Installation of steel sheet metal cofferdams

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	FEMA-1118-DR
Applicant	Square Butte Electric Cooperative
Appeal Type	Second
PA ID#	000-90122
PW ID#	65834
Date Signed	1998-08-14T04:00:00

Citation: Second Appeal. Square Butte Electric Cooperative, FEMA-1118-DR-ND, PA 000-90122.

Cross Reference: Emergency protective measures, reasonable time, transmission lines, Utilities

Summary: Spring ice movement caused $325,000 damage to three of the applicant's 250kV DC transmission line towers in April 1995 under FEMA-1050-DR-ND. After an aerial survey of the transmission lines in the fall of 1995, the applicant determined that the bases of several towers were submerged and were at risk of being damaged by spring ice movement. The applicant waited until January 31, 1996, when the ice was thick enough to support the equipment, to install steel sheet metal cofferdams and circular rock piles around the bases of ten structures submerged in 3 to 9 feet of ice and water. These protective measures were completed March 2, 1996, at a cost of $162,000. On June 5, 1996, the president declared FEMA-1118-DR-ND with an incident period extending from March 12, 1996 through June 21, 1996. The applicant claimed, in the first and second appeals, that these emergency protective measures are eligible for federal reimbursement under section 424 of the Stafford Act (P.L. 93-288 as amended).

Issue: Are protective measures which are not performed in anticipation of a specific disaster eligible for reimbursement?

Finding: No.

Rationale: Section 424 of the Stafford Act provides for reasonable expenses incurred in anticipation of and immediately preceding a disaster event. The preventative measures taken by the applicant as a result of FEMA-1050-DR-ND represent prudent long-term hazard mitigation, but are not eligible emergency protective measures undertaken in anticipation of FEMA-1118-DR-ND.

Appeal Letter

Appeal Analysis

Background

During the spring thaw of April 1995, the applicant, Square Butte Electric Cooperative (SBEC), sustained $324,193 in damages when ice movement sheared two 250 kV DC transmission line structures and pushed another off its foundation. FEMA provided assistance in the repair of the damaged facility under FEMA-1050-DR-ND. SBEC discovered, while performing a quarterly aerial patrol of the lines in the fall of 1995, that the bases of 44 structures along the Minnkota Power Cooperative's Center-Fargo 345kV line and SBEC's DC line located in Kidder and Stutsman counties of North Dakota were submerged. As ice afforded greater access to the structures, the Cooperatives decided to delay implementing protective measures until January 1996, when the ice, frozen to more than 20 inches, was thick enough to support the equipment needed to perform the work.

In January, a reconnaissance revealed that 10 structure on SBEC's DC transmission line were submerged in depths of ice and water varying from 4 to 9 feet. The recon also revealled that structure # 548 had sustained damage the previous fall when ice movement deformed an aluminum leg and a steel stub angle. A contract was awarded on January 30, 1996, to Baranko Bros. Inc. for providing the labor, equipment and materials necessary to install steel sheet metal cofferdams around the outside of six structures and rock dikes around the other four. Rocks were placed around the outside of sheet pilings that were driven 4 feet into the ground with a minimum of 3 feet protruding above the ice. The rock dikes were circular rock piles that extended a minimum of 3 feet above the ice at a minimum of 5 feet from the structures' footing. The contractor completed the work on March 2, 1996 at a cost of $162,000.

North Dakota weather fluctuated in early 1996 with high temperatures throughout February followed by cold temperatures and heavy snowfall until the end of March. Temperatures rose again quickly in early April, leading to rapidly melting ice and snow causing extensive ice jams and severe flooding. As a result of severe storms, flooding, ice jams, and ground saturation, President Clinton declared FEMA-1118-DR-ND on June 5, 1996. At the applicant's request, FEMA prepared category B Damage Survey Report (DSR) 65834 for $0 on July 18, 1996. The inspector found the DSR ineligible because the applicant took the protective measures to protect the transmission structures from ice movement well before the incident period.

First Appeal
SBEC's first appeal letter, dated September 25, 1996, stated that they took the protective measures to prevent a repeat of the damages that occurred as a result of FEMA-1050-DR-ND. The applicant also claimed that 1118-DR-ND was not a sudden, unexpected event; rather, the disaster was predictable because the repeated flooding in North Dakota has been building over several years. The State forwarded the appeal to FEMA on October 9, 1996, with a letter recommending approval. In support of the applicant's claim, the State quoted section 424 of the Stafford Act (P.L.93-288 as amended): "Date of Eligibility; Expenses incurred before the date of disaster. Eligibility for Federal assistance under this title shall begin on the date of the occurrence of the event which results in a declaration by the President that a major disaster exists; except that reasonable expenses which are incurred in anticipation of and immediately preceding such event may be eligible for Federal assistance under this Act." The State believes that relative to the previous year's repair costs exceeding $324,000, $162,000 in protective measures is a reasonable expense.

In a December 9, 1997, letter denying the appeal, the Regional Director confirmed that the DSR was not eligible under FEMA's public assistance program because the facilities were not damaged and the protective measures were not taken in anticipation of a specific declared disaster. Furthermore, he determined that because the disaster was declared on account of unexpected, inconsistent weather conditions throughout the spring of 1996, no specific immediate threat to the facilities existed when planning for the work began in the fall of 1995. Therefore, he concluded the protective work that was performed prior to a declared disaster, but not in response to a specific threat, constituted prudent actions taken to protect public health and safety and improved property.

Second Appeal
The State supported and forwarded the applicant's second appeal letter, submitted on February 25, 1998, to FEMA on March 9, 1998. In the second appeal letter, SBEC disagrees with the Regional Director's determination on the grounds that:

1. an immediate threat did exist
2. the preventative measures were taken as a result of a declared disaster
3. and these actions need not have been taken during the incident period to qualify for federal disaster assistance.

By virtue of the fact that water had inundated the structures in the fall of 1995, resulting in 2.5 to 9 feet of water and ice in January 1996, the applicant believes an imminent threat to the facility existed. The applicant states that they constructed protective berms around the towers in response to this perceived threat and in an attempt to prevent a recurrence of the damages incurred during 1050-DR-ND. The contractor constructed the berms throughout February 1996 and completed work on March 2; ten days before the commencement date of the incident period of 1118-DR-ND. To substantiate the third point, the applicant quotes Section A - Basic Criteria, under the heading Eligibility from FEMA's Public Assistance Guide, which states ".protective measures and other preparation activities performed within a reasonable time in advance of the event [will be considered for eligibility]." The applicant claims that the construction of the berms was a cost effective measure, required as a result of the declared disaster, which eliminated or lessened an immediate threat to public health and safety and significant additional damage to improved property. The State forwarded the appeal with a letter recommending FEMA approve $162,000 in eligible emergency protective measures.

Discussion

The Stafford Act and 44 CFR 206.225 authorize FEMA to reimburse applicants for emergency protective measures taken immediately before, during, and after a disaster. To be considered eligible, the measures must: i) Eliminate or lessen immediate threats to life, property, and public health and safety; or ii) Eliminate or lessen immediate threats of significant damage to improved public or private property through measures which are cost effective; as well as be required as the result of the declared disaster. The applicant has demonstrated that the protective measures eliminated a threat of damage to improved private property through measures that were cost effective; however, the measures were not taken in anticipation of the pertinent disaster. The vacillating weather conditions that gave rise to FEMA-1118-DR-ND were an unforeseeable event marked by unusual temperature fluctuations.

The applicant stated in both the first and second appeals, that the protective measures were taken to prevent a repeat of the damages incurred during FEMA-1050-DR-ND. Therefore, the protective measures can not be addressed under 1118-DR-ND; rather, they represent prudent hazard mitigation.

Conclusion

The construction of the protective berms around the transmission line bearing towers is not eligible for FEMA assistance, as the measures were not taken in response to the disaster. This work, initiated six months prior to the incident period, was performed to prevent a recurrence of damages sustained during the previous spring thaw rather than in anticipat T34 is denied.