Result of Declared Incident

Appeal Brief

Summary Paragraph

During the incident period of August 31, 2021, through September 5, 2021, remnants from Hurricane Ida caused damage in Pennsylvania. On September 10, 2021, the President issued a major disaster declaration. The Township of Barry (Applicant) claimed the disaster caused undermining and erosion to abutments and undermining of a wingwall.  FEMA prepared Grants Manager Project 665499 to document the claimed damage, at an estimated cost of $108,000.00. In a Determination Memo, FEMA denied all requested funding, finding that the Applicant did not demonstrate the claimed damage occurred as a direct result of the disaster rather than from pre-existing deterioration and deferred maintenance. In the first appeal, the Applicant states that the Applicant was unable to complete the measures identified in the Scour Plan of Action prior to Hurricane Ida. The Region 3 Regional Administrator denied the Applicant’s appeal finding that the Applicant did not demonstrate the work is required as a result of the disaster. The Applicant’s second appeal reiterates the position expressed in the Benesch letter that it maintained the facility prior to the disaster, did not have ample time to implement the Scour Action Plan and that the damage is the result of the disaster.

Authorities

• Stafford Act § 406(a)(1)(A).
• 44 C.F.R. § 206.223(a)(1).
• PAPPG, at 51,52, 64.
• Escambia County, FEMA-4654-DR-FL, at 3-4.

Headnotes

• Work must be required as a result of the disaster and the applicant must demonstrate damage was directly caused by the incident.
  • The Applicant has not demonstrated the claimed damages are the direct result of the declared incident, rather than pre-existing damages and the Applicant’s failure to take measures to protect the bridge from further damage.

Conclusion

The Applicant has not demonstrated the work is required as a result of the declared incident. Accordingly, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

During the incident period of August 31, 2021, through September 5, 2021, remnants from Hurricane Ida caused damage in Pennsylvania.[1] The Township of Barry (Applicant) claimed the disaster caused damage to a bridge at Hill Road over Deep Creek (Facility), including undermining and erosion to abutments and undermining of a wingwall.[2] FEMA prepared Grants Manager Project 665499 to document the claimed damage, at an estimated cost of $108,000.00. On May 20, 2022, FEMA issued a Request for Information (RFI), requesting predisaster maintenance records and inspection reports for the Facility. In response, the Applicant provided two bridge inspection reports. 

The first inspection report, dated November 24, 2020, was prepared approximately 10 months before the disaster by AECOM, a consulting firm contracted by the Pennsylvania Department of Transportation to perform inspections of locally owned bridges (November 2020 Bridge Inspection). AECOM rated the overall condition of the bridge as a “3 – Serious” on a scale of one through nine, with one being the most serious. The report noted there was advanced scour at the abutments and wingwalls, with the footings exposed vertically throughout. Additionally, AECOM indicated the bridge was “Scour Critical” and required a “Scour Plan of Action,” which included monitoring and repairs to address the conditions at the bridge. AECOM stated that, due to exposed footings throughout the abutments and wingwalls and the presence of advanced scour with undermining, the bridge had a “Priority 1 – High Priority” maintenance item that needed to be resolved or mitigated within six months.[3] The Scour Plan of Action recommended placing rock (i.e., rip rap) protection along the undermined area of the footing within six months to mitigate the deficiency. Other recommendations for the bridge included repairing the spalls with exposed reinforcement, removing debris and sand deposits, patching severe scaling, addressing erosion at the embankments, and performing other repairs to the road surface. 

Two months after the disaster, Mackin Engineering Company (Mackin) performed the second bridge inspection, and prepared a report dated November 8, 2021 (November 2021 Bridge Inspection). In the post-disaster inspection report, Mackin noted that the undermining had increased since the last inspection and the bridge likely had scour issues for a while. Mackin recommended similar repairs to those identified in the predisaster inspection report, as well as the addition of cofferdams around the abutments. 

On May 26, 2022, FEMA issued a second RFI, requesting that the Applicant confirm whether it completed the work listed in the Scour Plan of Action and asking for any maintenance records related to that work. In response, the Applicant stated it was not able to complete the work listed in the Scour Plan of Action prior to this disaster and that the disaster accelerated the undermining identified prior to the disaster. In a Determination Memorandum dated April 4, 2023, FEMA denied all requested funding, finding that the Applicant did not demonstrate the claimed damage occurred as a direct result of the disaster, rather than from pre-existing deterioration and deferred maintenance. 

First Appeal 

In a letter dated May 31, 2023, Alfred Benesch & Company (Benesch) submitted an appeal on behalf of the Applicant, asserting the claimed damage was the direct result of the disaster. Benesch asserted the Applicant performed predisaster maintenance to the bridge, including placing stormwater erosion countermeasures near and behind the bridge’s wingwalls, and noted that a 2018 inspection performed by Benesch did not indicate the presence of any abutment issues. Benesch explained that the Applicant could not have known about the scouring prior to the November 2020 Bridge Inspection, which was the first regular inspection performed by the state since the bridge was constructed in 1950. Benesch stated that the Applicant was did not complete the measures identified in the November 2020 Bridge Inspection’s Scour Plan of Action prior to the disaster because it did not have the staff or equipment required to add rip rap protection around the footers, but it had implemented the monitoring recommendation from Scour Plan of Action. The Pennsylvania Emergency Management Agency (Recipient) forwarded the appeal to FEMA, in a letter dated May 31, 2023, with its support. On July 13, 2023, FEMA sent an RFI requesting documentation to support Benesch’s legal authority to file the first appeal on behalf of the Applicant. The administrative record does not contain a response.

On October 18, 2023, the FEMA Region 3 Regional Administrator denied the appeal, finding that Benesch had not shown it had the legal authority to submit the appeal on the Applicant’s behalf and had not demonstrated the work was required as a result of the disaster. FEMA noted the Applicant did not provide maintenance records and did not implement the Scour Plan of Action to prevent further damage to the bridge.

Second Appeal

In a letter dated December 15, 2023, the Applicant submitted a second appeal. The Applicant reiterates the arguments raised in the first appeal letter. On December 23, 2023, the Recipient forwarded the Applicant’s appeal to FEMA with its support.

Discussion

FEMA may provide funding to a local government for the repair of a public facility damaged by a major disaster.^[4] To be eligible for PA funding, work must be required as a result of the disaster.^[5] FEMA does not provide funding for repair of damage caused by deterioration, deferred maintenance, or an applicant’s failure to take measures to protect a facility from further damage.^[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 the disaster-related damage.^[7] If the applicant does not provide documentation to support its claim as eligible, FEMA cannot provide PA funding for the work.[8]

Here, the administrative record contains documentation of pre-existing damages to the bridge. Notably, the November 2020 Bridge Inspection Report documents advanced scour at the abutments and wingwalls with the footings exposed vertically throughout and recommends, among other repairs to the bridge, that the Applicant mitigate the undermining deficiency by placing rip rap along the undermined area for protection. The Applicant states it was not able to perform this work prior to the disaster. In this case the Applicant did not take measures to repair damages caused by deterioration and/or deferred maintenance and did not protect the bridge from further damage. The post-disaster November 2021 Bridge Inspection report indicates that the undermining had increased and, notably, apart from the addition of cofferdams around the abutments, generally recommends similar repairs to the repairs identified in the predisaster inspection report.

Based on the above, the Applicant has not demonstrated the claimed damages are the direct result of the declared incident, nor that the work is required as a direct result of the disaster, rather than the Applicant’s failure to take measures to protect the bridge from further damage.[9]

Conclusion

The Applicant has not demonstrated the work is required as a result of the declared incident. Accordingly, this appeal is denied.