Result of Declared Incident

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4424
Applicant	Perry Township (Monroe)
Appeal Type	Second
PA ID#	111-61952-00
PW ID#	GMP 104227
Date Signed	2021-11-10T17:00:00

Summary Paragraph

From February 5 – 13, 2019, severe storms, flooding, and landslides impacted Monroe County, Ohio.  The Applicant reported damage to roads, ditches, and embankments, and requested Public Assistance for repairs.  FEMA conducted site inspections, finding indications of preexisting deterioration, and was unable to verify that the claimed damage was disaster related.  FEMA sent a Request for Information (RFI) to the Applicant requesting information to demonstrate that the disaster caused the claimed damage.  The Applicant did not respond.  FEMA then issued a Determination Memorandum finding the work was ineligible because the Applicant had not demonstrated that the claimed damage was disaster related.  The Applicant appealed, providing work logs it claimed demonstrated that it performed routine maintenance.  FEMA sent another RFI to the Applicant, requesting information to demonstrate that the disaster caused the claimed damage.  The Applicant did not respond.  The FEMA Region V Acting Regional Administrator denied the first appeal, finding that it did not meet content requirements and that the Applicant had not provided documentation to establish that claimed damage was a result of the declared incident.  The Applicant submitted a second appeal, citing information previously provided and asserting that the work is eligible in accordance with FEMA policy.

Authorities and Second Appeals

• Stafford Act § 406(a)(1)(A).
• 44 C.F.R. § 206.223(a)(1).
• PAPPG, at 19, 116, and 133.
• Republic Cnty. Highway Dep’t, FEMA-4230-DR-KS, at 3.

Headnotes

• Per 44 C.F.R. § 206.223(a)(1), to be eligible for financial assistance, an item of work must be required as the result of the major disaster.  The PAPPG, at 19 and 133, provides that an applicant is responsible for providing documentation to support its claim as eligible and show that work is required to address damage caused by the disaster.  FEMA does not provide PA funding for normal maintenance or the repair of damage caused by deterioration.
  • Here, the Applicant has not provided documentation to demonstrate that work to repair the claimed damage to the roads, ditches and embankments occurred as a result of the disaster and not due to preexisting deterioration. 

Conclusion

FEMA finds that the Applicant has not demonstrated that the work to repair roads, ditches, and embankments was required as a result of the declared incident.  Therefore, this appeal is denied.

 

Appeal Letter

Appeal Analysis

Background

From February 5 – 13, 2019, severe storms, flooding, and landslides impacted Monroe County, Ohio.  Perry Township (Applicant) reported damage to roads, ditches, and embankments and requested Public Assistance (PA) for repairs.[1]  FEMA prepared Grants Manager Project 104227 to document the claimed damage.  The Applicant provided a letter to FEMA explaining that it has no formal policy for maintaining its roads, but asserted it made repairs upon periodic inspections.[2]  FEMA conducted site inspections, finding the roads, ditches and embankments showed signs of preexisting deterioration, and accompanying photographs showed extensive road surface deterioration as well as ditch and embankment erosion.[3]

On February 21, 2020, FEMA sent a Request For Information (RFI) to the Applicant, explaining that that its Site Inspection Report (SIR) indicated that the claimed damage the roads and embankments was preexisting or the result of deterioration and/or deferred maintenance, and not caused by the disaster, and that the ditches were not engineered and maintained.  FEMA requested that the Applicant provide documentation demonstrating that the ditches were engineered and regularly maintained, and that the roads were regularly maintained and in good condition prior to the disaster.  The Applicant did not respond.

On October 28, 2020, FEMA issued a Determination Memorandum, denying the Applicant’s request for $93,031.16 to repair the roads and ditches, and stabilize the embankments.  FEMA found that the Applicant had not demonstrated that the claimed damage was a result of the declared incident.

 

First Appeal

On November 6, 2020, the Applicant submitted a first appeal, providing force account road work logs for work performed from January 2019 through July 2020.[4]  In its December 23, 2020 transmittal letter, the Ohio Emergency Management Agency (Grantee) recommended approval in light of the Applicant’s logs.  

On March 23, 2021, FEMA issued another RFI to the Applicant, requesting: (1) information substantiating the pre-disaster condition of the road surfaces, ditches and embankments; (2) records indicating specific road maintenance performed in the five years preceding the declared event and the last time each road was resurfaced; (3) documentation demonstrating that each of the claimed ditches were engineered; (4) technical assessments or other documentation demonstrating that the embankments sustained damage or slope instability as a result of the disaster.  The Applicant did not respond.  

On April 30, 2021, the FEMA Region V Regional Administrator denied the first appeal, finding that the Applicant’s appeal did not satisfy FEMA’s content requirements, and that the Applicant had not provided documentation to establish that the claimed damages to the roads, ditches, and embankments were a result of the disaster.  FEMA explained that the site inspection photographs indicated preexisting deterioration and deferred maintenance and the maintenance records were insufficient for FEMA to assess the predisaster condition of the site. 

Second Appeal

On June 21, 2021, the Applicant submitted its second appeal to the Grantee, referring to documentation previously provided and asserting that it routinely monitors and performs work on its roads.  The Grantee supports the Applicant’s second appeal in an August 12, 2021 letter.

 

Discussion

Result of Declared Incident

FEMA may provide PA funding to a local government for the repair of a public facility damaged by a major disaster.[5]  To be eligible, work must be required as the result of the declared incident.[6]  The applicant is responsible for providing documentation to support its claim as eligible and show that work is required to address damage caused by the disaster.[7]  When evaluating eligibility of reported road damage, FEMA may review invoices and maintenance records to establish that the applicant has a routine maintenance program.[8]  Such documentation may be helpful to establish the predisaster condition of a facility and demonstrate that the damage was directly caused by the incident.[9]  FEMA does not provide PA funding for normal maintenance or the repair of damage caused by deterioration or deferred maintenance.[10]

The Applicant claims that damage to the roads, ditches and embankments was a result of the disaster; however, the available information indicates preexisting damage consistent with deterioration over time.  Site photographs show erosion to the road surface, displaying cracking or deteriorated chip and seal roads, as well as erosion to the ditches.[11]  The Applicant acknowledged it does not have a formal written road maintenance policy, and that repairs are based on recommendations made by the Trustees and temporary workers that inspect the roads.[12]  The predisaster logs provided by the Applicant account for only the period of time approximately five weeks prior to the incident, and do not establish that the Applicant performed routine maintenance at the locations which the Applicant claimed were damaged by the disaster, nor do the entries demonstrate the predisaster condition of the roads, ditches and embankments.[13]  Accordingly, the documentation submitted does not establish that the Applicant followed a routine maintenance program or distinguish between pre-existing damage and damage caused by the incident.  As a result, the Applicant has not demonstrated that the requested work to repair the roads, ditches, and embankments was required as a result of the disaster.

 

Conclusion

FEMA finds that the Applicant has not demonstrated that the claimed work was required as a result of the declared incident.  Accordingly, this appeal is denied.

 

[1] Town Run Road (Township Road (TR) 946 A), Brown Road (TR 1003), and Henthorn Extension Road (TR 814).

[2] Letter from President, Vice President, Trustee, and Fiscal Officer, Township of Perry Township, Monroe County, Ohio to FEMA (Sept. 3, 2019) [hereinafter Township Road Maintenance Letter].

[3] FEMA Site Inspection Report & Photographs for Work Order (WO) 47697, Damage Inventory (DI) 300998, at 7-8 (Oct. 4, 2019); (WO) 47700, Damage Inventory (DI) 300982, at 5-6 (Oct. 19, 2019); WO 47701, DI 300987, at 6-7 (Oct. 17, 2019) [hereinafter SIR].

[4] Letter from Fiscal Officer, Perry Township to Whom it May Concern (Nov. 6, 2020); Worker’s Itemized Statement of Account, Perry Township, Monroe County, Ohio (Jan. 1, 2019 – July 31, 2020) [hereinafter Applicant Worker’s Itemized Statement of Account].  The appeal included force account road work logs that record date, time and brief description of work performed, including four logs covering the 34 days prior to the disaster (Jan. 1, 2019 - Feb. 4, 2019).  The predisaster-dated logs record a total of 146 hours of predisaster work.  However, the logs do not indicate that the work performed included maintenance and/or repairs for the specific locations associated with the appeal.

[5] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 406(a)(1)(A), Title 42, United States Code (42 U.S.C.) § 5172(a)(1)(A) (2018).

[6] Title 44, Code of Federal Regulations § 206.223(a)(1) (2018); Public Assistance Program and Policy Guide, FP 104-009-2, at 19 (Apr. 2018) [hereinafter PAPPG].

[7] PAPPG, at 19, 116, 133.

[8] Id. at 116.

[9] Id.

[10] Id. at 19, 116.

[11] See SIR.

[12] See Township Road Maintenance Letter.  This documentation also does not establish the performance of normal maintenance activities.  See FEMA Second Appeal Analysis, Republic Cnty. Highway Dep’t, FEMA-4230-DR-KS, at 3 (July 26, 2017) (determining that FEMA could not rely solely on the Applicant’s statements that it had an informal maintenance program and that repairs were done on an as needed basis, to conclude that the Applicant had a predisaster maintenance program).

[13] See Applicant Worker’s Itemized Statement of Account, at 1-4.