Bay High School Gym Canopy

Appeal Brief

Summary Paragraph

Hurricane Katrina’s high winds and storm surge damaged the Bay St. Louis Waveland School District’s (Applicant) high school gym building. FEMA prepared PW 9307 to fund the repair of the damage to the facility, but no specific reference was made to the gymnasium canopy that provides cover to the building’s concrete sidewalk access path.  The Applicant requested FEMA to evaluate a bid package for replacement of the gym canopy at an estimated cost of $340,857. FEMA determined that the gym canopy damage did not result from the disaster.  In its first appeal, the Applicant asserted that the damage resulted from Hurricane Katrina’s high winds.  The Regional Administrator denied the appeal, concluding that the damage was not proven to be disaster-related, as required by 44 C.F.R. §206.223(a)(1), and that the Applicant failed to identify the damage within an extended regulatory timeframe under 44 C.F.R. §206.202(d)(1)(ii).  In its second appeal, the Applicant reasserted its first appeal arguments and also stated that the gym canopy was previously determined eligible and referenced in the PW scope of work as an attached spreadsheet.  The Applicant also stated that an inspection performed by its consultant prior to and immediately after the event supports its argument that the damage was caused by the event. 

Authorities Discussed

• 44 C.F.R. § 206.223
• 44 C.F.R. § 206.202(d)(1)(ii)

Headnotes

• Under 44 C.F.R. § 206.202(d)(1)(ii), a Public Assistance applicant has 60 days following its first substantive meeting with FEMA to identify and to report damage to FEMA.
  • FEMA Region IV extended this deadline to November 5, 2009 due to the extraordinary circumstances following Hurricane Katrina; documentation shows that the Applicant first identified the gym canopy damage in June 2006, well in advance of the extended deadline.  
• Under 44 C.F.R. § 206.223, to be eligible for Public Assistance, an item of work must be required as the result of the emergency or major disaster event.
  • A FEMA technical review found no evidence that the damage to the gym canopy claimed by the Applicant could have been caused by the high winds associated with the event, at least through uplift of facility components or by wind pressure applied to the structure.  If winds generated by the event were capable of uplifting the concrete roof panels or deforming the structural steel of the canopy, much more widespread damage and/or displacement would be expected to be found along the canopy and panels themselves. However, FEMA found no displacement of the roof panels during the joint inspection.

Appeal Letter

Appeal Analysis

Background

On September 29, 2005, Hurricane Katrina’s high winds and 4-foot flood surge damaged structures throughout the Bay High School campus owned by the Bay St. Louis Waveland School District (Applicant).  FEMA prepared Project Worksheet (PW) 9307 to fund the repair of disaster damage to the Bay High School gymnasium, including repairs to roofing, flooring, doors, and restrooms, as well as to mechanical and electrical systems.  After preparing six versions to the PW, FEMA approved a total of $1,741,066 for the repairs. 

In December 2010, FEMA received a request from the Applicant to review a bid package for replacement of the Bay High School gym canopy for adherence to the PW scope of work.  The bid package scope of work was for a complete replacement of the canopy and an upgrade from its pre-disaster condition to include demolition and replacement of the concrete sidewalk it covered, new larger footings, and improvements to meet wind speed code requirements.

On June 9, 2011, representatives from FEMA, the Mississippi Emergency Management Agency (Grantee) and the Applicant conducted a site visit to inspect the gym canopy damage in order to validate the bid package scope.  FEMA staff prepared a technical review report detailing the findings of this site visit.  The technical review found no evidence to support the Applicant’s claim that wind lifted up the concrete panels and damaged the gymnasium canopy, as claimed by the Applicant.  FEMA staff concluded that the minor damage observed was most likely a result of “falling objects,” structural member misalignment (presumably during construction), and the advanced age of the structure.  Deterioration from rust noted in the lower sections of the structure was determined to be from lack of maintenance (painting) during the nearly 6 years following event.  Based on this report, FEMA determined that the gym canopy damage claimed by the Applicant was the result of a lack of maintenance, environmental conditions, and the age of the structure.  FEMA added a comment describing these findings to PW 9307 and notified the Applicant of the determination and of its right to appeal in a letter dated July 15, 2011.

First Appeal

On September 12, 2011, the Applicant submitted a first appeal to the Grantee.  In its appeal, the Applicant provided a report from Accuweather, a private weather service, describing the conditions the facility was subject to during the event— with specific reference to the high wind speeds recorded for a prolonged period of time—in order to illustrate the extremity of the conditions and potential for damage to structural elements of their facilities.  With evidence of the environmental conditions the structure was subject to, the Applicant reiterated its claims that high winds associated with the event caused the concrete panels of the gym canopy to lift from their installation and fall back down, causing the panels to crack, break and spall as well as cause the steel structural members of the gym canopy to twist, deform, and break welds.  To support these claims, the Applicant provided a report prepared by its architectural consultant titled “Narrative of Damage Caused by Hurricane Katrina” (February 11, 2011) which was intended to serve as a technical evaluation and explanation as to the cause of the damage.

On April 4, 2013, the FEMA Region IV Regional Administrator (RA) denied the first appeal based on Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.223(a)(1), stating that the lack of maintenance and the age of the structure contributed to the damage to the gym canopy.  In addition, the RA noted that the estimated canopy replacement cost of $340,857 significantly exceeded the cost estimate for repair of canopies throughout the school campus recorded in the itemized list of damages provided to FEMA.  Therefore, the RA concluded, the cost estimate for repair of canopies likely was for repairing various metal canopies that run between the campus’ different buildings.  In addition, the RA noted that the Applicant’s request for review of the replacement scope of work of the gym canopy was not submitted until 2010 and, therefore, the RA concluded that the request constituted a new request submitted significantly beyond the extended deadline of November 5, 2009, for identification of damages.

Second Appeal

The Applicant submitted its second appeal on May 31, 2013, which the Grantee transmitted to FEMA on July 22, 2013.  In its second appeal, the Applicant reiterates its position that high winds associated with the event damaged the structural elements of the gym canopy. With its appeal, the Applicant submits a letter from its architectural consultant stating that during a routine inspection of another campus facility a few months prior to the event, he had an opportunity to observe the gym canopy structure and found that the structural damage to the gym canopy did not exist prior to the event.  The Applicant also argues that it “could not repair, protect, or maintain the canopy” due to the extensive damage from the event.  In lieu of repair, the Applicant asserts that, based on safety concerns, it demolished and replaced the canopy.

Discussion

Facility Damage Identification

Public Assistance regulations establish a 60 day time limit for identification of damages by the Applicant “following its first substantive meeting” with FEMA.  However, due to the extraordinary circumstances of the event, FEMA Region IV allowed identification of damages caused by Hurricane Katrina through November 5, 2009.

While the RA stated that the Applicant’s request identified new damage after November 5, 2009,  in the PW scope of work, the “Work to be completed” section refers to additional items of work within an attached “contractor fees and invoices” list.  This list included a line item for “High School – Gym Entrance Canopy” which shows that the Applicant identified this particular facility as damaged in June of 2006, meeting the requirement for identifying damages prior to the deadline. 

Eligible Scope of Work

Under applicable Public Assistance regulations, FEMA provides financial assistance to eligible applicants only when facility damage is a direct result of a declared event.  In light of this regulation, the Applicant and FEMA each prepared reports describing the damage to the facility. 

The Applicant’s architectural consultant prepared a report titled “Narrative of Damage Caused by Hurricane Katrina” dated February 11, 2011, which is intended to describe the manner in which the claimed damages to the gym canopy occurred as a result of the event.  This report asserts that the high winds associated with Hurricane Katrina caused the concrete roof panels to lift and fall back down on the steel structure, damaging the concrete panels, structural steel members, and fastening welds.  In addition, the report asserts that salt water inundation from storm surge waters caused an “accelerated rusting of components” that compromised the ability of the canopy to withstand future high-wind events.  The report concludes that the extent of damage to the canopy created a structurally unsafe condition and that the canopy would need to be replaced.  The report’s technical evaluation is inadequate, as it lacks specific information about actual damage to the canopy and supporting evidence to demonstrate that high winds could lift 2-by-10-foot concrete panels or cause racking and deformation of 6-inch-deep structural steel framing members. 

The technical review prepared by FEMA staff after the facility joint inspection on June 9, 2011, evaluates each component of claimed and/or visible damage.  This report found no evidence that the damage claimed by the Applicant could have been caused by the high winds associated with the event, at least through uplift of facility components or by wind pressure applied to the structure.  FEMA staff notes in the review that if winds generated by the event were capable of uplifting the concrete roof panels or deforming the structural steel of the canopy, much more widespread damage and/or displacement would be expected to be found along the canopy and panels themselves.  However, FEMA found no displacement of the roof panels during the joint inspection.  During the inspection, the Applicant identified only five locations along the canopy as being damaged.  Of those five, only one had minor damage to the concrete roof panels with no misalignment or displacement of roof panels noted anywhere along the canopy, which would be expected from the action of lift associated with high wind.  The minor damage to the steel structural members found by the FEMA inspection team was attributable to several causes, including poor construction alignment, advanced age, and potentially striking or falling objects.  

Review of the Applicant-provided architectural consultant report finds insufficient evidence to support the claims of disaster related damage to the facility.  In contrast to the FEMA technical review, the Applicant’s report does not describe the actual damage of the facility components, draw reasonable conclusions as to the cause of the damage, nor provide estimates for repair of the damage to compare with estimated replacement costs.  FEMA’s evaluation and subsequent report provides a thorough evaluation of each damaged element of the facility and draws reasonable conclusions about the cause of the damage that contradict the Applicant’s claims. 

The Applicant’s assertion that the gym canopy was structurally compromised, not repairable, and unsafe as a result of the event is contradicted by the fact the canopy remained in use for more than six years after the event.  The acceleration of rust to structural members could have been avoided through timely cleaning and paint application, yet the Applicant chose not to undertake measures to protect the canopy from further damage. 

Conclusion

The Applicant has not provided documentation to sufficiently support its claim that the replacement of the canopy was required as the result of the event.  Therefore, the canopy replacement is not eligible for Public Assistance funding.