Direct Result of Disaster, Deferred Maintenance, Improved Project

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-4230
ApplicantRepublic County Highway Department
Appeal TypeSecond
PA ID#157-UAPCH-00
PW ID#404
Date Signed2017-07-26T00:00:00

Conclusion:  The Republic County Highway Department (Applicant) has not demonstrated that it routinely maintained Bridge A.3-2.8 (Facility) prior to the disaster or that the work requested was directly caused by the disaster.

Summary Paragraph

From May 4 through June 21, 2015, severe storms and flooding inundated Republic County, Kansas.  The Applicant’s Facility suffered damage and a 19 foot span along its east side collapsed.  The Applicant’s engineering firm determined the Facility could not be repaired and that the entire bridge needed to be replaced because of current bridge safety standards.  FEMA subsequently determined that the damage claimed by the Applicant was due to deferred maintenance and was not a direct result of the disaster.  FEMA addressed the Applicant’s engineering firm’s recommendation that the Facility be replaced and concluded that even if the Facility were eligible, it would not be eligible for replacement.  The Applicant appealed FEMA’s determination and argued that the Facility was not damaged due to deferred maintenance.  It contended the Facility did not require immediate repairs pre-disaster, and consequently, the pre-existing damage was not the cause of the bridge failure. Further, it asserted it adhered to an ongoing inspection and maintenance program prior to the disaster. The RA denied the Applicant’s appeal, determining the Facility had existing damage, which had been well documented and had received little to no preventative maintenance to the east berm and abutment. The Applicant appeals the RA’s decision and argues that though the predisaster inspection reports showed deficiencies, the Facility was not in danger of collapse nor unsound.  The Applicant claims the damage was caused by the disaster and not the deficiencies.

Authorities and Second Appeals

  • Stafford Act § 406.
  • 44 C.F.R. § 206.223.
  • PA Guide, at 29, 33, 100.
  • Arthur County, FEMA-4225-DR-NE, at 3.

Headnotes

  • To be eligible for financial assistance, an item of work must be required as the result of the major disaster event.
  • Repair of non-disaster related damage, or work to correct inadequacies that existed prior to the disaster, is not eligible for reimbursement. It is the applicant’s responsibility to show the damage is disaster-related.
    • The Applicant did not demonstrate that the damage and requested work were a direct result of the disaster. 
  • Applicants performing restoration work on a damaged facility may use the opportunity to make additional improvements while still restoring the facility to its predisaster function and capacity. 
    • Because the Facility was not eligible for funding, the Applicant’s requested improved project designation is also ineligible.

Appeal Letter

Major General Lee Tafanelli
Director
Kansas Division of Emergency Management
2800 SW Topeka Blvd.
Topeka, Kansas 66611-1287

Re:  Second Appeal – Republic County Highway Department, PA ID 157-UAPCH-00,

FEMA-4230-DR-KS, Project Worksheet (PW) 404 – Direct Result of Disaster, Deferred Maintenance, Improved Project

Dear Major General Tafanelli:

This is in response to a letter from your office dated May 16, 2017, which transmitted the referenced second appeal on behalf of Republic County Highway Department (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding in the amount of $95,197.35 for repairs to Bridge A.3-2.8 (Facility).

As explained in the enclosed analysis, I have determined that the Applicant has not demonstrated that it maintained the Facility prior to the disaster or that the work requested is a direct result of the disaster.  Accordingly, I am denying this appeal.

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
Director
Public Assistance Division

Enclosure

cc:  Kathy Fields
      Acting Regional Administrator
      FEMA Region VII

 

Appeal Analysis

Background

From May 4 through June 21, 2015, severe storms and flooding inundated Republic County, Kansas (Applicant).  The Applicant’s bridge A.3-2.8 (Facility) suffered damage and 19 feet of its east span collapsed.  The Facility consists of three spans, and was built in 1954, measuring 20 feet wide by 65.9 feet long.  The timber deck driving surface was constructed with steel and wooden stringers and supported by steel posts piles.  The Applicant’s engineering firm determined repairing the Facility was not a viable option and the bridge needed to be replaced, as required by current bridge safety standards.[1]    

FEMA determined the requested scope of work to replace the Facility was ineligible for Public Assistance (PA) funding and accordingly obligated Project Worksheet (PW) 404 for $0.00.  FEMA issued a determination memorandum on June 10, 2016, which explained that the project was ineligible because the damage was due to deferred maintenance and was not a direct result of the disaster.  Accordingly, FEMA denied $95,197.35 for repair costs.  FEMA based this determination on two bridge inspections from 2012 and 2014, in which a Kansas Department of Transportation (KDOT) engineer noted that the bridge had heavy berm erosion on the east side and recommended remedial measures.  The 2014 report also noted the Applicant had not completed any remedial measures to the Facility since the inspection in 2012.  In addition, FEMA found that the Applicant did not have a policy to track bridge repairs and conducted repairs on an as needed basisLast, FEMA addressed the engineering firm’s recommendation to replace the bridge and concluded that even if the Facility were eligible, it would not be eligible for replacement because: (1) the Applicant had not formally adopted a policy that required upgrades; and (2) the repair costs were only 20.8 percent of the cost to replace the Facility, well below the 50 percent required under FEMA policy.

First Appeal

On August 12, 2016, the Applicant appealed FEMA’s denial of funding and requested $426,687.00, reflecting the cost to replace the Facility.  The Applicant stated that the Facility was not damaged due to deferred maintenance, arguing that the pre-existing condition did not require immediate repairs nor was it the cause of the bridge failure.  Moreover, the Applicant claimed it had an ongoing inspection and maintenance program that consisted of: (1) KDOT conducting inspections; (2) grader operators conducting visual inspections and reporting any issues to their supervisor; and (3) the Applicant conducting repairs on a priority basis, starting with the most dangerous situations first.  Finally, the Applicant argued that FEMA should award replacement costs in order to comply with current codes and standards and according to FEMA policy.  The Kansas Division of Emergency Management (Recipient) forwarded the appeal with its concurrence to FEMA Region VII on October 12, 2016.

FEMA Region VII sent the Applicant a Final Request for Information (RFI) on November 29, 2016.  Specifically, FEMA requested documentation reflecting the Applicant’s ongoing repair and maintenance program, documentation showing the grader operators had the requisite knowledge to conduct bridge inspections, grader operators inspection reports, and documentation reflecting the repairs to the Facility were either required by KDOT inspection reports, or, that the KDOT recommended repairs were not necessary.  The Applicant replied on December 9, 2016, addressing each request and emphasizing that the Facility spanned an 80 foot gap with three spans and only covered a small amount of water, approximately one foot wide and one to two inches deep.  As such, it noted the Facility did not encounter significant water levels except during flooding.  The Applicant also included documentation that reflected it performed repairs to the Facility in 2007.

The RA denied the Applicant’s appeal in a decision dated January 17, 2017.  In it, the RA determined the Facility had existing damage to the east berm and abutment, which had been well documented since 2012 and had received little to no preventative maintenance.  The RA reviewed the KDOT inspection reports of the Facility for the years 2012, 2013, and 2014 and noted that all of them indicated the Facility has a history of heavy berm erosion on the east side, that the east berm was nearly vertical, and that there was excessive exposure of the unbraced pile lengths at the piers.  The RA found it noteworthy that the damage claimed was located on the east span where the reports depicted deferred maintenance since at least 2012 and noted that the Applicant ignored the advice of a licensed engineer from KDOT when it deferred repairs.  Because the Applicant did not make the repairs identified in 2012 and that same section failed, the RA found that FEMA was unable to fund repairs to the Facility.  She also stated that the inspections claimed by the Applicant were drive-by visual inspections performed by motor-grader operators, who were conducting gravel road maintenance, and no reports were submitted to demonstrate what the inspections consisted of or revealed.

The RA also rejected the Applicant’s position that it needed to replace the Facility.  Even if the Facility were eligible, the referenced codes and standards were not recognized by FEMA.  The Applicant adopted a code in 2016 but it was not in effect at the time of the disaster.  In addition, the cost to repair the Facility was not more than 50 percent of the cost to replace the Facility and would not be eligible under FEMA policy for replacement.

Second Appeal

The Applicant appeals the RA’s decision and requests $95,197.35 in PA funding.[2]  Through the appeal, the Applicant emphasizes that the inspection reports were merely advisements to the Applicant regarding deficiencies and suggestions for how to prolong the life of the Facility, and that the Facility was not in any danger of collapse.  It admits the Facility was structurally deficient, but contends that its professional engineer found that those deficiencies did not amount to the bridge being unsound or the cause of the collapse and that no amount of maintenance would have prevented the Facility’s collapse.  The Applicant takes issue with most of the RA’s assertions on first appeal, addresses each one, and requests FEMA acknowledge the errors and unsupported conclusions made by FEMA Region VII.  The Applicant states that because it replaced the bridge, it needs to receive an improved project designation, and accordingly requests such.  The Recipient concurred on May 16, 2017. 

Discussion

The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) Section 406(e) authorizes FEMA to fund the cost of repairing, restoring, reconstructing, or replacing a facility damaged or destroyed by a major disaster.[3]  To be eligible for financial assistance, an item of work must be required as the result of the major disaster event.[4]  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.[5]  Repair of non-disaster related damage, or work to correct inadequacies that existed prior to the disaster, is not eligible for reimbursement.[6]  For facilities, such as bridges, that require routine maintenance to maintain their designated function, FEMA may review the predisaster maintenance or inspection reports to verify the predisaster condition and assess eligible disaster damage.[7]  It is the applicant’s responsibility to show the damage claimed is disaster-related.[8]

The Applicant’s claim that its grader operators conducting inspections served as an inspection and maintenance program is not compelling.  The Applicant has not provided documentation addressing how graders are qualified to conduct inspections or what is included within those inspections.  FEMA requested the inspection reports in its Final RFI, but the Applicant did not produce any reports that would distinguish pre-existing damage from damage caused by the disaster.   Similarly, in response to FEMA’s request for maintenance records, the Applicant stated that “[it] has not had a policy in place to monitor or track bridge repairs.  Repairs are done as needed to insure safety of the traveling public... We intend to implement a policy in the future to more thoroughly track the repairs.”[9]  Although the Applicant acknowledged on first appeal its maintenance program may be informal, the administrative record unfortunately does not support FEMA concluding that the Applicant had a maintenance program for purposes of the questions posed by this appeal. [10]  Repairing the bridge once in 2007 is not sufficient to demonstrate a regular maintenance program. 

Additionally, based on review of the entire administrative record, which included consultation with a Professional Engineer, FEMA concludes that the Applicant did not demonstrate repair of the east span is directly a result of damage caused by the disaster.  The KDOT inspection reports reflect the Facility was described as being structurally deficient for three years before the disaster, and note rust and erosion on the east berm of the Facility, with the berm being nearly vertical.[11]  The KDOT inspection report from 2012 recommended the Facility, “be replaced…because it has deteriorated to the point that it can no longer carry legal loads.”[12] 

The Facility was rated scour critical, which is when the abutment or pier foundations are rated as unstable,[13] in the KDOT reports.  KDOT recommended a plan of action to implement a schedule for the timely design and construction of scour countermeasures needed for the protection of the bridge.  The recommendations included: (1) adding structural cross-bracing to piers and placing abutment protection; (2) adding riprap at abutments and pier scour countermeasures; and (3) replacing the Facility.[14]  The Applicant admitted it did not implement the recommended countermeasures.  The east abutment of the Facility was destroyed in the disaster, which was the abutment that the plan of action recommended protecting with riprap.  The plan of action also stated “[h]eavy berm erosion. East berm is nearly vertical and close to timber pile abutment. Scour and erosion have exposed excessive length of unbraced pile at piers.”[15]  FEMA’s review of photographs of the Facility, verified the stream had been migrating to the east, flowing at the toe of the east abutment, and causing heavy erosion to the east abutment.  While the disaster caused damage, the damage was not a direct result of the flood due to the existence of these pre-existing deficiencies. 

The Applicant has the burden to demonstrate that the work claimed is a direct result of the disaster and where pre-existing damage exists, to distinguish that damage from the disaster-related damage.  In this instance, the Applicant fails to do so.  As such, the Applicant did not demonstrate that the work requested is a direct result of the disaster as required by Stafford Act § 406 and 44 C.F.R. § 206.223(a).  Consequently, repair of the Facility is ineligible for reimbursement.  

In addition, the Applicant requests an improved project status on second appeal.  As the Facility is not eligible, the request for an improved project designation is also ineligible.

Conclusion

The Applicant has not demonstrated that it routinely maintained the Facility prior to the disaster or that the damage claimed is a direct result of the disaster.  Accordingly, the appeal is denied.

 

[1] Letter from Vice President, BG Consultants, Inc., to Dir., Republic Cnty. Highway Dept., at 1 (Jan. 15, 2016) (in which the requested replacement involved an upgrade to a steel bridge).

[2] Letter from Adm’r., Republic Cnty. Highway Dept., to Pub. Assistance Appeals, Kan. Emergency Mgmt., 1 (Mar. 13, 2017) (The Applicant does not appeal the cost or issue associated with replacing the bridge).

[3] The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) of 1988, Pub. L. No. 93-288, § 406, 42 U.S.C. § 5172 (2013).

[4] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.223(a)(1) (2014); Public Assistance Guide, FEMA 322, at 29 (2007) [hereinafter PA Guide].

[5] PA Guide, at 100.

[6] Id. at 29.

[7] Id. at 33.

[8] Id.

[9] Email from Adm’r, Republic Cnty. Highway Dept., to Rep., Kansas Div. of Emergency Mgmt. (Mar. 29, 2016).

[10] FEMA Second Appeal Analysis, Arthur County, FEMA-4225-DR-NE, at 3 (Apr. 25, 2017) (stating “[b]eyond statements made in its appeals, the only information the Applicant provided pertaining to predisaster road maintenance was its repair material purchase invoices from 2012-2014.  These invoices show purchase and delivery of road surfacing material.  However, they do not document where or in what manner the Applicant used the material to maintain its road network, nor that routine maintenance of the damaged road sections was performed prior to the disaster.  Moreover, despite being requested, the Applicant did not provide other documentation (such as road maintenance, inspection reports, or pre- and post-disaster photographs, etc.) demonstrating routine maintenance of its roads.  As such, the Applicant has not documented the predisaster conditions of its roads.”).

[11] Kan. Local Bridge Inspection Form (Nov. 26, 2012); Kan. Local Bridge Inspection Form (Aug 14, 2013); Kan. Local Bridge Inspection Form (Sept. 12, 2014).

[12] Kan. Local Bridge Inspection Form (Nov. 26, 2012) (classifying the Facility as Code 311, which means that a bridge is to be replaced by contract because it has deteriorated to the point that it can no longer carry legal loads.  The U.S. Dept. of Transportation Federal Highway Admin. provides the codes used by KDOT in its reports, see Recording and Coding Guide for the Structure Inventory and Appraisal of the Nation’s Bridges at 59, https://www.fhwa.dot.gov/bridge/mtguide.pdf (last visited Jun. 30, 2017).

[13] U.S. Dept. of Transportation, Bridges and Structures, Attachment B, Item 113 – Scour Critical Bridges  https://www.fhwa.dot.gov/engineering/hydraulics/policymemo/revguide.cfm (last visit July 11, 2017) (stating that a scour critical bridge is one with abutment or pier foundations rated as unstable).

[14] Kan. Local Bridge Inspection Form, Section 7 (Nov. 26, 2012).

[15] Id.

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