Result of Declared Incident

Appeal Brief

Summary Paragraph

From February 27 to March 14, 2021, severe storms caused damage throughout Kentucky. The City of Russell (Applicant) claimed cracking damage to a 30-foot-tall section of a concrete water intake structure (Facility). FEMA created Grants Manager Project 187867, in the amount of $8,530,000.00, for the Applicant’s proposed scope of work that includes the construction of a new Facility, in a different location, with upgrades including doubling the Facility’s pumping capacity. In a Determination Memorandum, FEMA denied funding, finding that the Applicant did not demonstrate the damage was the direct result of the disaster. The Applicant appealed. FEMA denied the appeal, finding the Applicant did not demonstrate the damage was the result of the disaster rather than the result of predisaster damage, deterioration, or deferred maintenance. FEMA noted that on more than one occasion prior to the disaster, the Applicant was notified the Facility was unsound and should be replaced. FEMA also found that the predisaster inspection reports demonstrated that pre-disaster damage, deterioration, and deferred maintenance were significant contributing factors to, if not the sole cause of, the claimed damage. The Applicant submitted a second appeal and reiterated its prior arguments. 

Authorities

• Stafford Act §§ 406(a)(1)(A), (e)(1)
• 44 C.F.R. § 206.223(a)(1).
• PAPPG, at 51, 52, 63–65
• City of Paintsville, FEMA-4595-DR-KY at 3.

Headnotes

• To be eligible for PA funding, work must be required as a result of the disaster, and the applicant must demonstrate that the damage was directly caused by the incident.
  • Although the Applicant claims that the disaster caused cracking, which requires replacing the Facility, predisaster inspection records note the presence of pre-existing cracking and deterioration to the Facility such inspectors were already recommending the replacement of the Facility prior to the disaster.
• If a facility was functioning prior to the disaster and the disaster caused damage that rendered the facility non-functional, the facility may be eligible provided the pre-disaster condition was not a significant contributing factor in the cause of failure.
  • The Facility continued to function after the disaster. It is the potential of future damage that could cause the Facility to become non-operational.

Conclusion

The Applicant has not demonstrated any damage was caused directly by the declared incident or that replacement of the Facility is required as a result of the declared incident. Therefore, the appeal is denied.

Appeal Letter

Appeal Analysis

Background

From February 27 to March 14, 2021, severe storms caused damage throughout Kentucky.[1] The City of Russell (Applicant) claimed the disaster caused cracking to a 30-foot-tall section of a concrete water intake structure (Facility), which is partially under the Ohio River water line. The Facility was built around the 1920s to allow steam engines to obtain water and was later altered to transfer river water from the Ohio River to the Applicant’s water treatment plant. The water intake structure is part of a system that contains filters, pumps, water lines, a 150-foot-long access pier and other components. 

FEMA created Grants Manager Project 187867 to document the Applicant’s proposed scope of work, including the construction of a new Facility at an estimated cost of $8,530,000.00, in a different location, with upgrades including doubling the Facility’s pumping capacity.[2] FEMA issued three Requests for Information (RFI) seeking documentation that included predisaster photographs and maintenance records, three previous underwater diving inspection reports, and documentation regarding whether the Facility was functional after the disaster. FEMA also requested cost estimates for repairing only the disaster-related damage. 

In response to the RFIs, the Applicant first explained that there were no predisaster or post-disaster photographs because the damaged portion of the Facility was located underwater. The Applicant then provided: (1) three predisaster inspections dated January 2019, August 2019, and October 2020, and one post-disaster inspection report dated March 2021, all performed by Marine Diving Services, Inc. (MDS); and (2) predisaster maintenance records. The predisaster documentation showed there was substantial cracking in the Facility prior to the disaster and the Applicant performed ongoing patch work. However, the October 2020 report indicated that the cracking was too large to patch. The three predisaster inspection reports recommended replacement of the Facility due to age, deterioration, and the need to upgrade the Facility.

In a Determination Memorandum issued on September 16, 2022, FEMA denied the requested $8,530,00.00 to replace the Facility, finding that the Applicant did not demonstrate the damage was the direct result of the disaster rather than the result of predisaster damage, deterioration, or deferred maintenance. Specifically, FEMA stated that the inspection and maintenance reports indicated pre-existing damage and deterioration resulting from the Facility’s age and found the reports did not distinguish between pre-existing damage and damage claimed as being disaster-related. FEMA also found that the Applicant did not establish that the predisaster condition of the Facility was not a significant contributing factor in the cause of the Facility’s damages. 

First Appeal 

In a letter dated November 18, 2022, the Applicant appealed FEMA’s denial of GMP 187867.[3] The Applicant contended it was not required to provide documentation to establish the predisaster condition of the Facility because there was evidence in the inspection reports that the disaster caused the damage. The Applicant stated it provided documentation demonstrating it performed maintenance in the four years prior to the event, including removing sediment and patching cracks in the concrete.

The Applicant then cited FEMA policy which states if a facility was functioning prior to the disaster and is rendered non-functional by disaster damage, the facility is eligible provided the predisaster condition was not a significant contributing factor.[4] The Applicant explained that while the Facility was still functioning after the disaster, the failure of the Facility was imminent. In a letter dated December 14, 2022, Kentucky Emergency Management (Recipient) submitted the appeal to FEMA, recommending approval of the appeal.

In a letter dated November 22, 2023, the FEMA Region 4 Regional Administrator denied the appeal, finding the Applicant did not demonstrate the damage was the result of the disaster and not the result of predisaster damage, deterioration, or deferred maintenance.[5] FEMA noted that on more than one occasion prior to the disaster, the Applicant was notified the Facility was unsound and should be replaced. FEMA also found that the predisaster inspection reports demonstrated that pre-disaster damage, deterioration, and deferred maintenance were significant contributing factors to, if not the sole cause of, the claimed damage.

Second Appeal

In a letter dated January 19, 2023, the Applicant appealed FEMA’s denial of $8,530,000.00 for the replacement of the Facility.[6] The Applicant reiterates its previously raised arguments. In a letter dated January 23, 2023, the Recipient forwards the appeal, noting its support.

Discussion

FEMA has the authority to provide assistance for the repair, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster based on its predisaster design and function and in conformity with applicable codes, specifications, and standards.^[7] To be eligible for PA funding, work must be required as a result of the disaster, and the applicant must demonstrate that the damage was directly caused by the incident.^[8] FEMA does not provide funding for repair of damage caused by deterioration or deferred maintenance.^[9] If a facility was functioning prior to the disaster and the disaster caused damage that rendered the facility non-functional, the facility may be eligible provided the pre-disaster condition was not a significant contributing factor in the cause of failure.[10]

The Applicant states the predisaster October 2020 inspection report documented the previous repair of cracking in the concrete and contends that predisaster repairs to the Facility demonstrate the Facility was neither neglected nor in disrepair. However, in the October 2020 report, MDS stated that the previously repaired cracks had reopened since the August 2019 inspection, but it did not attempt to patch any of the cracks during its October 2020 inspection because the cracks were too large for the patching material to be effective.[11] 

Additionally, in each of the three predisaster inspection reports, MDS expressed concern regarding the future stability of the structure, indicated the Facility should be replaced due to its condition and expressed the need to upgrade the Facility. The first predisaster report documented the inspection performed in January 2019, in which MDS noted “[t]he increase of river material will for sure cause problems with the life span of the intake pumps,” “the integrity of the structure could well be a problem in the near future,” and “a high water event could cause issues.”[12] In the August 2019 inspection report, MDS stated “[t]he small cracks in the concrete walls must be increasing in size and numbers.”[13] Also, MDS expressed that “the [Appplicant] should be thinking about a more modern and stable intake [F]acility to supply the water plant,” because of the age of the Facility and because the Facility was not built for the function it is currently serving.[14] Finally, in the October 2020 inspection report, MDS stated that it was “fearful for the future structural integrity of the structure.”[15]

MDS conducted a post-disaster inspection on March 15, 2021, and found the continued presence of debris entering the structure “through widening cracks” and “the cracking inside the Structure/Tower is increasing over time and has advanced up the walls each year that we have serviced it.”[16] MDS explained that once a crack forms, sand and water pressure breaks down the concrete.[17] MDS concluded that repairing the Facility would not be reasonable because of “the level of continued deterioration” and it “would not be a cost effective undertaking considering how old this brick and concrete structure is.”[18] 

These concerns regarding the stability of the Facility are reiterated by the Applicant’s consulting professional engineers in a different post-disaster report dated March 26, 2021, which stated the flooding caused “additional cracking in the [w]all of the [s]tructure to have added additional damage to the already diminished condition.”[19] A second professional engineer, consulted by the Applicant, stated the Facility “is in failing condition due to age, exacerbated by recent flood events” and “with a structure of this age in a moist/saturated environment, it is likely the concrete is severely deteriorated and has lost its initially intended strength.”[20] 

Notably, the Applicant does not specify the amount of cracking that it contends was caused by the disaster and does not provide documentation that distinguishes pre-existing cracking from claimed disaster-related cracking. As such, the Applicant has not demonstrated any damage was caused directly by the declared incident. Similarly, based on the pre- and post-disaster documentation in the record discussed above, the Applicant has not demonstrated that the replacement of the Facility is required as a result of the declared incident rather than the result of pre-existing damage, deterioration, or deferred maintenance of the Facility.

In its second appeal, the Applicant states as a result of the disaster, the Facility “has now been rendered imminently non-functional post-disaster” and states FEMA policy allows funding of facilities found to be non-functional as a result of the disaster.[21] However, even if the disaster had rendered the Facility non-functional after the disaster, there is evidence that the predisaster condition was a significant contributing factor in the cause of the failure because of the pre-existing damage to the Facility.[22] In addition, the administrative record contains documentation indicating that the Facility continued to function after the disaster and it is the potential of future damage that could cause the Facility to become non-operational.[23] The Applicant has not demonstrated the disaster caused damage that rendered the facility non-functional or that the pre-disaster condition was not a significant contributing factor in the cause of the failure.

Lastly, even if the Applicant had demonstrated that replacing the Facility was required as the result of the disaster, the estimate of $8,530,000.00, includes work beyond restoring the Facility to the predisaster design and function, such as upgrades that would double the pumping capacity of the current Facility.[24] 

Conclusion

The Applicant has not demonstrated any damage was caused directly by the declared incident or that replacement of the Facility is required as a result of the declared incident. Therefore, the appeal is denied.