Result of Declared Incident

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4421
Applicant	Montgomery County Road Department
Appeal Type	Second
PA ID#	137-UDTEO-00
PW ID#	PW 1015
Date Signed	2021-10-14T16:00:00

Summary Paragraph

From March 12 – May 16, 2019, flooding and severe storms caused damage throughout Iowa.  The Montgomery County Road Department (Applicant) claimed that flooding and ice blocks produced severe scour and caused the 250th-Grant TWP Bridge (Facility) to settle, resulting in damaged components of the Facility.  The Applicant requested Public Assistance for repairs, including removing and replacing two steel reinforced concrete piers.  FEMA created Project Worksheet 1015 to document work and estimated costs of $1,458,024.00 for repairs.  FEMA issued a Determination Memorandum finding the Applicant had not demonstrated the claimed work was required as a result of the declared incident.  The Applicant submitted a first appeal arguing the disaster caused the damage and the Facility is eligible for the cost of replacement, $2,430,000.00, per FEMA’s 50 Percent Rule.  The Applicant asserted that, despite preexisting damage, the predisaster condition of the substructure was typical for a bridge of similar age and usage and the condition, and relevant ratings for the Facility, decreased significantly because of the disaster.  The FEMA Region VII Acting Regional Administrator denied the appeal, determining that the Applicant did not demonstrate the damage was the direct result of the disaster.  Rather, the concrete piers and other components of the Facility had significant unrepaired damage prior to the disaster.  The Applicant submits its second appeal, maintaining the damage is the result of the disaster as evidenced through the Facility’s decline in condition following the event. 

Authorities and Second Appeals

• Stafford Act § 406(a)(1)(A). 
• 44 C.F.R. § 206.223(a)(1).
• PAPPG, at 19, 116, 133. 
• Nodaway (County), FEMA-4451-DR-MO, at 2-3.

Headnotes

• Per 44 C.F.R. § 206.223(a)(1) and the PAPPG, at 19, 116, and 133, 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, especially for bridges, as it is difficult to distinguish between preexisting damage and damage caused by the disaster.    
  • The Applicant has not presented documentation that allows FEMA to verify the claimed damages and requested work are the result of the declared incident rather than the result of preexisting damage.

Conclusion

The Applicant has not shown the work is required as a result of the declared incident.  Therefore, this appeal is denied.  

Appeal Letter

Appeal Analysis

Background

From March 12 – May 16, 2019, severe storms and flooding caused damage throughout Iowa.[1]  The Montgomery County Road Department (Applicant) requested Public Assistance (PA) funding to address damage to its 250th-Grant TWP Bridge (Facility).  The Applicant claimed severe scour produced by flooding and ice blocks caused the Facility to settle, and requested funding to remove and replace two steel reinforced concrete piers.  FEMA created Project Worksheet (PW) 1015 to document work and estimated costs of $1,458,024.00 associated with repairing the Facility. 

FEMA subsequently issued a Determination Memorandum finding that the Applicant had not demonstrated disaster-related damage to the Facility or provided information to FEMA to allow the Agency to determine the claimed work was the result of the declared incident.  FEMA noted that documentation from a May 12, 2017 inspection observed cracking, leaching, and deterioration, and the inspection had recorded the Facility’s substructure condition rating at 4, equating to poor condition that may involve deterioration or scour.[2]  Although the Applicant provided pre- and post-disaster inspection reports, the Applicant did not demonstrate or provide supporting documentation that it repaired or maintained the Facility on a routine basis prior to the event.  The Applicant received notice of FEMA’s determination on June 8, 2020.

 

First Appeal

The Applicant submitted a first appeal dated July 24, 2020, requesting $2,430,000.00 to replace the Facility under FEMA’s 50 Percent Rule.  The Applicant asserted that damage to the Facility’s structural components, including scour, loss of bearing, and settlement, occurred as a result of the disaster.  The Applicant submitted 2009 – 2017 biennial inspection reports and acknowledged that the 2017 report indicated certain deficiencies, noted the Facility’s sub-structure had a condition rating of 4, but asserted this is typical for the Facility’s age and usage.  In contrast, the Applicant noted a March 27, 2019 post-disaster inspection indicated the Facility’s condition rating had decreased to 1, imminent failure,[3] and discussed post-disaster settlement, and provided a diagrammatic comparison of 2013 and 2019 channel cross section analyses.  The Applicant contended pre- and post-disaster photographs showed the Facility’s settlement.  The Applicant provided documentation of predisaster Facility maintenance, including: (1) an invoice for debris removal dated November 2010, performed after a prior disaster;[4] (2) a photograph, invoice, and plan drawings for installation of revetments completed in July 1999; and (3) spot painting performed in 1952.  Lastly, the Applicant submitted a letter from its engineering firm dated October 4, 2019, chronicling the Facility’s condition, asserting its settlement was the result of scour caused by flooding and ice flow, and recommending it remain closed.[5]  

The Iowa Department of Homeland Security and Emergency Management (Grantee) recommended FEMA reevaluate the project to address a scope of work to repair the Facility to predisaster condition and transmitted the first appeal to FEMA by letter dated September 21, 2020.

The FEMA Region VII Acting Regional Administrator denied the first appeal, finding the Applicant did not demonstrate the Facility’s damage was the direct result of the disaster.  FEMA found, based on predisaster reports, that the concrete piers and other components of the Facility had significant unrepaired damage at the time of the disaster.

 

Second Appeal

The Applicant’s second appeal, dated May 20, 2021, reiterates its first appeal arguments, provides Bridge Inspection Summary tables (2016-2017) and 5-Year Construction Plans (2016‑2019), and references a local ordinance[6] in support of its request for replacement of the Facility.  The Applicant explains that it prioritizes repairs and/or replacement of bridges subject to its annual budget and bridge inspection reports, which recommended monitoring portions of the Facility.  As such, the Applicant had not scheduled the Facility to be replaced in the 2016 through 2019 5-Year Construction Plans, which were formulated prior to the March 2019 disaster.  The Grantee, in its July 16, 2021 transmittal letter, recommends FEMA reevaluate the Applicant’s project to address a scope of work to repair the Facility to its predisaster condition.

 

Discussion

FEMA may provide PA funding to a local government for the repair of a public facility damaged by a major disaster.[7]  To be eligible, work must be required as a result of the declared incident.[8]  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.[9]  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.[10]  Because it is difficult to distinguish between preexisting damage and damage caused by the disaster, the applicant must demonstrate that damages were directly caused by the disaster.[11]  FEMA does not provide PA funding for repair of damage caused by deterioration.[12] 

The Applicant's predisaster records document that it performed routine biennial inspections of the Facility between 2009 and 2017.  However, those same records identified preexisting damage and deterioration of the Facility’s substructure and channel, including erosion and scour.  Furthermore, the Engineer’s Letter explains that the Facility had very high scour potential and foundation material had a tendency to deteriorate over time, especially near the surface, and become scourable.[13]  The Applicant acknowledges there was preexisting damage to the Facility, but counters that its documentation showed it did not need to perform repairs prior to the disaster.  However, the absence of plans to repair does not demonstrate the Facility’s predisaster condition, particularly in light of the documentation showing deterioration.  Further, the Applicant did not provide documentation of any repair or maintenance work completed after revetment installation in 1999 and FEMA-funded disaster debris removal in 2010.  Accordingly, FEMA is unable to distinguish between preexisting deterioration and disaster-related damage.[14]

 

Conclusion

The Applicant has not demonstrated that the requested work is required as a result of the declared incident.  Therefore, this appeal is denied.

 

[1] The President declared a major disaster, FEMA-4421-DR-IA, on March 23, 2019.

[2] See U.S. Department of Transportation, Federal Highway Administration, Recording and Coding Guide for the Structure Inventory and Appraisal of the Nation’s Bridges, Report No. FHWA-PD-96-001, at 37-38 (Dec. 1995), Condition ratings are used to describe the existing, in-place bridge as compared to the as-built condition. Evaluation is for the materials related, physical condition of the deck, superstructure, and substructure components of a bridge; Condition ratings are represented by a numerical code (ordinal scale 0-9), where Condition Rating-4 is described as “POOR CONDITION - advanced section loss, deterioration, spalling or scour.”

[3] Id, Condition Rating-1 is described as "IMMINENT" FAILURE CONDITION - major deterioration or section loss present in critical structural components or obvious vertical or horizontal movement affecting structure stability.  Bridge is closed to traffic but corrective action may put back in light service.”

[4] FEMA-1930-DR-IA.

[5] Letter from Project Mgr., Calhoun-Burns and Associates, Inc., to Eng’r, Montgomery Cty., at 1 (Oct. 4, 2019) [hereinafter Engineer’s Letter].

[6] Letter from Montgomery County Eng’r, to Acting Reg’l Adm’r, FEMA Region VII, at 4 (May 20, 2021) (stating that per Montgomery County Ordinance No. 2016-1, in order to repair the piers the pre-disaster 24-foot Facility would need to be replaced with a 30-foot bridge, thereby increasing the repair costs).

[7] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 406(a)(1)(A), Title 42, United States Code § 5172(a)(1)(A) (2018). 

[8] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.223(a)(1) (2018); Public Assistance Program and Policy Guide, FP 104-009-2, at 19 (Apr. 1, 2018) [hereinafter PAPPG]. 

[9] PAPPG, at 19, 116, 133.  Per the PAPPG, at 133, “[d]ocumentation should provide the ‘who, what, when, where, why, and how much’ for each item claimed.”

[10] Id. at 116.

[11] Id; FEMA Second Appeal Analysis, Nodaway (County), FEMA-4451-DR-MO, at 2-3 (July 6, 2021).

[12] PAPPG, at 19.

[13] See Engineer’s Letter, at 1.

[14] Based on the determination reached in this second appeal decision, the issue of repair vs. replacement (including whether the local ordinance requires an upgrade) is moot and therefore not discussed further in this decision.