Result of Declared Incident

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4451
Applicant	Brunswick
Appeal Type	Second
PA ID#	041-09046-00
PW ID#	PW 417/GMP 121984
Date Signed	2022-03-21T16:00:00

Summary Paragraph

From April 29 – July 6, 2019, severe storms, tornadoes, and flooding impacted Missouri.  The Applicant requested $588,311.00 to repair roads it claimed were damaged by diverted traffic and vehicles hauling stone and riprap.  FEMA conducted a site inspection and reviewed the site inspection report (SIR) with photographs, the Applicant’s response to a request for information, and predisaster images showing fatigue cracking and potholes similar to those recorded in the SIR.  FEMA denied funding, finding that the claimed damages were preexisting and a result of deferred maintenance, concluding that the damages were not caused by the disaster.  The Applicant submitted a first appeal asserting that damage was due to its flood relief work, and heavy equipment, trucks, and other vehicles diverted to local roads.  The FEMA Region VII Acting Regional Administrator denied the appeal, finding that the Applicant did not demonstrate that the damages were a result of the declared event.  The Applicant submitted a second appeal, providing letters of support from elected officials in addition to maps, demographic information, and a cost estimate.  In its transmittal, the Grantee recommends partial approval of $169,755.89. 

Authorities and Second Appeals

• Stafford Act § 406(a)(1)(A). 
• 44 C.F.R. § 206.223(a)(1).
• PAPPG, at 19, 83, 116, 133.
• FP 104-009-13, Public Assistance Guidance on Inundated and Submerged Roads, at 2, 6, 7.
• FEMA Second Appeal Analysis, Township of Sangamon, FEMA-4461-DR-IL, at 2 (Dec. 7, 2021); FEMA Second Appeal Analysis, County of McNairy, FEMA-4427-DR-TN, at 3 (Apr. 9, 2021); City of Brenham, FEMA-4272-DR-TX, at 4.

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 roads, as it is difficult to distinguish between preexisting damage and damage caused by the disaster.
• Where damage occurs on roads that have been inundated by flood water, FEMA may provide funding for the repair of damage caused by flood water, and/or for road surface damage caused by emergency vehicles performing eligible emergency work, or single-access roads that were required to be reopened for emergency response purposes due to lack of detour/alternate routes, provided that all other PA eligibility requirements are met, including the requirement to provide documentation to support claimed damage. 
  • The Applicant has not presented documentation that allows FEMA to verify the claimed damages and requested work were the result of the disaster.

Conclusion

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

Appeal Letter

Appeal Analysis

Background

From April 29 – July 6, 2019, severe storms, tornadoes, and flooding impacted Missouri.  The City of Brunswick (Applicant) requested $588,311.00 to repair roads it claimed were damaged by vehicles engaged in flood relief work on its behalf during the disaster, and heavy equipment, trucks, and other vehicles diverted to local roads from a main road closed due to flooding.  FEMA prepared Project Worksheet 417 and Grants Manager Project 121984 to document the damage.  During a site inspection, FEMA took photographs of the post-disaster condition of the roads.  FEMA noted in the site inspection report (SIR) the damage from trucks carrying riprap to repair a railroad levee, and surface water flooding.  FEMA also reviewed predisaster road images showing fatigue cracking and potholes similar to those recorded in the SIR.[1]  The Applicant provided a preliminary engineering report,[2] photographs, maintenance records, and financial documents to support eligibility.  The Applicant acknowledged that its predisaster road maintenance was limited to applying cold patch to potholes, and that planned federal grant funded road work was delayed by the disaster.[3]  On October 20, 2020, FEMA issued a Determination Memorandum, denying $588,311.00 because the Applicant did not provide evidence that the damage was caused by the incident. 

First Appeal

The Applicant submitted a first appeal on December 18, 2020, for $588,311.00.[4]  The Applicant asserted that road damage was due to its emergency relief work in light of potential river flooding, and argued that the damage was a direct result of the incident because flood related road closures left no feasible alternative routes to perform that work.[5]  The Applicant also acknowledged that, in addition to its own relief efforts, grain trucks, semi-trucks, heavy equipment movement, commercial traffic, and the Norfolk Southern Railroad (NSRR)’s rock hauling operations caused road damage.[6]  The Applicant stated that it does not have documentation distinguishing those other relief efforts from its own.[7]  The Applicant included photographs and a map, and referred to previously submitted documents as evidence of maintenance.  The Missouri State Emergency Management Agency (SEMA) (Grantee) transmitted the appeal on February 16, 2021, recommending that FEMA deny the appeal.

On May 17, 2021, FEMA requested additional information including documentation to demonstrate the damage was the result of the disaster.  The Applicant confirmed its withdrawal of certain sites from its claim, and clarified that the amount in dispute should be reduced accordingly.  The Applicant stated it did not have access to higher resolution predisaster imagery, but provided aerial view maps and updated comments for photographs in the record.

On October 13, 2021, the FEMA Region VII Acting Regional Administrator (RA) determined that the Applicant did not provide documentation or other evidence to verify the predisaster condition of the claimed roadway sites and did not demonstrate that the damages were a direct result of the declared event, therefore the work to repair them was ineligible.[8] 

Second Appeal

On December 13, 2021, the Applicant submitted a second appeal: requesting $513,940.27; providing letters of support from elected officials, maps, demographic information, and cost estimates; and asserting that the work to restore the roads is eligible under applicable law and regulation for permanent work required as a result of the disaster.[9]  In a December 21, 2021 letter, the Grantee recommends partial approval of the second appeal for $169,755.89 related to roads that the applicant identified as being located in areas that were flooded.[10] 

 

Discussion

FEMA may provide Public Assistance (PA) funding to a local government for the repair of a public facility damaged by a major disaster.[11]  To be eligible, work must be required as a result of the declared incident.[12]  Where damage occurs on roads that have been inundated by flood water, FEMA may provide funding for the repair of damage caused by flood water, and/or for road surface damage caused by emergency vehicles performing eligible emergency work, or single-access roads that were required to be reopened for emergency response purposes due to lack of detour/alternate routes, provided that all other PA eligibility requirements are met, including the requirement to provide documentation to support claimed damage.[13]  The applicant is responsible for showing that work is required to address damage caused by the disaster, and where pre-existing damage exits, to distinguish that from damage from the disaster.[14]  FEMA may review maintenance records to verify the predisaster condition and evaluate the eligibility of reported damage.[15]  FEMA does not provide PA funding for repair of damage caused by deterioration.[16]  The applicant must provide more than statements or opinions to substantiate its claims; documentation or other evidence supporting its position must be submitted.[17] 

Here, the Applicant requests funding for roads that were “directly impacted by flood waters,” those that were impacted by emergency efforts and/or third parties, and those that were damaged by multiple causes.[18]  FEMA policy only allows for funding of road surface damage caused by emergency response when the road has been inundated with floodwater, or as part of an otherwise eligible emergency work project.[19]  With regard to all of its claimed damages, including sites where roads were flooded, the information provided by the Applicant does not distinguish between potentially disaster-caused damage and preexisting conditions.  The invoices, financial reports, budgets, and time sheets do not identify the location or extent of work performed prior to the disaster to relate them to the specific sites currently under appeal.[20]  Predisaster aerial imagery provided by the Applicant is indistinct and low resolution, and does not verify the condition of the roads to support a determination that the claimed damages are disaster related.  However, ground-level predisaster imagery shows fatigue cracking and potholes as evidence of deferred maintenance,[21] and the Applicant states that predisaster road repairs were constrained by financial obligations to other planned work.[22]  Although the Applicant states that damage resulted from multiple causes, including traffic from vehicles engaged in emergency response efforts,[23] there is nothing in the record to distinguish these claimed damages from predisaster damage and deterioration.  Consequently, the Applicant has not shown that the work to repair the roads was required as a direct result of the declared incident, therefore, it is not eligible for PA funding.

 

Conclusion

The Applicant has not demonstrated that the work to repair the roads was required as a direct result of the disaster and, therefore, it is not eligible for PA funding.  Therefore, the appeal is denied.

 

[1] Grants Manager Project 121984, Brunswick - Roads (City-Wide), see 121984 - DR4451MO - Brunswick Maintenance Records - FEMA Overview of Sites (uploaded Aug. 31, 2020) [hereinafter FEMA Overview of Sites].

[2] Allstate Consultants, Project No. 20060.1, Preliminary Engineering Report for Street and Drainage Repairs, 2019 Flood Damage, Brunswick, Missouri, at 2 (May 2020) [hereinafter Allstate Report] (opining that the damage was caused by trucks hauling loads of rock and dirt over the roads where the pavement subgrade had been fully saturated and had deteriorated after being submerged under flood waters for extended periods of time during the disaster).

[3] Email from Mayor, City of Brunswick, to Pub. Assistance Program Delivery Manager, FEMA (Apr. 29, 2020) (describing limitations on road repairs “we were only applying cold patch to our potholes” in order to meet tax revenue obligations for its portion of a Missouri State Dept. of Transportation US 24 paving project, and also that a U.S. Housing and Urban Development Community Development Block Grant funded road project was delayed by the disaster) [hereinafter Mayor’s April 29, 2020 Email].

[4] Letter from Mayor, City of Brunswick, to Reg’l Adm’r, FEMA Region VII (Dec. 18, 2020) [hereinafter Applicant’s First Appeal].

[5] Id., at 8 (explaining that the closure of US 24 due to flood waters and the limited routes for emergency relief efforts caused the damage to the residential roads).

[6] Id., at 5 (explaining that damage was caused by: trucks delivering 1,287 tons of sand for sandbags, 200 dump trucks delivering rock and dirt to stabilize the Crystal Alley area, tractors servicing pumps, 1,090 cubic yards of debris removal, and the National Guard building a sandbag levee); id., at 15 (“The NSRR was not the only cause of the damage[.] Grain trucks, semi-trucks, heavy equipment being moved in & out and through the area, the Applicant’s relief efforts, Corp of Engineers, and the National Guard all contributed to the damage.”).

[7] Id.

[8] FEMA First Appeal Analysis, City of Brunswick, FEMA-4451-DR-MO (Oct. 13, 2021).  The RA further explained that even if the damages had been a result of equipment performing eligible emergency protective measures, both the Applicant and its consulting engineer indicated that the claimed damages occurred because the roadway’s design capacity was exceeded, making them ineligible due to an improper or excessive use.

[9] Letter from Mayor, City of Brunswick, to Acting Reg’l Adm’r, FEMA Region VII (Dec. 13, 2021) [hereinafter Applicant’s Second Appeal].  The Applicant requests that FEMA, at a minimum, obligate funding to repair Crystal Alley, the roads south of the railroad tracks, and Harrison St./Taylor St./Worth St.  The Applicant also requests that FEMA give it adequate consideration under Section 310 of the Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act, 42 U.S.C. § 5153 (“Priority to Certain Applications for Public Facility and Public Housing Assistance”), because it qualifies as a distressed community under 42 U.S.C. §§ 3121 and 3146 (Public Works and Economic Development Act of 1965).  This language does not apply to FEMA’s provision of Public Assistance.  

[10] Letter from Recovery Div. Manager, Mo. State Emergency Mgmt. Agency, to Acting Reg’l Adm’r, FEMA Region VII (Dec. 21, 2021).  The Grantee states that it recommends PA funding for damages to Crystal Alley ($22,373.83) and Roads south of U.S. Route 24 ($147,382.06) because they were located in a flooded area that the Applicant identified occurring as a direct result of the flood disaster event.

[11] Stafford Act § 406(a)(1)(A), Title 42, United States Code § 5172(a)(1)(A) (2018). 

[12] 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]. 

[13] FEMA Policy FP 104-009-13, Public Assistance Guidance on Inundated and Submerged Roads, at 2, 6, and 7 (Apr. 8, 2021).  In some cases, if an applicant damages property while performing eligible emergency work, the damages may be eligible for repair as part of that respective project if the damage was due to severe conditions resulting from the incident, unavoidable, and not due to improper or excessive use. See PAPPG, at 83.

[14] 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.”  See also FEMA Second Appeal Analysis, Sangamon Valley Twp., FEMA-4461-DR-IL, at 2 (Dec. 7, 2021); FEMA Second Appeal Analysis, Conway Hosp., FEMA-4394-DR-SC, at 3 (July 7, 2021); FEMA Second Appeal Analysis, McNairy Cnty., FEMA-4427-DR-TN, at 3 (Apr. 9, 2021).

[15] PAPPG, at 116.

[16] PAPPG, at 19.

[17] FEMA Second Appeal Analysis, City of Brenham, FEMA-4272-DR-TX, at 4 (Mar. 12, 2019); FEMA Policy FP 104-009-13, Public Assistance Guidance on Inundated and Submerged Roads, at 6-8 (Apr. 8, 2021) (describing what documentation is needed to support claimed disaster-related surface damage to roads due to inundation of flood waters).

[18] See Letter from Mayor, City of Brunswick, to Acting Reg’l Admr., FEMA Region VII (Dec. 13, 2021).

[19] FP 104-009-13, at 2-4; PAPPG, at 83.   

[20] See City of Brunswick, Journal Listing-Individual Account for Street Mainten. and Repair (Mar. 19, 2020) (listing maintenance and repair from 01/2010 to 01/2020); see also Applicant’s First Appeal Attachment D.1, Summary Notes for the Roads South of Highway 24 & Polk, Jackson & Burlington, at 1.

[21] FEMA Overview of Sites, at 1.

[22] Mayor’s April 29, 2020 Email.

[23] Applicant’s Second Appeal, at 10 (explaining that the Applicant’s relief efforts cannot be separated, nor clearly quantified, from the relief efforts of third parties taking place in the same area).