Direct Result of Disaster – Scope of Work

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-4020
ApplicantEssex County
Appeal TypeSecond
PA ID# 031-99031-00
PW ID#8453
Date Signed2016-08-18T00:00:00

Conclusion: Documentation provided by Essex County (Applicant) does not sufficiently demonstrate that damage to the west abutment of the Grove Road Bridge (Facility), beyond that documented in PW 8453, was caused by Hurricane Irene.  As such, replacing the abutment is not eligible for FEMA funding.  Additionally, the Applicant did not complete the approved SOW, but constructed a new bridge in a different location without prior approval from FEMA. Therefore, the Applicant did not comply with the terms of the grant.

Summary Paragraph

As a result of Hurricane Irene (August 26 to September 5, 2011), the west abutment of the Applicant’s Facility suffered scour damage.  Following a site visit in June 2012, FEMA prepared Project Worksheet (PW) 8453 to document repair work using a pre-event contract.  In November 2012, the Applicant requested a change in scope of work (SOW) based on an engineering assessment by Schoder Rivers Associates (SRA) that stated the disaster-related damage to the west abutment was greater than the initial determination and, instead of rehabilitating the abutment, recommended replacing the entire bridge or replacing the west abutment.  FEMA denied the request for SOW change because it determined replacing the abutment at a cost of $400,000.00 was not eligible based on DAP 9524.4, Repair vs. Replacement of a Facility under 44 C.F.R. §206.226(f) (The 50 Percent Rule), because the cost to repair the abutment was $28,544.50, or seven percent of the replacement cost.  On first appeal, the Applicant argued that FEMA overlooked key facts when making its determination, including that the west abutment was so undermined by the disaster that it made the bridge unsafe.  FEMA Region II sent a Final Request for Information requesting post-disaster inspection reports and a line item accounting for repairing the Facility based on the approved SOW.  In its reply, the Applicant stated there is no accounting for repair work because it moved forward with constructing a new bridge downstream from the existing Facility.  The Region II Regional Administrator denied the first appeal stating the additional work was not a direct result of the disaster nor did replacing the Facility meet the eligibility requirements of 44 C.F.R. § 206.226(f) or DAP 9524.4, Repair vs. Replacement of a Facility under 44 C.F.R. §206.226(f) (The 50 Percent Rule).  The Applicant’s second appeal again requests funding to replace the west abutment based on recommendations in the SRA assessment.  The Applicant states the actual cost to replace the west abutment is $817,212.00. 

Authorities and Second Appeals

  • Stafford Act § 406.
  • 44 C.F.R. §§ 13.30, 13.43, and 206.223.
  • PA Guide, at 29, 100.

Headnotes

  • Pursuant to Stafford Act § 406 and 44 C.F.R. § 206.223(a)(1),  FEMA may reimburse an eligible applicant for repairing, restoring, replacing or reconstructing facilities damaged as a result of a declared disaster.
  • The documentation provided by the Applicant does not sufficiently demonstrate that work, beyond that approved in PW 8453, is required as a result of Hurricane Irene, such that replacing the west abutment is eligible under the PA program. 
  • According to 44 C.F.R. § 13.30(d)(1), applicants must obtain prior approval from FEMA whenever there is any revision of the scope or objectives of the project.
  • In its RFI Response, the Applicant admits it constructed a new bridge downstream from the existing Facility’s location without prior FEMA approval.
  • Pursuant to 44 C.F.R. § 13.43(a)(2), FEMA may disallow all or part of a grant award if an applicant materially fails to comply with the terms of the award.
  • The Applicant did not complete the approved SOW or obtain FEMA approval prior to the start of relocating and reconstructing the new bridge.  FEMA will fully deobligate PW 8453. 

 

Appeal Letter

John Melville
Commissioner of NYS Division of Homeland Security and Emergency Services
New York State Division of Homeland Security and Emergency Services
1220 Washington Avenue
Building 22, Suite 101
Albany, NY 12226

Re: Second Appeal – Essex County, PA ID 031-99031-00, FEMA-4020-DR-NY, Project Worksheet (PW) 8453 – Direct Result of Disaster – Scope of Work

Dear Commissioner Melville:

This is in response to a letter from your office dated May 12, 2016, which transmitted the referenced second appeal on behalf of Essex County (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $817,212.00 to replace the west abutment of the Grove Road Bridge (Facility). 

As explained in the enclosed analysis, I have determined that FEMA appropriately denied the Applicant’s scope of work change request to replace the west abutment because the additional work was not required as a result of Hurricane Irene.  Therefore, I am denying the appeal.  Additionally, the Applicant did not complete the approved scope of work in PW 8453, but rather replaced and relocated the Facility without prior approval from FEMA.  As such, that work is not eligible for Public Assistance.  Consequently, FEMA will deobligate funding previously provided in PW 8453.  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 is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.
 

Sincerely,

/s/

Christopher Logan
Acting Director
Public Assistance Division                                                                    

Enclosure

cc: Jerome Hatfield
      Regional Administrator
      FEMA Region II

Appeal Analysis

Background

From August 26 to September 5, 2011, Hurricane Irene impacted Essex County (Applicant), New York.  The Grove Road Bridge (Facility), maintained by the Applicant’s Department of Public Works, suffered scour damage to the footings and wing walls on the west bridge abutment.  Prior to the disaster, the New York State Department of Transportation (NYSDOT) inspected the Facility and issued findings in August 2009 and July 2011.  Both reports found erosion or scour present and noted the footings had moderate deterioration, but were still functioning as designed.  On June 26, 2012, a FEMA project specialist inspected the site for latent damage at the request of the Applicant.[1]  Following the site visit, FEMA prepared Project Worksheet (PW) 8453 to address the damage.  Utilizing a pre-event annual bridge repair and maintenance contract, FEMA approved contracted labor to “form, batch, and place structural grout for scour repairs”[2] and obligated PW 8453 for $28,544.50 based on rates outlined in the contract. 

A November 8, 2012 letter from the Applicant to the New York State Office of Emergency Management[3] (Grantee) requested a scope of work (SOW) change for PW 8453.  The letter explained that the Applicant hired Schoder Rivers Associates (SRA or engineering consultant) to inspect the Facility.[4]  With the SOW request, the Applicant included a geotechnical study completed by Dente Engineering and an engineering report issued by SRA identifying safety and structural issues with the Facility.[5]  The Applicant’s letter asserted that the engineering consultant discovered the Facility was more severely damaged by Hurricane Irene than initially documented.[6]  The engineering consultant determined the force of the water from the storm caused exposure of the westerly abutment footing, and the “bridge footing was now perched on a four foot high precipice exposed to the river channel.”[7]  The Applicant asserted that the original scope of work did not address this damage and requested a scope change.  The Applicant proposed two options: (1) replace the west abutment at a cost of $400,000.00, or (2) replace the entire bridge at a cost of $1.2 million.  The Applicant claimed either measure would ensure stability of the Facility, but the preferred option was to replace the bridge.

The Grantee forwarded to FEMA the SOW change request in a letter dated January 11, 2013.  In an accompanying memorandum, Grantee representatives recommend approving the request due to latent damages found during the engineering evaluation.  The Grantee further recommends replacing the entire bridge because replacing the single abutment would drive up the peripheral cost.[8] 

FEMA Region II denied the Applicant’s request to change the scope of work in an August 1, 2013 letter.  FEMA Region II calculated the repair cost, $28,544.50, versus the replacement cost, $400,000.00, found that the repair cost did not exceed fifty percent of the replacement cost, and concluded that the proposed scope of work did not satisfy requirements set forth in FEMA Disaster Assistance Policy (DAP) 9524.4, Repair vs. Replacement of a Facility under 44 C.F.R. §206.226(f) (The 50 Percent Rule).[9]

First Appeal

The Applicant appealed FEMA’s decision denying its request to change to the SOW on September 17, 2013.  The Grantee provided a memorandum with additional information regarding the Applicant’s appeal on December 27, 2013.  The Grantee asserted that FEMA overlooked key facts when considering the Applicant’s request for a scope change, including: (1) the river channel, adjacent to the west abutment, was severely scoured as a result of Hurricane Irene; (2) the July 2011 NYSDOT inspection report indicated “there is no undermining at this time” and displayed pictures of the footing, showing rock and soil above the water line of the footing; (3) the SRA post-disaster engineering report stated the west abutment was undermined as a result of the disaster; (4) the damage caused by the disaster rendered the abutment and bridge unsafe; and (5) the SRA post-disaster report recommends that the abutment be replaced, as opposed to repaired, because injecting grout was not a viable repair option due to potential environmental impact to the river.  Based on these factors, the Grantee concluded replacement of the west abutment was eligible for PA reimbursement and requested the estimated cost of $400,000.00.   

FEMA Region II sent a Final Request for Information (RFI) dated March 27, 2015.  The request noted that the record lacked support for the Applicant’s assertion that the scope of work required to repair eligible damage to the Facility consisted of replacing the west abutment.  The Region specifically requested any NYSDOT bridge inspection reports dated after September 5, 2011, a proposed scope of work based on the scour repair method in the PW describing the extent of the damage and an estimate of the quantity of materials required to repair the damage, and documentation of costs incurred by the Applicant for placement of riprap at the foundation of the west abutment. 

The Applicant responded to Region II’s RFI in a June 4, 2015 letter and stated that due to safety issues and the infrastructure requirements for a bridge at the pre-disaster location, it moved forward with constructing a new bridge at a location downstream from the existing bridge.  The Applicant admits it began construction on the new bridge without prior approval from FEMA.[10]  The Applicant provided a cost summary of a new Grove Road Bridge constructed after Hurricane Irene, highlighting the costs for the west abutment and invoices for contract labor and materials incurred for post-disaster placement of riprap at the foundation of the west abutment.  Instead of providing NYSDOT inspection reports dated after September 5, 2011, the Applicant stated there were no inspections completed between August 26 and September 5, 2011. 

In a letter dated February 19, 2016, the Region II Regional Administrator (RA) denied the appeal.  He concluded the pre-disaster NYSDOT inspection reports demonstrated that the additional work requested in the scope change resulted from pre-existing damage, not Hurricane Irene.  As such, the RA stated the additional work was not eligible for PA reimbursement.  In addition, the RA determined that, based on 44 C.F.R. § 206.226(f)(1) and DAP 9524.4, Repair vs. Replacement of a Facility under 44 C.F.R. §206.226(f) (The 50 Percent Rule), the west abutment was not eligible for replacement because the repair cost was only seven percent of the replacement cost.  Finally, the RA stated that the temporary placement of riprap to the abutment was not eligible as an emergency protective measure because the Applicant failed to substantiate that the work was completed within the regulatory timeframe for emergency work.   

Second Appeal

In a letter dated March 15, 2016, the Applicant appeals FEMA’s first appeal decision denying replacement of the west abutment.  However, the Applicant does not contest FEMA’s determination regarding eligibility of riprap temporarily placed on the foot of the abutment.  The Grantee supports the Applicant’s second appeal in a May 12, 2016 letter and accompanying memorandum.  The Grantee argues that the amount of disaster-related damage was significantly more than what was documented in PW 8453, and the cost to repair the Facility was more than the obligated amount.  Moreover, the Grantee argues that FEMA’s calculation regarding repair versus replacement of the west abutment was flawed in that it did not take into account all damages and costs.  As such, the Grantee states FEMA should not have used $27,968.50 as the repair cost.  The Grantee further asserts that replacement of the west abutment, not grouting, is recommended by the engineering consultant because the Applicant would not be able to obtain the proper environmental permits.  The Grantee states that the Applicant replaced the entire bridge and the cost of the west abutment, alone, was $817,212.00. 

Discussion

Direct Result of the Disaster

Pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) § 406, FEMA may reimburse eligible applicants for the repair, restoration, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster.[11]  Implementing the Stafford Act, Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.223(a) states an item of work must be required as the result of a major disaster event to be eligible for PA funding.[12]  In short, the “specific cause of damage must relate to the incident for which the disaster was declared” in order for the work item to be eligible.[13]  As such, work to repair pre-existing damage or correct inadequacies that existed prior to the disaster is not eligible under the PA program.[14]

The Applicant argues that Hurricane Irene caused significantly more scour damage than what was reflected in PW 8453.  The Applicant asserts the scour damage caused by the disaster is such that replacement of the west abutment is warranted and provides the Dente Engineering geotechnical study and SRA engineering report to substantiate its claims.  The Dente Engineering geotechnical study states, “[t]he soil on the stream side of the abutment was eroded and the abutment foundation was undermined by several feet in 2011 as a result of heavy flooding caused by fall storms.”[15]  However, it does not describe the condition of the west abutment prior to Hurricane Irene in order to provide context for the severity of erosion caused by the disaster.  Due to the condition of the west abutment, the geotechnical study recommends improving the stability of the existing abutment or replacing it.[16]  However, the geotechnical study states that jet soil grouting—the technique identified in the approved SOW—provides the most feasible means of stabilizing the west abutment should the Applicant opt for repair.[17]  As such, the geotechnical survey clearly demonstrates that the west abutment was not beyond repair, warranting replacement, but that the Applicant could have completed the SOW approved by FEMA in PW 8453.

Further, the SRA engineering report advocates for replacing the abutment, but without attributing the cause of the extensive scour damage solely to Hurricane Irene.  The engineering report’s recommendation to replace the west abutment, instead of repairing it, is two-fold: (1) replacing the west abutment is necessary because of the overall deterioration of the abutment since 1992, and (2) utilizing the approved repair technique may raise environmental concerns with the New York State Department of Environmental Conservation (NYSDEC).[18]  Specifically, SRA notes, “… rehabilitation of the existing west abutment is not a preferred option for repair of this structure.  The extent of current deterioration and the relatively rapid rate of deterioration that has occurred since… 1992 indicates that the abutment has passed its useful life and should be replaced.”[19]  This statement demonstrates that SRA attributes the extensive deterioration of the west abutment to an accumulation of events, beginning in 1992, not Hurricane Irene, alone.  The engineering report supports Region II’s determination that there was pre-disaster deterioration, not the Applicant’s assertion that Hurricane Irene was the sole cause of damage. 

With regard to the environmental impacts, the Grantee argues that the Applicant replaced the abutment based on SRA professional opinion that it would not be able to obtain the necessary permit to complete repair work using jet soil grouting.  However, the Applicant did not demonstrate that it sought the applicable permit or that NYSDEC denied the permit request.  Therefore, documentation provided by the Applicant does not sufficiently support the assertion that scour damage was caused by Hurricane Irene, alone, and that environmental requirements warranted replacing the west abutment, as opposed to repairing it using the technique prescribed in PW 8453.   

Even if, arguendo, the Dente Engineering geotechnical study and the SRA engineering report attributed the significant deterioration of the Facility solely to Hurricane Irene, other supporting documentation refute this assertion.  Primarily, the pre-disaster NYSDOT reports note evidence of pre-disaster scour damage.  Both the August 2009 and July 2011 inspection reports indicate moderate to extensive erosion or scour present at the west abutment’s footing and wing walls.[20]  Moreover, FEMA personnel conducted a site visit in June 2012 to evaluate the amount of damage caused by Hurricane Irene in order to prepare PW 8453.  During the site visit, the FEMA Project Specialist observed disaster-related scour damage at the west abutment and wing walls as documented in pictures included with PW 8453.  However, the pictures also show pre-existing deterioration of the west abutment’s stem wall.    

As part of the disposition of the second appeal, the entire file was reviewed,[21] including the August 2009 and July 2011 NYSDOT inspection reports, the Dente Engineering geotechnical study and SRA engineering report, and PW 8453.  Upon doing such and consulting with a FEMA Professional Engineer, it was concluded that there was significant pre-disaster scour damage such that replacement of the west abutment based solely on damage caused by Hurricane Irene could not be supported.[22]  As such, the Applicant did not demonstrate that additional work requested in the SOW change request is a direct result of the disaster as required by Stafford Act § 406 and 44 C.F.R. § 206.223(a).  Consequently, replacing the west abutment is ineligible for reimbursement. 

Bridge Replacement in Different Location

Pursuant to 44 C.F.R. § 13.30(d)(1), applicants must obtain prior approval from FEMA whenever there is any revision of the scope of work or objectives of the project.  This is true regardless of the reason necessitating the change (e.g., hidden damage discovered, improved project, alternate project, or general scope change)[23] because it allows FEMA to carry out related functions such as additional environmental and historic preservation (EHP) compliance reviews, as well as the Applicant to obtain the necessary environmental permit.[24]  When an applicant materially fails to comply with any term of an award FEMA may disallow all or part of the grant award.[25]  

The Applicant’s response to FEMA’s Final RFI states the Applicant entered into a contract to construct a new bridge, scheduled for completion in July 2015, downstream from the existing Facility.  The Applicant further asserts that it “could not wait for a prolonged FEMA determination on the pending… SOW change request.”[26]  There is no evidence in the file that the Applicant requested moving the Facility downstream.  While the Applicant initially requested replacing the entire bridge, FEMA denied the request and the Grantee stated that the Applicant had withdrawn its request for a bridge replacement.[27]  Further, as evidenced by the Applicant’s failure to submit invoices or a line item estimate for the FEMA-approved scope of work, it is clear that the Applicant did not use funding awarded under the PA program to repair the west abutment of the Facility.

FEMA’s EHP assessment, dated August 8, 2012, notes that the review pertains only to the approved scope of work[28] and is for the placement of “structural grout on the damaged abutment.”[29]  Likewise, the New York State Historic Preservation Field Services Bureau (SHPO) found no adverse effects to historic properties and concurred with FEMA’s assessment.[30]  There is no evidence that FEMA or SHPO performed another EHP compliance review related to relocating and replacing the bridge. 

Based on the Applicant’s admission, it is clear that it did not comply with the terms of the grant (i.e., complete the approved scope of work and allow FEMA to conduct the proper compliance reviews) or seek FEMA’s prior approval to relocate the bridge downstream from its predisaster location.  While the Applicant is free to construct a new bridge instead of repairing the predisaster Facility, the Stafford Act and federal regulation prohibit FEMA from awarding PA funding without prior approval from FEMA and the proper EHP compliance reviews.  As such, the project is not eligible for PA reimbursement and FEMA will deobligate $28,544.50 that was previously awarded in PW 8453.  

Conclusion

Pursuant to Stafford Act § 406 and 44 C.F.R. § 206.223(a), documentation provided by the Applicant does not demonstrate that damage to the west abutment of the Facility, beyond that documented in PW 8453, was caused by Hurricane Irene.  As such, replacing the abutment is not eligible for FEMA funding.  Additionally, the Applicant did not complete the approved scope of work, but rather constructed a new bridge in a different location without prior approval from FEMA.  Therefore, the Applicant did not comply with the terms of the grant, and FEMA Region II will deobligate funding previously obligated for the project in a version to PW 8453.

 

[1] Project Worksheet 8453, Essex County, Version 0, at 2 (Sep. 17, 2012).

[2] Id. at 1.

[3] At the time of this request, the New York State agency managing FEMA Public Assistance requests was known as the New York State Office of Emergency Management.  The name has since changed to the New York State Division of Homeland Security and Emergency Services.

[4] Letter from Superintendent, Essex County DPW, to Disaster Admin. Officer, NY State Office of Emergency Mgmt., at 1 (Nov. 8, 2012) [hereinafter Request for Scope of Work Change].

[5] Letter from President, Dente Eng’g, P.C., to Assistant Superintendent, Essex County DPW (Oct. 22, 2012) [hereinafter Geotechnical Study], and Letter from Principal and Prof’l Eng’r, Schoder Rivers Assoc. Consulting Eng’rs, P.C., to Superintendent, Essex County DPW (Nov. 9, 2012) [hereinafter SRA Engineering Report].

[6] Request for Scope of Work Change, at 1.  

[7] Id.

[8] Memorandum from Disaster Assistance Representative, NY State Office of Emergency Mgmt., to Disaster Admin. Officer, NY State Office of Emergency Mgmt. (Jan. 8, 2013).

[9] Disaster Assistance Policy DAP9524.4, Repair vs. Replacement of a Facility under 44 C.F.R. §206.226(f) (The 50 Percent Rule) (Mar. 25, 2009).

[10] Letter from Superintendent, Essex County DPW, to Disaster Assistance Officer, NY State Div. of Homeland Sec. & Emergency Servs., at 2 (June 4, 2015) [hereinafter RFI Response] (stating “… the County could not wait for a prolonged FEMA determination on the pending appeal and SOW change request… [t]herefore, the County entered into a contract to construct a new bridge downstream from the existing bridge.”).

[11] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 406, 42 U.S.C. § 5172 (2007).

[12] 44 C.F.R. § 206.223(a)(1) (2011).

[13] Public Assistance Guide, FEMA 322, at 100 (June 2007) [hereinafter PA Guide].

[14] Id. at 29.

[15] Geotechnical Study, at 1.

[16] Id. at 2.

[17] Id. at 3.

[18] SRA Engineering Report, at 3-4. 

[19] Id. at 3.

[20] When evaluating bridge components, NYSDOT uses a numeric spectrum between 1 and 9, with “1” signifying total deterioration, “7” signifying a new component or no deterioration, “8” meaning not applicable, and “9” meaning condition unknown.  A rating of “3” means serious deterioration found or not functioning as originally designed while a rating of “5” means minor deterioration, but functionally properly.  The August 2009 and July 2011 inspections reports rated the west abutment’s footing and wing walls as “4” which is an intermediary rating between “3” and “5”.  

[21] Email from Prof’l Eng’r, FEMA Recovery Directorate to Attorney Advisor, FEMA Office of Chief Counsel (June 20, 2016, 10:43 EST) (on file with FEMA).

[22] Id.

[23] PA Guide, at 111 and 139. 

[24] Id. at 139-140.

[25] 44 C.F.R. § 13.43(a)(2).

[26] RFI Response, at 2.

[27] Memorandum from Disaster Assistance Representative, NY State Div. of Homeland Sec. & Emergency Services, to Disaster Admin. Officer, NY State Office of Emergency Mgmt., at 1 (Dec. 27, 2013).

[28] Correspondence from Historic Preservation Specialist, FEMA, to Reg’l Envtl. Officer, NY State Office of Parks, Recreation & Historic Preservation, at 2 (Aug. 8, 2012).

[29] Id.

[30] Letter from Bureau of Technical Preservation Servs. Dir., NY State Office of Parks, Recreation & Historic Preservation, to FEMA (Aug. 13, 2012).

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