Road Repairs

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster1981-DR-ND
ApplicantCity of Minot
Appeal TypeSecond
PA ID#101-53380-00
PW ID#4216, 4217, and 4242
Date Signed2013-08-22T00:00:00

Citation:  FEMA-1981-DR-ND, City of Minot, Road Repairs, Project Worksheets (PWs) 4216, 4217, and 4242

Cross-Reference:  General Eligibility

Summary:  During the flooding event numerous asphalt roads used as haul roads for the construction of temporary levees in the city of Minot were damaged.  FEMA prepared PWs 4216, 4217, and 4242 to fund the disaster-related repairs to the roads at numerous sites.  The three PWs documented all damage at all sites claimed by the City of Minot (Applicant) to be flood-related.  However, FEMA determined the damage at some sites was minor and cosmetic in nature or was pre-existing.  The PWs noted that repairs at these sites were ineligible for funding.  FEMA approved PW 4216 for $23,721 to address damages at 22 sites (ineligible repairs at 5 sites), PW 4217 for $29,684 for 23 sites (ineligible repairs at 8 sites), and PW 4242 for $10,169 for 16 sites (ineligible repairs at 5 sites).  The Applicant submitted first appeals of the scopes of work approved under PWs 4216, 4217, and 4242.  The Applicant claimed that the damage classified as cosmetic by FEMA was gouging caused by heavy equipment using the roads during the flood and would allow moisture to enter the road surface and increase future damage during the freeze-thaw cycle.  The Applicant also asserted that some of the damage determined by FEMA to be pre-existing damage did not exist prior to the event and provided its 2010 City Pavement Management Report in support of its assertion.  The FEMA Regional Administrator partially granted the Applicant’s first appeal of PW 4217 approving $6,608 in additional funding for repairs at two of the five sites at issue under in first appeal.  FEMA determined the damage at the two sites to be disaster-related.  The FEMA Regional Administrator denied the Applicant’s first appeals of PWs 4216 and 4242.  In the three appeal responses, FEMA reiterated the damage referred to as gouging in the appeals was referred to as cosmetic in the PWs.  Further, FEMA stated that the 2010 City Pavement Management Report included comments suggesting pre-existing damage at some of the sites.  In three separate second appeals, the Applicant reiterates that the damage determined by FEMA to be either cosmetic or pre-existing, is damage to the roadways that occurred as a result of the declared event.

Issue:  Has the Applicant demonstrated that the damage to the roads’ surfaces resulted from the declared event?

Finding:  Yes.

Rationale:  44 CFR §206.223 General Work Eligibility


 

Appeal Letter

August 22, 2013

Greg M. Wilz
Disaster Recovery Chief
North Dakota Department of Emergency Services
PO Box 5511
Bismarck, North Dakota 58506-5511

Re:  Second Appeal – City of Minot, PA ID 101-53380-00, Road Repairs, FEMA-1981-DR-ND, Project Worksheets (PWs) 4216, 4217, and 4242

Dear Mr. Wilz:

This is in response to letters from your office dated February 4 and 11, 2013, which transmitted the referenced second appeals on behalf of the City of Minot (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of a portion of the funding ($44,744) requested for repairs to asphalt roads located throughout the city.

As explained in the enclosed analysis, I have determined that the damage described as cosmetic or pre-existing in PWs 4216, 4217, and 4242 was caused as a direct result of the declared event.  Accordingly, I am granting this appeal. By copy of this letter, I am requesting the Regional Administrator to take appropriate action to implement this determination.

Please inform the Applicant of my decision.  This determination constitutes the final decision on this matter pursuant to 44 CFR §206.206, Appeals.

Sincerely,

/s/

Deborah Ingram
Assistant Administrator
Recovery Directorate

Enclosure

cc:  Doug Gore
      Acting Regional Administrator
      FEMA Region VIII

Appeal Analysis

Background

During the flooding event that occurred from February 14, 2011 to July 20, 2011, numerous asphalt roads used as haul roads for the construction of temporary levees in the city of Minot were damaged.  FEMA prepared PWs 4216, 4217, and 4242 to fund the disaster-related repairs to the roads at numerous sites located in the areas designated as Zone 2 and Zone 4.  The three PWs documented all damage at all sites claimed by the City of Minot (Applicant) to be flood-related.  However, FEMA determined the damage at some sites was minor and cosmetic in nature or was pre-existing and determined the repairs at these sites were ineligible for funding.  FEMA approved PW 4216 for $23,721 to address damage at 22 sites (ineligible repairs at 5 sites), PW 4217 for $29,684 for 23 sites (ineligible repairs at 8 sites), and PW 4242 for $10,169 for 16 sites (ineligible repairs at 5 sites).

First Appeal

The Applicant submitted first appeals of the scopes of work approved under PWs 4216, 4217, and 4242 on May 21 and 25, 2012.  Specifically, the Applicant appealed the determination made by FEMA regarding the damage at two sites under PW 4216, at five sites under PW 4217, and at three sites under PW 4242.  In the appeals, the Applicant stated that the damaged classified as cosmetic by FEMA was gouging caused by heavy equipment using the roads during the flood.  The Applicant claimed that the gouges will allow moisture to enter the road surface and increase future damage during the freeze-thaw cycle.  The Applicant also asserted that some of the damage determined by FEMA to be pre-existing damage did not exist prior to the event.  In support the Applicant submitted its 2010 City Pavement Management Report.

On October 31, 2012, the FEMA Region VIII Regional Administrator determined the damage at two sites under PW 4217 was disaster-related and partially granted the Applicant’s first appeal.  The Regional Administrator approved $6,608 in additional funding for repairs at two of the five sites addressed in the appeal.  On November 6, 2012, the Regional Administrator denied the Applicant’s first appeals of PWs 4216 and 4242.  In the three appeal responses, FEMA reiterated the damage that was referred to in the appeals as gouging and in the PWs as cosmetic, may have reduced the service life of the roads but was not likely to have affected the performance of the roadway.  FEMA stated that the Applicant did not provide documentation to support its claim that the gouging would allow moisture to enter the base material.  Further, FEMA stated that the 2010 City Pavement Management Report included comments suggesting pre-existing damage at some of the sites.  FEMA used this report along with observations made during site visits when making the eligibility determinations documented in the PWs.  FEMA requested further explanation from the Applicant regarding the notes in the report indicating pre-existing damage, and the Applicant did not provide additional information.  Therefore, the FEMA Regional Administrator concurred that FEMA’s initial eligibility determinations regarding pre-existing damage documented in the PWs were correct.

Second Appeal

On December 3, 2012, the Applicant submitted its second appeals of the approved scopes of work documented with PWs 4216, 4217, and 4242.  The Applicant is requesting $32,522, $7,756, and $4,466 in denied funding for two sites, three sites, and three sites addressed under each PW, respectively.  In general, the Applicant reiterates that the damage determined by FEMA to be either pre-existing or cosmetic in nature, is damage to the roadways that occurred during the event.  In support of the appeal, the Applicant provides Pavement Surface Evaluation and Rating (PASER) scores from road assessments performed in 2010 documented in the 2010 City Pavement Management Report.

Discussion

According to Title 44 of the Code of Federal Regulations (44 CFR) §206.223 General Work Eligibility, to be eligible, work must be required as the result of the disaster.  The Applicant asserts that the claimed damage at issue in its three appeals occurred during the event and provides PASER scores in support of that assertion.  A summary of the damage at issue under each PW and the related funding amounts are shown in Table 1.

Table 1

 

 

Funding Requested

Damage

(square yards)

FEMA Position

PW 4216

 

 

 

Site 20a

$31,794

2,271

Cosmetic

Site 32

$728

13

Pre-existing

PW 4217

 

 

 

Site 33

$7,000

500

Cosmetic

Site 34

$588

42

Cosmetic

Site 38

$168

3

Pre-existing

PW 4242

 

 

 

Site 4

$2,016

36

Pre-existing

Site 6

$448

8

Pre-existing

Site 11

$2,002

143

Cosmetic

TOTAL

$44,744

 

 

Cosmetic Damage

In the PWs, the damage at Sites 20a, 33, 34 and 11 is documented as minor and cosmetic.  The Applicant states that flood recovery equipment caused gouging at these sites and disagrees that gouging is cosmetic.  The Applicant asserts that while FEMA’s response to the first appeals states that gouging alone does not affect the performance of the roadway, the gouging in the roadway surface is damage that impacts the flow of traffic and the level of service, and the repair of roadway surfaces is eligible for funding.  The documentation supports the Applicant’s assertion that the road surface was damaged during the response activities following the event at these four locations.  While the performance of the roadways may not have been affected by the gouging, damage did occur at these sites and the repair of the damage is required as the result of the event. 

Pre-Existing Damage

In the PWs, the damage at Sites 32, 38, 4, and 6 is documented as pre-existing damage not caused by the event.  The Applicant refers to the PASER scores for the roadways at the four sites before and after the event as evidence that the damage was caused during response activities.  The PASER system is a rating system from 1 to 10 based on visual observations of the surface condition of a pavement with 1 being a pavement in a “failed” condition and 10 being a pavement in “excellent” condition.  While the comments provided with the PASER scores in the 2010 City Pavement Management Report indicate the existence of some level damage at all four sites prior to the event, the scores also indicate the condition of the pavement at all sites deteriorated following the event.  Further, based on the PASER scores, the condition of the roads at all four sites at issue was at least “good” prior to the event.  Based on the documentation, it is reasonable to conclude that the damage described in the PWs as pre-existing was caused by the heavy equipment during the event.  Therefore, the repair of the damage is required as the result of the event.

Conclusion

The documentation submitted with the appeal supports the Applicant’s assertion that the damage described as cosmetic or pre-existing in PWs 4216, 4217, and 4242 was caused as a direct result of the declared event.  Therefore, the repair of the damage is eligible for funding.

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