Result of Declared Incident

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4390
Applicant	Lake (County) / Highway Department
Appeal Type	Second
PA ID#	075-99075-01
PW ID#	GMP 94247
Date Signed	2020-11-30T17:00:00

Summary Paragraph

 From June 15, 2018 through July 12, 2018, severe storms, heavy rainfall and widespread flooding impacted the State of Minnesota.  Lake County Highway Department (Applicant) requested PA to replace its damaged corrugated metal pipe (CMP) culvert, County Road Culvert 3 (Facility).  FEMA conducted a site inspection on October 30, 2018 and noted no disaster damage to the CMP itself, but observed some washed out areas surrounding the CMP.  FEMA conducted a second site inspection on April 24, 2019, and noted it was unable to verify disaster damage to the CMP culvert.  In a June 17, 2019 Determination Memorandum, FEMA denied PA funding for the project.  FEMA found that the Applicant had not demonstrated that the damage to the Facility was caused by the disaster and was not the result of deferred maintenance.  On September 5, 2019, the Applicant submitted the first appeal, requesting $732,720.00 to replace the Facility in accordance with codes and standards upgrades.  The FEMA Region V Regional Administrator (RA) denied the appeal.  FEMA determined that the Applicant had not provided adequate documentation and evidence to show the claimed damages to the Facility were a direct result of the disaster.  The Applicant submitted a second appeal via letter dated February 24, 2020.

           

Authorities and Second Appeals.

• Stafford Act § 406(a)(1)(A).
• PAPPG, at 19, 116, 133.

 

Headnotes

• To be eligible for financial assistance, an item of work must be required as the result of the emergency or major disaster event.
  • The documentation shows ongoing deterioration of the Applicant’s facility prior to the disaster, as well as post-disaster pictures showing extensive corrosion and other damage to the Facility, unrelated to the disaster.  The Applicant has not distinguished any potential disaster-related damage from preexisting damage.

 

Conclusion

The documentation provided shows the ongoing deterioration of the Facility prior to the disaster and the Applicant has not demonstrated that the claimed damage was directly caused by the disaster.  Therefore, this appeal is denied. 

 

Appeal Letter

Appeal Analysis

Background

From June 15 through July 12, 2018, severe storms, heavy rainfall and widespread flooding impacted the State of Minnesota.  Lake County Highway Department (Applicant) requested Public Assistance (PA) funding to replace County Road Culvert 3, a 104-foot-long, 11-foot-diameter, Corrugated Metal Pipe (CMP) culvert, surrounding rip rap, and the road that ran above the CMP (Facility).  

FEMA created Grants Manager Project 94247 for the repair of the Facility, estimated at $232,828.00.  On October 30, 2018, FEMA inspected the Facility and noted that damage was not visible from either end of the culvert.  In a second site inspection, dated April 24, 2019, FEMA noted it was unable to verify disaster damage to the CMP culvert.  In a June 17, 2019 Determination Memorandum, FEMA denied PA funding for the project.  FEMA found that the Applicant had not demonstrated that the damage to the CMP culvert was caused by the disaster and was not the result of deferred maintenance.

 

First Appeal

On September 5, 2019, the Applicant appealed FEMA’s denial of PA funding for repair of the Facility.  The Applicant requested $732,720.00 for the replacement/upgrade of the Facility  based on applicable codes and standards.  The Applicant stated the Facility was constructed in 1962 and, while it was old, it was functional at the time of the disaster, with only 10 percent pre-existing damage.  The Applicant submitted a Minnesota Structure Inspection Report (MSIR)[1] from 2017 and acknowledged pre-existing damage to the CMP culvert, noting that a five-foot section near the outlet, and a three-foot section above the high-water level were missing prior to the disaster.  However, the Applicant stated the section losses did not affect critical areas of the culvert, and deterioration throughout the rest of the culvert was limited to surface corrosion, typical for an old CMP culvert.

The FEMA Region V Regional Administrator denied the appeal.  FEMA determined that the Applicant had not provided adequate documentation to demonstrate the claimed damages to the Facility were a direct result of the declared disaster.  FEMA found that the damages present in the Facility appear to be the result of pre-existing deficiencies and the Applicant’s failure to make necessary repairs prior to the disaster.  Therefore, FEMA could not distinguish pre-existing damage from disaster damage.

 

Second Appeal

The Applicant’s second appeal dated February 24, 2020 noted its disagreement with FEMA’s first appeal decision and argued that in accordance with FEMA’s Public Assistance Program and Policy Guide (PAPPG), the requested work was eligible.  The Applicant specifically referred to the restoration of a facility to its pre-disaster design and function in accordance with applicable codes and standards.  The Applicant claims that permanent work to restore the Facility is required as a direct result of the disaster.  The Applicant noted that heavy rain fell during a six-hour span, and stated that the rainfall was the equivalent to a “200-plus-year storm” for the area.  The Applicant submitted post-disaster photographs depicting vegetative debris, roots, and a broken CMP, which the Applicant claims resulted from the disaster.  

The Applicant further states that FEMA requested maintenance records or invoices to prove the damage was caused by this event; however, the PAPPG allows FEMA to inspect other sections of the Applicant’s road system to confirm the performance of normal maintenance activities in the absence of maintenance records.[2]  The Applicant notes that an inspection of its road system for this purpose never occurred.

 

Discussion

The Robert T. Stafford Act  Disaster Relief and Emergency Assistance (Stafford) Act, section 406(e), authorizes FEMA to fund the cost of repairing, restoring, reconstructing, or replacing a facility damaged or destroyed by a major disaster.[3]  To be eligible for financial assistance, an item of work must be required as the result of the major disaster event.[4]  Work to repair damage caused by deterioration or deferred maintenance is not eligible for reimbursement.[5]  For facilities, such as roads and bridges, that require routine maintenance to maintain their designated function, FEMA may review maintenance records to verify the predisaster condition and evaluate the eligibility of reported damage.[6]  Because it is difficult to distinguish between pre-existing damage and damage caused by the disaster, the Applicant must demonstrate that damages were directly caused by the disaster.[7]

The MSIR notes that the CMP culvert had been rusting since 2004 and the culvert condition deteriorated with each yearly inspection until the bottom of the CMP culvert was compromised.[8]  Post-disaster photographs provided with the second appeal depict extensive corrosion to the CMP culvert and debris is evident.  Additionally, at the second site inspection FEMA found no evidence of disaster-caused damage.

Further, the Applicant has not presented documentation (e.g., maintenance records, photographs, material purchase invoices, etc.) to demonstrate that it regularly maintained the Facility prior to the disaster.  Deterioration was noted in the Applicant’s MSIR,[9] and the Applicant acknowledged that portions of the CMP culvert were missing and the cracked road above the CMP culvert (but stated this condition was normal in midwestern states, due to extreme temperatures).   In this case, the Applicant has not demonstrated that the damage claimed was caused by the disaster rather than predisaster conditions or deferred maintenance.

Conclusion

The documentation provided shows the ongoing deterioration of the Facility prior to the disaster and the Applicant has not demonstrated that the claimed damage was directly caused by the disaster.  Therefore, this appeal is denied. 

 

 

 

[1] State of Minnesota, Minnesota Structure Inventory Report, (Sept. 19, 2017) [hereinafter known as MSIR].

[2] Public Assistance Program and Policy Guide, FP-104-009-2, FP 104-009-2FPFat 116 (April 2018) [hereinafter PAPPG].

[3] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act, as amended, 42 U.S.C. § 5121 (2018) § 406(a)(1)(A).

[4] PAPPG, FP 104-009-2FPFat 19.

[5] Id.

[6] Id, at 116.­

[7] Id.

[8] MSIR.Recovery Policy (RP) 9524.2, Landslides and Slope Failures, at 4 (May 23, 2006).

[9] Id.