Scope of Work

Appeal Brief

Appeal Letter

Appeal Analysis

Background

From April 4 to May 15, 2011, flooding and severe storms in Clermont County, Ohio, saturated the embankments of Locust Corner Road (Facility), causing a slope failure on portions of it.  The Facility is operated and maintained by Clermont County Engineer’s Office (Applicant).  FEMA prepared Project Worksheet (PW) 515 to document repairs to a 300 feet long x 20 feet wide section of the Facility.  The PW was originally approved for $568,000 based on estimates.  However, during closeout, FEMA determined the total eligible project cost based on the approved scope of work was $238,254.42.  FEMA noted that an additional $60,960.94 in costs incurred to repair an additional 100 linear feet (LN) due to a “propagation of failures from 2011 rain events” was not caused by the declared disaster, but subsequent rain events.[1]  As such, FEMA determined those additional costs were not eligible for Public Assistance (PA) reimbursement. 

First Appeal

The Applicant appealed FEMA’s decision denying funding for the additional work in a November 6, 2014 letter.  The Applicant argued the additional 100 LF of repair was necessary because substantial internal failures in the soil were discovered after FEMA’s site visit.  The Grantee added that the failure plane marked in a geotechnical study supported the Applicant’s contention that the actual disaster-related damage was greater than that identified during the site visit.  The Applicant submitted the study with its first appeal. 

FEMA Region V sent a Final Request for Information (RFI) dated May 21, 2015.  In the request, Region V stated the records lacked evidence of “1) [r]easonable justification, or extenuating circumstances beyond your control, to exempt you from the required time limitations for filing the first appeal; 2) [e]vidence of prior written approval of changes to the approved scope of work; and 3) [e]vidence of prior written approval, prior to the start of construction, for an improved project.”  The Applicant did not respond within the 30-day timeframe.  On August 6, 2015, the Ohio Department of Public Safety (Grantee) advised FEMA that the Applicant had no additional documentation in support of its first appeal.

In a letter dated December 3, 2015, the Region V Regional Administrator (RA) denied the appeal.  The RA found that the Applicant changed the scope of work without prior FEMA approval, the new scope was noncompliant with environmental and historic preservation (EHP) requirements, and the Applicant failed to demonstrate that the additional work was a direct result of the disaster. 

Second Appeal

In its second appeal, dated December 16, 2015, the Applicant refutes FEMA’s assertion that the additional work constitutes a change in the scope of work by expounding on its prior claim that the additional work resulted from hidden damage and noting that the PW was written prior to the geotechnical investigation.  The Applicant’s consultants determined that the final construction of the pier wall only repaired the immediate single site area damaged by the disaster and provided recommendations following the soil borings and engineering study advising the Applicant to extend the project to both sides of the slide and extend the length of the wall to ensure the repair was properly made to support the immediate ends of the landslide. 

The Grantee disagrees with the Applicant and asserts that the additional work performed during the project “supports improvements to the facility and not disaster related repairs.”[2]  Noting such, the Grantee requests FEMA justify eligibility of the project, as well as an after-the-fact EHP compliance review, using the rationale in its 2013 Rooks County Highway Department (Rooks) second appeal determination.[3]  The Grantee asserts that the Rooks decision found “that although the additional repairs were not approved prior to the work being completed, the changes did not impact the environment any differently than the approved scope of work.”  The Grantee claims this project is similar because the additional work completed for PW 515 performed the same function as the repairs for the disaster related work, therefore the impact to the environment would have been the same as the approved scope of work.

Discussion

Result of the Disaster

Pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) § 406, FEMA may reimburse a state or local government for costs associated with the repair, restoration, reconstruction, or replacement of an eligible facility damaged or destroyed by a declared disaster.[4]  Implementing the Stafford Act, Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.223(a)(1) states that an item of work must be required as the result of a declared disaster event to be eligible for PA funding.[5]  It is the Applicant’s burden to demonstrate, through adequate documentation, that the work is required as a result of a declared event.[6] 

The Applicant argues that the additional work was the result of a slope failure that propagated out from the original, disaster-related failure and required repair.  On first appeal, the Region V RA noted that the Applicant’s documentation did not demonstrate that the additional work was required by the disaster and not subsequent rain events.  During the second review process, similar conclusions are drawn.  While soil boring results show failure points, they do not substantiate that those failure points were a direct result of the disaster, as opposed to subsequent storms which saturated the soil.[7] 

Changes to the Scope of Work

According to 44 C.F.R. § 13.30(d), Grantees or subgrantees must obtain the prior approval of the awarding agency whenever any revision of the scope or objectives of the project is anticipated.[8]  Reflective of such, the PA Guide specifies that the Applicant must notify the Grantee prior to repairing or replacing the damaged element.[9]  The Grantee then provides FEMA with a written recommendation, and FEMA and the Grantee may conduct a new site visit.[10]  After this, FEMA makes a decision whether the revised scope of work is eligible for PA funding.[11]  This ensures the proper EHP compliance reviews are conducted for the additional scope of work.[12] 

In this instance, contrary to both regulatory and program requirements, the Applicant failed to receive FEMA’s approval for additional work beyond the approved scope of work.  A January 2014 memorandum from the Grantee reaffirms this conclusion stating, “[i]n addition to returning the facility back to its pre-disaster design, function and capacity, the County had constructed an additional 230 [LF] of retaining wall, an additional 631 ft. of roadway restoration, … and an additional 225 [LF] of guardrail replacement.  Therefore, the applicant exceeded the approved scope of work…”[13]  Because the Applicant exceeded the approved scope of work, it was required to get approval from FEMA to ensure proper EHP compliance prior to the start of construction.  The Applicant did not obtain such approval, so the additional work is ineligible for PA reimbursement. 

While the Grantee requests that FEMA approve the additional work as an improved project and follow the Rooks analysis regarding after-the-fact EHP compliance reviews, the facts in this appeal are distinguishable from those in Rooks.  FEMA may authorize funding for improvements on the original scope of work,[14] but the Applicant is required to obtain approval from both the Grantee and FEMA prior to the start of construction for any revised scope of work that results in a significant change from the pre-disaster configurations (e.g., location, footprint, function or size).[15]  In limited cases, like Rooks, FEMA has approved after-the-fact EHP compliance reviews for improved projects.[16]  Yet, unlike Rooks, which determined the additional work “did not impact the footprint beyond what would have been impacted had the Applicant moved forward with the approved scope …,”[17]  FEMA finds that the Applicant completed work in a different location, thus altering the original footprint.  As such, the ground disturbance caused by the additional work required new EHP compliance reviews.  Additionally, in Rooks, FEMA found that the Applicant obtained the appropriate environmental-related permits after the project was completed but before the appeal process began.  Here, neither the Applicant nor the Grantee demonstrated it performed the necessary EHP compliance checks even after the Applicant completed additional work.  Therefore, this project is distinguishable from Rooks and that analysis does not apply to these facts. 

Conclusion

The Applicant completed additional work beyond the eligible scope of PW 515.  As such, the Applicant was required to get approval from the Grantee and FEMA prior to the start of construction.  Because it did not receive pre-approval, the project is not eligible under the PA Program.