Result of Declared Incident, Damage Caused While Performing Eligible Work

Appeal Brief

Summary Paragraph

Severe storms, violent tornadoes, straight-line winds, and flooding caused extensive damage in Kentucky from December 10-11, 2021. Marshall County (Applicant) sought Public Assistance grant funding for repairs to multiple county roads (Facilities) in the Cambridge Shores area after the disaster event. FEMA conducted a site inspection and reviewed information obtained from the Applicant. FEMA denied $67,789.68 in road repair costs as the submitted documentation did not establish the Facilities predisaster condition or distinguish between pre-existing damage and damage caused by the event or during performance of eligible debris removal activities. The Applicant appealed asserting that it maintained the Facilities prior to the disaster, the work was required as a result of the disaster, and the work was not required as a result of misuse or negligence. The FEMA Region 4 Regional Administrator denied the appeal as documentation did not establish claimed road repair work was required as a result of the disaster. On second appeal, the Applicant reiterates its first appeal contentions.

Authorities and Second Appeals

• Stafford Act § 406(a)(1)(A).
• 44 C.F.R. § 206.223(a)(1).
• PAPPG, at 51-52, 63-64, 138-139.
• Pleasant Grove Township, FEMA-4287-DR-KS, at 4-5;Lake Madrone Water District, FEMA-4558-DR-CA, at 3; Frankfort (Town of), FEMA-4472-DR-NY, at 2.

Headnotes

• To be eligible, an item of work must be required as a result of the declared incident.
  • The Applicant has not provided documentation that distinguishes pre-existing damage and deterioration from disaster-related damage.
• If an applicant damages property while performing eligible emergency work, the repair of that damage may be eligible as part of that respective emergency work project.
  • The Applicant did not demonstrate that it damaged the Facilities while performing eligible emergency work. 

Conclusion

FEMA finds the Applicant has not demonstrated the claimed damage was the direct result of the declared incident or that the Applicant damaged the Facilities during the performance of eligible emergency work. Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

From December 10 to 11, 2021, severe storms, violent tornadoes, straight-line winds, and flooding caused extensive damage in the state of Kentucky.[1] Marshall County (Applicant) sought Public Assistance (PA) grant funding for repairs to multiple county roads (Facilities) in the Cambridge Shores area after the disaster. The Applicant stated that tornado winds created considerable vegetative debris, necessitating removal by heavy equipment, which the Applicant claimed damaged the asphalt surface. 

FEMA conducted a site inspection on May 10, 2022, and recorded damages to the Facilities. In the Site Inspection Report (SIR), FEMA labeled the Applicant’s claimed cause of damage as “heavy equipment.” On August 4, 2022, FEMA issued a Request for Information (RFI), requesting that the Applicant provide documentation demonstrating the Facilities’ predisaster condition. The Applicant responded, providing predisaster maintenance cost reports for work performed from 2020 until the disaster. The work included some patch work, snow removal, culvert repairs, and shoulder repairs. The Applicant also cited to a maintenance statement prepared by its road department, attesting to predisaster routine maintenance efforts. Finally, the Applicant noted that some damages were caused by non-Applicant response vehicles and unaffiliated volunteers, some of which used tracked equipment.

In a Determination Memorandum dated February 23, 2023, FEMA denied the Applicant’s claimed road repair costs of $67,789.68, finding that the Applicant did not establish that the claimed damage was caused by the disaster or caused during the performance of eligible debris removal activities. FEMA found that pictures from the SIR showed minor damages including rutting, alligator cracks, and sunken asphalt, which FEMA stated typically occur over a prolonged period of time. FEMA noted the Applicant’s predisaster maintenance documentation was not sufficient to enable FEMA to distinguish between pre-existing damage and disaster-related damage. FEMA also noted the Applicant did not submit documentation demonstrating that damage to the Facilities was due to the performance of eligible debris removal operations or were unavoidable, the result of severe conditions resulting from the incident, and not due to improper or excessive use.

First Appeal 

The Applicant appealed the denial of $67,789.68 on April 24, 2023. The Applicant claimed that the asphalt surfaces of the Facilities were damaged by the EF-4 tornado’s wind, wind-blown debris, and heavy equipment from emergency response and debris removal activities. The Applicant asserted that it maintained the Facilities prior to the disaster and in support, provided predisaster budget appropriations. Additionally, the Applicant pointed to a previous FEMA second appeal decision, and asserted that in that decision, FEMA had granted funding because it acknowledged that “unlike complex infrastructure which may require more rigorous documentation to support proper maintenance, material purchase invoices, in combination with annual budgets, were sufficient evidence that the roads were routinely maintained.”[2] The Applicant stated the facts in the prior second appeal decision were like the facts in this appeal. Kentucky Emergency Management (Recipient) transmitted the appeal to FEMA on April 26, 2023, expressing its support.

The FEMA Region 4 Regional Administrator denied the appeal on October 5, 2023, finding that the Applicant did not provide sufficient documentation to verify the predisaster condition or distinguish between pre-existing damage and damage caused by the disaster. As such, FEMA stated it could not establish that the claimed road repair work was required as a result of the disaster.

Second Appeal

The Applicant submitted a second appeal on December 1, 2023 for $67,789.68, reiterating its first appeal arguments. The Recipient transmitted the Applicant’s second appeal in a letter dated December 6, 2023, expressing its support.

Discussion

FEMA may provide PA funding to a local government for the repair of a public facility damaged by a major disaster.[3] To be eligible, work must be required as a result of the declared incident, and the applicant must demonstrate that damage was caused directly by the declared incident.[4] The incident may cause minor damage that results in damage similar to that which may occur over time from other causes.[5] Therefore, distinguishing between pre-existing damage and damage caused by the incident is often difficult.[6] It is the applicant’s responsibility to demonstrate that claimed damage was directly caused by the declared incident, and where pre-existing damage exists, to distinguish that damage from disaster-related damage.[7] When necessary to validate damage, the applicant may be required to provide predisaster photographs of the impacted site or documentation supporting the predisaster condition of the facility (e.g., facility maintenance records or inspection/safety reports).[8] FEMA does not provide PA funding for repair of damage caused by deterioration or deferred maintenance.[9] If an applicant damages property while performing eligible emergency response activities or debris removal operations, the repair of that damage may be eligible as part of that respective emergency work project if certain other conditions are met.[10] 

The Applicant argues the road damage claimed is located directly within the tornado’s destructive path and consistent with the effects of a violent EF-4 tornado. The Applicant also attributes damage to emergency response and debris removal operations. However, the SIR photographs show road surface damage such as rutting, alligator cracks, and sunken asphalt, that are consistent with pre-existing deterioration. Therefore, FEMA requested documentation demonstrating the Facilities’ predisaster condition to assist in evaluating whether the claimed damage was caused directly by the disaster. The Applicant provided predisaster maintenance records that reflected approximately two activities of predisaster patch work to its road surfaces, but the records do not include locations or otherwise demonstrate the predisaster condition of the Facilities at issue. In addition, although the Applicant also provided a post-disaster letter from its road department stating that it performs annual maintenance, including surface repaving, an applicant must provide more than post-disaster statements or opinions to substantiate predisaster maintenance.[11] Finally, although the Applicant’s documentation shows it committed a substantial portion of its annual budget to roads, this information does not demonstrate the predisaster condition of the facility, e.g., it is not coupled with documentation like material invoices that demonstrate specific maintenance activities for the specific sites in question. In this case, the Applicant has not submitted documentation, such as maintenance records, road inspection reports, or material purchase invoices, that distinguishes pre-existing damage and deterioration from disaster-related damage. Based on the above, the Applicant has not demonstrated any claimed damage was caused directly by the declared incident. In addition, the Applicant has not produced documentation demonstrating any claimed damage was attributable to its emergency work operations.[12]

Conclusion

The Applicant has not demonstrated the claimed damage was the direct result of the declared incident or that the Applicant damaged the Facilities during the performance of eligible emergency work. Therefore, this appeal is denied.