UCLA Center for Health Sciences, South Parking Structure

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	FEMA-1008-DR
Applicant	UCLA Center for Health Sciences, South Parking Structure
Appeal Type	Second
PA ID#	000-92040
PW ID#	15422
Date Signed	2000-09-18T04:00:00

SECOND APPEAL ANALYSIS
UCLA Center for Health Sciences, South Parking Structure
University of California, Los Angeles
FEMA-1008-DR, PA 000-92040
DSR #15422

Citation: UCLA Center for Health Sciences, South Parking Structure, University of California, Los Angeles, FEMA-1008-DR-CA 000-92040, DSR #15422

Cross-Reference: Subject: Codes and Standards; FEMA Record: DSR #22544.

Summary: The Subgrantee claims that the earthquake damage repairs to the South Parking Structure (SPS) require that certain elements, including shearwalls, be upgraded to resist the force levels in the current code for new buildings. UCLA requests $12,004,230 for the repair of the parking structure, and $7,425,000 in relocation costs. FEMA has only approved $134,351 for an A&E study, and, based on the results of that study and FEMA inspections, approved only $46,341 for epoxy grout repair of the cracks in the shearwalls. UCLA has appealed claiming the much higher costs based on their position that the work is required by the building codes applicable to this building, and because a portion of it had been converted into a clinic attached to the hospital. UCLA also takes the position that the cost of repairs exceeds the threshold set in the FEMA/OES Memorandum of Understanding (MOU) for establishing eligibility for a seismic upgrade. UCLA has also appeal the denial of their request for a time extension.

Issues: Does the level of damage exceed the thresholds in the California Building Code and in OSHPD regulations applicable to this building at the time of FEMA approval set for requiring a seismic upgrade? Does the cost of the repairs exceed the upgrade eligibility threshold set by the FEMA/OES MOU? Can the cracks be repaired in a code conforming manner by using epoxy injection alone? Can the request for a time extension be justified?

Findings: (1) Most of the observed cracks were caused by problems other than the earthquake, and (2) the damage from the earthquake was minor, and did not exceed thresholds in the applicable building codes, or in the MOU. However, FEMA has approved a hazard mitigation grant of $7.7 million based on the unique relationship the SPS has with the UCLA Center for the Health Sciences. A time extension is granted pursuant to the terms of the "Closeout Guidance for Open Time Extension Requests."

Rationale: Stafford Act Sec.406(e)(1); 44CFR Sect 206.226(b) & (c)

Appeal Letter

Appeal Analysis

SECOND APPEAL ANALYSIS
UCLA Center for Health Sciences, South Parking Structure
University of California, Los Angeles
FEMA-1008-DR, PA 000-92040
DSR #15422

I. BACKGROUND

The University of California, Los Angeles (UCLA), Center for Health Sciences South Parking Structure (SPS) was damaged in the 1994 Northridge Earthquake. The Federal Emergency Management Agency (FEMA) and the California Office of Emergency Services (OES) inspected the SPS (the "Facility") and, on August 22, 1994, DSR 22952 was obligated for $134,351 for an Architectural and Engineering (A&E) study. Subsequently, on June 30, 1997, DSR 15422 was approved for $46,341, for the repair of cracks in the concrete shear walls of the facility utilizing a method of patching or epoxy grout injection.

There are two appeals analyzed in this response. The first involves the issue over the codes and standards (C&S). The second involves the denial of a time extension (TE).

Codes and Standards appeal: Subgrantee, UCLA, filed a first level appeal on the C&S issue on December 7, 1998. This appealed the FEMA determination of eligible scope of work and costs approved in DSR 15422. The appeal centered on UCLA's interpretation of the code applicable to the repair of the damaged building and whether the Facility had to be upgraded to comply with seismic provisions for new construction. In response to the first appeal, FEMA determined that the scope of work approved in DSR 15422 conformed to those provisions of the 1995 California Building Code (CBC) that are applicable to the repair of existing buildings. FEMA determined that those provisions did not require that the facility or its elements be upgraded to new construction requirements. In a letter dated August 25, 1999, the first appeal of the DSR scope was denied. UCLA then submitted a second appeal on this issue combined with that of the time extension on November 22, 1999.

Time Extension Appeal: In a letter dated December 16, 1997, the University submitted a request for a time extension until September 30, 2001, to repair the SPS, which FEMA denied in correspondence dated November 23, 1998 because detailed justification of extenuating circumstances was not presented. UCLA filed a first appeal of the FEMA denial of a time extension to complete earthquake repairs to the SPS in a letter dated February 11, 1999. The Subgrantee argued that disputes over the scope of eligible repairs for the SPS, the delayed issuance of DSR 15422, and the massive damage to UCLA's facilities campus-wide could not be considered an unjustified delay on the part of the University. FEMA determined that in accordance with the Stafford Act and the Closeout Policy for DR-1008, a time extension for DSR 15422 was not justified and denied the time extension appeal on August 19, 1999.

II. DESCRIPTION OF THE FACILITY

The SPS is situated in the southeastern portion of the UCLA campus and is an integral part of the UCLA Center for Health Sciences (CHS). The Facility is a multi-level post-tensioned reinforced concrete structure that was designed in 1975 and constructed in 1977 in accord with the then current code for a parking structure. Subsequently, a small portion (approximately 20%) of the structure was enclosed and converted to a hospital-based clinic. At that time the facility came under the jurisdiction of the Office of Statewide Health Planning and Development (OSHPD), the agency that regulates the design and construction of hospital and skilled nursing facilities in California. In its current configuration, the SPS houses 91,392 SF of hospital functions and 466,036 SF of parking for patients and staff of the CHS. The hospital portion of the lower level of the SPS (Level B) is called the Medical Center Lower Level (MCLL).

The structure has an overall plan dimension of approximately 586' in the north-south direction and 473' in the east-west direction. The northern half of the structure (grid lines 1 through 12), which houses the MCLL, has a landscaped plaza above two underground parking levels. The southern half of the structure (grid lines 12 through 20) is used exclusively for parking. The parking slabs are staggered at each floor in the north-south direction and are accessed through ramps at the east and west ends. The staggered parking slabs are 62' deep (north-south direction) with 10' light and air shafts between each staggered slab. Due to the staggered design feature of the parking levels the slabs are discontinuous in the North-South direction.

The vertical load carrying system consists of post-tensioned concrete slabs supported by post-tensioned concrete beams in the north-south direction at the interior and poured-in-place reinforced concrete walls at the exterior and interior. The lateral load carrying system consists of the post-tensioned floor slabs and beams acting as diaphragms and exterior and interior poured-in-place load bearing concrete shear walls in the primary directions. The connection between the diaphragms and the 10' shear walls located at the light and air shafts is through the floor beams. The post-tensioned beams are supported by these concrete walls on spread footings. The exterior walls are supported on continuous wall footings.

III. THE DAMAGE

A. UCLA's Position

It is UCLA's position that there was significant diagonal cracking in most of the north-south shear walls that propagated through the entire thickness of the wall. The observed cracks, they say, indicated that the diagonal tension (shear) strength of the concrete had been reached and the shear wall reinforcing was mobilized to resist the earthquake forces. The post-tensioned slabs exhibited extensive cracking transverse to the prestressing cables in every bay. The cracks were spaced 1 to 5 or 6 feet apart, and had migrated through the entire thickness of the slab and across the full width of the 62' bays. The shear walls adjacent to the post-tensioned beams and ramps were also cracked. UCLA's consultant estimated the average width and length of the cracked surfaces and transferred the field data onto crack maps. These crack maps indicated that some of the shear cracks were pre-existing and the larger cracks had been either patched or injected with epoxy grout. The maximum size (width) of the unrepaired cracks was 0.04" or 1.0 mm. These cracks, which had not been repaired or covered by the time of the earthquake are the only ones which could be earthquake damage. However, some of them had probably developed prior to the earthquake. FEMA, OES and UCLA inspection teams certified that the largest cracks (1 mm) occurred at only 5 locations in the structure and the longest 1 mm crack was 5 feet.

B. FEMA'S Position

DSR 22952 noted that there were pre-disaster cracks in the slabs, concrete shear walls and beams of the SPS and that extensive crack repair work had been done throughout the SPS prior to the earthquake. Specifically, slab cracks had been repaired by epoxy grouting and the shear wall and column cracks had been repaired by a combination of epoxy grouting and patching. However, it had also been observed by a FEMA/OES inspection team in June 1994 that several of the pre-disaster cracks became larger and more pronounced due to the disaster. Although there was difficulty in separating recent earthquake damage from pre-existing conditions, the applicant's consultants completed crack mapping diagrams in July 1995. The accuracy of those maps was subsequently certified by a FEMA/OES inspection team. It was also noted that, in the north-south direction - also as a result of the earthquake - the post-tensioned beams tried to pull away from the 10' long shear walls, resulting in localized wall cracks. It is FEMA's position that both the damage sustained by the facility as a result of the Northridge te SURVEY REPORT 15422

In March 1997, UCLA's consultant developed a repair scheme for the SPS which included upgrades which called for adding reinforcing steel and shotcreting of the damaged walls with 4" thick gunite for a total of 26,604 square feet of gunite. For this, UCLA requested a total of $4,102,598. UCLA's consultant based this cost on the repair and upgrade of selected damaged elements.

Because of the minimal damage, no cracks were greater than 0.05" in width, the eligible scope of work in DSR 15422 was limited to the repair of concrete cracks. Funding was provided to patch cracks that were less than 0.02" in width and to epoxy inject cracks that were greater than 0.02" and less than 0.05" in width. None of the damage to the facility, in FEMA's opinion, resulted in the need to have the damaged elements upgraded or replaced. DSR 15422 was obligated by FEMA on June 30, 1997. The Subgrantee non-concurred with the DSR, primarily on the basis that epoxy injection would not meet the requirements of Title 24 of the California Code of Regulations (CCR), the code applicable to OSHPD regulated facilities.

V. APPLICABLE LAW
Title 24 of the California Code of Regulations (1995, amended 12-15-95)
7-303

Post-1973 Structures
These hospital structures were approved for construction by the Office of the State Architect or OSHPD after March 7, 1973. They are also referred to in the regulations as approved existing buildings.

(a) Repairs to the damage shall be made to restore the load carrying capacities of the affected elements per the CBC, where practicable as determined by consultation with the Office. (Section 1635A.1, Exception 3, CBC) (emphasis added)
(b)
[7-303 of Article 20 (Repair of Earthquake Damage) of Chapter 7 (Seismic Structural Safety Standards) of Part 1 of Title 24 of the 1995 C.C.R]

2. Section 1635A

Alterations, Additions or Repairs to Existing Buildings or Structures

1635A.1 Structural Alterations or Additions to Approved Existing Buildings. Structural alterations or additions may be made to approved buildings provided the entire building, as modified, including the structural alterations or additions, conforms to these regulations.

EXCEPTIONS: 1..
2..
3. Structural repairs other than for earthquake damage may be made in any manner proposed by the applicant which will restore the load-carrying capacities of affected structural elements to their capacities as originally designed. Where need for repairs is generated by nonconformity to the original gravity load requirements, however, the repaired capacities shall be those required by these regulations. Where earthquake damage is the result of design deficiencies based on previous hospital regulations in effect after March 7, 1973, repairs shall be based on these regulations where practicable as determined by consultation with the enforcement agency. (emphasis added).

[1635A.1 Exception 3 of Division III (Earthquake Design) of Chapter 16A (Structural Forces) of Part 2 of Title 24 of the 1995 C.C.R]

B. Stafford Act and Implementing Regulations

1. Section 406(e)(1) of the Stafford Act

.the cost of repairing, restoring, reconstructing, or replacing a public facility. on the basis of the design of such facility as it existed immediately prior to the major disaster and in conformity with current applicable codes, specifications, and standards.shall, at a minimum, be treated as the net eligible cost.

2. 44 Code of Federal Regulations (CFR) 206.226(b)

For the costs of Federal, state and local repair or replacement standards which change the predisaster construction of facility to be eligible, the standards must:

(1) Apply to the type of repair or restoration required; (Standards may be different for new construction and repair work)

(2) Be appropriate to the pre-disaster use of the facility;

(3) Be in writing and formally adopted by the applicant prior to project approval or be a legal Federal or State 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) For any standard in effect at the time of a disaster, it must have been enforced during the time it was in effect.

VI. FIRST APPEAL OF DSR 15422 SCOPE

A. Basis of UCLA appeal

The Subgrantee filed a first level appeal of DSR 15422 on December 7, 1998. In the appeal they listed three distinct codes/standards that could be used as the basis for determining the eligible scope of work: (1) Section 7-303 of Title 24; (2) the 1995 University of California Seismic Safety Policy; and (3) Division III-R of Chapter 16A of the CBC. UCLA maintained that each of these three codes/standards required that structural repairs to the damaged elements of the SPS be made in a manner that would bring these elements and/or the entire structure into compliance with the current applicable codes for new construction. As part of the first appeal, the Subgrantee produced two reports dated July 23 and November 24, 1998. The November report contains an estimate of approximately $12 million for repair of the SPS and the report claims that the repair scheme is based upon the requirements of the FEMA/OES MOU. UCLA requested a total of approximately $19,500,000: $12,004,230 for the repair and upgrade of the facility and an additional $ 7,425,000 in relocation costs.

Regarding (1) Title 24 (including 7-303), both parties, FEMA and UCLA, agreed that it was the applicable code. However, there was disagreement on how it should be interpreted. Accordingly, the focus of the analysis in the first appeal was on Title 24. FEMA, in its analysis and interpretation determined that it did not contain any requirement that repairs to post-1973 hospital buildings be performed to the current seismic standards applicable for new buildings, as UCLA claims. Rather, the 1995 Title 24 is silent with respect to seismic upgrade requirements for post-1973 hospital buildings and therefore, a seismic upgrade was not required. In addition, FEMA determined that 1635A.1 Exception 3, was not relevant to the determination of eligible funding in that damage to the SPS from the earthquake was not the result of "design deficiencies."

Regarding (2) the University of California Seismic Safety Policy, it had previously been determined by FEMA in a third appeal decision dated March 16, 1999, which addressed funding for UCLA's Royce Hall, that the Policy did not qualify as an applicable code pursuant to 44 CFR 206.226 (b) (FEMA Regulations). This decision constituted the Agency's final determination with respect to the Policy and its applicability to all University of California facilities. Accordingly, any issue regarding applicability of the Policy to the SPS was rendered moot.

Regarding (3) Division III-R, FEMA determined that it also did not meet the requirements for an applicable code or standard, in that it was not adopted until after project approval.

Regarding the FEMA/OES MOU, since FEMA has disagreed with UCLA's estimate of costs, and has to date only approved a cost which falls below the 10% threshold in the MOU, no upgrade based on the MOU criteria is eligible.

Because the analysis of Title 24 - specifically 7-303 and 1635A.1 Exception 3 - formed the basis for FEMA's determination in the first appeal and also forms the point of departure for UCLA's analysis in the second appeal; it is summarized below.

The first appeal was denied.

B. FEMA's first appeal analysis

1. CBC 7.302 and 7-303

Generally, a building code contains separate provisions for the repair of damaged buildings and the construction of new build as CCR that were in effect on June 30, 1997 that apply to the repair of and/or upgrade of existing buildings. If, in fact, (1) there are no code provisions applicable to the repair of earthquake damaged buildings or, if (2) the repair code provisions that do apply do not specify any requirement for seismic upgrading as a consequence of the damage or its repair, then no seismic upgrade is required. It is FEMA's position that Title 24 (1995) - which had codified PIN 3 as part of the code via a code amendment published on December 15, 1995 - contains explicit triggers; but these triggers are only applicable to pre-1973 hospital buildings (7-302) , and not to post-1973 hospital buildings (7-303). The code triggers in 7-302 have been recognized by FEMA as constituting substantive "damage" triggers that mandate when seismic upgrade work is required. Therefore, they can be used as the basis for determining eligibility for funding of cost-effective methods to seismically strengthen a structure. In the case of 7-303 and post -1973 hospital structures, the Code is silent with respect to the "amount" or "degree" of damage or repair a post-1973 facility must receive in order to enable a building official or a designer to determine if a seismic upgrade is required. This means simply that there is no upgrade requirement at all.

A comparison of 7-302 and 7-303 clearly supports this interpretation. 7-303 does not contain any triggers that mandate an upgrade. This is in contrast to 7-302 which does specify "damage" triggers for pre-1973 hospital structures.. For example, 7-302 clearly states that "when the lateral load resisting capacity at any level is reduced by 5% or less due to earthquake damage the repairs may be made with the same construction as before" (subject to the structural detailing requirements of the CBC); the provisions for post-1973 hospital structures include no such provision.

7-302 also defines the type and extent of damage (5%
The requirement to use a specified lower value of the seismic importance factor "I" of 0.75 for the existing building after repairs are made, implies that moderately damaged pre-1973 structures must be upgraded only to a level of 50% of the current code seismic force for new hospital buildings ("I" = 0.75 instead of "I" = 1.5). The intent to allow a reduced base shear is corroborated by the provisions of 7-302(f) for pre-1973 hospital structures, wherein it is mandated that the repair of structures should comply with the design and detailing requirements of Chapters 19, 20, 21 and 23, rather than the lateral force level requirements. Again, by contrast, moderately damaged post-1973 hospital structures receive no special criteria in Chapter 7.

The Subgrantee argues that when repairing post-1973 structures - because no special design criteria are provided in the code - the repairs must be designed such that all the repaired elements of the earthquake damaged structure conform to the current seismic design requirements of the CBC applicable to new construction. However, one cannot deny that in the case of post-1973 structures, which are considered to be less hazardous and threatening from a life safety and structural damage standpoint, the code makes a clear statement regarding repairs through the use of the word "restore." This simply means that a damaged element must be returned to its original state. Further, appropriate design values used for the base shear equation for designing the repairs of damaged elements is in the code for pre-1973 hospital structures but not post '73 hospitals. It is clear that the intent of the California Building Standards Commission (CBSC) was not to mandate a seismic upgrade to new building force levels for post-1973 damaged hospital structures, even those with less than 5% loss in capacity, while not requiring it for pre-1973 hospital structures.

2. Exception 3 to 1635A.1

CBC Section 7-303 specifically incorporates Exception 3 to 1635A.1. However, Exception 3 only deals with three distinct situations: (1) Structural repairs other than for earthquake damage; (2) Repairs which are generated by nonconformity to the original gravity load requirements; and (3) Earthquake damage that is the result of design deficiencies. Thus, the only earthquake damage addressed is earthquake damage that is the result of design deficiencies. Earthquake damage that is not the result of design deficiencies is not at issue. To the extent there is a design deficiency that has been identified, then, "these regulations," as used in 1635A.1 Ex 3, again, refers to regulations in effect that are applicable to the repair of existing buildings, generally, and, more specifically, to the particular design deficiency.

With respect to "design deficiencies," the position of UCLA appears to be that every building that does not meet the code requirements for new construction has a design deficiency. It is FEMA's position, however, that this exception does not refer to the common occurrence whereby a building code may be superceded by a subsequent stronger building code that may mandate higher force code levels or changes in detailing requirements. Rather, "deficiencies," as used here, means deficiencies identified by OSHPD which, because they present a hazardous condition, may require certain upgrades. The only "deficiency" so identified by OSHPD that we have noted is identified in PIN 7, which was announced by OSHPD on April 11, 1995. This PIN deals with the formerly pre-certified welded steel moment frame connection. In that case OSHPD issued the PIN to inform the technical community that in repairing connections to welded moment frame connections, the connections could not just be repaired to predisaster condition. Such connections, even if previously allowed under the code, had to be modified. To our knowledge, there are no OSHPD published PIN or any other document noting a design deficiency applicable to the CHS South Parking Structure. Also, no design deficiencies have been identified which would require an upgrade in the manner put forth by UCLA.

VII. FIRST APPEAL OF TIME EXTENSION

44 CFR 206.204 provides that a time extension to complete work may be granted for up to 48 months after the date of a disaster. Pursuant to the criteria established in FEMA's DR-1008-CA "Closeout Guidance for Open Time Extension Requests," an applicant may receive a further time extension if there are extenuating circumstances or unusual project requirements beyond the applicant's control, or if funding for the project has been capped; e.g., an improved project. UCLA filed a first level appeal of FEMA's determination that it was not eligible for a time extension for DSR 15422 in correspondence dated February 11, 1999. FEMA determined that it was not eligible for a time extension on the basis that UCLA did not provide evidence of extenuating circumstances or unusual project requirements beyond it's control and that SPS' funding was not fixed.

VIII. SECOND APPEAL: DISCUSSION

UCLA filed a combined second appeal dated November 22, 1999, of FEMA's August 25, 1999 denial of UCLA's first scope appeal of DSR 15422 and the October 19, 1999 first appeal denial of the request for a time extension. Again, with regard to the scope issue, both UCLA and FEMA agree that Title 24 of the 1995 CCR, as it existed on June 30, 1997, is the code applicable to the repair of the SPSTitle respect to the SPS. UCLA basically points out two major areas of disagreement with the manner in which FEMA determined the eligible scope of repairs. The first lies in FEMA's interpretation of the relevant portions of Title 24; i.e., 7-303 and 1635A.1.3, and the second deals with whether the repair costs approved by FEMA are sufficient to meet the standards of the code.

UCLA also claims that nowhere in the appeal did it state a complete seismic upgrade was required. FEMA disagrees with this claim because the University stated in their first appeal their position that the entire facility has to be brought into compliance with the current applicable codes for new construction because of the damage. (See page 6 of UCLA's first level appeal.)

A. Whether Title 24 requires that structural repairs to the damaged elements of the SPS meet the increased seismic force levels for new construction

1. UCLA's Position

As stated by UCLA, "this entire appeal can be reduced to the parties' differing interpretations of what the phrase "these regulations" [and "per the CBC"] means with respect to the SPS." However, the CBC does not state explicitly that "these regulations" means that the damaged elements must be upgraded to the seismic force levels for new construction. Consequently, UCLA argues that, in the absence of an explicit indicator that a given code section does not apply to repairs, the implication must be that the standards that apply to the seismic design of new buildings must apply with equal force to the repair of seismically damaged buildings. This position, argues UCLA, is supported by both the language in 7-303 and 1635A.1, Exception 3 and the language in 7-109(f), a provision of the CBC that was repealed in 1996. Alternatively, UCLA argues that even if FEMA's interpretation is correct, it is "profoundly anti-safety."

Reference is also made to four other provisions in the CBC: 1629A.5.3 (design lateral forces), 1631A.2.6 (collector elements), 1921A.6.2 (wall shear reinforcing) and 1921A.6.5 (wall flexural reinforcing).

2. FEMA's Position

It is FEMA's position that Title 24 does not require that the SPS be upgraded to the seismic force levels for new construction and that this view is supported, not contradicted, by the provisions of 7-302, 7-303, 1635A.1, Exception 3 and 7-109(f). It is clear, too, with respect to seismic related construction, that the CBC is not anti-safety simply because buildings of the later design do not bear the same upgrade requirements as the earlier ones.

In addition, if FEMA were to accept the interpretation of the CBC put forth by UCLA, the code would have to meet the five criteria set forth in FEMA Regulations. Specifically, 206.226(b)(5) requires that in order for a code which changes the predisaster construction of the facility to be used as the basis for determining eligibility it must be sufficiently demonstrated that it has been uniformly enforced. This UCLA has failed to do.

a) 7-302 and 7-303

In the first appeal analysis FEMA contrasted the presence of triggers for pre-1973 hospital buildings with the absence of triggers for post-1973 hospital buildings and concluded that, had the CBC intended to provide for triggers in 7-303, it would have done so in as explicit a manner as it did in 7-302. UCLA essentially ignores the comparison and focuses instead on FEMA's comment that surely the intent of the CBSC was not to mandate a much higher upgrade for post-1973 hospital structures than it did for pre-1973 hospital structures, where clearly the pre-1973 hospital structures required more of an upgrade because they were built to much less stringent code requirements. UCLA asserts that repairs to pre-1973 hospital structures must only comply with new structural detailing requirements and reduced new building seismic force levels when certain damage thresholds are met; but repairs to damaged elements of post-1973 structures must comply with both the structural detailing requirements and 100% of the new building seismic force levels regardless of the level of damage. In other words, according to UCLA, newer construction (i.e. post 1973 hospital structures) that comply with more stringent codes that were in effect after 1973 must, when repaired, be seismically upgraded to a higher level than must older construction (pre-1973 hospital structures).

UCLA reasons that because post-1973 hospital structures are designed based on performance goals articulated in 7-101, which did not exist in building codes prior to 1973, the repair criteria for pre- and post-1973 hospital structures are different. The administrative regulations cited by UCLA (Part 1, Title 24 CCR, 7-101) are not found in either the 1995 or 1998 versions of Title 24. If the performance goals articulated by UCLA appear in a more recent amendment to Title 24, the performance goals would only be applicable to new buildings designed thereafter.

UCLA's argument that damaged elements in post-1973 hospital structures must be upgraded due to stringent seismic requirements and performance objectives, while damaged elements in pre-1973 hospital structures do not have to be upgraded due to less stringent life safety objectives makes little sense. UCLA implies that the code philosophy is to stress the upgrade of post-1973 hospital structures prior to the upgrade of pre-1973 hospital structures due to the passage of the Alfred E. Alquist Hospital Facilities Seismic Safety Act of 1973 (Seismic Safety Act). This philosophy is not consistent with the approach legislated in California Senate Bill 1953 (SB 1953), which was adopted in 1994.

The 1973 Seismic Safety Act, which was created because of the loss of life in the collapse of hospitals during the Sylmar earthquake of 1971, established a seismic safety building standard for certain hospitals constructed on or after March 7, 1973. SB 1953 was approved by the Governor of California in September 1994 and enacted into legislation through the provisions of Article 8 of Chapter 1 of Division 12.5 of the Health and Safety Code. SB 1953 was based on findings after the Northridge Earthquake that hospitals built in accordance with the Seismic Safety Act (post-1973 hospital structures) suffered little damage, while those built prior to the Seismic Safety Act (pre-1973 hospital structures) suffered major damage. It required OSHPD to define those types of hospitals that were not in substantial compliance with the Seismic Safety Act (pre-1973 hospital structures) based on earthquake performance categories. The intent of the legislature was to encourage structural retrofit or replacement of pre-1973 hospital buildings that were not in compliance with the Seismic Safety Act. The intent was not, contrary to UCLA's argument, to require an upgrade of all damaged elements of post-1973 hospital structures to 100% of the seismic force levels of the 1995 CBC, i.e. those hospitals in compliance with the 1973 Seismic Safety Act; while requiring a lesser upgrade of damaged elements of pre-1973 hospital structures, i.e. those not in compliance with the 1973 Seismic Safety Act.

b) 7-109 and 7-303

While summarily dismissing FEMA's contrasting of 7-302 with 7-303, UCLA argues that 7-109(f) of Title 24, (which was superseded by the codification of OSHPD's PIN #3 in 7-302 and 7-303 on December 15, 1995, provides a `crucial insight' into the meaning of 7-303(a). 7-109(f) provided that, "structural repairs may be made in any manner proposed by the applicant which will restore the load carrying capacities of affected structural elements to at least 90 percent of their capacities as originally designed.." (emphasis added).

UCLA claims that the CBC deleted the requirement in 7-109(f) that repairs be made "as originally designed," and substituted the requirement to mandw building seismic force code levels. They state that "No other interpretation of this substitution is possible;" to maintain otherwise would be "to render.supersession of section 7-109(f) as an act of no significance."

UCLA's "crucial insight" ignores the fact that 7-109(f) was superseded not only by 7-303, but also by 7-302; and 7-302 did expressly provide for a seismic upgrade to increase the code required force levels. Had 7-109(f) not been repealed, the phrase, "to at least 90 percent of their capacities as originally designed," would indeed have been in conflict with 7-302. And, with respect to 7-303 and the SPS, although there was no conflict at the time of project approval because there were then no upgrade requirements; with the subsequent adoption of Division III-R, which did provide for triggers for post-1973 buildings, there would have been a conflict had the deletion not been made. The new language of 7-303 does not support UCLA's interpretation of "per the CBC." It is more flexible than 7-109(f), as well as more pro-safety because the damaged elements must now be restored to at least 100% of their capacities as originally designed, not just 90%.

In its argument that the issue lies in the interpretation of Title 24, UCLA refers to a letter dated October 23, 1998 from OSHPD to UCLA, that supposedly endorses UCLA's point of view. That letter merely states that "these regulations" and "per the CBC" refers to the applicable provisions of the sections in the CBC in effect at that time. However, as explained in this appeal response, the disagreement lies not in whether those sections are applicable, but in the interpretation of the applicable sections.

To the extent the letter stated otherwise, it must be borne in mind that it has always been FEMA's position that its authority may not be delegated and, that the determination of what repair or upgrade work is eligible for funding under Section 406 of the Stafford Act cannot be based solely on the exercise of discretion of an OSHPD official. It was not intended by Congress that recipients of disaster assistance grants would have the authority to determine the amount of the Federal government's contribution to restoration projects

FEMA is responsible for the determination of what is an "applicable code or standard" for the purpose of determining eligibility for disaster funding.

c) 1635A.1, Exception 3

With respect to 1635A.1, Exception 3, UCLA argues that, since Exception 3 provides that ".structural repairs other than for earthquake damage may be made.[to] restore the load-carrying capacities.", while there is no such limitation for earthquake damage which is the result of design deficiencies; this implies that repair of damage where there are design deficiencies must require more than "restoration" of the load carrying capacities; that is, the repair must be based upon "these regulations." Again, UCLA interprets "these regulations" to mean the standards for new construction.

However, UCLA clearly states on page 16 of its second appeal that "[p]rior to the adoption of OSHPD PIN No. 3 and its incorporation into Title 24 of the CCR, there were no specific design criteria for the repair of earthquake-damaged hospitals," (as opposed to alterations, additions, or new construction). FEMA concurs with UCLA's statement. However, FEMA does not concur with UCLA's conclusion that adoption of the PIN 3 resulted in a change to 1635A.1, Exception 3. Rather, even after PIN 3 was adopted by the CBSC and codified into the CBC in December 1995, there still were no specific design criteria provided for in Exception 3 for the repair of earthquake damaged hospitals. 1635A.1, Exception 3 was not changed when PIN 3 was adopted; nor did the adoption of PIN 3 change the meaning of Exception 3.

Both before and after the adoption of PIN 3, the only repair criteria addressed in Exception 3 with respect to earthquake damage repair of hospitals was damage which was the result of design deficiencies. The issue of the lack of OSHPD identified design deficiencies for the SPS was discussed by FEMA in the first appeal analysis. However, UCLA did not respond to FEMA's discussion of the same. As explained in the first appeal analysis, none of the exceptions apply to the damage to the SPS.

"Design deficiencies," as used in Exception 3, refer specifically to those design deficiencies that have been identified by OSHPD - such as PIN 7 for welded steel moment frame connections - and that present a hazardous condition. Even in the case of welded steel moment frame connections which were identified by OSHPD as having design deficiencies based on the seismic standards of older codes, PIN 7 does not require the deficient connections be modified to meet new building seismic force levels. It only requires that deficient connections, which had previously been approved by OSHPD based on seismic standards in existence at the time of approval, be modified and improved in a manner which will guarantee improved performance, not increased lateral force. No design deficiencies have been identified by OSHPD or UCLA that apply to the SPS. Accordingly, in the absence of the applicability of any of the exceptions, only the provisions of 7-303 are relevant.

d) Seismic Safety and the Code

Another argument made by UCLA is that, however sound FEMA's interpretation of Title 24 may be, it is "profoundly anti-safety." This argument stems from the premise that California has learned nothing new about seismic safety between 1977 and 1997, or if it has learned something, it had not deemed it appropriate to integrate that knowledge into the building codes governing the repair of structurally compromised buildings - including hospitals.

Certainly, this is belied by the facts. Both the State of California and the Federal government have learned a great deal from past seismic events. Standards are constantly evolving to take into account the identification of new hazards, "lessons learned," new technology, methods, and materials, among other things. As a result of this knowledge, a much stronger emphasis has been placed on mitigation. This has resulted in the incorporation of various mitigation measures into the building codes. All one need do is look at not only the codification by the CBC of PIN 3, particularly 7-302, the upgrade provision which applies to the older and most seismically deficient hospitals; but also the more recent adoption of Division III-R for state buildings and hospitals.

It is clear, however, that the most pro-safety approach would be to require that all existing buildings - both those damaged and those undamaged, both those with slight damage and those with major damage, and both commercial and public buildings - be upgraded to the force levels for new construction and incorporate the newest technologies, methods and materials. Unfortunately, such a requirement, however desirable, would, no doubt, prove to be economically infeasible. It would also not be cost effective, particularly where the level of damage was low, such as with the SPS. Rather, a code will typically allow for the modification or repair of "older" structures without an attendant requirement that the structure be brought into full compliance with current codes for new construction. This is in fact the incremental approach that has been taken by the CBC (e.g. when it codified PIN 3) and is also consistent with FEMA's interpretation of 7-303.

e) Other Code Provisions

As stated previously, a building code generally contains separate provisions for the repair of damaged buildings and the construction of new buildings. This is consistent with those sections of the CBC which apply only to the repair of existing buildings such as 7-302 and 7-303. This is also reflected in FEMA Regude or stan required by the disaster-related damage for the costs related to the standard to be eligible for funding. In other words, "standards may be different for new construction and for repair work." Accordingly, if a facility is eligible to be replaced, then those standards in effect for new construction apply. The work required to conform to that standard would then be eligible for FEMA funding. If a facility is repairable, only work associated with those codes and standards applicable to the repair of disaster damage would be eligible for FEMA funding.

Notwithstanding, if a facility is considered repairable under 44 CFR 206.226(d), and there are no codes that mandate that the facility be upgraded; it has been FEMA's policy and practice to fund repairs using modern CBC approved materials and "present day" construction methods. However, eligibility extends only to include the restoration of the pre-disaster capacity of the damaged elements without any further upgrading. These materials and methods must be compatible with the portions of the facility that are undamaged. It is also likely that the use of modern materials and methods may improve upon the facility as originally designed, but the code does not specify that this be the result.

However, there may be instances where a member/element is damaged to such an extent that the member, but not the entire building, must be replaced. In this situation, the redesign of the damaged member/element would be based upon reasonable engineering judgment and new building materials and detailing requirements. A determination of whether such an upgrade conformed to the pre-disaster design and construction of the facility and was compatible with the undamaged portions of the facility would be made. The code does specify that local upgrades must not reduce the overall safety of the building.

The damage to the SPS was so minimal and easily repairable that there was no need for any of the damaged members to be replaced. Accordingly, provisions that may effect the design of replacement elements do not apply here. Thus, contrary to the assertions of UCLA, the presence of provisions 1629A.5.3 (design lateral forces), 1631A.2.6 (collector elements), 1921A.6.2 (wall shear reinforcing) and 1921A.6.5 (wall flexural reinforcing) in the 1995 CBC, do not, perforce, lead to the conclusion advocated by UCLA that "these regulations" must be interpreted to mean that all repairs must be performed in accord with the code provisions applicable to new construction. All of these sections apply to new construction and all differ significantly from the provisions of the 1977 CBC,

f) Consistent Code Enforcement

The focus of UCLA's first and second appeal briefs was on the interpretation of the applicable code and whether it required that damaged post-1973 hospital buildings be upgraded to the seismic force code levels for new construction. However, an important aspect of the governing law that has been overlooked by the Subgrantee is that, if UCLA's interpretation of Title 24 were to be correct, then the code must comply with 44 CFR 206.226(b) in order for FEMA eligibility. In other words, for a code which changes the pre-disaster construction of a damaged facility be used as the basis for determining eligibility for funding, it must be demonstrated that it meets the five criteria set forth in FEMA Regulations. Specifically, 206.226(b)(5) requires that "for any standard in effect at the time of a disaster, it must have been enforced during the time it was in effect."

One of the purposes of the Stafford Act, generally, and FEMA Regulations, specifically, is to encourage the adoption of mitigation measures that will lessen the risk of damage on the part of all facilities - both public and private - both eligible and ineligible for federal assistance. The five criteria are designed specifically to assist the Agency in evaluating codes and standards put forth by applicants in order to determine if they meet the intent and purpose of the law. Thus, the requirement that a code must apply uniformly to all similar facilities within the jurisdiction of the owner (206.226(b)(4)) is to assure that a code, on its face, requires that all facilities be upgraded to the same extent before Federal funds can be awarded to some of them. Similarly, 206.226(b)(5) requires that a code, as applied, must be uniformly enforced. If, in fact, we were to accept UCLA's interpretation of Title 24, it would defeat the intent and purpose of the Stafford Act for FEMA to only fund facility repairs in a manner consistent with repair requirements imposed on non-FEMA eligible buildings in the same area.

Section 703 appears, on its face, to apply uniformly to all hospital buildings. However, it has not been demonstrated that 7-303 has been consistently enforced in accord with UCLA's interpretation of Title 24. In other words, there is no evidence that all post-1973 hospitals that were damaged in the Northridge Earthquake, including those with as little damage as was incurred by the SPS, were required to be upgraded to the seismic force levels for new construction. Thus, even if FEMA accepted UCLA's interpretation, failure to satisfy the requirements of FEMA Regulations would be sufficient basis upon which to deny the Subgrantee's appeal.

B. Whether the FEMA scope of repair complies with Title 24 and will the repair bring damaged elements into compliance with the provisions of the CBC in effect on June 30, 1997.

1. UCLA's position

UCLA states that FEMA has not cited any section of Title 24 that the repair in DSR 15422 satisfies. According to UCLA, John A. Martin & Associates rejected epoxy injection as a repair option because such repairs would restore between 80-100% of the predisaster strength and even less of the predisaster stiffness. UCLA claims that FEMA's estimated cost of $46,341 does not even restore the SPS to its predisaster capacity.

The Subgrantee challenges FEMA's conclusion that epoxy injection is an effective means of repairing shear wall cracks caused by the disaster. Specifically, the Subgrantee contends that epoxy injection does not fully restore the lateral load resistance of the structure to pre-damage level; further, even if this level of lateral resistance was restored, the repair would not comply with current requirements of the CBC.

2. FEMA's position

On the issue of whether epoxy grouting alone is an acceptable repair for cracks within the 0.02"-0.20" size range, FEMA finds that the method is a broadly accepted method for the repair of the lightly damaged walls. The largest crack recorded on the SPS crack maps is 0.04" or 1/25". In the case of reinforced concrete shear walls, technical literature supports the conclusion that epoxy grouting is likely to fill many voids and cracks which are likely to have existed from when the wall was constructed. Such improvements are likely to at least balance against the failure to fully grout newer hairline cracks, leading a restoration of the pre-disaster capacity of the wall to equal or even greater than 100%. On the issue of whether epoxy repair complies with the code requirements of the CBC, it is FEMA's position that because the repair work must comply with the requirements of the code and epoxy injection is a widely accepted method of crack repair, the repair funded by FEMA meets the requirements of the current CBC. There is no provision of the code which is in conflict with its use in this application and, because of the low level of damage to the SPS, the Code does not specify that any particular structural work be undertaken, whether it be epoxy grouting or shotcrete reinforcement. Thus the use of epoxy grouting complies with the code.

UCLA cited a calculation of a percentage loss of capacity as justification for the ne by the CBC.even larger cracks in reinforced concrete shear walls is not necessarily proof of a significant degradation of the lateral capacity of a structure. In fact, there may be little or no loss of capacity at all. FEMA Publication 310, Handbook for the Seismic Evaluation of Buildings - A Prestandard, pp. 4-33, states the following:

"CONCRETE WALL CRACKS: Small cracks in concrete elements have little effect on strength. A significant reduction in strength is usually the result of large displacements or crushing of concrete. Only when cracks are large enough to prevent aggregate interlock or have the potential for buckling of the reinforcing steel does the adequacy of the concrete capacity become a concern. All existing diagonal cracks in the wall elements shall be less than 1/8" for Life Safety and 1/16" for Immediate Occupancy; shall not be concentrated in one location, and shall not form an "X" pattern."

Based on both its own repeated inspections of the facility and its review of all of the technical reports submitted by UCLA, FEMA has concluded that the level of damage to the CHS facility does not support the conclusion that the facility suffered any significant loss of capacity in the Northridge Earthquake.

Consistent with this finding, FEMA has determined that the cost of epoxy grouting and crack patching can be justified as eligible. The criteria used for this determination is consistent with FEMA's funding eligibility decisions on other projects that were damaged in both the Northridge and the Loma Prieta Earthquakes. Both LAC/USC Medical Center Psychiatric Hospital, a first appeal response dated October 16, 1995 (LAC/USC Psychiatric Hospital), and Los Angeles County, 12 Appeals, a second appeal response dated February 23, 1999, provide a lengthy examination of the epoxy grout issue. This explanation is hereby included into this second level appeal:

"Epoxy injection repair is a well-established method for restoring strength and integrity to concrete walls and slabs. It is recognized that the quality of the process has major impact on the successful repair. Therefore, many jurisdictions have established criteria to assure that their projects will achieve the desired post repair performance. IR 100-2 Epoxy Injection Repair of Concrete and Masonry Building Elements permits epoxy repair of concrete cracks ranging from 0.006 inch to 3/16 inch maximum, while the City of Los Angeles permits epoxy repair of cracks up to 1/4 inch maximum. These agencies provide inspection and testing criteria to assure proper repair construction."

FEMA has thus determined that, in the case of the SPS, the epoxy method of repair will restore the predisaster building strength in a practical manner. It is FEMA's opinion that the requirements of 1629A.5.3 (design lateral forces), 1631A.2.6 (collector elements), 1921A.6.2 (wall shear reinforcing) and 1921A.6.5 (wall flexural reinforcing) cited by UCLA apply to the design, detailing and construction of new concrete structures, and the requirements are not practical or applicable to the repair of the SPS.

C. FEMA Seismic Hazard Mitigation

Based upon the foregoing, FEMA has found that the damage and the cost of repairs have not exceeded thresholds in the applicable building codes, or in the MOU. However, I am approving hazard mitigation measures under section 406 of the Stafford Act, as amended, for a total fixed amount of $7,700,000 for the repair, seismic upgrade, and relocation expenses associated with the physical construction of the SPS. This amount, which includes the $46,341 already approved for repairs, is capped at $7,700,000.

D. Time Extension Issue

Based upon the fixed-funding status of the SPS project, as approved above, FEMA will grant a time extension in accordance with the criteria established in the FEMA-1008-DR-CA's "Closeout Guidance for Open Time Extension Requests."

IX. CONCLUSION

FEMA has determined that based upon the interpretation of the relevant sections of Title 24 that apply to the repair of the SPS, the scope of repairs approved in DSR 15422 meets the requirements of the 1995 CBC. However, FEMA has decided to approve a fixed grant of $7,700,000 under Section 406 of the Stafford Act, as amended, for repair and hazard mitigation measures. The fixed grant, which constitutes "capped" funding, includes the $46,341 approved in DSR 15422 for repairs. Relocation expenses that will be incurred during the repair and seismic upgrade of the SPS are included in the capped amount. Additionally, because the funding provided is capped, a time extension will be granted to complete repairs to the SPS in accordance with the criteria established in FEMA's DR-1008 "Closeout Guidance for Open Time Extension Requests."