Sterry Creek (bank erosion) & Auburn Dam (silt deposition)

Appeal Brief

PURPOSE: To obtain signature on the letter to the Pennsylvania Governor's Authorized Representative denying a request by Pennsylvania Department of Environmental Protection for $156,310 for additional debris removal expenses at Auburn Dam and for $129,447 for repairs to Sterry Creek.

DISCUSSION: During the floods of DR-1093, the banks of Sterry Creek eroded and silt debris was deposited in Auburn Dam. FEMA approved DSR 67436 for $0 (prepared for $129,447 for creek repairs), because the repairs were not the legal responsibility of the applicant. FEMA also approved DSR 67432 for $0 (prepared for $197,983 for 19 buoys and 97,500 cu yd of debris removal), because the actual volume of disaster-related debris was unknown. The first and second appeals of DSR 67436 were denied because the creek repairs were not the legal responsibility of the applicant and because the creek was under the authority of another Federal agency. In the first appeal of DSR 67432, FEMA determined that 36,828 cu yd of debris were disaster-related. In the second appeal, FEMA determined that only 27,572 total cu yd of debris were a direct result of the disaster and approved $55,144 at $2 per cu yd. The additional documentation of the third appeal of DSR 67432 does not demonstrate that removal of additional debris (beyond the 27,572 cu yd) is necessary as a direct result of the disaster. The third appeal of DSR 67436 does not demonstrate that the creek repairs are the legal responsibility of the applicant.

RECOMMENDATION: Sign the letter denying the subgrantee's third appeal.

Appeal Letter

Appeal Analysis

BACKGROUND

In 1996, in Jessup and Olyphant Boroughs of Pennsylvania, heavy rains and floods resulted in erosion and damage to the banks of Sterry Creek and deposition of silt debris in the de-silting basin (basin) of Auburn Dam. The dam and basin (pool length of three miles and pool area of 186 acres) were constructed to serve as a sediment basin in the 1950's under a Bureau of Abandoned Mine Reclamation Program and are managed by the applicant, the Pennsylvania Department of Environmental Protection (DEP). Based upon inspection, FEMA prepared Damage Survey Report (DSR) 67432 (Category A) for a total of $197,983 to replace 19 buoys and to remove 97,500 cubic yards (cu yd) of debris. The volume was estimated to be 15 inches of debris over the first 3,690 feet (ft) of length. Upon review, this DSR was approved for $0 because the volume of debris deposited as a direct result of the disaster was not known and the debris did not present an immediate threat.

Following the disaster, FEMA also prepared DSR 67436 (based on the low bid) for $129,447 for Category D, excavation and gabion repairs to the creek. However, upon review it was determined that the damages occurred within contracted creek bank repairs being performed prior to the disaster. Pursuant to Section 5.11 of the repair contract, repairs necessary from flood damages (prior to completion of the repairs) were the legal responsibility of the contractor repairing the creek. FEMA approved the DSR for $0 because the repairs were not the legal responsibility of the applicant.

First Appeal

DSR 67436 - In October of 1996, DEP submitted the first appeal to the State. Requesting $129,447 for creek repairs, the applicant contended that the language of the contract did not hold the contractor legally responsible for damages necessary from a natural disaster. The applicant also stated that funding was not available for the repairs from its Federal funding agency, the Office of Surface Mining (OSM). In response, the Regional Director stated that the language of the contract was in direct conflict with the Stafford Act and guidance from the Office of Management and Budget (OMB) and the repairs were therefore not eligible for reimbursement. In closing, the Regional Director stated that the repairs of a facility under the authority of another Federal Agency (OSM) were not eligible for FEMA funding, pursuant to Title 44 of the Code of Federal Regulations (CFR), section 206.226(a).

DSR 67432 - Regarding the Auburn Dam debris removal expenses, in the first appeal the applicant contended that both the dam maintenance history and the cross-sections from soundings of the basin demonstrated that 36,929 cu yd of debris were deposited from Station (Sta) 32+00 through Sta 50+00 (1,800 ft) during the disaster. The applicant also contended that FEMA had historically provided funding to this County for disaster-related debris removal from the banks of the dam, further supporting the eligibility of the expenses. The Regional Director determined that the dam maintenance history and survey demonstrated that 50% of the requested amount was routine deposition and 50% was disaster-related. The Regional Director approved the first appeal for funding of removal of 36,929 cu yd of debris.

Second Appeal

DSR 67436 - In the second appeal, the applicant contended that it was legally responsible for the Sterry Creek bank repairs and that, pursuant to Section 312 of the Stafford Act, FEMA could provide funding to programs under another Federal agency, when duplication of benefits did not occur. On April 30, 1998, FEMA responded to three salient issues in the second appeal of DSR 67436. The appeal response stated that FEMA is not authorized to provide funds for other Federal agency programs; that only the United States Congress can appropriate Federal funds; and that Section 312 of the Act applies to individual (not public) assistance. Secondly, the appeal response stated that per the contract, either the funding agency or the contractor were legally responsible for the disaster-related repairs, but not the applicant. Thirdly, the appeal response stated that if the applicant was legally responsible for the damages, the repairs and facility were under the specific authority of another Federal agency (OSM). Regardless of whether funding is available from the other Federal agency, FEMA does not provide funding for work under the specific authority of another Federal agency. The second appeal was denied.

DSR 67432 - Regarding the debris removal expenses, the applicant requested funding for removal of an additional 66,798 cu yd of debris from Sta 1+00 through Sta 32+00. In the appeal response, FEMA stated that insufficient information survey data was provided regarding the debris deposition from Sta 1+00 through Sta 32+00. However, based upon review of the other provided information (14-year dredging history), FEMA determined that the information from 1993 through 1995 provided a more accurate accounting of debris deposition, including the following:

• Average annual (1993-1995) deposition of debris was 12,467 cu yd,
• Debris deposition during 1996 (including the disaster) was 36,929 cu yd (first appeal),
• Routine debris deposition after the disaster was 9,357 cu yd, or 75% of the 12,467 cu yd annually deposited (nine months elapsed after the disaster), and
• The difference between total 1996 debris deposition (36,929 cu yd) and portion attributable to normal deposition (9,357 cu yd) was the total disaster-related debris (27,572 cu yd).

FEMA approved this portion of the second appeal for a total of 27,572 cu yd of debris removal. This was less than the 36,929 cu yd determination of the earlier first appeal; however, FEMA prepared supplemental DSR 51082 for $55,144, or 27,572 at $2 per cu yd.

Third Appeal

DSR 67436 - In the third appeal, the applicant contends that it is legally responsible for the disaster-related creek repairs. The applicant also contends that case law and opinion 76-24 by the Attorney General establish that the contractor is not legally responsible for damages because performance was rendered impossible, due to extreme conditions and the impracticability of completing the repairs. Further, the applicant contends that funding is not precluded by 44 CFR 206.226 (a), which applies in a general sense. That FEMA has discretion to both evaluate each site and provide funding if conditions are dangerous and other grant funds are not available. Finally, the applicant contends case law and Section 312 of the Act do prohibit duplicative funding, but do not prohibit funding when duplicative funding does not exist. The applicant states that there are no other Federal agency benefits or duplication of benefits for the Sterry Creek project.

DSR 67432 - In the third appeal, the applicant contends that various estimates demonstrate that an additional $156,310 is necessary to remove a total of 105,272 cu yd of disaster-related debris. The estimates include an average estimate based on a 14-year dredging history, an estimate from cross sections, and an estimate from the original DSR.

DISCUSSION

DSR 67436- In the third appeal, the applicant contends for the following reasons the creek repairs are eligible for FEMA funding and the applicant is legally responsible for the Sterry Creek bank repairs:

1. The contractor is not legally responsible for damages because performance was rendered impossible, due to extreme impracticability of completing the repairs;
2. 44 CFR 206.226 (a) applies in a general sense and that FEMA can evaluate each site on a case-by-case basis; and
3. There are no other Federal benefits, o 6gally responsible for the repairs (1) and whether funding is available for the Sterry Creek repairs, which are under the specific authority of another Federal agency (2 and 3).
   
   The applicant contends that case law and opinion 76-24 by the Attorney General support the first issue and allow for contract change orders to projects damaged by flooding (Hurricane Elosie) to comply with the Federal Disaster Relief Act. Section 5.11, Contractor's Liability, of the contract states, "The work in every respect, from execution of the Contract and during its progress until final acceptance, shall be under the charge and in care of the Contractor and at his risk. The forgoing sentence is intended to include risks of every kind and description, including fire and flood risks." This language is clear. Until final acceptance of the project by the applicant, the contractor, and not the applicant,was responsible for the work, including repairs necessary from floods. The applicant contends that the contractor was not legally responsible for the damages because the contract allows for exceptions to the contract when extreme conditions make the repairs impracticable. However, no documentation was provided to demonstrate extreme conditions (impracticability). Regarding the referenced case and contract, the June 6, 1996, letter from the applicant's legal counsel states that the court ruled that the contractor, andnot the owner, was legally responsible for the repairs.
   
   Regarding the issues (2 and 3) raised concerning the specific authority of the facility and funding, the applicant contends that 44 CFR 206.226 (a) applies in a general sense. As thoroughly explained in the second appeal response, Federal regulation 44 CFR 206.226 (a) does not allow funding for projects under the specific authority of another Federal agency. Such funding would constitute subsidizing another Federal agency and only the United States Congress can appropriate such funding. 44 CFR 206.226 (a)(1) states, "Generally, disaster assistance will not be made available under the Stafford Act when another Federal Agency has specific authority." Sections 206.226 (a)(1) and (2) establish the exceptions to this policy. The exceptions do not include repairs to non-funded Federal projects. The July 11, 1996, letter from the Harrisburg, Pennsylvania field office of OSM states that the repairs are under the authority of the OSM, another Federal agency. As such, these repairs are not eligible for funding. We find no reason to overturn the second appeal decision and the third appeal of DSR 67436 is denied.
   
   DSR 67432 - In the third appeal, the applicant contends that various estimates demonstrate that an additional $156,310 is necessary to remove a total of 105,278 cu yd. The applicant contends that 68,798 cu yd from Sta 0+00 to Sta 32+00 and 36,929 cu yd from Sta 32+00 through Sta 50+00 were disaster-related. Apparently, 68,789 cu yd is a typographical error and should be 66,789 cu yd (50% of 133,595 cu yd from the applicant's appeal letters), for a total of 103,278 cu yd of disaster-related debris.
   
   The applicant contends that three different estimates demonstrate that the 103,278 cu yd (corrected total) are disaster-related debris. The estimates include an average based on a 14-year dredging history, an estimate based on capacity from cross sections, and an estimate from the original DSR estimate. Therefore, the issue of third appeal of DSR 67432 is whether removal of additional debris was necessary as a direct result of the disaster event.
   
   The applicant provided the following volumetric and cross sectional data to demonstrate the amount of debris deposited as a result of the disaster :
   
   1. Handwritten, Cut totals, Capacity, Sta 0+00 through Sta 32+00 - NO DATE
   2. Fill totals, Sta 0+00 through Sta 32+00 - NO DATE
   3. Survey Data, Cut totals, Capacity, Sta 32+00 through Sta 0+00 - NO DATE
   4. Survey Data, Cut totals, Capacity, Sta 50+00 through Sta 70+00 - NO DATE
   5. Survey Data, Cut totals, Capacity, Sta 70+00 through Sta 115+00 - NO DATE
   6. Sounding Survey Data, Sta 32+00 through Sta 50+00, 1975
   7. Cross Sections, Sta 0+00 through Sta 32+00- NO DATE
   Of these sets, Data sets A, C, D, and E represent the capacity volume of the basin, including:
   
   • 427,168 cu yd from Sta 00+00 through Sta 32+00 (3,200 ft),
   • 471,956 cu yd from Sta 32+00 through Sta 50+00 (1,800 ft),
   • 522,881 cu yd from Sta 50+00 through Sta 70+00 (2,000 ft),
   • 1,027,431 cu yd from Sta 70+00 through Sta 110+00 (4,000 ft), and
   • Total capacity is 2,449,436 cu yd.
   This data provides an estimate of 2,449,436 cu yd as the pre-disaster capacity (1975) of the entire basin. Regarding the post-disaster capacity, no cross-section information was provided regarding this volume. However, the applicant states in the third appeal submission that the post-disaster capacity was 1,550,312 cu yd. Using this value, the difference between the pre- and post-disaster capacities is 899,124 cu yd of debris and represents the reduction in the capacity of the basin, a portion of which is attributable to the disaster. The dredging history of the basin is important to determine the portion which is disaster-related. The applicant provided the following dredging history:
   
   1951 - 900,000 cu yd;
   1952 - 814,193 cu yd;
   1955 - 1,000,000 cu yd;
   1958 -935,532 cu yd;
   1963 - 600,000 cu yd
   1966 - 777,236 cu yd
   State operated 1974 through- 1976 - 410,026 cu yd per year
   State operated 1979 through 1983 - 108,834 cu yd per year
   State operated 1993 through 1995 - 12,467 cu yd per year
   
   The applicant contends that, exclusive of the statistics from years 1993, 1994, and 1995 (insufficient staffing precluded normal dredging operations), the remaining 14-year history demonstrates that an average of 485,800 cu yd of debris were deposited annually. The dredging history indicates that relative to the average annual deposition (485,000 cu yd), minimal dredging was performed from 1979 through 1983 and 1993 through 1995, with no data provided from 1983 through 1994. Over this period, the minimal dredging would have significantly reduced the pre-disaster capacity of the basin which was demonstrated in the cross-sections (1975). As such, the cross section data does not demonstrate a reasonable estimate of the capacity of the basin prior to the disaster, or a reasonable estimate of the debris deposited as a direct result of the disaster. Pursuant to 44 CFR 206.206, the applicant must provide documented justification supporting the subgrantee's position. Upon review, we find that the information provided with the third appeal does not provide documented justification of any additional disaster-related debris. Therefore, we find no reason to overturn the second appeal decision.
   
   CONCLUSION
   
   At the time of the disaster, the creek was under contracted repairs. The contract clearly establishes that the contractor was legally responsible for damages resulting from floods. Further, the creek is under the specific authority of OSM, a Federal Agency, and FEMA does not provide funding for such projects. Therefore, the third appeal of DSR 67436 is denied.
   
   Regarding DSR 67432, the provided documentation does not demonstrate that removal of additional debris, beyond the 27,572 cu yd, is necessary as a direct result of the disaster event. As such, these additional expenses are not eligible for funding. The third appeal of DSR 67432 is also denied.