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Second Appeal Analysis
PA ID# 091-78520-00; Village of Waterford
PW ID# 7604; Pre-disaster Conditions
From August 26 to September 5, 2011, Hurricane Irene impacted the Village of Waterford (Applicant). Several of the Applicant’s roads were inundated with floodwater for multiple days. The specific streets at issue in this appeal are Front, Parker, First, Second, Third, Pearl, Middle, and South Streets; Tug Boat Alley; and an unnamed alley traveling in a north/south direction. FEMA field staff conducted an onsite visit, took photos of the damage, and noted that the streets were “uneven with dips, sloughs and poor design radius from center.” As a result, the FEMA staff member concluded that “any damages caused by the flood would be considered minimal compared to the overall conditions of the road prior to the event.” In Project Worksheet (PW) 7604, FEMA determined that repair work for the network of roads was ineligible due to deferred maintenance. FEMA based its determination on (1) an examination of satellite images, dated July 11, 2011, that revealed prior damage and deterioration that was evident prior to the disaster, such as alligator cracks, uplift, and ‘pot-holes;’ (2) the Applicant’s failure to produce maintenance records after repeated requests by FEMA; (3) the local government’s failure to certify to FEMA by letter that the damage is a direct result of the event; and (4) interviews of residents in the immediate vicinity that reported a lack of pre-disaster maintenance.
The Applicant submitted its first appeal, dated January 18, 2013, regarding FEMA’s eligibility determination. With the appeal, the Applicant disputed FEMA’s determination that the majority of damage to the roads was caused by lack of maintenance and pre-existing condition of the roads, not Hurricane Irene. The Applicant asserted that, while there was normal wear-and-tear visible, Hurricane Irene severely undermined the subsurface of the roadways. This required a level of repair above normal routine maintenance. The Applicant refuted FEMA’s determination that it did not provide maintenance records by referencing PW 7604, which states, “the applicant has provided historical maintenance records for the impacted area” and provides years in which maintenance was performed for each street listed in PW 7604. Finally, the Applicant asserted that $446,013.50 was spent on street maintenance during the five years prior to the disaster. In addition, a major streetscape project, costing $341,729.12, included resetting and replacing curbs, paving, installation of period lighting, and planting trees and grass strips on First, Third, and Fourth streets.
The Applicant submitted a letter from Bob Talham, Inc., the Applicant’s excavation and paving contractor, dated January 17, 2013. The letter is signed by the contractor’s Operations Manager. In the letter, the contractor states that the Applicant performed “Streetscape Projects” in 2010, 2011, and 2012. These projects involved installing new sidewalks, widening the streets, and installing curbs. In addition, the contractor states he is not an engineer and did not provide core samples. He states, “in lieu of core samples I offer this post Irene observation. I have observed the sub base to contain voids in place and in many areas a lack of structural gradation of sub base.” The contractor recommends excavating the streets in question and installing proper sub-base “if in fact the entire sub base has been contaminated by waters from Hurricane Irene.”
In a letter, dated October 28, 2013, the FEMA Region II Acting Regional Administrator (RA) denied the appeal because she determined that the only evidence of the condition of the sub-base that the Applicant provided was a letter from the Applicant’s excavation and paving contractor, who performed road work for the Applicant prior to Hurricane Irene. The Acting RA determined that this letter, alone, did not constitute sufficient documentation to demonstrate that the sub-base of the roadway system was compromised as a result of Hurricane Irene, nor did it refute FEMA’s finding that the damage to the sub-base may have been a pre-existing condition.
The New York State Division of Homeland Security and Emergency Services (Grantee) transmitted the Applicant’s second appeal, dated January 28, 2014, to FEMA on February 7, 2014. In the second appeal, the Applicant again, asserts that the roads experienced normal wear-and-tear before Hurricane Irene, and the disaster severely undermined the subsurface of the roadways. The Applicant contends that the letter from its excavation and paving contractor referenced in the first appeal determination is correct. In addition, the Applicant states that it consulted with an Engineering firm and was advised that core samples would cost tens of thousands of dollars which the Applicant cannot afford. In an accompanying letter, dated February 7, 2014, the Grantee asserts that FEMA erred in its finding that the Applicant did not provide maintenance record because the PW references these records.
Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.223(a)(1) states, “to be eligible for financial assistance, an item of work must be required as the result of an emergency or major disaster event.” As such, preexisting damage would not be the result of a Stafford Act event. In addition, damage caused by deferred maintenance is not eligible for PA funding because it does not meet the criterion of being disaster-related. Further, FEMA policy advises FEMA staff to review pre-disaster maintenance or inspection reports to verify pre-disaster condition and to assess eligible disaster damage for facilities that require routine maintenance to maintain their designed function (i.e. culverts, roads, bridges, and dams).
In support of its eligibility determination in PW 7604, FEMA staff took numerous photographs, researched the condition of the roads prior to the disaster, interviewed residents, wrote detailed inspection notes, and requested maintenance records more than once. Though the Grantee points to language in the “Damage Description and Dimensions” section in PW 7604 as proof that maintenance records were provided to FEMA, neither the Grantee nor the Applicant provided actual documentation that confirms the language in the “Damage Description and Dimensions” section or otherwise demonstrates that the damage to the roads was, in fact, the result of Hurricane Irene. The PW, then, lists the affected streets and provided the years that these streets were milled and re-surfaced.
With its second appeal, the Applicant resubmitted the January 17, 2013 letter from its contractor. As the Acting RA stated in her first appeal determination, the contractor’s letter, alone, is not sufficient documentation demonstrating that the damage to its network of roads is the result of Hurricane Irene and not pre-existing damage, because it has limited applicability, does not specify a timeframe for the contractor’s observations, and is an after-the-fact recollection, as opposed to an on-site observation conducted immediately after the disaster. In addition, the Applicant’s contractor does not refute FEMA’s initial finding that the damage to the network of roads was a pre-existing condition. The Applicant has the burden of substantiating its claims, and without further evidence, FEMA does not find a basis to conclude the initial determination made in PW 7604 was incorrect. Accordingly, without maintenance records or other documentation to validate the Applicant’s contractor’s statements, FEMA does not find the repairs in PW 7604 eligible for funding.
In order for an item of work to be eligible for Public Assistance funding, it must be required as the result of a declared disaster. The Applicant failed to demonstrate that the damage to its network of roads resulted from Hurricane Irene. Accordingly, the repair of the roads is not eligible for Public Assistance funding.
 Project Worksheet 7604, Village of Waterford, Version 0 (Oct. 31, 2012).
 44 C.F.R. § 206.223(a)(1) (2011).
 Public Assistance Guide, FEMA 322 at 33 (June 2007) [hereinafter PA Guide].
 FEMA sent a Request for Information (RFI) to the Grantee and Applicant on April 10, 2014, requesting “the Applicant submit all pre-disaster maintenance records and any other documentation that supports the Applicant’s assertion that the damage to its roads was caused by Disaster 4020.” FEMA provided 30 days to the Applicant to submit the applicable documentation. As of August 11, 2014, FEMA had not received a response to the RFI and proceeded based on the information it possessed.