Second Appeal Brief
1909
PA ID# 125-U00B3-00; Clarksville Gas and Water
PW ID# 5451; Scope of Work
07/31/2015
Conclusion: Pursuant to the Stafford Act § 406(e) and 44 C.F.R. Parts 9 and 10, the requested scope of work is eligible for PA funding.
Summary Paragraph
Beginning on April 30, 2010, severe storms, tornadoes, heavy rains, high winds, flooding, and flash flooding caused the creek bed of Sycamore Creek to erode and the Applicant’s gas pipes to become exposed. During the final review of Project Worksheet (PW) 5451, FEMA denied funding for the directional boring method used by the Applicant to restore its natural gas pipes because it determined that the process was not the most cost effective method and there was no regulatory requirement for it. Instead, FEMA obligated PW 5451 to excavate the embankment areas, remove the pipes, relocate the pipes, and backfill the embankment areas. In the first appeal letter, the Applicant asserted that there was no conclusive evidence that the pipes were not damaged, the existing pipes could not have been reused, and natural gas regulations require operators to bury pipes in a safe manner that would prevent the pipes from becoming uncovered. The Applicant also asserted that, due to winter weather and time constraints, directional boring was the only method that would prevent future exposure. The Region IV Regional Administrator (RA) denied $559,964.86 in additional funding to complete the project as it was neither necessary nor cost effective, and the Applicant failed to provide a regulatory justification for the additional work performed during the restoration of its gas pipes located below Sycamore Creek. In the second appeal, the Applicant asserts that simply replacing the lost creek bed material to pre-disaster condition was not possible because this method does not comply with federal natural gas line regulations and is prohibited by Tennessee Department of Environment and Conservation requirements. In addition, the Applicant claims the only available option was to utilize directional boring due to winter weather and time constraints. Pursuant to the Stafford Act § 406(e) and 44 C.F.R. Parts 9 and 10, the requested scope of work is eligible for PA funding.
Authorities and Second Appeals
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Stafford Act § 406, 42 U.S.C. § 5172.
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44 C.F.R. Parts 9 and 10.
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44 C.F.R. § 206.201(m).
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44 C.F.R. § 206.205(b)(2).
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PA Guide, at 116, 127, 128.
Headnotes
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The Stafford Act § 406(e)(1) authorizes FEMA to reimburse the costs to repair, restore, or replace a damaged facility to its predisaster design, function, and capacity in accordance with applicable codes and standards.
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Pursuant to Title 44 of the Code of Federal Regulations (44 C.F.R.) Parts 9 and 10, FEMA must consider and comply with Federal laws, regulations, and Executive Orders that have EHP implications.
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Regarding PW 5451, FEMA EHP reviewed and approved a scope of work that utilized the directional boring method.
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The scope subsequently was changed utilizing the open cut method for repair and a new EHP review was not conducted.
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FEMA is not authorized to provide funding for the revised scope that was neither reviewed nor approved by an EHP reviewer.
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As the project is otherwise eligible for PA funding, FEMA is authorized to provide funding for the original scope of work utilizing the directional boring method.
Original article –
