Change in Scope of Work/Result of Declared Incident/Work Completion Deadlines

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4180
Applicant	Town of Perrysburg
Appeal Type	Second
PA ID#	009-57298-00
PW ID#	PW 283
Date Signed	2023-05-12T16:00:00

 

Appeal Letter

Appeal Analysis

Background

From May 13-22, 2014, severe storms and flooding caused damage in the State of New York. On July 8, 2014, the President declared a major disaster, which authorized Public Assistance (PA) in Cattaraugus County where the Town of Perrysburg (Applicant) is located. Torrential rains and overland flooding damaged Prospect Road (Facility). As a result of the disaster, 60 linear feet of the Facility’s shoulder and embankment materials were washed out. On June 11, 2014, the Applicant completed work to repair the damages. FEMA obligated Project Worksheet 283 (version 0) for $10,065.06 for the repair work.

In September of 2014, the repaired embankment slid, compromising the Facility’s support structure. In June 2015, an engineering firm contracted by the Applicant prepared a Slope Stability Evaluation Report for the Applicant.[1] The report evaluated the stability of the Prospect Street slope and contained laboratory test results, slope stability analysis, site location drawings, and site photographs. On November 19, 2015, FEMA obligated PW 283 (version 1) approving $120,500.00 for a scope of work (SOW1) change to allow for architectural and engineering (A&E) services to analyze the potential new disaster-related slope failure that occurred in September 2014.

On April 27, 2017, the Applicant requested a second SOW (SOW2) change that the New York State Division of Homeland Security and Emergency Services (Recipient) forwarded to FEMA on June 19, 2017. Specifically, the Applicant requested additional funding for the estimated construction cost, engineering services, and direct administrative costs (DAC) for completed and to-be-completed work based on the A&E analysis. On August 16, 2018, the Applicant requested a time extension to complete the work until August 31, 2020.

 

On September 25, 2018, FEMA approved the SOW2 change request to include slope repairs based on the A&E final design criteria and obligated PW 283 (version 2) increasing the total construction costs by $1,224,220.00 for an updated approved total of $1,354,785.06.

On October 5, 2018, FEMA also approved the time extension request (TER) noting that “[a]ny further time extension requests beyond August 31, 2020 must be submitted along with a detailed justification for the delay and the new projected completion date.”[2]

On June 3, 2019, the Applicant started construction to repair the slope. The Applicant’s engineering firm cut a temporary access roadway from the top of the bank along the existing roadway shoulder on the west side of the project down to the creek bank on the east side of the project. The Applicant and its engineering firm determined that cutting the road at the base of the embankment slope on the east end of the project site was unavoidable and there was no other feasible alignment for this access roadway to be constructed.[3]

By letter dated July 5, 2019, the Applicant advised the Recipient that the road surface and embankment contiguous to the project area was failing.[4] The Applicant stated the failure was the result of the project’s heavy truck traffic and the vibrations caused by the heavy equipment performing the approved work under SOW2. The Applicant expressed concerns about the continuing expansion of cracks in the road surface and along the shoulder furthest from the creek, recent heavy rains, and noted that, based on the total tonnage of stone that still needed to be transported over that section of road, it was possible that section of road would eventually separate from the hillside.

On August 27, 2020, the Applicant requested an additional SOW change (SOW3), which the Recipient forwarded to FEMA on October 21, 2020. The Applicant requested a cost increase of $567,877.50 to repair the slope failure that was located adjacent/east of the SOW2 approved in PW 283 (version 2). The Applicant also requested a second TER, seeking an extension to finish the project until September 1, 2021.[5]

On August 26, 2021, the Applicant resubmitted its TER, this time asking for an extension until September 1, 2022. It stated that it needed an extension because it was still waiting for FEMA to act on its SOW3 change request. On October 19, 2021, FEMA denied the Applicant’s SOW3 request, stating that the additional work was ineligible because it was neither a direct result of the declared event nor represented improvements to the predisaster condition of the embankment. In its denial, FEMA stated that the Applicant had acknowledged the elapsed time since the initial slope failure was likely one of several contributing factors to the additional damage.[6] FEMA determined that the additional damage resulted from incidents after the declared disaster and, therefore, work to repair that damage was ineligible for PA funding. On February 11, 2022, FEMA also denied the Applicant’s TER to extend the deadline for work completion through September 1, 2022. FEMA stated that there was no basis on which to grant the time extension because FEMA had denied the SOW3 change.

First Appeal

On December 10, 2021, the Applicant appealed FEMA’s denial of the SOW3 change request for embankment slope stabilization and roadway damage repairs (this also included the addition of an underdrain pipe and a drainage structure) for the same additional costs previously requested, $567,877.50. The Applicant explained that as a result of the construction traffic carrying heavy loads to address the previously approved repairs under SOW2, the cut embankment for the access road began to show signs of distress and potential failure, leading the Applicant to request the SOW3 for stabilization repairs. The Applicant stated that it used the creek bank on the east side of the project area to stockpile materials and accommodate construction traffic because it was not feasible to use other access points or close the Facility. Additionally, the Applicant stated that incorporating an underdrain pipe and a drainage structure on the east side of the site was integral to the slope stability, similar to what FEMA approved on the west side as hazard mitigation.

The Applicant also appealed FEMA’s denial of the TER, submitting an appeal letter dated April 12, 2022. The Applicant stated that the TER was justified as the overall project was not complete and FEMA had not yet made a decision on the SOW3 appeal. The Recipient supported both the SOW3 and TER appeals, attaching memoranda. The Recipient stated that the Applicant tried to prevent slope deterioration while working on the project and stated that FEMA policy and appeal precedent explicitly address unavoidable damage. The Recipient also stated that addressing the underdrain and drainage structures would save the taxpayers money by avoiding additional slope failures. Regarding the TER, the Recipient stated that FEMA has discretion to approve extensions necessary for the completion of eligible work and that an extension was reasonable to allow time for any remaining work that must be performed.

On May 31, 2022, FEMA sent a Request for Information to the Applicant, requesting the location of the damage on each side of the project, the proposed SOW3 estimate and line-item costs, and verification of whether the proposed SOW3 work was complete. On July 29, 2022, the Applicant responded with an identification of the repair area, a grading plan identifying the additional work area, a cost estimate for the SOW3, and confirmation that the additional work requested in SOW3 had not been completed.

On November 2, 2022, the FEMA Region 2 Regional Administrator denied the appeal, finding the additional slope damage was not a result of the declared incident. Additionally, because FEMA concluded the Applicant completed all eligible work for SOW2 prior to the current project completion deadline, FEMA also denied the Applicant’s TER.

Second Appeal

The Applicant submitted a second appeal dated December 28, 2022, contending that FEMA is interpreting whether the damage at issue can be tied directly to the declared incident too narrowly. The Applicant states that construction vehicles used to complete the SOW2 that traversed the temporary access roadway, which had been cut along the existing roadway shoulder of Prospect Street down to the creek bank on the east side of the project, caused the failure of the slope adjacent to the project area. The Applicant also states FEMA incorrectly concluded that the SOW2 work was completed because the Applicant has yet to install 160 linear feet of guide rail due to the slope failure. Accordingly, the Applicant argues there is a basis on which FEMA can grant the TER as it states there is still work to be completed under the SOW2/PW 283 (version 2).

The Recipient supports the appeal and states that FEMA’s denial of the Applicant’s first appeal was based on incorrect and incomplete statements of the situational facts. The Recipient stated that: (1) the Applicant took measures to protect the road from further deterioration with temporary repairs while awaiting approval to proceed with the permanent work; (2) even if the slope damages the Applicant claims were not visible at the time of the 2014 FEMA site inspection, the damage could have been there but imperceptible until after the incident period closed; (3) the 2015 Slope Stability Evaluation Report stated that the current limits of the failure area were expected to expand further to the east, and also documented some apparent signs of slope distress such as pavement cracking, guide rail and shoulder settlement in the area east of the main failure area; and (4) the Applicant began construction as soon as possible once the SOW2 was approved. The Recipient adds that FEMA policy specifically provides that damage caused during the performance of eligible work may be eligible for reimbursement. The Recipient attaches a letter from an engineer whose firm had been involved with the slope remediation project since its inception in 2015.[7] In that letter, the engineer states that the heavy construction traffic and the heavy loads being carried to and from the site stressed the roadway slope. Attachments to the engineer’s letter show the tonnage of fill that was carried to the site and include invoices for the same. The Recipient states the Applicant has documented that the conditions that led to the additional damage from the construction activities were unavoidable.

 

Discussion

Result of Declared Incident

FEMA may provide PA funding to a local government for the repair of a public facility damaged by a major disaster.[8] To be eligible, work must be required as a direct result of the declared incident.[9] Damage that occurs after the close of an incident period that can be tied directly to the declared event may also be eligible.[10] This includes damage caused during the performance of eligible work.[11] Damage caused by negligence on the part of the applicant after the event, such as when an applicant fails to take prudent measures to protect a facility from further damage in the wake of a disaster, is not eligible.[12] Damage caused by an applicant’s actions, if unavoidable, may not necessarily be negligence, especially in cases where the damage occurs during emergency response efforts.[13] It is the applicant’s responsibility to show the damage claimed is disaster-related.[14] An appeal must contain documented justification supporting the appellant’s position.[15]

Here, the Applicant has not provided documentation, such as engineering studies or photographs, demonstrating that the heavy trucks being used to perform permanent work for SOW2 caused the damage at issue. A FEMA Professional Engineer (PE) who reviewed this second appeal and administrative record noted that the temporary access roadway was at the bottom of the slope and was unlikely to contribute to the slope failure. The FEMA PE also noted that if the traffic loads on the temporary access roadway were the reason for the slope movement, the slip would have extended further downslope.

The Applicant alternatively states that 1,200 heavy trucks were added to the normal traffic of Prospect Street and this contributed to the forces driving the slope movement. However, the FEMA PE observed that normal construction practices include controlling site access for construction vehicles. Thus, if construction traffic on Prospect Street caused the slope failure through increased loading, it is not an unavoidable action, but rather a result of the Applicant’s failure to take prudent measures to protect the slope from further damage. This is especially the case given the Applicant’s awareness of the failure mechanisms involved in the slide based on the 2015 Slope Stability Evaluation Report.  

Without further documentation demonstrating these increased loading factors or the mechanism by which the construction traffic for SOW2 caused the failure, FEMA cannot determine that the 2019 slope movement was caused by repair work for the disaster-related damage and not by some other condition.

Work Completion Deadlines

The RA has authority to grant extensions beyond the limit of the recipient’s authority and will make determinations appropriate to the situation.[16] Requests by applicants for time extensions should include a detailed justification of the need for the extension and a projected completion date.[17] To justify the grant of a TER, applicants must demonstrate extenuating circumstances or unusual project requirements beyond the applicant’s control.[18]

Here, the Applicant appeals FEMA’s denial of its TER, and states that because there is still approximately 160 linear feet of guide rail yet to be installed in connection with the SOW2 work, there is a basis on which FEMA can grant the TER. The Applicant states it could not install the guide rail because of the slope failure immediately adjacent to the embankment slope rehabilitation project limits. However, the Applicant has not provided a detailed justification for why the slope failure prevented it from installing the guide rail or otherwise demonstrated that there were extenuating circumstances outside of its control or unusual project requirements that would warrant approval of its time extension request. Its claim that it had not completed the approved SOW within the timeframe provided to complete work is not in itself an extenuating circumstance or unusual project requirement and the RA exercised appropriate discretion in denying the extension.[19]

 

Conclusion

The Applicant has not provided documentation demonstrating that the disaster-related work to repair the Facility caused the additional claimed slope damage or that extenuating circumstances beyond the Applicant’s control justify granting a TER. Therefore, this appeal is denied.