Result of Declared Incident

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4286
Applicant	Georgetown (County)
Appeal Type	Second
PA ID#	043-99043-00
PW ID#	PW 1193
Date Signed	2021-09-21T16:00:00

Summary Paragraph

From October 4 to 30, 2016, Hurricane Matthew caused damage in South Carolina, and Georgetown County (Applicant) reported damage to concrete walkway and railing (Facility) at the Murrells Inlet Marsh Walk.  FEMA prepared Project Worksheet 1193 to document the damage to the Facility and cost estimate for repairs.  FEMA later found the project ineligible for Public Assistance (PA) because the project no longer met the minimum project threshold after insurance reductions.  The Applicant appealed, asserting that the cost estimate was incorrect.  FEMA remanded the appeal for further action and review, and then ultimately issued a Determination Memorandum denying all costs.  FEMA found that the Applicant had not substantiated that the damage was a result of the disaster, and was instead due to long-term wear and deterioration.  The Applicant submitted a new first appeal, stating that the Facility was damaged as a direct result of the disaster and that it had attempted to resolve the issue with its insurance provider.  The FEMA Region IV Regional Administrator denied the first appeal, finding that the Applicant had not demonstrated that the damage was a direct result of the disaster and, even if the work were eligible, then the Applicant had not demonstrated that it had adequately pursued all available insurance proceeds.  The Applicant submits its second appeal, reiterating previous arguments.

 

Authorities and Second Appeals

• Stafford Act § 406(a)(1)(A).
• 44 C.F.R. § 206.223(a)(1).
• PAPPG, at 19 and 127.

 

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 FEMA does not provide PA funding for repair of damage caused by deterioration, deferred maintenance, the applicant’s failure to take measures to protect a facility from further damage, or negligence.  It is the applicant’s responsibility to demonstrate that damage was caused directly by the declared incident.  Per PAPPG, at 127, if the Applicant does not provide sufficient documentation to support its claim as eligible, FEMA cannot provide PA funding for the work.
  • Here, the Applicant has not provided documentation to demonstrate that work to repair the claimed damage occurred 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 claimed work was required as a result of the declared incident.  Therefore, this appeal is denied.

 

Appeal Letter

Appeal Analysis

Background

From October 4 to 30, 2016, Hurricane Matthew caused damage in South Carolina.  Georgetown County (Applicant) reported damage to a concrete walkway and railing (Facility) at the Murrells Inlet Marsh Walk.  FEMA prepared Project Worksheet (PW) 1193 to document the damage to the Facility and cost estimate of $73,960.00 for repairs.  FEMA later found the project ineligible for Public Assistance (PA) funding because the project no longer met the minimum project threshold after insurance reductions.

On October 18, 2018, the Applicant appealed, asserting that it did not receive any insurance proceeds from its insurance provider, the South Carolina Insurance Reserve Fund (SCIRF), for concrete walkway replacement work, including railing repairs, and claimed actual project costs of $136,207.15.  The Applicant provided the insurance claim denial letter dated

September 12, 2018, in which SCIRF found that the damage was due to long-term wear and tear and gradual deterioration and was not covered under its insurance policy.  SCIRF noted that its engineer reported an issue of settlement and cracking that had likely occurred over a period of time prior to the disaster.  The Applicant also provided reports from its consulting engineers regarding Facility damage.  A January 6, 2017 report stated that the “[c]oncrete walkways … should be removed and replaced in-kind to address settlement and cracking exacerbated by floodwaters…,”[1] and an October 9, 2017 report stated that the “[c]oncrete walkways … should be removed and replaced in-kind to address settlement and cracking caused by floodwaters….”[2] 

On April 17, 2019, FEMA remanded the appeal for further action, explaining that it would reevaluate the Applicant’s insurance claim and issue a Determination Memorandum (DM) if it were to approve costs lower than what was submitted.  On May 28, 2020, FEMA issued a DM denying all costs.[3]  FEMA cited the Applicant’s insurance claim denial letter, which found that the Applicant had not substantiated that the damage was a result of the disaster and was instead due to long-term wear and tear and deterioration.

 

First Appeal

On July 20, 2020, the Applicant appealed, stating that the Facility was damaged as a direct result of the disaster and not deferred maintenance.  The Applicant stated the walkways functioned perfectly prior to the disaster with years of future use remaining.  It relied on the October 2017 engineering report to demonstrate the disaster caused the claimed damage.  Furthermore, the Applicant provided maintenance and inspection records for the Marsh Walk from 2012-2016 to support its assertion that it routinely addressed issues found in regular inspections as well as issues reported by citizens.  Next, the Applicant explained that it had attempted to resolve the dispute with SCIRF, and provided emails with SCIRF discussing the eligibility and the amount of its insurance claim.  The Applicant also stated that railing repairs were required to meet codes and standards.  The South Carolina Emergency Management Division (Grantee) supported the first appeal in a September 16, 2020 letter.

On November 4, 2020, FEMA issued a Request for Information to the Applicant and the Grantee, clarifying that the issues in dispute were whether the work was required as a result of the declared incident and whether the Applicant had adequately pursued all available insurance proceeds.  Regarding the first issue, FEMA requested the Applicant provide the engineering report conducted on behalf of SCIRF, maintenance records for the Facility for the two years before the disaster, and photographs of the affected area taken prior to and immediately after the disaster. 

The Applicant and the Grantee responded by first providing the December 2017 engineering report conducted on behalf of SCIRF that was the basis for the insurance claim denial.  The Applicant disputed the opinion reached in this report (i.e., that the damage was due to long-term wear and tear and gradual deterioration) by noting that not only had the engineer conducted the inspection a year after this disaster, but, during that time, the Facility had also incurred additional damage from a subsequent disaster.  The Applicant stated that the Applicant’s staff perform routine inspections on the Marsh Walk and note any additional repair issues that need to be addressed or may arise between inspections.  The Applicant stated that it performed a repair to the concrete portion of the Facility one week prior to the disaster, but did not submit documentation to support this.[4]  The Applicant supplied videos showing the storm surge during the disaster.  For post-disaster photographs, the Applicant relied on the photographs previously submitted that accompanied the January 2017 report from the Applicant’s consulting engineer. 

On March 3, 2021, the FEMA Region IV Regional Administrator denied the first appeal, finding that the Applicant had not provided documentation demonstrating that damage to the Facility occurred as a direct result of the declared incident.  FEMA found that the administrative record indicated that the claimed damage resulted from deferred maintenance or other predisaster deficiencies.  FEMA additionally noted that the Applicant had not provided documentation establishing it adequately pursued available insurance proceeds from its insurer.

 

Second Appeal

The Applicant submitted a second appeal on May 3, 2021, reiterating previously raised arguments.  The Grantee supported the first appeal in a June 28, 2021 letter.

 

Discussion

FEMA may provide PA funding to a local government for the repair of a public facility damaged by a major disaster.[5]  To be eligible, work must be required as a result of the declared incident.[6]  The applicant is responsible for providing documentation to support its claim as eligible and show that work is required to address damage caused by the disaster.[7]  FEMA does not provide PA funding for repair of damage caused by deterioration or deferred maintenance.[8] 

The Applicant asserts that damage to the Facility was a direct result of the disaster; however, the January 2017 engineering report noted past repairs and stated that the disaster merely exacerbated preexisting damage (settlement and cracking in the Facility).[9]  Additionally, the Applicant provided maintenance records showing frequent reports of concrete damage or repairs due to settlement and cracking (such as concrete cracking, patching, gaps, and differential settlement), indicating that this was an ongoing issue.[10]  Finally, the December 2017 engineering report performed on behalf of SCIRF found the damage to be a result of long-term wear and tear and gradual deterioration and not directly attributable to this event.[11]  While the Applicant casts doubt on this report due to when it was conducted, the documentation does not demonstrate that the requested work to repair the Facility was required as a result of the disaster, instead of preexisting deterioration.[12]

 

Conclusion

FEMA finds that the Applicant has not demonstrated that the claimed work was required as a result of the declared incident.  Therefore, this appeal is denied.

 

[1] The Earthworks Group, Damage Assessment of Marshwalk and Veterans Pier, at 3 (Jan. 6, 2017).

[2] The Earthworks Group, Damage Assessment of Marshwalk Concrete Slabs, at 2 (Oct. 9, 2017).

[3] The DM states the amount at issue was $133,960.00 based on the estimated budget.

[4] The Applicant did not provide a receipt for the work, but the Applicant’s maintenance records contain a September 28, 2016 dated email (approximately one week before the disaster) stating that a section of concrete by one of the restaurants had been repaired previously and was again in need of repair.

[5] Robert. T. Stafford Disaster Relief and Emergency Assistance Act § 406(a)(1)(A), Title 42, United States Code § 5172(a)(1)(A) (2012).

[6] Title 44 Code of Federal Regulations § 206.223(a)(1) (2016); Public Assistance Program and Policy Guide, FP 104-009-2, at 19 (Jan. 1, 2016) [hereinafter PAPPG].

[7] PAPPG, at 19, 127.

[8] Id. at 19.

[9] The Earthworks Group, Damage Assessment of Marshwalk and Veterans Pier, at 3, 43 (Jan. 6, 2017).

[10] Letter from Acting Dir., Georgetown Cnty. Pub. Servs., to Dir., S.C. Emergency Mgmt. Div., Attach. B - Maintenance & Inspection Records, at 9-12, 15-18 (July 20, 2020).

[11] Report from Pro. Eng’r, Jackson Eng’g, to Worley Claims Servs., at 4-5, 8-9 (Dec. 31, 2017).

[12] This decision does not address the codes and standards issue regarding railing repairs nor the duplication of benefits from insurance proceeds issue since FEMA has found that the work was not required as a result of the disaster, therefore making the issues moot.