Codes and Standards

Appeal Brief

Appeal Letter

Appeal Analysis

Background

Between May 6 and June 17, 2015, severe storms, straight line winds, tornados, and heavy rain caused excessive storm water runoff and flooding, resulting in damage to three bridges (Facilities) under control of the Thayer County Road Department (Applicant).  In response, FEMA prepared Project Worksheets (PWs) 277, 279, and 283 to repair the Facilities, including upgrades due to codes and standards.  Subsequently, and prior to obligating, FEMA changed the scope of work to repair the Facilities according to the predisaster conditions.

The Applicant requested scope of work changes on December 14, 19, and 20, 2016.  The Applicant sought to replace the Facilities in accordance with Title 428 of the Nebraska Administrative Code (Title 428), as written in the original, but not obligated, PWs. 

In letters dated January 10, 2018, FEMA issued determination memoranda (DM) stating the Applicant did not demonstrate that Title 428 necessitated the Facilities’ replacement.  The determinations stated that Title 428 did not satisfy all the criteria in Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.226(d) because of its relaxation clause.  The relaxation clause allowed an entity, which is required to abide by Title 428 standards, to apply to a municipal board for a “relaxation” of the construction requirements in certain circumstances where there are “peculiar, special, or unique location situations [that] would make the application of the standards not feasible.”[1]  Because of this clause, the DM stated that Title 428 did not meet criteria (4) and (5) of 44 C.F.R. § 206.226(d) because the clause meant that that the standards were not uniformly applied to all similar types of facilities in the jurisdiction and not enforced.  Therefore, additional funding for upgrades was denied.

First Appeal

On January 25, 2018, the Applicant filed its first appeals with the Nebraska Emergency Management Agency (Grantee).  The Applicant argued that FEMA improperly interpreted how Title 428 adhered to the criteria of 44 C.F.R. § 206.226(d).  It further argued that: 1) it did not apply for a Title 428 relaxation; 2) no exemption had ever been given under this clause; and, 3) FEMA previously requested the Applicant apply for a relaxation of Title 428.  The Grantee forwarded the appeals and its support thereof on February 21, 2018.

On February 1, 2019, the FEMA Region VII Regional Administrator (RA) denied the appeals.  The RA found that Title 428 did not satisfy all five criteria of 44 C.F.R. § 206.226(d) and therefore replacing the Facilities was not required by a local code and standard.  Like the DM, the RA found that the relaxation clause allowing the Applicant to apply for a variance in the construction requirements meant that the code was not uniformly applied to all similar types of facilities in the jurisdiction and thus failed to satisfy all five criteria of 44 C.F.R. § 206.226(d).   

Second Appeal

In response to the first appeal decision, the Applicant filed its second appeals with the Grantee on April 4, 2019, reiterating the previously raised arguments.  On May 17, 2019, the Grantee supported the Applicant’s position and forwarded the appeals to FEMA.  In its letter, the Grantee expanded on the situations in which the relaxation clause may be applied, including when: 1) traffic is limited, such as dead ends; 2) it does not reduce the safety of the structure; and, 3) the bridge is meant for specific or recreational use, such as a scenic byway.  The Grantee claims that there is a disconnect between the way that FEMA reads the codes and how they are applied by the State.

After review of the appeal, FEMA issued an RFI seeking to clarify that the Applicant built the Facility under PW 277 in accordance with the proposed construction plans and the dimensions associated with the actual structure.  The Applicant replied with documentation from its engineering firm confirming that the Facility was built in accordance with the Facility construction plans, design documents with the Facility dimensions, and inspection records which also included the Facility dimensions.  

Discussion

Codes and Standards

FEMA may reimburse eligible applicants for the repair, restoration, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster based on the design of such facility as it existed immediately prior to the disaster and in conformity with current applicable codes, specifications and standards.[2]  For the costs of Federal, State, and local repair or replacement standards which change the predisaster construction of a facility to be eligible, the code or standard 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.[3]  All five prongs must be met in order to be eligible for Public Assistance (PA) funding.[4]  Otherwise, funding will be limited to repairs necessary to bring the facility back to its predisaster design or construction.[5]  The code or standard cannot be merely a recommendation, or allow for variances subject to discretionary enforcement by officials.[6]

The Applicant contends that Title 428 requires it to expand the Facilities.  According to the Applicant, Chapter 2 of Title 428 requires the Facilities in question to meet design standards of a minimum width of 20 feet.  Additionally, Title 428 allows for the relaxation, or variance, of its standards when the work for a singular segment of a road would create a special hardship in the construction.

The basis for this appeal is the Applicant’s claim that it was required to build the Facilities for PWs 277, 279, and 283 according to Title 428.  Generally, when a code contains a variance, enforcement of the code is considered by FEMA to be discretionary.[7]  However, in certain circumstances the ability to apply for a variance does not create a situation where the enforcement of the code is discretionary.[8]   

In this situation, the Applicant’s ability to apply for a relaxation or variance of the construction standard does not create a discretionary enforcement system.  The text of Title 428 makes clear that the variance applies only in situations where strict adherence to the standards is infeasible because of unique special circumstances.  Additionally, the Applicant never applied for a relaxation of the standards.  And finally, the fact that a variance of these standards has never been approved before is further evidence to suggest that the code is not discretionary.  

This type of variance is similar to that which FEMA addressed in Cuyahoga County Public Works.[9]  In that case, FEMA concluded that the variance did not cause the code to fail the § 206.226(d) test because the variance was only used in situations to overcome practical difficulties when there was no threat to public health, safety, or welfare.  In this case, the relaxation only allows for the change in requirements when the practicality of local circumstances and geography do not allow for absolute adherence to the code.  This is in contrast to other circumstances where FEMA has denied assistance in situations where the codes and standards were suggestions, recommendations, and discretionary.[10]

Because the Applicant is restoring the facilities in conformity with applicable codes and standards, these projects should not be classified as improved projects, but rather should be funded on the basis of actual costs.[11] 

Scope of Work

Whenever there is a revision of the scope or objective of the project applicants or grantees must obtain prior approval from FEMA.[12]  Applicants should notify the grantee about the need for a change in the scope of work as soon as possible, and not assume that it can report such unapproved costs at the end of the project and that FEMA will award the funds automatically.  The Grantee then forwards the request to FEMA, along with a written recommendation, and the timing of the request should allow for FEMA's inspection prior to repairs.  This is necessary because it allows FEMA to carry out related functions such as additional environmental and historic preservation compliance reviews.[13]

FEMA originally wrote the PWs to include a scope of work in which new Facilities would conform with Title 428.  However, prior to obligating the PWs, FEMA changed the scope of work in each of the three PWs requiring the Applicant to return the Facilities to the predisaster condition.  The Applicant was notified of the changes and submitted letters to the Grantee and FEMA, asking FEMA to return to the original scopes of work.  In this case, because it was FEMA and not the Applicant who changed the scopes of work, there was no reason that the Applicant would have been required to submit scope of work change requests until it was aware of the change.   

Conclusion

The state code’s variance applies only in instances for which the local circumstances would create an undue hardship and make construction infeasible.  Therefore, the code is not discretionary, and applies uniformly to all similar types of facilities.  As such, the code satisfies all criteria of 44 C.F.R. §206.226(d).  Accordingly, the requested upgrade and appealed costs for all three PWs are eligible for PA funding.  However, the Applicant must submit actual costs associated with each project, and FEMA will determine the eligible amount of reimbursement based on the approved scopes of work (in conformity with requirements of of Title 428).