Result of Declared Incident

Appeal Brief

Appeal Letter

Appeal Analysis

Background

From February 11 to 19, 2021, a winter storm impacted Memphis, Tennessee, the location of an underground parking garage (Facility), owned by Memphis Light, Gas, and Water (Applicant). The Applicant claimed that snow and ice accumulation on different areas of the Facility’s roof, located under a landscaped grassy area, caused structural cracking and water damage from freezing pipes. FEMA prepared Grants Manager Project 186743 to capture the claimed damage (e.g., structural cracking of the roof) and Applicant-estimated repair costs of $1,994,940.00 to replace portions of the Facility’s roof. FEMA issued a Determination Memorandum (DM), finding the claimed repair work ineligible because FEMA could not validate the existence of disaster-related damage as opposed to damage resulting from the Facility’s age, deterioration, or deferred maintenance. In making its determination, FEMA noted it reviewed documents provided by the Applicant, including: (1) a building maintenance email[1] that described predisaster measures taken to prevent hairline cracks from propagating and water infiltration; (2) FEMA’s site inspection report (SIR);[2] and (3) an insurance denial letter[3] that found that cracking had been happening over time and was not related to the disaster (based on a damages’ evaluation conducted by an insurer-contracted structural engineer). 

First Appeal 

The Applicant submitted its first appeal on March 28, 2022, requesting $3,727,962.00 for repair costs.[4] In addition to previously claimed structural cracking of the roof, the Applicant’s structural engineer noted flexural and shear failure at the beam/column interface of one location and additional cracking at two other locations. The engineer stated approximately 25 percent of the Facility was unusable for parking.[5] In its appeal letter, the Applicant explained that the unusually heavy snowfall deposited by the disaster, accumulating up to 10 inches, led to the sudden failure of the Facility. In support of its claim, the Applicant provided predisaster insurance company risk evaluation reports from 2019 and 2020 that showed no structural damages to the Facility. The Applicant also provided post-disaster photographs, a repair and improvement history of the Facility dating to 1978, and other relevant documentation. In addition, the Applicant stated the Facility was originally constructed in compliance with building codes in place at that time. The Tennessee Emergency Management Agency (Recipient) forwarded the appeal with its support by letter dated May 10, 2022.

FEMA issued a request for information (RFI) on August 24, 2022, seeking information demonstrating the condition of the Facility immediately prior to the disaster, other factors that may have contributed to overextension of the Facility’s weight capacity, and any post-disaster assessments from firms that specialize in forensic engineering and/or failure analysis that considered the cause of the damage. 

The Applicant responded on September 22, 2022 with several exhibits. These included: (1) Climatological Data which showed that temperatures dropped from a low of 30 degrees on February 10, 2021 to a low of one degree on February 16, 2021 and 10 inches of snow accumulation; (2) the Proof of Loss from the Applicant’s engineer; and (3) a Garage Damage Review from the structural engineer for the company that oversaw Facility repairs. The Applicant included statements from its in-house structural engineer finding that the disaster caused the damage, the Facility had no sign of long-term water intrusion that would compromise its structural integrity, and the existing waterproofing membrane accompanied by a topping slab and an impermeable layer of clay performed exceptionally well. The structural engineer further noted the Facility was constructed in accordance with codes in effect at the time of construction and there was no documented indication of distress at damaged location sites prior to the disaster. 

FEMA’s Region 4 Regional Administrator denied the appeal on April 27, 2023, finding the Applicant had not demonstrated the Facility was damaged as a direct result of the disaster. FEMA stated the 2019 insurance risk evaluation report did not address the Facility’s physical condition and did not verify its predisaster condition. FEMA noted the Applicant’s engineer’s Proof of Loss implied that age-related wear and tear likely contributed to the Facility’s failure.[6] FEMA pointed to predisaster maintenance records that indicated frequent incidents of water leakage and noted that such occurrences, coupled with repeated freeze-thaw cycles, could potentially result in the deterioration and failure of concrete. FEMA found the Applicant did not provide any structural analysis demonstrating how the snow and ice accumulation could have resulted in the Facility’s failure if it were functioning at optimal capacity.

Second Appeal

In a second appeal dated June 26, 2023, the Applicant reiterates first appeal arguments.[7] The Applicant notes it hired an expert who conducted a comprehensive failure investigation and addressed questions related to the Facility’s physical condition. The report concluded that the disaster caused an increase in load, contributing to the structural failure of the Facility.[8] The Recipient supports the Applicant with its transmittal dated July 12, 2023.

Discussion

FEMA may provide Public Assistance (PA) funding to restore eligible facilities damaged or destroyed by major disasters based on pre-disaster design and function and in conformity with current applicable codes, specifications, and standards.[9]To be eligible for PA funding, an item of work must be required as a result of the declared incident, and the applicant must demonstrate that the damage was directly caused by the incident.[10] FEMA does not provide funding for repair of damage caused by deterioration or deferred maintenance.[11] When necessary to validate damage, FEMA may require the applicant to provide documentation supporting the predisaster condition of the facility (e.g., facility maintenance records, inspection/safety reports).[12] If a facility was functioning prior to the disaster and the disaster caused damage that rendered the facility non-functional, the facility may be eligible provided the predisaster condition was not a significant contributing factor in the cause of failure.[13] The applicant is responsible for providing documentation to support its claim as eligible.[14]

In its second appeal, the Applicant provided an engineer’s report verifying that the Facility’s roof and structural damages were directly caused by the disaster’s freezing temperatures, heavy rains, snow, and ice. In addition, theClimatological Data document shows the Facility received 10 inches of new snow between February 10-17, 2021, and experienced a temperature drop from a low of 30 degrees on February 10, to a low of 1 degree on February 16, 2021. Furthermore, the Applicant’s comprehensive failure investigation, conducted by a licensed professional engineer, concluded the disaster caused an increase in load weight that substantially contributed to the failure of the Facility’s roof structure. This report provides a more detailed forensic analysis of the Facility’s failure compared to the prior reports and documentation submitted. 

Cited reports indicate that the Facility design likely contributed to the damages. For example, the SIR noted very little shear reinforcing was required when the Facility was built,[15] and the ABS Report stated that due to the original design, the Facility had a low safety factor against failure.[16] FEMA considered that the Facility was constructed in accordance with codes in effect at the time of construction, and that updated codes put in place after construction may have prevented the damages caused by the disaster, and has determined these are not evidence of deterioration, deferred maintenance, failure to prevent damage, or negligence.

Reviewing the documents provided on second appeal, in addition to all the documents cited in the DM, insurance risk evaluations, the Applicant’s first and second appeal letters, and the RFI response supports the Applicant’s assertion that the snow load from the disaster caused of the failure. The insurance and engineering documentation shows the Facility showed wear and tear, but was functioning prior to the disaster, in particular where the reports note the Facility had no sign of long-term water intrusion that would compromise its structural integrity, and the existing waterproofing membrane accompanied by a topping slab and an impermeable layer of clay performed exceptionally well. Here, the disaster caused damage that rendered one-quarter of the Facility non-functional and the Applicant has demonstrated the predisaster condition was not a significant contributing factor in the cause of failure. Consequently, work to restore the Facility is required as a result of the declared incident.

Conclusion

The Applicant has demonstrated that work to restore the Facility is required as a result of the declared incident. Therefore, the appeal is granted.[17]