Additional Damages

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-0843-DR
ApplicantCity of Manning
Appeal TypeThird
PA ID#027-44350
PW ID#N/A
Date Signed1998-07-22T04:00:00
PURPOSE: Respond to third appeal submitted by the City of Manning for funding of additional damages reported five years after the regulatory timeframe for Hurricane Hugo.

DISCUSSION: Hurricane Hugo hit South Carolina on September 21, 1989 (FEMA-0843-DR-SC). Due to the magnitude of damages, the deadline for reporting damages was extended until March 22, 1990. However, on August 1, 1995, the State Public Assistance Program issued Guidance No. 14-95, notifying applicant agents that their entities may be entitled to additional funding due to a recent policy reversal by FEMA. This guidance stated that FEMA's approval of Charleston County's request for Emergency Operation Center costs, more than five years after the disaster, represented a policy change in terms of timeframe for requesting assistance. In response to this Guidance, the applicant submitted a request on November 15, 1995, for additional disaster related costs. FEMA denied funding for these costs on the basis that they were submitted well beyond the regulatory timeframe, and on other issues regarding eligibility. The applicant submitted first and second level appeals stating that due to severe site conditions, it was not possible to properly assess these damages until after the deadline, and that they did notify the Governor's Office of these damages in March, 1991. The applicant has not provided a copy of the referenced letter, nor is there any documentation to support that a formal notification of these damages was made to FEMA prior to 1995. These appeals were denied on the basis that no extraordinary circumstances had been identified to justify an extension for reporting damages at such a late date. The applicant's third appeal restates their earlier appeal positions. The review of this appeal again concludes that there is no justification presented to alter the initial determinations of ineligibility.

RECOMMENDED ACTION: Sign the letter denying the third appeal.

Appeal Letter

July 22, 1998

Mr. Ron Claypool
Governor's Authorized Representative
Office of the Governor
Box #11509
Columbia, South Carolina 29201

Dear Mr. Claypool:

This letter is in response to your February 4, 1998, submittal of the City of Manning's third appeal requesting reimbursement of additional damages reportedly incurred during Hurricane Hugo (FEMA-0843-DR-SC). These costs were not reported to FEMA until 1995, and were denied by Federal Emergency Management Agency (FEMA) on the basis that there was not suitable justification for reporting such costs more than five years after the regulatory timeframe for reporting damages from Hurricane Hugo, and on various eligibility issues.

As explained in the enclosed analysis, I have found that the applicant has not provided sufficient documentation to demonstrate that extenuating circumstances were present to justify waiving the time limitation for reporting damages. Also, based on the information provided, the referenced work cannot be specifically attributed to the disaster. This determination is based on a thorough review of the documentation provided with the applicant's appeal, and is based on consistent application of FEMA policy and regulations. Therefore, I am denying this appeal.

Please inform the applicant of my determination, which constitutes the final level of appeal in accordance with 44 CFR 206.206(e).

Sincerely,
/S/
James L. Witt
Director

Enclosure

cc: John B. Copenhaver
Regional Director
FEMA Region IV

Appeal Analysis

BACKGROUND

Hurricane Hugo hit South Carolina on September 21, 1989, causing extensive damage to the State, and resulting in Presidential disaster declaration FEMA-0843-DR-SC. Numerous Damage Survey Reports (DSRs) were prepared for the City of Manning (applicant) to provide funding for disaster related damages. The applicant's third appeal is associated with a request for reimbursement of $122,194 for additional damages reported after the regulatory deadline for requesting assistance for the Hurricane Hugo disaster.

Due to the magnitude of the hurricane disaster, the State of South Carolina (State) sent a memo dated March 14, 1990, to all applicants that extended the deadline for requesting all new inspections to March 22, 1990. However, on August 1, 1995, the State Public Assistance Program (SPAP) issued Guidance No. 14-95, notifying applicant agents that their entities may be entitled to additional funding due to a recent policy reversal by FEMA. This guidance stated that FEMA's approval of Charleston County's request for Emergency Operation Center costs, more than five years after the disaster, represented a policy change in terms of timeframe for requesting assistance.

In response to the SPAP Guidance, the applicant submitted a request to the State in a letter dated November 15, 1995, for additional costs incurred during the disaster which had not been previously funded. These claims were associated with apparent damages to the applicant's wastewater system, which were performed during the 1991 Wastewater Improvements Project. The applicant's engineering consultant for the 1991 Improvements Project, Engineering Resources Corporation (ERC), prepared a letter dated October 23, 1995, in which they summarized work items and associated costs of the completed project which they opined were made necessary as a result of the disaster. The identified work included costs for repair to damaged sewer lines, removal of silt from the treatment plant, clearing debris from the sewer easements, installation of new watertight manhole inserts, and related engineering costs. The Regional Director denied funding for these costs primarily on the basis that they were submitted well beyond the regulatory timeframes for reporting damages, but also on issues of eligibility, in particular regarding debris removal.

First Appeal
The applicant filed a first appeal of FEMA's determination of ineligibility in a letter dated July 8, 1996, requesting that their damages be reconsidered for funding. The applicant stated that they had reported the damages as soon as they were discovered, referencing the March 11, 1991, Town Council meeting minutes which stated that a letter had been sent to the Governor's office reporting these damages. Additionally, the applicant indicated that the debris was removed in the "public interest" of the community.

During review of the first appeal, the Regional Office confirmed that no formal request for FEMA assistance had been received by the Regional Director prior to the applicant's November 1995 request. Accordingly, the Regional Director denied the first appeal in a letter dated October 29, 1996, stating that no extraordinary circumstances had been identified to justify an extension for reporting such damages. The first appeal response further informed the applicant that the reported damages had not been established to have been caused by the disaster, and with reporting of the damages at such a late date, it was not possible to confirm the extent of disaster damages. Further, the appeal response indicated that the debris removal activities would be considered Category A work and the applicant did not demonstrate that the materials posed a threat, or that they were removed within the six month time allowance for emergency work. The Regional Director stated that much of the repair work appeared to be the result of the design requirements of the 1991 Improvements Project.

Second Appeal
The applicant submitted a second appeal dated January 8, 1997, reiterating their position that the claimed expenses are directly related to the disaster event and their basis for submitting their costs after the regulatory timeframe. The applicant stated that debris damage was severe in the swampy areas around the city, such that it was impossible to make a proper damage assessment until eight months after the hurricane. The Executive Associate Director upheld the Regional Director's first appeal determination and denied the second appeal in a letter dated September 12, 1997.

Additionally, the Executive Associate Director commented on the reference to the SPAP Guidance No. 14-95, in which it was implied that FEMA approved Charleston County's request for Emergency Operation Center costs which was submitted after the regulatory timeframe for requesting assistance, and that this determination constituted a disaster-wide policy reversal. The Executive Associate Director indicated that it is true that FEMA approved Charleston County's request for funding, and that this approval was made after the regulatory timeframe for requesting assistance or identifying new damage. However, Charleston County had submitted their initial request within the regulatory timeframe. Unfortunately, FEMA experienced a protracted delay in processing their request, resulting in notification of approval being made after the deadline. This determination was consistent with regulations and policy in place at the time of the disaster and does not constitute a policy reversal.

Third Appeal
The applicant submitted a third appeal in a letter dated November 18, 1997. Again, the applicant reiterated the position presented in their first and second appeals that the requested costs are directly related to the disaster event and are eligible expenses in accordance with the SPAP Guidance documents and FEMA regulations, and that they should be given consideration regardless of the regulatory timeframe issue. The applicant states that FEMA has waived timeframe issues in the past, and continues to express concern that their appeal has not been evaluated on its own merit. No new documentation has been provided with this appeal.

DISCUSSION

Time Limitations
Procedures for requesting FEMA disaster assistance is provided in Section 206.202 of Title 44 of the Code of Federal Regulations (44 CFR), which states that the applicant is responsible for identifying all eligible work and associated costs. Any damage which is not identified during the initial site inspection must be reported by the applicant, in writing to the Regional Director, within 60 days after the initial inspection. This regulation further states that time extensions for reporting damages may be extended by the Regional Director when justified and requested in writing. To be eligible for such an extension, an applicant must provide justification that the requested time extension is based on "extenuating circumstances" beyond their control. The applicant states that FEMA has waived this timeframe criteria for other applicants, and should provide the same consideration for their reported damages. It should be noted that applicants who may have received such time extensions would have been evaluated regarding the extenuating circumstances unique to their claim, in accordance with the regulations cited above. Please be assured that a similar review of the circumstances associated with this applicant's claim has also been performed.

The applicant states that adverse site conditions after the disaster made it difficult to assess the now reported damages, also indicating that due to the magnitude of damages, some issues took lesser priority. While FEMA recognizes the burden imposed on a community during disaster response, such conditions do nodas to reference their March 1991 letter to the Governor's office, but has yet to provide a copy of any such letter to support their claim, nor any further documentation to support that this request had been transmitted to FEMA. The third appeal letter also now states that FEMA staff recommendations were the reason these expenses were not submitted earlier, although the specific "staff recommendations" are not described in the applicant's letter.

Therefore, based on a review of the circumstances associated with incurring the additional costs and the failure to formally request Federal funding at the time the costs were identified by the applicant, it is concluded that no extenuating circumstances have been identified to justify granting a time extension for further consideration of these costs. Accordingly, the applicant's appeal for consideration of waiving the time limitations is denied.

Comments Regarding Eligibility
Regardless of the timeframe issue, the Regional Director's first appeal response indicated that the reported damages would not otherwise be eligible for assistance as there was not sufficient documentation to support that the repair efforts were directly related to the disaster. The scope of the completed work and the applicant's statements regarding the eligibility of the work has again been reviewed in response to this third appeal. Based on the information provided in the ERC October 1995 letter, and subsequent information, our review again concludes that it is difficult to affirm that the completed work was disaster related. It is noted that, in part, the basis for requiring that damages be identified within a specified timeframe is so that actual site conditions can be observed and applicable data collected to document damages which are directly attributed to the disaster. When damages are not reported for time periods such as those for this applicant, it becomes increasingly difficult, if not impossible, to relate the damages to the disaster.

Regarding the specific work items, it is noted that the existing 15-inch sewer line was replaced with a 16-inch line, diverting flow to another flow line, and that watertight manhole inserts were installed. The intent of FEMA permanent restoration assistance is to restore a facility to its pre-disaster design (44 CFR 206.226). Work performed beyond that scope must be required by a specific code or standard (44 CFR 206.226(b)) in order to be eligible for funding. As both of these items exceed the predisaster design of the components, such work would be considered an improvement and would, therefore, not be eligible for restoration assistance. Much of the remaining work is associated with silt removal from the pump station and sewers. However, to be eligible for silt removal from such facility components, an applicant must either demonstrate that the material posed an "immediate threat" and thus remove the material within six months of the disaster, and/or provide maintenance records from prior to the disaster to aid in the estimation of the quantity of material deposited by the disaster. The applicant has not provided any documentation to demonstrate a "threat," to support that the material was removed expeditiously in response to a threat, or any maintenance records. Accordingly, this review has found that regardless of the timeframe issue, this work generally would not have been eligible for assistance. As the referenced repair costs are found ineligible, engineering costs associated with this work would also be ineligible.

CONCLUSION

Despite that applicant's assertion that their appeal has not been reviewed for its own merit, it is found that during the initial request for funding, and at each appeal level, FEMA has reviewed the specific documentation and circumstances reported by the applicant. No documentation has been provided by the applicant since their initial request for funding in 1995 to alter our initial determination of ineligibility. This determination of ineligibility has been based on consistent application of FEMA policies and regulations which apply to the circumstances of this applicant's request for funding. Accordingly, the applicant's third appeal is denied.
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