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Second Appeal Analysis
PA ID# 075-99075-00; Plaquemines Parish
PW ID# 2424; Belle Chasse Ferry Road Approaches Repairs
In August 2005, Hurricane Katrina damaged the east bank and west bank road approaches to the Belle Chasse Ferry. On November 10, 2005, FEMA staff conducted a site inspection to gather information and documentation for preparation of a Project Worksheet (PW). The disaster damage was identified as follows:
• Eastbank Belle Chasse Ferry Road approach - Repair three potholes in the asphalt pavement with 5.67 cubic yards of asphalt.
• Westbank Belle Chasse Ferry Road approach – Repair damaged pavement by replacement of 3.11 cubic yards of asphalt.
The PW also included costs to repair similar damage to the Westbank Point à la Hache Ferry Road approach; however, that site is not included in the Applicant’s appeal. In support of the claimed costs, the Applicant submitted invoices totalling $16,378 for expenses incurred in completing the eligible work. On January 13, 2006, FEMA prepared PW 2424 for $16,378 to reimburse the Category C (Roads and Bridges) permanent work and awarded the PW on February 16, 2006. FEMA subsequently awarded Version 1 on June 16, 2007, to increase the Federal cost share from 90 percent to 100 percent.
In January 2010, the Applicant requested FEMA reimburse additional repairs to the Belle Chasse Ferry road approaches. The documentation indicated that the additional work had been completed in March 2009, and the Applicant submitted invoices in the amount of $42,594 for repair work, plus an additional $14,084 in associated engineering and design work. According to the documentation provided, the additional work consisted of:
• Excavation of 30 cubic yards of fill
• Clean and reseal 180 linear feet of asphalt cracks
• Replacement of 305 cubic yards of concrete drive
• Replacement of 342 cubic yards of clay fill embankment material
• Replacement of 18.26 tons of asphalt concrete wearing course
On February 23, 2010, FEMA prepared Version 2 of PW 2424 to document the additional work claimed by the Applicant. Upon review, FEMA determined that the additional costs were ineligible and denied the Applicant’s request for additional funding. FEMA stated that the original Version 0 of PW 2424 noted that the repair work at the sites was completed and that no additional work was required. Further, based on a review of the documentation submitted, FEMA found that there was no evidence the work completed was to repair damage resulting from Hurricane Katrina. As the Applicant completed the additional work prior to a FEMA site visit, the inspection team did not have an opportunity to inspect the claimed damage. FEMA requested pre-event photographs or other documentation that would demonstrate that work in excess of the approved eligible scope of work on Version 0 of PW 2424 was required as a direct result of Hurricane Katrina. FEMA obligated the Version 2 of PW 2424 for $0 in additional funding on September 13, 2010.
The Applicant submitted a first appeal on March 9, 2011, along with additional documentation, which included contractor invoices, photographs, and pre-disaster bridge inspection reports. The Applicant claimed that the scope of work on the original PW represented only temporary repairs to restore access to the facility and that the additional repairs were necessary to restore the facility to pre-disaster condition. In a letter dated July 27, 2011, the FEMA Region VI Regional Administrator denied the first appeal because the additional work was done over three years after the original scope of work was completed. The letter also noted that during the intervening years, the Applicant did not request a re-inspection of the site by either the Louisiana Governor’s Office of Homeland Security and Emergency Preparedness (GOHSEP) or FEMA. As the additional documentation submitted by the Applicant did not demonstrate that the work was required as a direct result of damage from the declared event, FEMA considered the additional work to be improvements that exceeded the approved eligible scope of work.
In a second appeal letter dated September 27, 2011, the Applicant maintains that the additional repairs were necessary to restore the facility to its pre-disaster condition and did not improve the facility. The Applicant reiterates the claim that the original inspection only documented temporary emergency repairs consisting of replacing asphalt on the roadway, and that the additional work was for permanent repair of asphalt cracks, and to restore the concrete and clay embankment. GOHSEP transmitted the second appeal to FEMA on November 23, 2011, with a recommendation that FEMA approve the Applicant’s request for an additional $56,678.
Pursuant to Title 44 of the Code of Federal Regulations (44 CFR) §206.223, in order to be eligible for assistance, an item of work must be required as the result of the major disaster event. Although the original asphalt repairs claimed by the Applicant were already completed at the time of the initial inspection in November 2005, it was evident to FEMA, based upon site observations, that the repairs were required as a result of Hurricane Katrina and, as such, the repair costs were approved for funding. The original PW inspection team, which included an Applicant’s representative, did not identify any additional damages of the type or magnitude claimed by the Applicant in this appeal, nor did the Applicant identify the repairs as temporary. The additional work detailed in the Applicant’s appeal includes replacement of a significant volume of embankment fill and a new concrete drive (among other items). Such damage that would have necessitated the additional work would reasonably have been identified, observed, and documented at the time of the initial inspection. However, the original PW is silent on such damages. In fact, the scope of work on Version 0 of PW 2424 states that there was no additional work to be completed, and the Applicant did not submit an appeal to request a change in scope within the 60 day timeframe provided for in 44 CFR §206.206.
Furthermore, when the Applicant did request approval for additional funding, three years had passed and the additional repairs had already been completed. During that time, the Applicant did not request a scope alignment or re-inspection of additional damages by GOHSEP or FEMA as required per 44 CFR §206.204. There do not appear to be any extenuating circumstances that would have prevented the Applicant from identifying additional disaster-related damage to GOHSEP or FEMA prior to performing the work. The Applicant submitted pre-disaster bridge inspection reports and photographs in support of the appeal. Although this information could establish a baseline condition prior to the disaster, the Applicant did not provide any technical information that demonstrates that the work performed three years after the initial inspection addressed damage that was a direct result of Hurricane Katrina.
As the Applicant did not notify GOHSEP or FEMA prior to performing repairs, and did not provide documentation to substantiate the costs as disaster-related repairs, there is no basis for approval of the Applicant’s appeal.