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Second Appeal Analysis
PA ID# 245-99245-00; Jefferson County
PW ID# Multiple (53) Project Worksheets (PW); Road Repair
The tidal surge from Hurricane Ike in September 2008 resulted in overtopping of Jefferson County roads. In mid-November, Jefferson County (Applicant) drafted PWs for sections of 53 roads in three precincts around the county. The proposed scope of repairs included the dimensions of damaged roads and the costs were estimated using a “cost estimator worksheet” developed by Jefferson County Precinct 2. The roads are double chip and seal with a limestone base. Twenty-six of the 53 road sites also include estimates for the removal of sediment and debris from roadside ditches, described as ditch cleaning and shaping. In early February 2009, FEMA, State, and local inspection teams surveyed the sites and prepared 53 PWs for the specific road areas. FEMA declared the PWs ineligible based on the determination that the disaster did not cause the damages. FEMA stated that the proposed road repairs may be needed due to “age” and “heavy vehicular traffic.” FEMA also determined that the ditch cleaning and shaping should be done in the Applicant’s normal maintenance cycle and was therefore ineligible. In late February and early March, inspection teams made up of FEMA, State, Texas Department of Transportation (TXDOT), and local representatives reviewed photographs of the roads supplied by the Applicant and re-surveyed 44 of the road sites among the three precincts. In a memorandum dated March 4, 2009, the lead FEMA inspector documented the inspections for the record and again concluded that the road surfaces did not have eligible damages from Hurricane Ike. In the same memorandum, the inspector stated that PWs “could be written for minor ditch re-profile due to silting and vegetative debris in Precincts 2 and 3.”
The Applicant submitted a first appeal on July 10, 2009, requesting $2.4 million for the repair of 53 roads and $645,647 for ditch cleaning and shaping on 26 of the 53 roads. In the first appeal, the Applicant presented several arguments in support of its claim that the damages incurred were disaster-related and that the repairs should be eligible for FEMA assistance. Specifically, the Applicant cited information from an October 2006 report written for the Louisiana Department of Transportation (LADOT) following Hurricane Katrina, which presented scientific data and results on submerged roadways. Additionally, the Applicant provided its own commissioned report performed by Southwest Laboratories (SWL) dated April 27, 2009, in support of general effects of floodwaters on the roadway system. A single PW (PW 5719 - Cypress Road) was presented as a case study, stating that it is representative of all 53 PWs. The Applicant included a spreadsheet listing all PWs, Precinct numbers, locations, road repair estimates, ditch cleaning and shaping estimates. The Applicant also contended that similar damages to Cypress Road were incurred during Hurricane Rita (FEMA-1606-DR-TX) and that FEMA previously funded such repairs. The Applicant presented LaBelle Road, PW 8030 as a second case study. FEMA approved funding for LaBelle Road and the Applicant questioned the difference between LaBelle Road and the other 52 roads that were denied. With regard to the request for ditch cleaning and shaping, the Applicant cited FEMA policy and guidance, as well as a previous second appeal determination in support of their claim.
FEMA denied the first appeal in a letter dated December 21, 2009, with the determination that FEMA’s original decision was in accordance with the guidelines of the Public Assistance program and that the appeal did not provide additional justification to support the Applicant’s claim. It is noted that the State of Texas Department of Public Safety (TXDPS) did not notify the Applicant of FEMA’s denial until April 13, 2010, stating that the formal FEMA denial letter was never received by their office.
On June 10, 2010, the Applicant submitted a second appeal through TXDPS, which reiterates the arguments submitted in the first appeal. The Applicant contends that the primary points raised in the first appeal were not addressed by the Region in the first appeal response. The State forwarded the second appeal to FEMA by letter dated August 12, 2010, in support of the Applicant’s request. The Region forwarded the second appeal to the Assistant Administrator by letter dated October 4, 2010, along with attachments.
The first part of the Applicant’s appeal is for road repairs for an estimated $2,423,877. The Applicant presents several points in support of its claim that the road damages are a direct result of Hurricane Ike and not “old age” and “heavy traffic” as determined by FEMA. The arguments presented by the Applicant are discussed in detail below including: 1) the SWL report on flooded and non-flooded county roads; 2) a comparison of similar Hurricane Rita damages to eight of the same roads claimed in Hurricane Ike; and 3) PW 8030 for LaBelle Road, which FEMA determined was eligible for funding.
SWL Report – At the request of the Applicant, SWL conducted a study to verify whether roads flooded by an event such as Hurricane Ike were damaged by excessive moisture damage as compared to roads that were not flooded. SWL conducted asphalt testing of four roads in Jefferson County: Hildebrandt, LaBelle, Boondocks, and Wilber. Each road was divided into areas of “flooded and not flooded” to develop comparison samples. According to the report, “Out of each area, five cores were taken for tests to determine average and variable properties within the area and used to summarize the difference between the areas.” It should be noted that one of the four tested roads (LaBelle) could not be compared according to the test results, reducing the test sample to three roads. Based on visual observation of the cores and a summary of the test data, the report concluded that “sufficient evidence has been presented…to substantiate the flooding has reduce(d) the asphalt road service life.”
In accordance with Title 44 Code of Federal Regulations (44 CFR) §206.226, Restoration of damaged facilities, FEMA will fund work to restore eligible facilities to their pre-disaster design. Further, 44 CFR §206.223(a)(1) General work eligibility, General specifies that an item of work must be required as a result of the emergency or major disaster event. Consistent with this definition, loss of service life, normal deterioration, hidden damage or aging of a facility is not disaster-related damage. Several different inspection teams (which included FEMA, State, TXDOT, and local representatives) conducted multiple inspections of the subject roads and came to the conclusion that the roads had no visible damage that could be attributed directly to the declared disaster. The lead inspector observed “evidence of base and asphalt stress related indicators” which were attributed to “service life,” not flooding or disaster-related debris removal operations. This conclusion was also supported by a member of the inspection team from TXDOT, who stated that he saw “no compelling evidence that any of the roadways were damaged as a direct result of Hurricane Ike” (electronic mail dated March 19, 2009). The Applicant’s own commissioned report from SWL concluded that the road “service life” may have been reduced by flooding. As noted above, FEMA does not provide funding for reduction of service life.
In its first appeal submittal, the Applicant also refers to a FEMA second appeal determination (FEMA-1628-DR-CA, City of Napa, PW 3646) in which FEMA approved funding for “accelerated damage” to the city streets caused by the disaster. The Applicant proposed to exchange the use of the City of Napa’s Pavement Condition Index (PCI) for the benchmarks provided by SWL as justification for its claim. Upon review, it is noted that there are major differences between these two situations. First, the City of Napa had an historical pavement management program with immediate pre- and post-disaster data to support incremental damage to the roadways. The Applicant has not provided any evidence that it had an established pavement management program in place. In addition, there was visible evidence of damage to the City of Napa’s roadway surfaces due to inundation and debris removal operations. As noted above, multiple inspections of the Applicant’s roads revealed no disaster-related damage.
Hurricane Rita PWs – The Applicant contends that FEMA’s determination that the claimed road repairs are needed due to “age” and “heavy vehicle traffic” is flawed because eight of the denied roads had recently been “re-surfaced” with FEMA Public Assistance funding in response to damages from Hurricane Rita in 2005, and as such, could not be considered “aged.” Upon review of the cited PWs from Hurricane Rita, it is found that: 1) FEMA approved one road section (Wilford Road) for minor ditch cleaning and shaping, not for road damage; 2) FEMA also approved three road sites (Azalea, Boondocks, and Camellia Roads) for minor patching, rather than full restoration; and 3) the remaining four road sites (Todd, Wilber, Bayou Trace and Cypress Lane Roads) were approved for restoration after Hurricane Rita by restoring the damaged limestone base and applying asphalt oil and cover stone. FEMA also approved hazard mitigation measures for three of the four sites in the form of a cement additive to the limestone base material and, for one site, installing reinforced concrete pipes. These measures, proposed by the Applicant, were intended to prevent future flood damage to the roads. While these four roads were fully restored after Hurricane Rita, all four roads were inspected multiple times by FEMA after Hurricane Ike and the conclusion was that the roads exhibited no direct disaster-related damage due to Hurricane Ike. Also, there is no evidence that the same sections of road claimed in Hurricane Ike were those that were repaired as a result of Hurricane Rita. In conclusion, the Applicant’s argument that all eight roads were newly restored is not supported by the documentation.
LaBelle Road – The Applicant contends that out of 53 similarly damaged road sites, FEMA approved only one road (LaBelle Road) for repairs. Furthermore, the Applicant states that the reason for FEMA approval of this one road is unclear when compared to the 52 others. FEMA approved PW 8030 for LaBelle Road in the amount of $23,061 to scarify and re-compact 4,267 square yards of existing limestone base material and re-surface 4,267 square yards of double chip and seal road. LaBelle Road exhibited visible damages due to flooding and an inordinate amount of debris truck traffic subsequent to the disaster. The PW states that the damaged 1,600 foot section of the road “exhibits visible rutting at the pavement edges that extends into the base material.” In addition, the PW notes that the road is a “short-cut for debris haulers and residents of adjacent counties to the BFI landfill.” There is no evidence that any of the other 52 roads were designated haul routes, faced similar heavy traffic situations, or more significantly, exhibited the type of visible damages demonstrated on LaBelle Road. In addition, the previously mentioned electronic mail from TXDOT, supports the case that other roadways were not damaged as a direct result of the disaster, but that “a reasonable case can be made that debris trucks accessing the landfill on LaBelle Road could likely have done damage to the roadway.”
For the reasons detailed above regarding SWL’s report, Hurricane Rita road repairs, and the approval of LaBelle Road repairs, the repairs for the other 52 roads claimed by the Applicant are not eligible for funding.
Ditch Cleaning and Shaping
The second part of the Applicant’s appeal pertains to ditch cleaning and shaping in an estimated amount of $645,647. Twenty-six of the 52 ineligible road PWs included estimated costs for cleaning sediment and debris from roadside ditches. The estimates provided by the Applicant appear to include total pulling and re-shaping of estimated linear foot segments of ditches. There are no quantitative estimates of disaster-related debris in the ditches included in the PWs. FEMA determined that because “the ditches will not require cleaning before the normal maintenance cycle” the work is not eligible for funding. The Applicant contends that FEMA’s determination is inconsistent with both policy and practice, citing the Public Assistance Guide, FEMA 322, June 2007 (PA Guide) and a previous second appeal determination where FEMA approved the removal of debris from ditches.
The basis for eligibility of ditch cleaning and shaping is found in 44 CFR §206.223, General work eligibility, which states that an item of work must be required as a result of the disaster. Furthermore, in accordance with 44 CFR §206.226, Restoration of damaged facilities, FEMA will fund work to restore eligible facilities to their pre-disaster design. FEMA also provides guidance specifically related to “maintenance” in the PA Guide, which states “normal maintenance items that existed prior to the disaster, such as . . . routine pulling of ditches . . . and deferred maintenance are not eligible because they do not meet the criteria of being disaster-related.” FEMA guidance further states, “For facilities that require routine maintenance to maintain their designed function . . . it may be possible to review pre-disaster maintenance or inspection reports to verify the pre-disaster condition and to assess eligible disaster damage. . . It is the Applicant’s responsibility to show that the damage is disaster-related.”
In a March 4, 2009 memorandum, the FEMA inspector who conducted follow-up road inspections also made observations on the ditches, stating that Precinct 2 ditches exhibited “less than desirable maintenance and only a small percentage of the silting and minor debris removal damage could be attributed to Hurricane Ike.” For Precinct 3, “there was some evidence of minor silting and vegetative debris. Again, this silting was in intermittent areas. Ditches were in need of maintenance.” These observations further indicate that the proposed repairs cannot solely be attributed to the disaster. In addition, the extensive amount of cleaning and shaping (upwards of 40,000 linear feet) the applicant is claiming, is not supported by the visual observations and photographic reviews conducted by FEMA.
With regard to demonstrating pre-disaster condition, the Applicant did submit pre-disaster maintenance records in the second appeal documentation. The relevant documentation consisted of intermittent daily work records for Precinct 3 from June to July 2007 and October 2007 to August 2008. The typical daily work record documents the date, employee labor hours, equipment hours, nature of work (“ditching”), location, and total cost of work performed. The records do not, however, reveal the amount of sediment or debris removed from the ditches, nor do they provide the length of road that was cleaned. Furthermore, the Applicant has not provided any type of summary of its pre-disaster maintenance program that would indicate an established designed profile for the ditches and either the amount of debris removed from the most recent maintenance cycle prior to the disaster or the amount typically removed from the roadside ditches on a periodic basis. Absent this type of information, FEMA is unable to verify the pre-disaster condition of the ditches and, therefore, cannot determine with any certainty the incremental amount of debris in the ditches as a result of the disaster.
The Applicant also refers to a second appeal determination (FEMA-1154-DR-ID, Disaster Survey Report 28831) where FEMA approved cleaning of debris from ditches (in this case, gravel) previously determined to be routine maintenance and not eligible for funding. FEMA approved the appeal because it was established that the gravel in the ditch was “attributed to the disaster” because of documented roadway washouts and repairs. This is the approach that has been applied to the Applicant’s appeal, namely determining whether the debris in the ditches is attributable to Hurricane Ike. The Applicant has not verified pre-disaster condition and FEMA is therefore unable to determine that the ditch cleaning and shaping is required as a result of the disaster.
Per 44 CFR §206.223(a)(1) General work eligibility, General, an item of work must be required as a result of the disaster. Furthermore, in accordance with 44 CFR §206.226, Restoration of damaged facilities and associated guidance, FEMA will fund work to restore eligible facilities on the basis of the design and condition of such facilities as they existed immediately prior to the disaster. The road repairs proposed by the Applicant are related to reduced service life rather than to the disaster and are therefore not eligible for funding. Relative to the ditch cleaning and shaping proposed by the Applicant, the documentation provided does not support that the damage is directly related to the disaster and therefore the repairs are ineligible for funding.