Result of Declared Incident

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4337
Applicant	Okeechobee (County)
Appeal Type	Second
PA ID#	093-99093-00
PW ID#	PW 2832
Date Signed	2021-06-03T16:00:00

Summary Paragraph

From September 4 to October 18, 2017, Hurricane Irma caused damage throughout Florida.  Okeechobee County (Applicant) sustained roadway damage, embankment erosion, or a combination of the two at three culvert crossings.  FEMA prepared Project Worksheet 2832 to document the damage, scope of work for repair, and to set the project cost of $57,204.86.  The Applicant developed plans for repair, which added work outside the approved scope of work, including two culvert replacements and significant additional work at the other culvert crossing, and requested that FEMA fund its estimated costs for all work of $1,519,081.00.  FEMA informed the Applicant that FEMA can only reimburse for damage that was caused by the disaster, which was limited to the embankment erosion and roadway damage.  The Applicant submitted a first appeal, asserting that the project costs were incorrect and intended to only be an estimate for engineering services to inspect and estimate the extent of roadway damages, and that its actual costs were estimated to be $1,260,654.76.  The FEMA Region IV Regional Administrator denied the first appeal, finding that the Applicant had not demonstrated that the requested repairs were required as a result of the disaster.  FEMA found that the administrative record lacked sufficient documentation to demonstrate that two of the culverts were damaged by the event and required replacement, and that the additional work completed at the third culvert crossing was to repair preexisting damage.  The Applicant submitted a second appeal asserting that roadway damage at the NE 304th Street culvert crossing was a result of the disaster and refers to a predisaster bridge inspection report that it claims did not indicate preexisting damage.

Authorities and Second Appeals

• Stafford Act § 406(a).
• 44 C.F.R. § 206.223(a)(1).
• PAPPG, at 19, 133, and 135.

Headnotes

• Per 44 C.F.R. § 206.223(a)(1), to be eligible for financial assistance, an item of work must be required as the result of the emergency or major disaster event.  The PAPPG, at 19, provides that the applicant is responsible for showing that work is required to address damage caused by the declared incident.  FEMA does not provide PA funding for repair of damage caused by deterioration or deferred maintenance.  The PAPPG states on page 133 that FEMA requires documentation to support that the work is eligible.  It is the applicant’s responsibility to substantiate its claim as eligible.  And per page 135, FEMA accepts a variety of documentation to establish predisaster condition of a facility (e.g., facility maintenance records, inspection/safety reports).
  • Here, the Applicant has not provided documentation to demonstrate that the additional work was required as a result of the disaster and not due to preexisting deterioration or deferred maintenance.

Conclusion

FEMA finds that the Applicant has not demonstrated that the additional work to replace culverts and construct other roadway improvements was required as a result of the disaster.  Therefore, that work is not eligible for assistance and this appeal is denied.

 

Appeal Letter

Appeal Analysis

Background

From September 4 to October 18, 2017, Hurricane Irma caused damage throughout Florida, including Okeechobee County (Applicant).  The Applicant sustained roadway damage, embankment erosion, or a combination of the two at three culvert crossings:  NW 190th Road, NE 48th Avenue, and NE 304th Street (Facilities).  The Applicant requested Public Assistance (PA) through the Florida Division of Emergency Management (Grantee) for repairs to the Facilities.  FEMA prepared Project Worksheet 2832 to document the damage, scope of work for repair (replacement of embankment fill material and roadway repairs), and project cost of $57,204.86.[1]

The Applicant developed plans for repair, which added work outside the approved scope of work – specifically culvert replacements at NW 190th Road and NE 48th Avenue, and culvert and additional roadway repairs at NE 304th Street – and requested that FEMA fund its actual repair costs of $1,519,081.00.  On March 14, 2019, FEMA informed the Applicant that it can only reimburse for damage that was caused by the disaster, which was limited to the embankment erosion and roadway damage that the Applicant had signed off on in the Site Inspection Reports (SIR).[2]  On the SIR for the NW 190th Road and NE 48th Avenue sites, the Applicant told FEMA that the culverts would be replaced as maintenance, and for the NE 304th Street site, the Applicant informed FEMA that it planned to have the structure inspected by an engineer to determine the exact nature of the erosion behind the wing walls, but the damages that were captured and signed off on were limited to embankment erosion and roadway damage.

 

First Appeal

On September 5, 2019, the Applicant appealed, asserting that the project cost estimate was incorrect and did not include all related costs.  The Applicant stated that the approved costs were only an estimated cost for engineering services to inspect and estimate the extent of roadway damages.  At the time the estimate was entered into Grants Portal, the Applicant was still working to obtain bids and quotes from contractors to perform the work.  The Applicant’s actual costs were then estimated to be $1,260,654.76.[3]  The Grantee supported the first appeal in a November 6, 2019 letter.

On February 28, 2020, FEMA issued a Request for Information seeking documentation to demonstrate that the three culverts were damaged by the disaster as well as information that upgrades and improvements completed by the Applicant were disaster-related or required by codes and standards.  On April 27, 2020, the Applicant replied, providing four bridge inspection reports for the NE 304th Street bridge culvert and a post-event inspection for that site.  The Applicant explained that it could not locate additional information related to maintenance records, inspection reports, or pictures, and did not provide any information regarding the improvements.

In a first appeal decision dated November 30, 2020, the FEMA Region IV Regional Administrator denied the first appeal, finding that the Applicant had not demonstrated that the requested repairs were required as a result of the disaster.  For the NW 190th Road and NE 48th Avenue sites, FEMA found that the administrative record lacked sufficient documentation to demonstrate that the culverts were damaged by the event and required replacement.  Further, the SIRs noted that the Applicant had stated that it planned on replacing the culverts as a maintenance issue.  Post-disaster pictures did not indicate that the culverts were damaged as a result of the event, and the Applicant did not provide documentation to establish the culverts’ predisaster condition.  For the NE 304th Street site, FEMA reviewed the bridge inspection reports and found that many of the deficiencies corrected as part of the scope of work completed by the Applicant were for preexisting damages that would not be eligible for reimbursement.

 

Second Appeal

The Applicant submitted a second appeal on January 25, 2021, requesting reimbursement of project expenses and asserting that the roadway damage at the NE 304th Street site was a result of the disaster.  The Applicant refers to the February 2017 bridge inspection report (seven months prior to the disaster), which the Applicant claims did not indicate damage to the roadway.  On March 18, 2021, the Grantee transmitted the second appeal to FEMA, recommending its approval.  The Grantee states that the amount in dispute is $1,203,449.90.[4]

 

Discussion

Section 406 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act authorizes FEMA to reimburse eligible applicants for the repair, restoration, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster.[5]  To be eligible for financial assistance, an item of work must be required as the result of the emergency or major disaster event.[6]  The applicant is responsible for showing that work is required to address damage caused by the declared incident.[7]  FEMA requires documentation to support that the work is eligible[8] and accepts a variety of documentation to establish predisaster condition of a facility (e.g., facility maintenance records, inspection/safety reports).[9]  FEMA does not provide PA funding for repair of damage caused by deterioration or deferred maintenance.[10]  

Here, the Applicant asserts that roadway damage at the NE 304th Street site was a result of the disaster and provides a damage photo taken three days after the disaster showing a void (hole) in the road.  The Applicant refers to a February 2017 bridge inspection report completed seven months prior to the disaster that it states did not indicate preexisting roadway damage, thus inferring that the damage must be a result of the disaster.  FEMA reviewed the predisaster inspection reports[11] and finds that there were preexisting deficiencies to the culvert and the roadway.  Notably, the February 2017 report indicates asphalt settlement in the roadway where the claimed damage occurred, which indicates that the roadway damage was due to preexisting deterioration that was exacerbated by the disaster, but the damage was not solely a result of the disaster.  Accordingly, the additional work to repair the damage is not eligible for assistance.

The Applicant does not mention the NE 48th Avenue or NW 190th Road sites in the second appeal, nor does it provide any documentation or justification for the additional work completed at any of the three sites besides the roadway work discussed above.  A review of the administrative record supports the Regional Administrator’s first appeal determination that there is insufficient documentation to demonstrate that the culverts at NE 48th Avenue and NW 190th Road were damaged by the event and required replacement, and that additional work completed at NE 304th Street was required as a result of the disaster.

 

Conclusion

FEMA finds that the Applicant has not demonstrated that the additional work to replace culverts and construct other roadway improvements was required as a result of the disaster.  Therefore, that work is not eligible for assistance and this appeal is denied.

 

[1] NE 48th Avenue: $8,640.83; NE 304th Street: $34,543.53; NW 190th Road: $14,020.50­.

[2] Referring to the Applicant initialing the site inspection reports.

[3] NE 48th Avenue: $143,584.75; NE 304th Street: $916,259.23; NW 190th Road: $200,810.78.

[4] The Applicant’s actual total costs of $1,260,654.76 less FEMA approved costs of $57,204.86.

[5] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 406(a), 42 U.S.C. § 5172(a) (2012).

[6] Title 44 Code of Federal Regulations § 206.223(a)(1) (2016).

[7] Public Assistance Program and Policy Guide, FP-104-009-2, at 19 (April 2018).

[8] Id. at 133.

[9] Id. at 135.

[10] Id. at 19.

[11] The Applicant previously provided bridge inspection reports from 2011, 2013, 2015, and 2017.