Result of the Declared Incident, Hazard Mitigation

Appeal Brief

Summary Paragraph

During the incident period, October 4-26, 2016, Hurricane Matthew produced torrential rainfall and hurricane force winds which the Flora MacDonald Educational Foundation (Applicant) claimed damaged its auditorium and Facility. FEMA prepared Project Worksheet (PW) 1868 to capture the damages and obligated the PW on January 17, 2018. In September 2018, Hurricane Florence re-damaged the Facility. In February 2019, the Applicant hired a consultant to identify specific damages related to each hurricane. The Applicant requested FEMA change the scope of work of the Hurricane Matthew project to include additional damages and work identified by the consultant. As such, in May 2020, FEMA prepared PW 1868 (V.1) to capture the claimed additional damages to the Facility and hazard mitigation (HM), totaling $3,338,224.23. In March 2021, FEMA obligated PW 2677 for Hurricane Florence. Subsequently, FEMA issued three requests for information (RFIs) related to PW 1868 (V.1). After review of the responses, FEMA issued a Determination Memorandum denying the additional damages and HM measures claimed. FEMA found the Applicant did not show the damages claimed were a direct result of Hurricane Matthew. The Applicant submitted a first appeal asserting Hurricane Matthew caused the claimed damages. FEMA issued a RFI to ascertain the Facility’s predisaster condition. After review of the response, the FEMA Region 4 Regional Administrator denied the appeal, finding the Applicant did not show the damages were a direct result of Hurricane Matthew. The Applicant filed a second appeal reiterating its first appeal arguments. FEMA finds the Applicant did not demonstrate that the additional claimed damages were caused directly by the declared incident; nor did the Applicant show that the claimed HM measures will protect the Facility’s damaged portions and are reasonable based on the extent of the damage.

Authorities

• Stafford Act § 406(a)(1)(A)
• 44 C.F.R. §§ 206.206(a), 206.223(a)(1), (e); 206.226
• PAPPG, at 19, 94-95, 112, 127
• Tex. Div. of Emergency Mgmt., FEMA-4266-DR-TX, at 2.

Headnotes

• To be eligible for PA funding, 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 did not demonstrate that the additional claimed damages were caused directly by the declared incident.
• FEMA has the authority to provide PA funding for cost-effective hazard mitigation measures for facilities damaged by the incident.
  • The Applicant did not show that the claimed HM measures will protect the Facility’s damaged portions(s) and are reasonable based on the extent of damage.

Conclusion

The Applicant did not demonstrate that the additional claimed damages were caused directly by the declared incident; nor did the Applicant show that the claimed HM measures will protect the Facility’s damaged portion(s) or are reasonable based on the extent of the damage. Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

During the incident period of October 4 through 26, 2016, Hurricane Matthew impacted the state of North Carolina.[1] The Flora MacDonald Educational Foundation (Applicant) requested Public Assistance (PA) funding to repair buildings on its school campus, including the main building (Facility), constructed around 1900. On October 31, 2017, FEMA performed a first site inspection. FEMA prepared Project Worksheet (PW) 1868 to capture the damages. FEMA noted that the third and fourth floors of the Facility were nonfunctioning and in need of dire repair before the disaster, which FEMA stated led to some of the observed damages on the first and second floors. FEMA noted, therefore, that due to difficulty determining whether certain damages were disaster-related versus pre-existing, the Agency only approved funding for damages it could clearly discern were the result of the disaster. 

First, FEMA found the membrane roof lost its water integrity and the flashing around the roof was mostly blown away. Second, FEMA stated that the dome roof suffered shingle loss, cracks, and a possible shift. Third, FEMA confirmed the interior rotunda dome had water stains and a few cracks. Fourth, FEMA noted that four interior areas of the Facility located on the first and second floors suffered water damage to the ceilings and walls (e.g., water stains, peeling paint, and cracks). FEMA approved work to repair the damages (noting the work to restore the roof was already complete).[2] After reducing the eligible amount by insurance proceeds, FEMA obligated the PW on January 17, 2018.[3] 

In September 2018, Hurricane Florence re-damaged the Facility.[4] FEMA conducted a site inspection on January 24, 2019. On February 5, 2019, the Applicant retained a structural engineering consultant, Stature Engineering, PLLC (Stature) to “provide a review of reported building damage from Hurricane Matthew.”[5] Stature visited the school campus in early 2019. 

In a letter from Stature dated April 29, 2019 (Stature Report), Stature provided a “Hurricane Matthew Damage Assessment,” identifying what it states are additional Hurricane Matthew-related damages/work beyond what FEMA noted in the Hurricane Matthew PW. This included damages to heating, ventilation, and air conditioning (HVAC) ductwork in the crawlspace, damages to the foundation wall and interior structural timber beams, possible column settlement, damages to floors on the first floor of the Facility and floor decay in the rotunda beneath the dome, holes and cracks in the exterior masonry mortar, and decayed window frames. Stature recommended restoration work as well as hazard mitigation (HM) measures. Regarding the proposed HM measures, it recommended installing a vapor barrier to reduce future flooring damage due to water intrusion into the crawlspace or water vapor rising from a groundwater table, repointing existing mortar cracks to resist wind-driven rain intrusion, and window restoration, such as painting window frames to allow them to resist water infiltration more efficiently. 

The Applicant requested FEMA change the scope of work of the Hurricane Matthew project to include the additional damages and work identified by Stature. In total, the Applicant sought $3,338,224.23 above the funding FEMA previously awarded for PW 1868. FEMA noted these costs included restoration work and HM measures, such as: installing a metal roof and a larger gutter/drainage system; moving rotunda dome vents to reduce the likelihood of water infiltration, repairing additional interior rotunda damages; repairing HVAC ductwork and equipment and installing a crawlspace vapor barrier; stabilizing the foundation; replacing structural timber beams; repairing additional claimed interior damages (i.e., additional ceilings and walls and newly identified floors); repointing exterior brick mortar walls; restoring windows, such as repairing window frames to resist water infiltration, and installing impact resistant glass. For more than a year, the Applicant and FEMA communicated about the Hurricane Matthew project as well as the project (Grants Manager Project 71181/Project Worksheet 2677) to address the Hurricane Florence damages.

Separately, FEMA obligated PW 2677 for Hurricane Florence, approving funding to restore the Facility and implement HM measures, including costs to repair the Facility’s dome, interior rotunda, crawlspace, basement, approximately 40 interior areas that sustained water damage to ceilings, walls, and/or floors; and relocate dome vents, repoint exterior brick mortar, shellac (i.e., protect) window frames, and install impact resistant glass for windows.[6] FEMA also approved costs to repair the Facility’s dome roof, but subsequently removed those costs per the Applicant’s request, due to the Applicant receiving a grant from another federal entity to replace the predisaster roof’s asphalt shingles to a copper roof.[7]

Following FEMA’s obligation of PW 2677 for Hurricane Florence, the Applicant maintained its request for additional PA funding for damages that it asserted were directly caused by Hurricane Matthew but not previously captured in PW 1868. FEMA issued Requests for Information (RFIs) from July through September 2021, seeking documentation and information related to the Facility’s predisaster condition and maintenance.[8] 

The Applicant produced an October 2021 narrative (Narrative), signed by the Applicant’s caretaker who had overseen maintenance at the school campus for more than 50 years, and the Applicant’s registered agent. In the Narrative, the Applicant stated it did not have predisaster maintenance records because they had been stored in the off-site personal business office of the Applicant’s long-time chairman and unbeknownst to the Applicant, these records were discarded after the former chairman passed away. However, the Applicant stated it was able to recount the predisaster maintenance based on the caretaker’s recollection. While the Applicant acknowledged there had not been a designated maintenance budget for a few years before the disaster due to financial difficulties, the Applicant stated that prior to the disaster, the caretaker completed monthly interior walk-throughs, regularly inspected the roof, and regularly walked the perimeter. The Applicant stated that for any issues found, either the caretaker would repair the issues himself (if the work was within his capability), or he would report the issues to the school office so that specialized contractors could be contacted to perform the work. The Applicant noted that it replaced the Facility’s roof around 2005 and stated while there was some occasional leaking, it was in good condition prior to the disaster. The Applicant next stated it spot pointed the exterior masonry as needed over the years. 

Lastly, the Applicant discussed additional claimed damages in the Narrative. The Applicant stated that, in addition to the crawlspace, damages occurred to HVAC ductwork and equipment that were housed on the third floor. Next, the Applicant reiterated that additional areas sustained more damages to the ceilings, walls, and floors beyond those previously noted by FEMA, and attributed these damages to water intrusion from the roof failure as well as water intrusion through the exterior masonry walls. 

On January 24, 2022, FEMA issued a Determination Memorandum, denying the additional requested $3,338,224.23. FEMA noted that the Applicant had not provided documentation demonstrating the claimed damages were the direct result of the Hurricane Matthew, rather than pre-existing deficiencies, deterioration, deferred maintenance, or other causes.

First Appeal 

The Applicant submitted a first appeal, asserting that the claimed damages were the direct result of Hurricane Matthew and requested an additional $3,338,224.23 in PA funding.[9] Among other documentation, the Applicant submitted two letters from Stature dated May 16, 2022. In the first letter, Stature stated that thermoplastic polyolefin (TPO) roof systems, the type of roof the Applicant had on the Facility at the time of the disaster, typically do not last more than 10 years without requiring significant maintenance attention and periodic investment in repairs. Stature noted that it considered a TPO roof a temporary roof system. In the second letter, Stature opined that foundation settlement was due to excessive storm water provided by both Hurricanes Matthew and Florence. 

On May 19, 2022, North Carolina Emergency Management (Recipient) transmitted the Applicant’s appeal expressing its support and requesting FEMA’s review. Regarding Hurricane Matthew, on February 27, 2023, FEMA issued an RFI seeking documentation establishing the Facility’s predisaster condition because some the claimed damages appeared to be the result of predisaster deterioration. In response, the Applicant submitted two annual school inspection reports from the state’s Division of Environmental Health. In the April 2016 report, the state noted that carpet needed to be cleaned, torn carpet replaced, and broken and missing floor tile replaced. The state noted similar damages in a May 2017 report.

On July 17, 2023, FEMA Region 4 Regional Administrator denied the Applicant’s appeal of the additional identified damage and associated costs totaling $3,338,224.23. FEMA found that the Applicant had not established the additional claimed damages were the direct result of the declared incident as opposed to pre-existing deficiencies.

Second Appeal

The Applicant submitted its second appeal requesting an additional $3,338,224.23 in PA funding and reiterating its first appeal arguments. The Recipient transmitted the Applicant’s second appeal on October 12, 2023, expressing its support for the appeal. 

Discussion

FEMA provides Public Assistance (PA) funding to eligible applicants for the repair, restoration, reconstruction, or replacement of facilities damaged or destroyed by disaster.^[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 that damage was caused directly by the declared incident.^[11] FEMA does not provide PA funding for repair of damage caused by deterioration or deferred maintenance.^[12] For buildings and building systems, distinguishing between damage caused by the incident and pre-existing damage may be difficult.^[13] Before making an eligibility determination, FEMA considers the age of the building and building systems and evidence of regular maintenance or pre-existing issues.^[14] 

To be eligible, the mitigation measures must be cost effective and directly reduce the potential of future, similar damage to the facility.[15] Generally, mitigation measures are those the applicant performs on the damaged portion(s) of the facility.[16] If the applicant proposes mitigation measures that are distinct and separate from the damaged portion(s) of the facility, FEMA evaluates the proposal and determines eligibility on a case-by-case basis considering how the mitigation measure protects the damaged portions(s) of the facility and whether the mitigation measure is reasonable based on the extent of damage.[17] It is the applicant’s responsibility to provide documentation to substantiate its claim as eligible and to clearly explain how those records support the appeal.[18]

Result of the Declared Incident

FEMA conducted a site inspection of the Facility for Hurricane Matthew on October 31, 2017. In PW 1868, FEMA noted the presence of pre-existing damages led the Agency to award PA funding only for damages it clearly discerned were the result of the disaster. After FEMA obligated the PW, the Applicant identified additional damages and requested a change in SOW based on FEMA errors/omissions in the original approved SOW. During this time, however, an intervening event in the form of Hurricane Florence occurred, causing significant additional damage to the Facility.

Due to financial issues, there had not been a designated maintenance budget for the Facility in the years leading up to Hurricane Matthew. The Applicant’s caretaker affirmed he performed regular inspections of the Facility and either he or contractors addressed observed issued. However, the Applicant has not produced predisaster maintenance records that support this assertion. Additionally, the record indicates the third and fourth floors of the Facility were damaged for years before the disaster and in dire need of repair. 

The Narrative and the Stature Report include information that reflects certain additional claimed damages are the result of pre-existing damages and/or deterioration rather than the direct result of the disaster. For example, the Stature Report acknowledged the clerestory windows failed during multiple extreme weather events through the years, exterior masonry mortar had numerous holes and cracks that may have grown worse during extreme weather events, existing window sashes and frames were decayed predisaster allowing significant additional water infiltration, and there was decayed timber floor framing due to predisaster water infiltration. Although the Applicant asserts additional interior damages were caused in part by water intrusion from the roof, the Narrative acknowledged there was occasional leaking through a part of the roof prior to the disaster. Stature stated that a TPO roof system, considered to be temporary measure, typically does not last more than ten years without requiring significant maintenance attention and periodic investment in repairs. Based on the Narrative from the caretaker, the Facility’s roof was approximately 11 years old at the time of the disaster, and the Applicant has not provided documentation that it maintained the roof and/or engaged in periodic investment in repairs. Similarly, while the Applicant asserts additional interior damages were also caused in part by water intrusion through exterior masonry walls. Stature suggested in its Report that exterior masonry mortar had numerous holes and cracks pre-dating Hurricane Matthew.

The Applicant points to the Stature Report to support its assertion that Hurricane Matthew caused additional damages beyond those originally approved. However, Stature personnel did not have the opportunity to inspect the Facility before it sustained additional damage from Hurricane Florence. Unlike FEMA which based its initial finding of disaster-related damages on first-hand observations and knowledge, the information in the Stature Report shows that Stature relied heavily on second-hand information. For instance, Stature: (1) noted that floor decay in the rotunda “appeared” to be caused by Hurricane Matthew; (2) stated that standing water in the crawlspace, which damaged the HVAC ductwork there, was “reported” as beginning at the same time as Hurricane Matthew; (3) noted flooring damage on the first floor, which Stature stated “appeared” to be caused by elevated levels of water and humidity in the crawlspace; (4) stated it “appeared” that the groundwater table rose above the foundation elevation during Hurricane Matthew and began to damage the foundation wall; (5) noted that water intrusion during Hurricane Matthew “may” have contributed to the structural timber beams weakening; and (6) noted possible column settlement “may” have been caused by Hurricane Matthew.[19] In addition, the Stature Report is inconsistent. Stature noted that Hurricane Matthew may have contributed to the structural timber beams[WT1] [JM2]  weakening and increased timber beam creep, but in the very next sentence stated that it appeared the damage was caused when the roof failed during Hurricane Florence. 

Additionally, FEMA has approved PA funding under PW 2677 for Hurricane Florence that included certain damages and work, including proposed HM, claimed in this appeal for Hurricane Matthew. The approved funding included costs to: relocate dome vents; repair the interior rotunda; repair the ceilings, walls, and/or floors to approximately 40 interior areas; repoint exterior walls; and protect window frames and install impact resistant glass. Additionally, the amended version of PW 2677 notes that the Applicant received a third-party grant to install a copper roof on the dome. FEMA, therefore, removed the costs from the PW[WT3] [JM4]  that it had previously approved to restore the asphalt roof re-damaged as a result of Hurricane Florence. Based on this information, the Applicant’s request for costs to install a standing seam copper metal roof as a result of Hurricane Matthew is now moot[WT5] [JM6] .

Based on the record of pre-existing damages, deterioration, deferred maintenance, and/or post-disaster damages, the Applicant has not demonstrated the additional claimed damages were caused directly by the declared incident.

Hazard Mitigation 

FEMA has evaluated the request for $1,287,659.00 in costs associated with proposed HM measures.[WT7] [JM8]  As noted above, FEMA has approved some the requested HM costs in PW 2677 for Hurricane Florence. For any remaining costs, FEMA determined that the Applicant either has not provided documentation demonstrating that the measures at issue: (1) will protect the damaged portions(s) of the Facility; and (2) are reasonable based on the extent of damage[WT9] [JM10] . For example, the Applicant has not established the crawlspace, its HVAC ductwork contained therein, or first floor floors were damaged as a result of the disaster. Therefore, installing a crawlspace vapor barrier to reduce potential future damage to the crawlspace (through direct water intrusion) or first floor flooring (via rising water vapor) does not protect a damaged portion of the Facility. 

Conclusion

The Applicant did not demonstrate that the additional claimed damages were caused directly by the declared incident; nor did the Applicant show that the claimed HM measures will protect the Facility’s damaged portions and are reasonable based on the extent of the damage. Therefore, the appeal is denied.