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Second Appeal Letter
PA ID# 003-81189-00; Valley City
PW ID# 5522, 5525, 5528, and 5529; Road Repair
June 28, 2012
Lonnie G. Hoffer
Alternate Governor’s Authorized Representative
North Dakota Department of Emergency Services
P.O. Box 5511
Bismarck, North Dakota 58506-5511
Re:Second Appeal-Valley City, PA ID 003-81189-00, Road Repair,
FEMA-1829-DR-ND, Project Worksheets (PWs) 5522, 5525, 5528, and 5529
Dear Mr. Hoffer:
This letter is in response to the letter from your office dated August 3, 2011, which transmitted the second appeal on behalf of Valley City (Applicant). The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) decision to deny $250,000 in additional costs to repair roadway, curb, and gutter sites identified in PWs 5522, 5525, 5528, and 5529.
As a result of heavy snow and severe spring storms associated with FEMA-1829-DR-ND, emergency levees were constructed along the Sheyenne River in the Applicant’s jurisdiction. Heavy machinery and haul trucks used to deliver and remove clay material for these levees damaged roads, curbs, and driveways along haul routes in the Applicant’s jurisdiction. Initial damage assessments and inspections were conducted by FEMA, North Dakota Department of Emergency Services (NDDES), and the Applicant between July and October 2009. At the time of the initial inspections, emergency levees had not been removed. As a result, FEMA and NDDES officials advised the Applicant that the inspection team should be notified when the levees were removed so that additional inspections could be made to capture any damaged caused by levee removal. Records indicate that that the levees were removed by the end of October 2009. The inspection team members present during the October 2009 inspections stated that the Applicant was asked to show the inspection team all the sites damaged after the emergency levees were removed, regardless of whether they had been previously inspected or not. No additional damage due to heavy equipment or trucks was recorded at that time.
On January 20 and 22, 2010, PWs 5522, 5525, 5528, and 5529 were approved for repairs to 102 damaged roadway, curb, and gutter sites for a combined total cost of $974,141. To facilitate these repairs, the Applicant prepared and issued a bid specification that included work for all PWs. This contract was awarded on July 6, 2010. From August 6 to 9, 2010, prior to beginning construction on the project, the Applicant’s contractor re-inspected the damaged sites. The Applicant’s contractor identified additional repair to approximately half of the identified roadway, curb, and gutter sites that were identified in PWs 5522, 5525, 5528, and 5529. The Applicant reported the additional damage to NDDES in a conference call on August 13, 2010. The NDDES informed the Applicant that no additional information had been provided to establish that the additional damage was a result of the declared event, and cautioned that the time frame established to report additional damages or appeal the initial PW determination had been exceeded.
The Applicant submitted its first appeal in a letter dated August 24, 2010, which was transmitted to FEMA by NDDES on August 30, 2010. In its letter, NDDES supported the initial position that the approved scope of work for PWs 5522, 5525, 5528, and 5529 encompassed all eligible repairs. In the appeal letter, the Applicant contended that the additional repairs were required to return the community to pre-flood condition. The Applicant provided documentation, including pictures, of areas that had additional damage, including 52 of 102 roadway repair sites, and 8 of 16 curb and gutter sites. In addition to this documentation, the appeal contended that the PW inspection process was flawed. Specifically, the Applicant argued that the inspection team advised the Applicant to only document additional damages in order to receive funding. Further, the Applicant claimed that the inspection teams did not return to re-inspect the roads after the emergency levees were removed. Finally, the Applicant claimed that the inspection team was not professional, and that they did not advise the Applicant on issues related to small projects versus large projects.
In a letter dated March 28, 2011, FEMA denied the first appeal. The Regional Administrator determined that PWs 5522, 5525, 5528, and 5529 established the extent of disaster related damages to the roadway, curb, and gutter caused by heavy machinery and haul trucks to deliver and then remove emergency levees. Further, the Regional Administrator established that the additional damages could not be attributed to the declared disaster event. Finally, the Regional Administrator stated that the appeal of the approved scope of work was not filed within 60 days of the funding notification in accordance with Title 44 of the Code of Federal Regulations (44 CFR) §206.206, Appeals, and acceptable justification was not provided for the delay in filing.
The Applicant submitted its second appeal to the NDDES on May 31, 2011. In the second appeal, the Applicant reiterated the argument that the repair sites were damaged by heavy machinery and haul trucks used to deliver and remove material for emergency levee repairs. As part of the second appeal package, the Applicant included a CD with photographs of damaged sites, haul route maps, and a summary sheet of damages. The Applicant also argues that preparations for potential flooding in 2010 prevented officials from taking actions during the requisite appeal time period.
In accordance with 44 CFR §206.202(d)(1)(ii), Application procedure, Project worksheets, “The applicant will have 60 days following its first substantive meeting with us to identify and to report damage to us.” The Applicant submitted a request for a change in the scope of work to the NDDES on August 13, 2010, more than 6 months after the original PWs were approved, well out of the regulatory time period established by FEMA regulations. Further, FEMA’s Public Assistance Guide, Changes in Scope of Work and Costs states that “…when a change in scope of work or a need for additional funding is discovered, the applicant should notify the State as soon as possible… The timing of the request should be such that the damaged element can be inspected before it is covered up or repaired.” FEMA was unable to inspect the additional damage on sites claimed by the Applicant, therefore preventing a determination of eligibility.
Pursuant to 44 CFR §206.233(a)(1), General work eligibility, in order for work to be eligible for FEMA Public Assistance, it must “Be required as the result of the emergency or major disaster event.” FEMA agrees that collateral damage was done by heavy machinery and haul trucks to damaged roads, curbs, and gutters to establish emergency levees. However, the Applicant has not submitted sufficient information to support the claim that additional damage was caused by the declared event. It is important to note that winter weather and normal traffic loads are common causes of pavement distresses, such as the additional damages identified in this appeal. Pavement distresses during colder temperatures is normally caused by water and thawing snow seeping into small cracks in the road, which expands as the water freezes and enlarges cracks. Even in roads that otherwise appear to be in good condition, this expansion of water as it freezes causes pavement distresses to rapidly appear. These common pavement distresses are considered by FEMA to be normal deterioration, which is generally not eligible damage in the Public Assistance Program. Consequently, it is difficult for FEMA to verify that the additional damages identified by the Applicant were the result of heavy machinery and haul trucks, either installing or removing emergency levees. Therefore, there is no sound basis on which to dispute the conclusions arrived at by FEMA during the joint inspection performed between July and October 2009. A review of the information provided in support of the second appeal showed no basis to alter the earlier determinations of ineligibility.
I have reviewed all of the information submitted with the appeal and determined that the Regional Administrator’s decision in the first appeal is consistent with Public Assistance regulations and policy. Accordingly, I am denying the second appeal.
Please inform the applicant of my decision. This determination constitutes the final devision on this matter pursuant to 44 CFR §206.206, Appeals.
cc: Robin Finegan
FEMA Region VIII