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Second Appeal Analysis
PA ID# 019-58574-00; City of Plattsburgh
PW ID# 1797; Direct Result of Disaster
Between August 26 and September 5, 2011, heavy rains and flooding from Hurricane Irene caused high water volumes in Patterson Reservoir and across the Westbrook #2 Dam and principal spillway. The Westbrook #2 Dam is an earthen dam built in 1910, measuring approximately 28 feet high and 215 feet long, with a concrete core wall that extends across the crest of the dam. The City of Plattsburgh (Applicant) owns the reservoir, dam, and spillway.
The Applicant requested Category D funding to repair the concrete walls to the Westbrook #2 Dam and principal spillway, which the Applicant claimed were damaged by the disaster. To support the request, the Applicant provided dam inspection reports and an engineering report showing the damages before and after the disaster. The reports are: (1) a January 2007 New York State Department of Environmental Conservation (NYSDEC) Visual Observations Report; (2) a September 2007 Clough Harbour & Associates (CHA) Dam Safety Inspection Report documenting a May 2007 inspection; (3) a July 2010 CHA Engineering Assessment Report; (4) an August 2011 NYSDEC Visual Observation Report; and (5) an October 2011 CHA Dam Safety Inspection Report.
The January 29, 2007 NYSDEC report at the Westbrook #2 Dam indicated that the spillway side walls had some minor cracks along construction joints; spalling and efflorescence were also noted. The September 2007 CHA Dam Inspection report noted no signs of instability and the spillway training walls were observed to be in general good condition. In addition, the west training wall approach was out of plumb and leaned toward the approach area, with cracking evident on this wall. Concrete was broken off the channel floor at the spillway terminus.
In July 2010, CHA prepared an Engineering Assessment Report which relied on several reports including the 2007 NYSDEC and the 2007 CHA reports to recommend, among others, clearance of vegetation on the slopes and patching of spalled concrete sections on the ogee and spillway as maintenance measures. CHA also recommended a seepage filter and slope armoring with rip-rap as dam modifications.
The Applicant subsequently submitted a letter from the NYSDEC stating that its engineer had conducted a visual site inspection August 19, 2011, a few days before the disaster. The engineer observed, among other things, that the dams generally demonstrated a lack of maintenance, as evidenced by the dense vegetation which tend to have root systems that can provide seepage paths for water, leading to erosion and failure of the dam. The letter also indicated that spillway walls had spalled, cracked, and deteriorated concrete. The engineer recommended monitoring and regularly addressing concrete deterioration. Specific to Westbrook #2 Dam, the engineer noted undesirable vegetative growth, lack of maintenance, and superficial deterioration and cracking on the downstream face of the spillway and that both spillway walls had voids, cracks, and superficial deterioration of concrete.
After the disaster, in September of 2011, CHA conducted another inspection. A report dated October 2011 was created to document disaster-related damage. New conditions noted included concrete repair patchwork on the spillway separating from the wall, highly deteriorated concrete, and a depression on the headwall of the outlet pipe. Other observations included missing repair patchwork from the spillway valve house, cracked training wall, a large area of missing concrete leaving exposed rebar, and spalled and deteriorated concrete with exposed rebar on the spillway.
The engineer suggested repair of the highly deteriorated concrete on the ogee and training wall of the spillway and recommended monthly inspections until such repairs were made. The engineer also recommended replacement of the spillway structure, reasoning that it would likely be more difficult and expensive to repair because the existing concrete was likely not properly air entrained due to the age of the structure, making bonding the new concrete with the old difficult. According to the engineer, the repair work would last only “5 to 10 years.”
FEMA subsequently conducted a site visit in January of 2012 and produced photographs that showed sections of missing concrete and exposed rebar on the west training wall and spillway. In areas where concrete was peeling away, there was a noticeable void behind the concrete wall. A section of concrete encasing the outlet pipe was also missing.
FEMA prepared Project Worksheet (PW) 1797 for zero dollars, finding that the Applicant had not provided documentation showing the portions of the damages that were disaster related, information on routine maintenance of the dam, and documentation showing the intent to repair the dam as noted in the NYSDEC inspection reports. The PW documented post-disaster observations of cracked and broken concrete throughout the site, with visual evidence of vegetative outgrowth and visible efflorescence and seepage, peeling section of concrete from the training wall with a visible void behind the peeling wall, exposed rebar, an entire missing concrete section, and a section of missing concrete from the lower center of the concrete wall encasing the outlet pipe. Based on information provided by the Applicant regarding the condition of the Westbrook #2 Dam, specifically the 2007 NYSDEC and the 2010 CHA reports, FEMA determined that damages to the Westbrook #2 Dam were ineligible because of deferred maintenance as the reports explicitly noted that the dam was in a state of deterioration.
The Applicant appealed FEMA’s determination in a letter dated July 11, 2012. To distinguish disaster-related damages, the Applicant submitted a letter from CHA highlighting that the dam was in generally good condition prior to the disaster and only minor deficiencies (cracks) were documented. CHA noted that the Dam was classified as Intermediate Hazard, Class B prior to the disaster. Accordingly, based on this classification and the fact that the deficiencies were considered minor, CHA had recommended that repair work need not be done immediately. CHA also noted that a large area of concrete was missing from the right training wall after the disaster and the remaining concrete could be probed to show seepage. Another significant change was the concrete repair work that was beginning to separate from the wall and a large section at the end of the spillway that had been eroded exposing rebar. As a result, CHA outlined recommendations in the 2011 Dam Safety Inspection Report offering the option to conduct extensive spall repair work on the spillway or replace the spillway in kind. 
According to the Applicant, maintenance of the dam included mowing and vegetation control and no concrete repairs were made in the past because the Applicant was developing a comprehensive repair project. The Applicant also stated that it intended to make concrete repairs after more critical work was performed. The Grantee supported the appeal.
On September 15, 2013, the Region Regional Administrator (RA) partially granted the appeal pending documentation for the damage description, scope of work, and costs for repair of slough toe of downstream slope of the stream, clearing of sediment buildup from the valve house and gate valve that could have been caused by floodwaters from the event, and replacement of rip rap from areas of the downstream possibly washed away by floodwaters. The RA identified only these items to be eligible disaster-related damages. The RA instructed the FEMA Recovery Director to assign a Project Specialist to assist with development of a damage description, scope of work, and cost estimate. Once completed, the PW would be amended. There is no indication on the record that the PW was amended or that FEMA obligated any funds.
On December 2, 2013, the Applicant filed a second appeal disputing FEMA’s denial of funding for concrete damages as unrelated to the disaster. The Grantee transmitted the second appeal on October 9, 2014, recommending that FEMA approve the second appeal because, while the Applicant acknowledged the presence of predisaster damage, the Applicant had provided documentation distinguishing Irene-related damages from the prior damage identified in the inspection reports. Specifically, the Grantee directed FEMA’s attention to the 2007 and 2011 CHA inspection report photographs, as well as December 2013 photographs to show a comparison between the pre- and post-Irene conditions of the training wall and spillway. The Grantee notes that the 2007 photographs show the training wall with no rebar exposed, with evidence of patching done as a maintenance measure, while the 2011 photographs show exposed rebar.
An email from the Grantee to the Applicant dated February 1, 2014, stated that the clearest difference between pre- and post-Irene damage were areas of exposed rebar at the downstream west training wall. The email noted that, “due to the pre-Irene inspections, it [did] not look like a good argument [could] be made that replacement of the entire facility [was] necessitated by Irene.” A response to that email provided the estimated spillway terminus repair cost, as well as invoices showing the actual costs of repairing the training wall and engineering fees associated with the work, for a total second appeal request of $146,463.00.
Timeliness of Appeals
The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) § 423 provides that: “[a]ny decision regarding eligibility for, from, or amount of assistance under this title may be appealed within 60 days after the date on which the applicant for such assistance is notified of the award or denial of award of such assistance.” Title 44 C.F.R. § 206.206(c) outlines clear procedures for the filing of appeals within a prescribed period of time that is triggered by the date the appellant receives notice of an action. Neither the Stafford Act nor 44 C.F.R. provides FEMA with authority to grant time extensions for filing appeals.
The Applicant submitted its second appeal on December 2, 2013, which the Grantee transmitted on October 9, 2014, more than 13 months after FEMA’s first appeal decision was issued on September 15, 2013. Consequently, the second appeal fails to meet the procedural requirements of 44 C.F.R. § 206.206(c)(2), and is denied. As explained below, the Applicant’s second appeal would otherwise be denied for failing to meet eligibility requirements.
Direct Result of the Disaster
The Robert T. Stafford Disaster Relief and Emergency Assistance Act § 406(a)(1)(A) authorizes FEMA to fund the repair or restoration of a public facility damaged or destroyed by a major disaster. Eligible costs of restoring a public facility must be based on the design of the facility immediately before the disaster and such work must be required as a direct result of the declared major disaster or emergency. Specifically, work to restore water control facilities, such as dams and reservoirs, is eligible for PA funding so long as the water control facilities are not otherwise eligible for funding from United States Army Corps of Engineers (USACE) or the Natural Resource Conservation Service (NRCS) and the Applicant provides records or surveys to show the predisaster condition of the facility.
The PA Guide further provides that normal maintenance items that existed prior to the disaster and deferred maintenance are not eligible as they do not meet the criterion of being disaster-related. “For facilities that require routine maintenance to maintain their designed function, such as … dams, it may be possible to review predisaster maintenance or inspection reports to verify the predisaster condition and to assess eligible disaster damage.” It is the Applicant’s responsibility to show disaster-related damages.
Damage and deterioration to the spillway and training walls was visible and documented for several years leading to the disaster. The Grantee points to the exposed rebar as evidence of disaster-related damage, proffering photographs from 2013—more than two years post-disaster—as proof and comparing them to photographs from a 2007 inspection report, highlighting the fact that there was no exposed rebar predisaster. However, two 2007 reports documented that the spillway side walls had some minor cracks along construction joints with spalling and efflorescence. Also noted was the west training wall approach out of plumb and leaning toward the approach area, with cracking evident on this wall and broken concrete off the channel floor at the spillway terminus. A subsequent report conducted a few days before the disaster—the August 19, 2011 NYSDEC inspection—revealed progressive damage, and stated that the spillway walls had voids, as well as spalled, cracked, and deteriorated concrete. While there may not have been any exposed rebar immediately before the disaster, the progressive deterioration of the facility was noted throughout the years, especially the broken concrete off the channel floor at the spillway terminus, signaling the impending rebar exposure that subsequently occurred. This undermines the Applicant’s contention that the damage directly resulted from the disaster.
Rather, the damage to the concrete walls and spillway appears to be a result of deferred maintenance. Several reports prior to the disaster documented a lack of maintenance and recommended specific maintenance measures to guard against the type of damage for which the Applicant now seeks assistance. The August 19, 2011 NYSDEC inspection report specifically stated that the dams lacked maintenance.  Similarly, the January 2010 Engineering Assessment Report also recommended patching spalled concrete sections on the ogee and spillway as maintenance measures. While some patching appears to ultimately have been performed, which the Grantee points to as evidence of maintenance, that concrete patching does not sufficiently demonstrate routine maintenance as required by PA guidance but rather a one-time repair solution. Reflective of a pattern of deferred maintenance, the Applicant admittedly held off repairing years of deteriorating concrete, stating that it was developing a comprehensive repair project and repairs would be performed after more critical work was complete. This information supports a conclusion that the resulting damage to the facility was most likely the product of deferred maintenance rather than unanticipated damage caused by the disaster.
Pursuant to 44 C.F.R. § 206.206(c), the Applicant’s appeal is time barred because it was not filed within the regulatory timeframe. In addition, the Applicant has not established that the damage to the concrete walls and spillway was a direct result of the declared event. Rather, the damage appears to be a product of deferred maintenance. As such, the Applicant’s second appeal is denied as the damage cannot be directly attributed to the declared event.
 Visual Observations, New York State Department of Environmental Conservation, at 1 (Jan. 29, 2007) [hereinafter 2007 NYSDEC Inspection].
 Dam Inspection Report, Clough Harbour & Associates, LLP, at 5 (Sep. 21, 2007) [hereinafter 2007 CHA Dam Safety Inspection Report].
 Letter from Envtl. Engineer 2, N.Y. State Dep’t of Envtl. Conservation, to Mayor, City of Plattsburgh (Nov. 15, 2011).
 Visual Observations, New York State Department of Environmental Conservation, at 1 (Aug. 19, 2011) [hereinafter 2011 NYSDEC Inspection].
 FEMA Photo Sheet (Jan. 20, 2012).
 Project Worksheet 1797, City of Plattsburgh, Version 0 (Jan 20, 2012).
 A 2007 inspection report stated the dam was stable and in relatively good condition.
 Letter from Geotechnical Engineer, Clough Harbour & Associates, to Envtl. Manager, City of Plattsburgh (July 11, 2012). CHA worried that repair would not be advisable as new concrete would not bond properly with the old concrete.
 The Grantee transmitted the Applicant’s second appeal more than 10 months later, contrary to the requirements of 44 C.F.R. § 206.206. The second appeal was untimely on the Grantee’s part.
 December 2013 – Westbrook Reservoir #2 Photos (Dec. 2013).
 The Grantee stated that FEMA’s first appeal decision was erroneously deemed partially granted because the items deemed eligible were either not claimed to be storm-related or were subject of a different PW already awarded or obligated.
 E-mail from Joseph Stinson, Disaster Assistance Representative, New York State Division of Homeland Security and Emergency Services, to Jonathan Ruff, City of Plattsburgh (Feb. 1, 2014, 9:45 EST).
 Email from Jonathan Ruff, City of Plattsburgh, to Joseph Stinson, New York State Division of Homeland Security and Emergency Services (Feb. 14, 2014, 17:51 EST).
 The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 423, 42 U.S.C. § 5189a (2003).
 See 44 C.F.R. § 206.206(c)(1).
 See FEMA Second Appeal Analysis, City of Boynton Beach, FEMA-1545-DR-FL (Aug. 31, 2015); FEMA Second Appeal Analysis, City of Lake Mary, FEMA-1539-DR-FL (Aug. 31, 2015); FEMA Second Appeal Analysis, City of Southbay, FEMA-1609-DR-FL, at 2 (June 15, 2015); FEMA Second Appeal Analysis, Public Health Trust of Miami-Dade County, FEMA-3259-EM-FL (Mar. 27, 2015); FEMA Second Appeal Analysis, Broward County School Board of Florida, FEMA-1609-DR-FL (Sep. 4, 2014).
 The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 406(e)(1). 42 U.S.C. § 5172 (2007); 44 C.F.R. § 206.226 (2010).
 44 C.F.R. § 206.223(a)(1); Public Assistance Guide, FEMA 322, at 33 (June 2007) [hereinafter PA Guide].
 Disaster Assistance Policy DAP9524.3, Rehabilitation Assistance for Levees and other Flood Control Works, at 1 (Feb. 25, 2009); PA Guide, at 82.
 2007 NYSDEC Inspection, at 1.
 2011 NYSDEC Inspection, at 1.