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Second Appeal Analysis
PA ID# 169-99169-00; Pulaski County
PW ID# (PW) 84 ; Direct Result of Disaster
During the incident period of December 23, 2015, to January 9, 2016, the State of Missouri experienced tornadoes, severe storms, and flooding.
Flooding overtopped the Bunker Road Bridge, a concrete bridge located in Pulaski County (Applicant). A preliminary engineering report prepared by its retained engineering firm on March 15, 2016, stated that the bridge was damaged as a result of storm events in August 2013 and December 2015, including scour holes on the up- and downstream edges of the bridge, and undermining so that most of the bridge’s footing was not resting on solid ground, and was not supported by anything. The engineering report stated that there were no written records of maintenance, and it also stated that, according to the County Foreman, maintenance items were addressed as soon as possible. The report also indicated that the bridge had reached the end of its useful life and that maintenance was required after every flood event, with accumulated debris removed and rock added in an effort to reduce erosion. It stated that, with the current level of damage, the east and west abutments and portion of the east end could be salvaged, but that the deck and six of the seven supports would need to be removed to repair the foundation. Alternatively, the engineering report recommended that the entire bridge be demolished and a new, higher, bridge be constructed so that it could withstand potential future flooding.
On September 19, 2016, FEMA issued a determination memorandum, which explained that pre-existing damage to the bridge was extensive, as evidenced by three bridge inspection reports from the Missouri Department of Transportation (MODOT) from inspections conducted in 2012, 2014, and 2016. These reports detailed the bridge’s declining state over time. According to these reports, the bridge structure had been scarred by debris hitting the structure, approximately a quarter of the concrete deck curbs were missing, and scouring had undermined substructure footings. The determination memorandum stated that there was evidence of selective maintenance, but that the Applicant had not provided maintenance records. As a result, it was impossible to distinguish between damage related to the present declared disaster and pre-existing damage. Accordingly, FEMA determined the project was ineligible for Public Assistance (PA) funding.
FEMA prepared Project Worksheet (PW) 84, estimating restoration costs as $229,764.00; however, zero dollars were obligated because the project was deemed ineligible.
The Applicant appealed FEMA’s decision in a letter dated May 17, 2017.
The Applicant argued that the MODOT reports provided evidence that the damage to the bridge was caused by flood events in 2013 and 2015. It also asserted that the MODOT reports did not support the conclusion that the bridge substructure was in poor condition, because the observed scour was not critical. It explained that it addressed the damage after the 2013 flood as best as it could by using rock to fill scour holes, but that it was busy dealing with major damage throughout the county. It argued that a maintenance log would have demonstrated the extent of prior repairs, and asserted that it had provided the only copy of this log but that FEMA had lost it. It also argued that FEMA’s cost estimate was incorrect, the bridge qualified for replacement and the bridge’s design needed to be changed to comply with Federal, State, and local codes and standards. The Missouri Department of Public Safety, State Emergency Management Agency (Recipient) forwarded the Applicant’s appeal to FEMA in a letter dated March 28, 2017.
On June 15, 2017, FEMA sent a Final Request for Information (RFI) to the Applicant, requesting additional documentation: (1) demonstrating the bridge was damaged by the declared event; (2) showing that repairs were completed as recommended in the 2014 MODOT report; (3) showing any FEMA determination related to damage caused by the 2013 flood; (4) supporting damages identified at piers two and eight, and the adjacent deck; (5) identifying and applying the codes and standards relied upon in the first appeal; (6) supporting continued maintenance to the bridge; (7) showing the United States Army Corps of Engineers (USACE) denied replacement of the bridge to predisaster configuration; (8) establishing the date when the Bunker Road Bridge by-pass was constructed; and (9) indicating whether the bridge suffered additional damage as a result of flooding in 2017.
The Applicant responded to the Final RFI in a letter dated July 14, 2017,
stating it had already provided FEMA with photographs and other documentation numerous times, but that it would send them again. It stated again that FEMA had lost the county’s maintenance records, but noted that there was evidence of continuous maintenance activity at the site because it was clear where concrete was added and scour holes were repaired, although it acknowledged that it could not date when this work was performed. It argued that the repairs recommended in the MODOT reports could not have been done under USACE rules and would not have fixed the problems at the site. It stated that it did not have access to FEMA files from the 2013 flood. It expressed confusion as to what the RFI was requesting in relation to piers two and eight, as all piers would be affected by the required work. It explained that, for this project, it does not need to apply for a permit from USACE, so long as the work complies with the conditions of the general permit. The Applicant provided the codes and standards it intended to rely upon, stated the bridge was closed in March 2016, and acknowledged that the bridge suffered additional damage in the 2017 flood. Finally, it argued that this project was well within the intended scope for PA funding because it would prevent catastrophic financial losses to the local government while restoring infrastructure, and would mitigate the effects of future disasters. It argued that a “common sense” approach would lead to approval of the project.
On October 5, 2017, the FEMA Region VII Regional Administrator (RA) determined that the project was ineligible for PA funding. The first appeal decision explained that pre-existing damage, including unreported damage caused by a prior disaster, was ineligible. Regardless of whether the MODOT recommendations were practical, they established that the Bunker Road Bridge had pre-existing damage. Accordingly, the Applicant had not supported what new damages occurred to the bridge during the declared disaster. The first appeal decision also concluded that none of the Applicant’s arguments related to FEMA’s cost estimate, eligibility for replacement, or codes and standards changed the outcome of the decision. Accordingly, the RA denied the first appeal.
In its second appeal, dated December 6, 2017, the Applicant reasserts the arguments that it raised in its first appeal and argues that the damage to the bridge was the result of the 2013 and 2015 flood events, with additional damage occurring as a result of a 2017 flood. It again asserts that it provided FEMA with its maintenance records, but that FEMA lost them. It argues that the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) does not specifically require written maintenance records as a prerequisite for PA funding. It argues that there was nothing to suggest that repairs to the bridge had not been completed prior to the disaster, but also noted again that the specific repair suggested in the MODOT reports could not have been completed and would not have saved the structure. It argues generally that funding this project would be consistent with goals of the Stafford Act because it would mitigate future damage, provide funds for losses sustained in disasters, and improve infrastructure by implementing modern codes and standards.
The Applicant also argues that FEMA is treating PW 84 differently than other PWs, pointing to a news article about FEMA’s funding provided to New York in the wake of Hurricane Sandy for hazard mitigation. Finally, the Applicant points to various Stafford Act sections to support its arguments.
The Recipient forwarded the Applicant’s second appeal to FEMA in a letter dated December 7, 2017.
Direct Result of the Disaster
Section 406 of the Stafford Act authorizes FEMA to reimburse eligible applicants for the repair, restoration, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster.
Implementing the Stafford Act, FEMA’s regulations state an item of work must be required as the result of a major disaster event to be eligible for PA funding.
Damage that results from a cause other than the designated event, such as deterioration or deferred maintenance, is not eligible.
The applicant has the responsibility to provide sufficient documentation to substantiate that damage was the result of the disaster.
As an initial matter, the Applicant’s argument that the Stafford Act does not specifically require written maintenance records does not support its second appeal. In addition to the Stafford Act, FEMA’s regulations and policies establish requirements and procedures for the administration of the PA grants program.
As noted above, a basic rule of eligibility in FEMA’s regulations and policies is that an item of work must be required as a direct result of the disaster. Maintenance records may help an applicant verify the pre-disaster condition of the facility, allowing the applicant to distinguish the damage and work that resulted from the disaster.
Here, the record demonstrates that the bridge was in poor condition prior to the 2015 flood disaster. The 2016 preliminary engineering report that the Applicant’s engineer prepared described severe erosion of the eastern supports and opined that the remaining foundations had suffered similar erosion, although the damage was obscured when the engineering report was written. The report stated that the supports had been undermined to the point that most of the footings were not supported by anything. The Applicant’s engineer attributes the bridge’s ongoing problems to the fact that the bridge’s footings were not founded on solid rock or piles, but were instead poured directly into the gravel bed. The engineer stated that filling scour holes was a temporary solution, and if the bridge was reconstructed in the same manner as the original, it would soon meet a similar fate. This was the same type of damage to the bridge identified in MODOT reports before the 2015 flood disaster, which were based on inspections conducted on February 16 and August 21, 2012, and described the bridge’s substructure as being in poor condition with scour having led to undermining of certain piers, which required immediate attention. Based on additional inspections conducted on February 14 and June 24, 2014, which were also before the 2015 flood disaster, MODOT characterized the bridge’s substructure as being in serious condition, with severely undermined supports and some of the bottom slabs described as broken and missing in three locations.
The administrative record definitively establishes that the bridge suffered ongoing problems before the declaration of the 2015 flood disaster. The Applicant has also repeatedly acknowledged that the damage was the result of floods in both 2013 and 2015. While the bridge may have experienced additional damage in the 2015 flood, it is important to note that the Applicant has not attempted to distinguish between damage that was a direct result of the 2015 flood, and the damage that was pre-existing. Even accepting the Applicant’s assertion that it filled scour holes as best as it could following the 2013 flood, as the Applicant and its engineer recognized, this was not a permanent repair and did not fully address the inadequacies that existed prior to the 2013 flood. Because the Applicant has not established what damage was a direct result of the 2015 flood disaster, and any work required to correct pre-disaster inadequacies is not disaster related under the 2015 flood disaster declaration, the RA properly denied funding for PW 84.
Improved Project, Alternate Project, and Hazard Mitigation
An Improved Project is one that restores the pre-disaster function of the damaged facility and incorporates improvements or changes to its pre-disaster design.
An Alternate Project occurs when the Applicant desires to use funds toward a project that neither restores the damaged facility nor its pre-disaster function.
In each of these types of projects, FEMA caps the amount of PA funding based on the estimated amount required to repair disaster related damage.
Hazard mitigation is action taken to reduce or eliminate long-term risk to people and property.
Eligible hazard mitigation measures are those that the Applicant performs on the portions of the facility damaged by the disaster, or that are designed to protect those damaged portions.
Here, the Applicant has discussed Improved Projects, Alternate Projects, and Hazard Mitigation funding options in its various filings. However, the RA correctly determined that an Improved or Alternate Project could not be awarded because the Applicant had not established disaster related damage that would allow FEMA to estimate repair costs as a basis for either project. Similarly, the project could not be approved as hazard mitigation because the Applicant had not established the disaster damaged elements of the facility that hazard mitigation measures would address. In its second appeal, the Applicant also mentions funding for hazard mitigation under section 404 of the Stafford Act. However, § 404 hazard mitigation does not fall within the purview of the Public Assistance Program and must be sought from the State.
Therefore, the RA properly determined that PW 84 was ineligible for any of these funding options.
Codes and Standards
FEMA provides PA funding to restore facilities on the basis of pre-disaster design and function in conformity with the current applicable codes, specifications, and standards.
These standards, however, must apply to an item of work required as a result of the disaster.
Here, as discussed above, the Applicant failed to demonstrate what work was required as a direct result of the disaster. Therefore, the Applicant’s project did not qualify for additional funding to comply with any applicable codes or standards, and the RA correctly determined that it was ineligible for this funding.
50 Percent Rule
A damaged facility is eligible for replacement, when the cost to repair the disaster related damage exceeds 50 percent of the cost to replace the facility based on its pre-disaster size, capacity, and function.
Here, however, the bridge was not eligible for repair or replacement because the Applicant did not establish what damage was disaster related. Therefore, the RA properly rejected the Applicant’s argument based on the 50 percent rule in finding the project not eligible for replacement.
Finally, the Applicant claims disparate treatment for its project based on a news article describing funding for apartments in New York after Hurricane Sandy. This argument does not support its appeal because it does not identify any similarities in the funding decisions or explain how the comparison is relevant to the question of whether it was able to demonstrate disaster related damage. It has also noted a number of miscellaneous sections of the Stafford Act, including provisions related to Congressional findings (§ 101), designation of a Small State and Rural Advocate (§ 326), appointment of an expert panel to report to Congress (§ 406(e)(3)), and FEMA’s appeals processing timeline (§ 423). The Applicant has not raised any specific arguments based on these sections, but upon review, none of them address the question of whether the Applicant has established any documented disaster related damage. Accordingly, none of these provisions affect the outcome of this appeal.
The Applicant did not demonstrate what work was required as a direct result of the declared disaster, and the available records established that the bridge suffered severe inadequacies prior to the disaster. None of the other arguments that the Applicant raised alter this conclusion. Accordingly, the proposed work is ineligible and this second appeal is denied
This event will be referred to as the 2015 flood.
It is noted that the Applicant also sought PA funding for vegetative debris removal under PW 84. The determination memorandum found that this was eligible, but that the cost of $418.70 fell below the minimum project threshold. The Applicant has not disputed this determination on first or second appeal, so further discussion of this issue is unnecessary.
The Applicant’s first appeal appears untimely, as it was filed more than 60 days after receiving FEMA’s determination memorandum. Title 44 Code of Federal Regulations (44 C.F.R.) § 206.206(c)(1) (2015). Because the Regional Administrator did not make a determination based on timeliness, however, this second appeal response will consider the appeal on the substantive merits.
The date on the letter (“07/14/2018”) appears to be simply a typographical error.
These provisions relate to the designation of a small state advocate, establishment of an expert panel, and the timeline for FEMA’s appeal processing.
The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L No. 93-288, § 406(a), 42 U.S.C. § 5172(a) (2012).
44 C.F.R. § 206.223(a)(l).
 Public Assistance Program and Policy Guide
, FP 104-009-2, at 19 (January 1, 2016) [hereinafter PAPPG
]; FEMA Second Appeal Analysis, Republic Cty. Highway Dep’t
, FEMA-4230-DR-KS, at 3 (July 26, 2017).
44 C.F.R. § 206.206(a); FEMA Second Appeal Analysis, Vill. of Waterford
, FEMA-4020-DR-NY, at 4 (Sep. 4, 2014) (stating “[t]he Applicant has the burden of substantiating its claims”).
44 C.F.R. §§ 206.200, 206.220; see generally PAPPG.
44 C.F.R. 206.226(d); PAPPG
, at 86.
While the RA’s conclusion was correct, it must be noted that in FEMA Second Appeal Analysis, Pulaski Cty.
FEMA-4144-DR-MO, at 6 (Aug. 7, 2017), the Agency did not determine that all USACE general permit requirements do not qualify as a code or standard within the meaning of FEMA’s regulations. Rather, FEMA’s determination was limited to the specific requirements the Applicant cited within the Nationwide Permit General Condition 9 (Management of Water Flows)
and the Missouri Nationwide Permit Regional Conditions
. This second appeal decision does not foreclose the argument that another USACE general permit requirement might qualify as a code or standard, and each such requirement must be evaluated on its own language.