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Second Appeal Analysis
PA ID# 027-06610-00; Warren County Freeholders,
PW ID# 1854; Bridge Repair
In August 2011, Hurricane Irene caused major damage to many of the Warren County Freeholders’ (Applicant) bridges, including Bridge 13011. Hurricane Irene produced vegetative debris that partially clogged the waterway under the bridge and caused major scouring and undermining at the bridge piers. The Applicant’s contractor repaired the scouring, filled in the undermining, and repaired missing stones on certain sections of the bridge. FEMA prepared Project Worksheet (PW) 1854 to fund the bridge repairs, but later found the repairs ineligible based on pre-event Bridge Inspection Reports.
Prior to Hurricane Irene, Cherry, Weber, and Associates (consulting engineers) inspected the bridge and reported its findings in two Bridge Inspection Reports, dated June 17, 2009 and June 8, 2011. These reports indicated that there was scour at three of the bridge piers requiring immediate corrective action that predated Hurricane Irene striking the region. In a letter, dated June 17, 2011, (Priority 2 Repair letter) the consulting engineers recommended that the Applicant “underpin the undermined areas of the scour toes with concrete and protect with stone rip-rap” to repair the damage identified during the June 2011 inspection. The consulting engineers listed this as a “Priority 2” repair. The New Jersey Department of Transportation (NJ DOT) assigns Priority 2 status to bridges with an “imminent defect in the superstructure, substructure or deck which, if not repaired in the near future (within 3 months), may cause a load restriction or collapse of the structure.” The NJ DOT provides “substantial undermining of bearing area” and “major scour problems with footings on piles” as examples of Priority 2 repairs. Additionally, the June 2011 report recommended that the Applicant “install gabion mattresses extending across each span” of the bridge as a countermeasure to prevent future scour. The Applicant did not complete the repairs or the countermeasures prior to Hurricane Irene. FEMA reviewed the reports, and Priority 2 Repair letter, and determined the damages claimed to have been caused by Hurricane Irene were actually the result of deferred maintenance.
The Applicant submitted its first appeal on May 23, 2012. With the appeal, the Applicant asserted that Hurricane Irene caused high flood levels and high stream velocities resulting in extensive scour and channel erosion. The Applicant also asserted that the preexisting scour was minimal and did not contribute in any way to the extent of damage caused by Hurricane Irene. The Applicant stated that the Bridge Inspection Report, dated June 17, 2009, provided no repair or countermeasure recommendations and that the Priority 2 Repair letter was the first priority repair notification received for the bridge. The Applicant maintained it was not able to complete the Priority 2 repairs before the disaster occurred.
In the first appeal, the Applicant referenced a Priority Emergency Repair letter, dated September 22, 2011, that identified the overall scope of damage caused by Hurricane Irene. In the letter, engineering consultants recommended the following emergency repairs: (1) remove unsound concrete and rebuild fractured and missing scour toe with reinforced concrete doweled into sound portions of the remaining toe, (2) underpin the undermined areas of the remaining scour toe with concrete, (3) riprap the full perimeter of the pier with suitably sized stone riprap, and (4) remove loose masonry and rebuild the east end of the stone masonry pier in-kind.
In a letter, dated May 31, 2013, the Region II Acting Regional Administrator (RA) partially approved the appeal because, as she noted, the first report, dated June 17, 2009, did not provide any countermeasure recommendations. The Acting RA stated that the second report, dated June 8, 2011, gave the Applicant ninety (90) days to implement corrective measures that included underpinning the undermined areas of the scour toes with concrete and installing gabion mattresses extending across each span. Hurricane Irene occurred within the mandatory 90-day window. The Acting RA reduced the original cost estimate for repair of disaster damage, $378,666.23, to exclude the costs associated with implementing the Priority 2 repair, that the consulting engineers estimated at $5,000, and countermeasure recommendations, estimated at $180,000. Accordingly, FEMA obligated a version to PW 1854 for $193,666.23.
In its second appeal, dated August 30, 2013, the Applicant asserts that the damage caused to its bridge was not the result of deferred maintenance. The Applicant states that the preexisting scouring was minimal and did not contribute to damage caused by Hurricane Irene. The Applicant differentiates between the Priority 2 repair, which the Applicant had 90 days to implement, and the countermeasures, provided in the June 8, 2011 Report, that were recommendations, not requirements. The Applicant states that the countermeasures would not have made much of a difference regarding the damage done by the disaster because they are designed to address typical storm events, not catastrophic events, like Hurricane Irene. Finally, the Applicant asserts that the countermeasure recommendations would have been cost-prohibitive. The Applicant requests that FEMA approve $180,000 in additional funding for the repair of the disaster damage.
Pursuant to Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.223(a)(1), an item of work must be required as the result of a major disaster event to be eligible for financial assistance (emphasis added). As such, preexisting damage would not be the result of a Stafford Act event. The Priority 2 Repair letter identified severe scouring at the bridge piers more than two months before Hurricane Irene. Accordingly, the repairs associated with the scouring referenced in the Priority 2 Repair letter are ineligible for Public Assistance funding.
It is important to note the difference between Priority 2 repairs and countermeasure recommendations. The NJDOT requires immediate corrective action for Priority 2 repairs. Conversely, a countermeasure is a recommendation meant to reduce future damage. While the RA deducted the estimated cost of the countermeasures recommended in the Bridge Inspection Report, dated June 8, 2011, from the eligible funding amount, the countermeasures were recommendations to reduce the potential for additional scouring at the piers, but were not required to repair the preexisting damage.
The Applicant failed to repair preexisting scouring identified in a Priority 2 Repair letter for Bridge 13011 prior to the event. As the repair of preexisting damage is not eligible for Public Assistance, eligible funding for the repair of disaster damage must be reduced by the estimated cost of the repair of the preexisting damage ($5,000). However, the Applicant’s failure to implement countermeasure recommendations does not impact eligible funding. Therefore, de-obligation of $180,000 associated with the recommended countermeasures was incorrect and should be restored.
 In addition to these repairs, the Contractor filled in the river bottom with Core Rock. The Damage Description and Dimensions section of PW 1854 states, “River bottom was severely scoured and washed out.” See Project Worksheet 1854, Warren County Freeholders OFC, Version 1, at page 4 (October 8, 2013).
 See Priority Letter- Str. No. 2101311, Cherry, Weber, and Associates, Consulting Engineers, dated June 17, 2011.
 See County of Warren Bridge Re-evaluation Survey Report: Structure No. 2101311 at 14-2, dated June 8, 2011 (14th Cycle).
 See Priority E Letter- Str. 2101311, Cherry, Weber, and Associates, Consulting Engineers, dated September 22, 2011.
 The original PW Cost estimate of $378,666.23 reflected work to repair the bridge that included repairing scouring, filling in the undermining, and repairing missing masonry between the stones on the remaining piers. Installation of gabions mattresses was not part of the estimated work. Based upon the consulting engineers’ recommendation to install gabion mattresses as a countermeasure in the June 17, 2011 Report, the Acting Regional Administrator determined the proposal of the countermeasure reflected deferred maintenance (emphasis added), and deducted $180,000 from the original cost estimate.