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Second Appeal Analysis
PA ID# 073-99073-00; Ransom County
PW ID# 398; Culvert Replacement
Heavy rains in June 2007 caused flooding throughout Ransom County. A Preliminary Damage Assessment (PDA) team visited a site in Springer Township where the Applicant indicated that floodwater had overtopped a gravel roadway at Section 20/21 of Township 135 North, Range 57 West. The team observed erosion to the road’s surface and to the steep shoulders and embankment above the underlying corrugated metal pipe (CMP) culvert. In addition to the erosion, the team noted that the culvert appeared to have internal damage. The team recorded that the “Scope of work includes removal and replacement of guard rails, salvage & relay of CMP, repair CMP, reshape portion of roadway, rip rap both ends of culvert and regravel road. [The Applicant] should extend culvert 6 feet both ends.”
From August 22 through September 1, 2007, the Applicant’s contractor repaired the damaged roadway, removed trees and fences, flattened the side slopes, installed a new culvert and disposed of the old culvert. The Applicant’s contractor invoiced the Applicant for $6,064 to replace the culvert and $18,889 for labor and other materials associated with repairing the road, replacing the culvert, and grading the sides of the road. A Project Officer with the North Dakota Department of Emergency Services (Grantee) visited the site on September 5, 2007, to inspect the damage, and found that the rusted 40-foot long CMP had been replaced with an 80-foot long CMP to facilitate flattening of the slopes on both sides of the road. The Project Officer stated that there was no eligible damage from the declared disaster at the site, as required by Title 44 of the Code of Federal Regulations (44 CFR) § 206.223 (a)(1) General Work Eligibility. The Grantee prepared PW 398 on October 17, 2007, for $0.
Upon receiving a December 6, 2007, letter from the Applicant requesting reconsideration of the determination, the State revised the cost estimate to $72.50 to include the costs of gravel and fill to repair the erosion to the road’s surface, shoulders, and embankment. The PW found the invoiced contractor costs ineligible for reimbursement because the Project Officer determined that the culvert did not require replacement as the result of damage from the declared disaster. As the eligible costs were below the $1,000 PW minimum project amount established by 44 CFR §206.202 (d)(2), Application procedures, Project Worksheets, FEMA obligated PW 398 for $0 on February 28, 2008.
The Applicant submitted an appeal on May 6, 2008, requesting reimbursement of $35,969.65 for PWs 398 and 399. Along with PW 398, the Grantee had prepared PW 399 for $435.00 for replacement of another culvert and repair of the gravel road ½ mile to the north on T135N, R57W. In the appeal, the Applicant asserted that the damage to the culverts was caused by the disaster and that the PDA team had documented the eligible damage. In support of its claim, the Applicant submitted photographs of the culverts and the eroded roadway. The Grantee forwarded the appeal to FEMA on June 12, 2008, but did not support the Applicant’s request. The Grantee considered replacement of the culverts unapproved improved projects because the work exceeded what was required to return the sites to pre-disaster condition. Improved projects require prior approval to allow for special considerations reviews to ensure that any work which exceeds restoration to pre-disaster condition is conducted in compliance with all permitting requirements and applicable environmental statutes.
The Regional Administrator (RA) denied the Applicant’s appeal with a letter dated November 17, 2008. In the response, the RA stated that the purpose of a PDA is not to establish final determinations on work and cost eligibility for specific projects, rather, it is a mechanism for quickly assessing the damage and measuring the impact of an event to determine whether federal assistance is warranted. The RA noted that the incident period for FEMA-1713-DR-ND was restricted to June 2 to June 8, 2007, and that damages incurred as a result of the heavy rain storms that affected Ransom County one month earlier were not eligible for reimbursement. With respect to the culvert at the site documented on PW 398, the RA noted that the Project Officer’s review of the site described the culvert as “rusted-out” and recorded that the Applicant decided to replace the culvert with one that was significantly longer because the slopes of the embankment supporting the road were too steep. The RA concluded that there was no evidence to support that the culvert required replacement as a result of the declared disaster. Furthermore, the RA cited insufficient documentation as the reason for also questioned the eligibility of the $72.50 in approved costs for repair of erosion to the road.
The Applicant submitted a second appeal of PW 398 on January 29, 2009, and indicated that it intends to file a second appeal of PW 399. However, to date, no such appeal has been received by FEMA for PW 399. The Grantee supported the Applicant’s second appeal of PW 398, but did not transmit the appeal to FEMA until October 12, 2010. In the appeal, the Applicant disputes the RA’s description of the PDA, and cites several of FEMA’s Public Assistance publications before stating that its understanding of the “PDA team’s mission is to assess, verify, and document the scope of disaster damage and estimate the repair costs.” Furthermore, the Applicant contends that the work documented by the PDA should be eligible for reimbursement not only because it was reviewed by both FEMA and the Grantee, but because it was used as justification to the President by the Governor as evidence of the need for federal assistance.
Additionally, the Applicant claims that FEMA mischaracterized the Project Officer’s observations as finding “no eligible damage” at the site by quoting only a portion of the Project Officer’s inspection Continuation Form. The Applicant emphasized that the Project Officer described the culvert as “[e]roded, washed out and damaged beyond repair” on the Small Site Inspection Worksheet and recorded on the Continuation Form that the “CMP located in the Coulee had rusted-out and eroded along the pipe. The near vertical inslope around the pipe ends caused erosion of the road shoulders and presented a serious safety factor.” It was the nearly vertical walls of the embankment that posed a safety threat and necessitated increasing the length of the replacement culvert. The Applicant contends that decreasing the slope of the embankment by doubling the length of the CMP, adding fill, and grading the surface was not only a prudent measure to mitigate the safety hazard to passing motorists, but was also 25% less expensive than replacement of the culvert with one of the same size.
While the Applicant concedes that the culvert was rusted, it insists that the culvert required replacement as a direct result of damage from the declared event and not due to age and corrosion. The Applicant states that as floodwater inundated the roadway and eroded the embankment around the culvert, the soils of the embankment and road shoulders became saturated. The Applicant claims that the increased water pressure under the road caused the culvert to collapse, thereby restricting the flow of water and further exacerbating erosion to the road surface, shoulders and embankment.
While both the PDA and the project worksheet processes involve assessing sites, documenting damage, and estimating costs, they differ significantly in scope and purpose. Pursuant to
44 CFR §206.33, Preliminary Damage Assessment, the PDA “is a mechanism used to determine the impact and magnitude of damage and the resulting unmet needs of individuals, businesses, the public sector and the community as a whole. Information collected is used by the State as a basis for the Governor’s request, and by FEMA to document the recommendation made to the President in response to the Governor’s request.” Conversely, project worksheet documents the specific location, extent of damage, scope of work, and cost estimate for a funding request under FEMA’s Public Assistance Program. It is this detailed project-specific documentation that enables FEMA to conduct reviews of such issues as eligibility, cost reasonableness, insurance, environmental considerations and hazard mitigation. Pursuant to 44 CFR §206.201(m), Definitions used in this subpart, Project approval, states that project approval is based on approval of the work and costs on a project worksheet.
In the second appeal, the Applicant argues that the PDA documented the scope of work and established the eligibility of replacing the culvert. While the PDA team did note damage to the Applicant’s facilities, the subsequent FEMA and State reviews of the PDA information do not constitute approval of eligibility for funding of any specific project under the Public Assistance Program. It is the review of the project worksheet and accompanying documentation that establishes a determination regarding the scope of work and associated costs that are eligible for reimbursement.
In this case, the PDA, the Project Officer’s site visit, and the documentation submitted with the Applicant’s appeals do not provide evidence that disaster damage to the culvert warranted replacement. The narratives from the site visits, as well as the Applicant’s appeal, note that the CMP was rusted. While this is not a quality that disqualifies a facility for repair, it is also not a direct result of the declared disaster. The Applicant also indicates that the decision to replace the 40-foot CMP with an 80-foot CMP was based on the inadequacy of the original design of the culvert and the steepness of the road’s embankments, which had eroded over time. Applicants may implement measures that go beyond the scope of work to repair a facility to pre-disaster design; however,
44 CFR §206.203 (d)(1) requires that the Grantee approve the improved project prior to construction. Although, the Applicant maintains that the road needed to be repaired as an emergency measure and construction could not be delayed until the Grantee could inspect the site and approve the work, the Applicant has not submitted documentation demonstrating that replacement of the culvert was a result of damage from the declared disaster.
Based on a comprehensive review and analysis of the data submitted with the appeal, FEMA has determined that the Applicant has not submitted documentation justifying the replacement of the culvert as a result of the declared disaster. Therefore, the second appeal is denied.