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Second Appeal Analysis
PA ID# 081-65070; City of San Carlos
DSR ID# N/A; San Carlos City Hall
As a result of the Loma Prieta earthquake (DR-845), the City of San Carlos (subgrantee) contends that several roof trusses in the San Carlos City Hall (facility) were damaged. The subgrantee did not identify the facility as disaster-damaged when the joint Federal/State inspection team visited the City of San Carlos on November 8, 1989. In January 1997, FEMA received from the grantee, the Governor's Office of Emergency Services (OES), the subgrantee's Final Inspection Report (FIR) which identified only one Disaster Survey Report (DSR) in the amount of $3,553 for the repair of curbs, gutters, and sidewalks in areas unrelated to the location of City Hall. By letter dated January 29, 1997, FEMA advised OES that it considered the subgrantee's application for this disaster closed. Subsequently, by letter dated February 25, 1997, OES forwarded the subgrantee's request for a FEMA/OES joint inspection of the facility. This request was prompted by the subgrantee's discovery of damaged roof truss members in November 1996 when it began renovating the facility. FEMA denied the subgrantee's request because of its "extreme lateness" and noted that it had closed the subgrantee's application for this disaster on January 29, 1997.
The subgrantee appealed FEMA's denial of its request for a site inspection in a letter dated March 2, 1998. In its appeal, the subgrantee stated that it did not discover the damage until November 1996 because it was "hidden above the ceiling, which did not appear to be damaged." In support of its appeal, the subgrantee submitted photographs of the damages with its first appeal, together with a letter from the construction manager noting that the seismic event did not cause any "tale-tale signs of structural damage" and the damage "could be considered latent" and "very difficult to discover."
In its response, FEMA noted that it is the subgrantee's responsibility to identify and report damages during the initial site inspection or within 60 days thereafter. FEMA found that the subgrantee's failure to discover the damage until it began renovating the facility approximately 7 years after the disaster event does not constitute an extenuating circumstance beyond the subgrantee's control. FEMA concluded, therefore, that an extension of the regulatory time for reporting additional damage was not warranted. The appeal was, therefore, denied pursuant to Title 44 of the Code of Federal Regulations (44 CFR), section 206.202(d).
By letter dated December 18, 1998, OES transmitted to FEMA the subgrantee's second appeal dated October 20, 1998. FEMA notes that OES does not support the subgrantee's appeal. In its appeal, the subgrantee states that it notified OES of the damages upon discovery thereof and before FEMA had closed its application for DR-845. The subgrantee further contends that the absence of "indicators of damage" during its post-disaster inspection of City Hall, the concealed nature of damages and the relative inaccessibility of the area within which the damage occurred constitute extenuating circumstances beyond its control that sufficiently justify extending by seven years the regulatory deadline for reporting additional disaster damages.
Additionally, the subgrantee notes in its appeal that it spent $838,796 to complete necessary repairs, of which $282,429 was covered by insurance. The subgrantee indicates that the insurance company's payment was based on its conclusion that "the concealed damage likely occurred as a result of the Loma Prieta earthquake." The subgrantee requests FEMA funding to cover its deductible of $350,000.
The first issue of the appeal concerns the applicable time period for reporting disaster damages to FEMA. The subgrantee appears to suggest that because it notified FEMA of the damages before its application for DR-845 was closed, its claim should be considered by FEMA. The applicable reference point is not, however, when a subgrantee's application has been closed, but the date(s) during which the joint inspection team initially visited the City to document disaster damages. As set forth in 44 CFR 206.202(d)(1), the regulatory deadline for submitting additional damages is sixty days following the initial site inspection. The initial site inspection was conducted on November 8, 1989, therefore, additional damages were required to be submitted to FEMA on or before January 8, 1990. The subgrantee did not submit its request for an inspection of the damaged roof trusses until December 1996, almost seven years after the regulatory deadline. As such, unless FEMA concludes that there were "extenuating circumstances beyond the subgrantee's control" that justify an extension of the 60-day time period for reporting additional damages, the roof truss damage is not eligible for Federal assistance.
The second issue concerns the subgrantee's assertion that extenuating circumstances beyond its control prohibited the discovery of damages until seven years after the declared disaster. The subgrantee states that at the time of the initial inspection, "there was no reason to do destructive structural testing" because there were no "indicators of damage." The subgrantee also adds that the area within which the damage occurred was "virtually inaccessible." The subgrantee discovered the damages during unrelated remodeling in 1996.
The eligibility of work is determined through the timely evaluation of disaster-related damage. The evaluation of damage is accomplished through the physical inspection of damaged sites or the review of available documentation regarding the pre- and post-disaster condition of the site. FEMA regulation 44 CFR 206.202(d)(1) establishes that it is the subgrantee's responsibility to ensure that all disaster damage is identified and shown to the inspection team at the time of the initial site visit or is reported within 60 days thereafter. Pursuant to 44 CFR 206.202(f)(2), FEMA may accept for consideration disaster damages when it determines that extenuating circumstances beyond the subgrantee's control prevented the subgrantee from reporting disaster damages reported within the regulatory time frame.
The subgrantee notes that the damages were concealed above a suspended ceiling and were not, therefore, visibly apparent during its inspection of the facility following the earthquake. The subgrantee also notes the relative inaccessibility of the area within which the damages occurred. The subgrantee also suggests in its letter that only by performing "destructive structural testing" could it have identified the damages in a timely manner. We note that destructive structural testing was not necessary to identify the damaged trusses. Instead, it would appear that removing the suspended ceiling tiles would have enabled the subgrantee discover and identify the damages within a reasonable time following the earthquake. In summary, we do not agree that the failure of the subgrantee to identify hidden damages in hard-to-reach areas and in areas of poor lighting constitutes extenuating circumstances that were beyond its control.
Finally, it is noted that the subgrantee has not provided any documentation that conclusively establishes that the work that it subsequently performed was required as a direct result of the disaster and damage caused thereby.
The subgrantee did not report the roof truss damages to FEMA until well after the regulatory deadline and has not established that extenuating circumstances beyond its control prevented it from reporting the damage within a reasonable time period thereafter. Therefore, the second appeal is denied.