309(e) triggers an upgrade to portions of the structure associated to this damage based on structural damage caused by an earthquake. In its second appeal, the Applicant asserts the original ceiling was a structural system and that it suffered structural damage in the earthquake, in which case portions of the structure associated to this damage (i.e. pendant lighting) would be eligible for upgrades per Section 4-309(e). The assertion is unpersuasive. The Applicant provides no objective evidence to support the assertion whereas the RA cites documentation that refutes it. Specifically, the Guide and Checklist describes light fixtures and ceiling systems as nonstructural components of school buildings. Moreover, the Guide and Checklist cites FEMA E-74 Reducing the Risks of Nonstructural Earthquake Damage-A Practical Guide as a resource for minimizing the risks posed by nonstructural components including suspended ceilings and light fixtures. Other contemporaneous materials also contradict the Applicant’s assertion, including the article cited by the RA in the First Appeal Analysis. Without objective evidence to support the assertion, the Applicant has not established the suspended ceiling is a structural system; as such, Section 4-309(e) does not apply to the type of repair required and does not satisfy the criterion set forth in 44 C.F.R. 206.226(d)(1).
In its response to FEMA’s RFI, the Applicant explained that DSA’s general authority under the Field Act to enforce the CBC is sufficient to meet the five criteria stipulated under 44 C.F.R. 206.226(d). As the RA noted, FEMA does not dispute DSA’s authority to supervise the design and construction of school buildings for the protection of life and property, and for compliance with the CBC. However, as discussed above, Section 4-309(e), the code cited by DSA as requiring suspended lighting and ceiling systems to be reconstructed to comply with currently effective regulations, does not apply to the type of repair required in this instance. Section 4-309(e) does not reference or establish objective written standards under which nonstructural damage due to an earthquake triggers upgrade requirements. Neither has the Applicant cited a different code or standard that triggers an upgrade to portions of the structure associated to this damage based on nonstructural damage caused by an earthquake. Without such a code, the DSA’s authority to require the Applicant to make the upgrades is discretionary. The determination to require an upgrade cannot rest on an approving official’s discretionary authority. The code or standard must be objective and in writing for there to be an expectation of uniform application and enforcement. Therefore, the DSA’s general authority under the Field Act to enforce the CBC is not a formally adopted and uniformly applied and enforced code or standard and fails to meet the criteria set forth in 44 C.F.R. § 206.226(d)(3), (4) and (5).
The Applicant has not established the suspended ceiling as a structural system; as such, Section 4-309(e) does not apply to the type of repair required and does not satisfy the criterion set forth in 44 C.F.R. 206.226(d)(1). Moreover, the DSA’s general authority under the Field Act to enforce the CBC is not a formally adopted and uniformly applied and enforced code or standard and fails to meet the criteria set forth in 44 C.F.R. § 206.226(d)(3), (4) and (5). The Applicant performed an improved project and FEMA correctly limited funding to the approved estimate of eligible repair costs. Accordingly, the appeal is denied.
 The six schools were: (1) Napa Valley Language Academy; (2) Shearer Elementary School; (3) Salvador Elementary School; (4) Redwood Middle School; (5) Pueblo Vista Elementary School; and (6) Napa High School. Each of the schools experienced damage to interior lighting systems; three buildings on the Napa High School campus experienced damage to the ceiling systems.
 The California Division of the State Architect (DSA) carries out provisions of the Field Act, which mandates earthquake-resistant construction for schools in California. The DSA is considered the governing agency with regard to the restoration of public school facilities.
 Letter from Reg’l Mgr., DSA, to Quattrocchi, Kwok Architects (Jan. 9, 2015).
 Email from FEMA Project Spec., to Dir. of CM Services, United Compliance Corp. (Feb. 26, 2015, 15:16 PST).
 Letter from Reg’l Mgr., DSA, to Quattrocchi, Kwok Architects (Mar. 5, 2015).
 Div. of the State Architect, DSA’s Interpretations of Regulations, https://www.dgs.ca.gov/dsa/Resources/IRManual.aspx (last visited Feb. 15, 2018) (stating “(t)he Interpretation of Regulations (IR) was created by [DSA] for use as a documentation of acceptable methods for achieving compliance with applicable building codes and regulations. Its purpose is to promote uniform statewide criteria in plan review and monitoring of construction of public school, community college and essential services building projects…Other methods proposed by design professionals to solve a particular issue may be considered by DSA and reviewed for code and regulation compliance. These interpretations are neither regulations nor law.”). The DSA no longer publishes an all-inclusive IR Manual.
 FEMA Public Assistance Determination Memorandum, Napa Valley Unified School District, at 2 (Mar. 27, 2015). The Applicant completed work on the lighting systems replacements prior to issuance of the determination memorandum and development of the PW, except for Napa High School.
 Project Worksheet 191, Napa Valley Unified School District, Version 0 (Apr. 14, 2015). Estimated costs to repair lighting sites ($123,687.13), contract costs for ceilings ($1,961.00), and direct administrative costs ($1,938.50).
 Letter from Grants Processing Unit, Cal OES, to Assistant Superintendent for Bus. Servs., Napa Valley Unified Sch. Dist. (NVUSD) (May 5, 2015).
 Letter from Assistant Superintendent for Bus. Servs., Napa Valley Unified Sch. Dist. (NVUSD), to Public Assistance (PA) Officer, Cal. Office of Emergency Servs. (Cal. OES) (July 1, 2015); Letter from Assistant Superintendent for Bus. Servs., NVUSD, to PA Officer, Cal. OES) (July 30, 2015). The amount on appeal is based on the remaining actual and estimated costs to replace the lighting and ceiling systems, over the capped improved project funding awarded in PW 191. The amount includes $557,460.79 remaining for the lighting systems and $1,294,415.50 for the ceiling system. On first appeal, the Applicant erroneously stated the latter amount as $1,296,749.00, but corrected it on second appeal.
 DSA IR 25-2.13 (rev.04-08-14).
 Letter from Senior Principal, ZFA Structural Eng’rs, to Office of Sch. Planning and Constr., NVUSD (Apr. 30, 2015); Letter from Prof’l. Eng’r., O’Mahony and Myer, to Office of Sch. Planning and Constr., NVUSD (June 30, 2015).
 Letter from Quality Assurance Dir., Finelite, Inc., to Office of Sch. Planning and Constr., NVUSD (June 30, 2015).
 Letter from Cal. State Architect, to Office of Sch. Planning and Constr., NVUSD (July 29. 2015).
 Cal. Ed. Code § 81130.3
 Cal. Code Regs. tit. 24, § 4-309(e) (2014). The California Building Standards Code (commonly referred to as “Title 24”), are the regulations that govern construction of buildings in California.
 Letter from Governor’s Authorized Rep., Cal. OES, to Acting Reg’l Adm’r, FEMA Region IX (Aug. 26, 2015).
 Letter from Recovery Div. Dir. FEMA Region IX, to Governor’s Authorized Rep., Cal OES (Dec. 8, 2015).
 Email from Dir. of CM Servs., United Compliance Corp., to Recovery Program Mgr., Cal OES (Jan. 13, 2016, 8:49 PST).
 Letter from Reg’l Adm’r, FEMA Region IX, to Governor’s Authorized Rep. Cal OES (Apr. 5, 2017).
 Guide and Checklist for Nonstructural Earthquake Hazards in California Schools. A Project of: California Emergency Management Agency, Department of General Services, Division of the State Architect, Seismic Safety Commission and the Department of Education, at 1 (Jan. 2011) [hereinafter Guide and Checklist].
 Mark Quattrocchi, Napa Earthquake Challenges Safety Expectations, School Construction News, at 20 (June 2015).
 Letter from Assistant Superintendent for Bus. Servs., NVUSD, to Dir., Recovery Div., Cal OES (Jul. 11, 2017).
 Letter from Governor’s Authorized Rep., Cal OES, to Assistant Adm’r, Recovery Directorate, FEMA (Sep. 8, 2017).
 Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 406, 42 U.S.C. § 5172 (2014); Title 44 Code of Federal Regulations (44 C.F.R.) § 206.226 (2013).
 44 C.F.R. § 206.226(d).
 Public Assistance Guide, FEMA 322, at 34 (June 2007).
 Disaster Assistance Policy DAP 9527.4, Construction Codes and Standards, at 2 (Feb. 5, 2008) (hereinafter DAP9527.4).
 Cal. Code Regs. tit. 24, § 4-309(e).
 Guide and Checklist, at 1.
 FEMA E-74 Reducing the Risks of Nonstructural Earthquake Damage-A Practical Guide, 4th Ed., at 6-94 to 6-118, 6-416 to 6-440 (Jan. 2011).
 Quattrocchi, supra note at 20. The Applicant’s principal architect describes fallen suspended light fixtures and failed suspended ceilings as nonstructural damage. See also Johnson, L. A. and Mahin, S. A., The Mw 6.0 South Napa Earthquake of August 24, 2014: A Wake-up Call for Renewed Investment in Seismic Resilience across California, CSSC Publication 16-03, PEER Report No. 2016/04, at 17 (June 2016) (“There were also significant and widespread nonstructural component failures…that also impacted…suspended ceiling, ceiling lighting…”); FEMA P 1024 Performance of Buildings and Nonstructural Components in the 2014 South Napa Earthquake at 6-1 (Feb. 2015) (“Several schools did, however, experience nonstructural damage to… suspended ceilings, light fixtures...”); Quakenbush, Tough rules help Napa schools ride quake, North Bay Business Journal, (Sep. 8, 2014) http://www.northbaybusinessjournal.com/csp/mediapool/sites/NBBJ/Industry... (last visited May 1, 2018) (“…the 30 Napa Valley Unified School District campuses had no structural damage…teams...found plenty of damage to nonstructural elements such as…fallen light fixtures and suspended-ceiling grids…”).
 Second Appeal Analysis, FEMA-1981-DR-ND, City of Minot, at 6 (Dec. 2, 2014).