Result of Declared Incident – Hazard Mitigation

Appeal Brief

Summary Paragraph

During the incident period of May 21 through June 4, 2019, the State of Arkansas was inundated by severe flooding. The Applicant requested Public Assistance (PA) funding to repair an access roads’ surface and to replace a culvert (collectively Facilities). The Applicant stated the damages were the result of flooding that caused sinkholes on the roads’ surface and settlement damage to the culvert. FEMA prepared Grants Manager Project (GMP) 116231 to capture the claimed damage and requested work, at a total cost of $4,642,300.00. FEMA issued a Determination Memorandum dated February 16, 2023, denying all funding. FEMA determined that the damage was caused by predisaster deficiencies, and the Applicant had not demonstrated the requested repair work was required as a result of the declared event. The Applicant filed a first appeal revising the amount at issue to $5,645,573.00 which included the prior requested work and hazard mitigation (HM). FEMA Region 6 Regional Administrator denied the Applicant’s appeal in a letter dated August 3, 2023. FEMA found that while the Applicant completed some predisaster repairs to leaking joints, sinkholes, and settlement damage to the culvert, it did not complete recommended repairs which would have largely prevented disaster damages to the roads and culvert. The Applicant filed a second appeal, reiterating first appeal arguments. 

Authorities

• Stafford Act §§ 406(a)(1)(A), 406(e).
• 44 C.F.R. §§ 206.223(a)(1), 206.226(e).
• PAPPG, 19, 97, 116, 133. 
• The Ethician Foundation, GMP 62878, FEMA-4332-DR-TX, at 2, Frankfort (Town of), FEMA-4472-DR-NY, at 2.

Headnotes

• To be eligible for PA funding, an item of work must be required as a result of the disaster, and the applicant must demonstrate the damage was caused directly by the declared incident.
  • The Applicant has not demonstrated the damage was caused directly by the declared disaster, rather than preexisting damage and deficiencies that were not remediated before the disaster.
• FEMA has the authority to provide PA funding for cost-effective hazard mitigation measures for facilities damaged by the incident.
• As PA funding for HM is only available for facilities damaged by the disaster, the determination that the Facilities were not damaged by the disaster results in a finding that HM is also ineligible.

Conclusion

The Applicant has not demonstrated that the work to its Facilities was required as a result of the declared incident, rather than preexisting damage and deficiencies that were not remediated. Additionally, as PA funding for HM is only available for disaster-damaged facilities, the HM is also ineligible. Accordingly, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

During the incident period of May 21 through June 4, 2019, the State of Arkansas was inundated by severe flooding.[1] The City of Fort Smith (Applicant) requested Public Assistance (PA) funding to address damages to P Street Station access roads (roads) and to the 255-foot-long steel reinforced concrete box culvert storm drain (culvert) (hereinafter collectively referred to as Facilities). The Applicant stated the incident’s flood waters caused sinkholes in the surface of the roads and that additionally, the culvert had significant settlement due to the incident which caused separation of sections of the culvert along with cracking and exposure of reinforced steel supports.

FEMA prepared Grants Manager Project (GMP) 116231 to capture the claimed damages and requested work, which included the Applicant performing repairs to the roads and replacing the culvert, at a cost of $4,642,300.00. On February 10, 2022, FEMA transmitted a Request for Information (RFI) seeking documentation to support the Applicant’s claim that the disaster caused the claimed damages rather than the damages being the result of predisaster conditions. Specifically, FEMA requested documentation showing the location and description of previously completed repair work in 2017 and spot elevations taken from 2015 to 2020, documentation showing that predisaster deficiencies identified by engineers were addressed prior to the declared incident, and clarity on the cause of the damage warranting full replacement of the culvert. 

On February 16, 2022, the Applicant responded to FEMA’s RFI with the previously submitted “P Street Outfall Storm Drain-Flood Assessment and Scope of Work” (Flood Report) developed by the Hawkins-Weir engineering firm, which the Applicant stated included answers to the questions specified in the RFI. Specifically, the Applicant stated that the previously transmitted Flood Report, along with its subsequent Amendment 1, demonstrated that the predisaster conditions of the site, including previous settling and sinkholes, had been remedied prior to the disaster. 

In addition, the Applicant provided a memorandum from a previous contractor, Freese and Nichols Inc. (FNI), who inspected the site predisaster in 2016, due to settlement issues and concrete shedding on the culvert’s wall.[2] In the memorandum, FNI identified soil and dirt moving through the culvert’s joints, and movement of culvert sections (referred to as vertical settlement). The contractor noted that evidence of leakage in the joints was also present during the 2016 site visit and additionally, that sinkholes began to form on the surface where the roads is located. FNI offered multiple recommendations for the Applicant to repair and stabilize the culvert. FNI identified significant issues with the structural integrity of the culvert, including joint displacement along its sections, settling which separated a section of the culvert and sinkholes, and openings which allowed material to be washed through the culvert. The repair method recommended by FNI involved injecting cement-bentonite grout to fill void spaces around the length of the culvert, along with installation of fibrous joint backing material for an estimated total of $715,000.00. The end result of filling in the voids with this particular grout would, according to FNI, prohibit fine-grain soil material from entering in various voids. Furthermore, FNI noted that compaction grouting would also ensure prevention of future sinkholes.     

The Applicant coordinated with a separate contractor (Mobley Constructions) to complete certain repairs recommended by FNI. However, the Applicant did not implement all recommended repairs. The Applicant and Mobley Constructions elected to seal leaking joints and openings and place concrete fill, for a total of $134,854.00. The Applicant informed Hawkins-Weir after the disaster that the method of repair was selected as a “reasonable attempt to cure the situation without making the substantial expenditure required for [FNI’s] proposed remediation.”[3] The Applicant stated that the repairs conducted by Mobley Constructions sufficiently remedied the settlement concerns and that the disaster caused the sinkhole and current settlement damage.[4] 

FNI conducted another site visit before the disaster in June 2018. Notwithstanding the work completed by Mobley Constructions, FNI reiterated its initial recommendations and noted deficiencies in the condition of the culvert including significant cracking along the culvert walls which necessitated intervention.[5] FNI continued to state that the injection of grout into the space around the culvert, as well as compaction grouting, was recommended to ensure stability and to prevent settlement.[6] 

FEMA issued a Determination Memorandum dated February 16, 2023, denying $4,642,300.00 in requested funding for work to address claimed damage to the access roads and culvert.[7] FEMA determined that the Applicant had not demonstrated the damage was required as a direct result of the declared incident. Specifically, FEMA noted that the Applicant had documented predisaster instability at the site, and that the Applicant did not complete all recommended remediation work to restore the stability of the integral ground.

First Appeal 

The Applicant filed a first appeal, in a letter dated April 11, 2023, revising the amount at issue to $5,645,573.00. This amount covered the previously requested road repairs and total replacement of the culvert as part of a larger repair and hazard mitigation (HM) project, which included the installation of steel H-piles. The Applicant stated that FEMA misinterpreted the Flood Report, and that the Applicant’s documentation shows that it had resolved the instability prior to the incident. The Applicant requested the project be reviewed by a licensed engineer. Lastly, the Applicant stated the project was miscategorized as a Category C project and the scope of work should be split between Category C and D projects.[8] The Arkansas Division of Emergency Management (Recipient), in a letter dated June 7, 2023, forwarded the appeal to FEMA for consideration. 

The FEMA Region 6 Regional Administrator denied the Applicant’s appeal in a letter dated August 3, 2023, stating that the Applicant did not demonstrate the claimed damage was a direct result of the declared incident rather than a result of predisaster conditions. First, FEMA found that, while the Applicant completed some predisaster repairs to leaking joints, sinkholes, and settlement damage to the culvert, it did not complete the recommended repairs by FNI prior to the disaster. FEMA noted that these repairs, if completed, would have largely prevented disaster-related damages. Second, FEMA found the requested HM was ineligible as that type of assistance was only available for facilities damaged by the disaster. Lastly, FEMA stated that the culvert was described as a “precast reinforced concrete box culvert” which, along with access roads to such facilities, fall under the project descriptions for Category C. 

Second Appeal

In a letter dated September 26, 2023, the Applicant filed a second appeal, reiterating previous arguments. The Applicant added that, after the remediation conducted by Mobley Constructions, additional settlement issues arose prior to the incident. The Applicant requested the projects be split between Category C for the roads and Category D for the culvert. The Recipient forwarded the second appeal to FEMA in a letter dated November 6, 2023, asking FEMA to review the appeal.

Discussion

FEMA may provide PA funding to a state or local government for the repair, restoration, reconstruction, or replacement of a facility damaged or destroyed by a major disaster based on its predisaster design and function, in conformity with applicable codes and standards.[9] FEMA may also provide PA funding for HM measures to restore disaster-damaged facilities.[10] To be eligible for PA funding, an item of work must be required as a result of the disaster, and the applicant must demonstrate the damage was caused directly by the declared incident.[11] FEMA does not provide PA funding for repair of damage caused by deterioration, deferred maintenance, or the applicant’s failure to take measures to protect a facility from further damage.[12]To assist in evaluating whether claimed damage was caused by a disaster, FEMA reviews pre-disaster maintenance or inspection reports to verify pre-disaster conditions and to assess eligible disaster damage for facilities, such as roads and culverts, that require routine maintenance to maintain their designed function.[13]Where pre-existing damage exists, it is the applicant’s responsibility to distinguish that damage from the disaster-related damage.[14]

Here, the Applicant states that flooding from the disaster caused damages that require repairs to the roads’ surface and a full replacement of the culvert, along with HM measures. However, the Applicant has not demonstrated the damages were caused directly by the declared incident. For instance, the documentation shows that the culvert had persistent predisaster issues and damages. The Applicant admits that it had not fully remediated these issues in line with recommendations by FNI prior to the disaster.[15] FNI repeatedly noted that the repairs identified would resolve the predisaster deterioration in the culvert along with the sinkholes in the above surface roads. Post-disaster photographs showed the same concrete spalling damage within the culvert as documented in the FNI inspection.[16] These post-disaster photographs also show clear separation of sections of the culvert due to continued settlement, which the FNI inspection similarly noted as present prior to the declared incident.[17]

The documentation in the record demonstrates that the primary factor which resulted in damage to the roads and culvert was the predisaster joint deterioration and settlement, which was not effectively remediated prior to the incident. Although the Applicant completed some predisaster remediation work such as sealing the leaking joints and repairing sinkhole damage to the culvert, it did not repair the major concrete spalling damage or bond the stone with cement grout. FNI recommended these measures to prevent continued settlement.[18] Without remedying the cause of the sinkholes, voiding in between the surface and culvert allowed for increased risk to the surface roadway which was exacerbated by the disaster.[19] The damages claimed by the Applicant include continued settlement and the structural consequences of that settlement. Here, the Applicant has not distinguished between the deteriorated condition of the roads’ surface and culvert prior the disaster and claimed disaster-related damage to the Facilities. Therefore, the Applicant has not demonstrated that the work is required as a result of the declared incident rather than the Applicant’s failure to take measures to remediate pre-existing damages and deficiencies to protect its Facilities from further, foreseeable damage.[20]

Conclusion

The Applicant has not demonstrated that the work to its Facilities was required as a result of the declared incident, rather than preexisting damage and deficiencies that were not remediated. Additionally, as PA funding for HM is only available for disaster-damaged facilities, the HM is also ineligible. Accordingly, this appeal is denied.