Direct Result of Disaster – Predisaster Conditions

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-4287
ApplicantPleasant Grove Township
Appeal TypeSecond
PA ID#073-56375-00
PW ID#(PW) 47
Date Signed2018-03-05T00:00:00
Conclusion: Pleasant Grove Township (Subrecipient) demonstrated Sites 5, 6, 8, 9, 10, and 12 were routinely maintained prior to the disaster and the work to repair damage to those sites was required as a direct result of the disaster.  
 
Summary Paragraph
In September 2016, severe storms and extensive flooding caused damage throughout the state of Kansas.  The Subrecipient requested Public Assistance (PA) to repair 13 road sites (later amended to 12 sites) that it claimed were damaged as a result of the disaster.  FEMA prepared Project Worksheet (PW) 47 to document the request and found that only Sites 1, 2, and 7 depicted evidence of damage, whereas Site 4 was a minimally maintained dirt road with no apparent damage, and the remaining sites were maintained but also did not show any signs of damage.  The Subrecipient appealed FEMA’s determination and argued the roads were maintained and damaged by the disaster.  The Regional Administrator denied the appeal because the Subrecipient had not provided sufficient documentation demonstrating that the reported damage to its roadways was related to the disaster and the documentation provided only demonstrated spot repairs, rather than routine maintenance prior to the disaster.  The Subrecipient again appeals, reiterating its prior arguments that it provided invoices, statements of work and other, non-photographic evidence that demonstrate the road sites were maintained prior to the disaster and the damage to the roads was caused by the disaster.
 
Authorities and Second Appeals
  •  44 C.F.R. § 206.223(a)(1), 206.226.
  •  PAPPG, at 110, 129.
  •  Village of Waterford, FEMA-4020-DR-NY, at 4.
  • Lowe Township, FEMA-4287-DR-KS, at 3-5.
 
Headnotes
  • Per 44 C.F.R. § 206.226, FEMA may provide funding to restore an eligible facility on the basis of the design of that facility as it existed immediately prior to the disaster.  The PAPPG states FEMA reviews maintenance records or documentation establishing the Subrecipient had a routine maintenance program (such as invoices) to verify predisaster conditions and assess eligible disaster damages.
    • Annual road work expenditures and repair invoices show predisaster repair work, including work performed at several of the sites on appeal.
    • Therefore, the Subrecipient demonstrated routine predisaster maintenance.
  • Per 44 C.F.R. § 206.223(a)(1), an item of work must be required as a direct result of a major disaster to be eligible for PA funding.
    • The determination that the Subrecipient demonstrated predisaster maintenance, coupled with detailed damage descriptions and photographs taken by FEMA’s project specialist during site inspections, allow FEMA to conclude the damage to sites 5, 6, 8, 9, 10, and 12 were a direct result of the disaster. 
  •  The PAPPG states work to correct pre-disaster inadequacies, or damage caused by inadequate maintenance, is ineligible.  
    • The Subrecipient failed to demonstrate that Sites 3, 4, and 11 were maintained prior to the disaster and that the damage claimed directly resulted from the disaster. 

 

Appeal Letter

Angee Morgan
Deputy Director
Kansas Division of Emergency Management
2800 SW Topeka Blvd.
Topeka, KS 66611
 
Re:  Second Appeal – Pleasant Grove Township, PA ID: 073-56375-00, FEMA-4287-DR-KS,
Project Worksheet (PW) 47 – Direct Result of Disaster – Predisaster Conditions
 
Dear Ms. Morgan:
 
This is in response to a letter from your office dated November 26, 2017, which transmitted the referenced second appeal on behalf of Pleasant Grove Township (Subrecipient).  The Subrecipient is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s denial of $22,595.58 in costs pertaining to the repair of its roads.
 
As explained in the enclosed analysis, I have determined that the repair work performed at Sites 5, 6, 8, 9, 10, and 12 is eligible for funding because the Subrecipient has demonstrated that those sites were routinely maintained prior to the disaster and that the work to repair the roads was required as a direct result of the disaster.  Accordingly, I am partially granting this appeal in the amount of $19,345.86.       
 
Please inform the Subrecipient 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: Paul Taylor
      Regional Administrator
      FEMA Region VII

 

Appeal Analysis

Background
From September 2 through 12, 2016, severe storms and extensive flooding caused damage throughout the state of Kansas.  Pleasant Grove Township (Subrecipient) requested Public Assistance (PA) to repair 13 road sites that it claimed were damaged as a result of the disaster.  The Subrecipient is a small, rural township with a population of 38.[1]  The township has no municipal buildings nor road equipment; all road maintenance and repair is done by contractors.[2]   FEMA prepared Project Worksheet (PW) 47 to document the request and found that only Sites 1, 2, and 7 depicted evidence of damage.  To the contrary, Site 4 was a minimally maintained dirt road with no apparent damage, and the remaining sites were maintained, but did not show any signs of damage.[3]  On January 30, 2017, FEMA notified the Kansas Division of Emergency Management (Recipient) and the Subrecipient that the project was partially eligible.  FEMA issued a revised determination on February 14, 2017 to correct mathematical errors made in the initial version.  Accordingly, FEMA approved an award amount of $10,086.67 to reimburse repairs made at Sites 1, 2, and 7.  FEMA also incorporated Site 13 into Site 9, thus reducing the total number of sites to 12.  
 
First Appeal
 
The Subrecipient appealed FEMA’s denial of funding for road repairs in a letter dated February 24, 2017, requesting  $33,146.38 in funding be reinstated.  The Subrecipient argued that FEMA’s denial of funding was inconsistent with FEMA regulations and policies.  To demonstrate maintenance, the Subrecipient cited to or provided maintenance records, including documentation demonstrating 93 loads of gravel placed between January and September 2016, and three years of budgeted road expenditures.  The Subrecipient provided rainfall evidence to demonstrate the damage was disaster related.  The Subrecipient also referred to photographs that depict severe storm damage, such as gravel in ditches adjacent to the roads, though it acknowledges that some of the photographs of completed work do not show disaster damage.  The Subrecipient contended that it did not need to place gravel every year nor did it know it needed to provide photographs taken prior to the disaster.
 
The Recipient concurred in a March 27, 2017 letter, and maintained that the Subrecipient submitted substantial evidence that its roadways were properly maintained at the time of the disaster and that damage to them was caused by the declared disaster.  The Recipient noted that there was no requirement that a Subrecipient photograph all facilities and FEMA made the assumption that because no aggregate (gravel) was added during the months leading up to the disaster, that the Subrecipient failed to maintain the roads.  The Recipient refered to the Subrecipient’s expenditures for road maintenance over several years, as well as the substantial amounts of aggregate washed in ditches after the disaster as evidence that the roads were respectively maintained and damaged as a direct result of the disaster.  The Recipient argued that if FEMA found questions of eligibility, it should have been documented in the PW pursuant to FEMA’s Pocket Guide.[4]  The fact that FEMA wrote detailed damage descriptions in the PW equated to validating the damage was caused by the disaster.
 
FEMA sent the Recipient a Final Request for Information (RFI) on May 16, 2017.  FEMA requested photographic or other evidence depicting the condition of the roads at Sites 3, 4, 5, 6, 8, 9, 10, 11, and 12 prior to the disaster and any additional maintenance records or other documentation demonstrating the predisaster condition of the subject roads.  FEMA received an undated response from the Subrecipient on June 20, 2017, in which the Subrecipient provided its expenditures for sand and gravel purchases for two additional years. 
 
The FEMA Region VII Regional Administrator (RA) denied the appeal on September 18, 2017.  The RA determined that the Subrecipient’s documentation did not substantiate that the reported damage to its roadways was related to the disaster.  The RA found that it was the Subrecipient’s responsibility to provide the documentation to establish eligibility and where the Subrecipient failed to do so, FEMA cannot infer it.  The RA concluded the documentation submitted only showed spot repair work, as opposed to routine maintenance, and the annual budget certificates showed year-to-year expenditures on the roadways, but there was insufficient specificity to conclude a routine maintenance program was in effect at the time or that the funds allocated were for upkeep of the roads.  In addition, the RA pointed out that some of the work submitted was done on or before September 8, 2016, which tended to disprove that all of the damage was disaster related since the majority of the rainfall occurred from September 8-10, 2016.  Moreover, the RA could not infer disaster related damage solely based on rainfall data.  Finally, the RA clarified that FEMA project specialists do not determine eligibility, but rather validate disaster damage and obtain information to prepare a damage description, and as such, validating damage does not mean it is eligible. 
 
Second Appeal
 
In its second appeal dated October 16, 2017, the Subrecipient claims that it provided all necessary pictures and documents and the FEMA inspected the facilities and took pictures.  In addition, all project sheets, expenditures, and statements of repair were submitted.  The Recipient concurs in a November 26, 2017 letter and states that the Subrecipient’s second appeal reiterates its first appeal arguments.  The Recipient notes that some of the pictures depict gravel washout in ditches adjacent to the sites, which is consistent with disaster related damage.  The Recipient claims that the pictures and FEMA’s inspection notes, combined with evidence of prior gravel purchases and expenditures, demonstrates that the road damages were a direct result of the disaster.  Finally, it explains that the Subrecipient is a township and does not have an administrative support staff or office to help maintain and organize records and FEMA should view it as it would other smaller townships with regard to maintenance records requirements.
 
Discussion
 
FEMA provides PA funds to eligible subrecipients for the repair, restoration, reconstruction, or replacement of facilities damaged or destroyed by major disasters.[5]  To be eligible for PA funding, an item of work must be required as a result of the disaster.[6]  FEMA may provide funding to restore an eligible facility on the basis of the design of that facility as it existed immediately prior to the disaster.[7]  For facilities such as gravel roadways and culverts, which require maintenance to maintain their designed function, it may be possible to review predisaster maintenance or inspection records to verify predisaster conditions and to assess eligible disaster damage.[8]  In the absence of maintenance records, FEMA will review material purchase invoices and activity logs and will inspect other sections of the subrecipient’s road system to confirm the performance of normal maintenance activities.[9]  This information is reviewed because a disaster may cause minor damage to roads that result in damage similar to that which may occur over time from other causes, such as the age of the road, traffic flow, and frequent rain.[10]  Distinguishing between preexisting damage and disaster-related damage is difficult and for the repair to be eligible, the subrecipient must demonstrate that the damage was directly caused by the disaster.[11]   
 
The documentation submitted by the Subrecipient shows that it apportioned expenses within its annual budgets into a “roads” category.[12]  This indicates the Subrecipient prioritizes public road maintenance; indeed, maintenance of road networks is one of the primary historical reasons a township exists as a subdivision of local government in Kansas.[13]  For each year represented, the Subrecipient allocated more than 80 percent of its total budget to its roads.[14]  The data demonstrates the Subrecipient executed its budget for the related line items from 2012 to 2015.[15]  In other words, in the years prior to the disaster, it is clear the Subrecipient earmarked and then spent funds to perform the work described in its annual budgets.  Because the budgets cover multiple successive years, the Subrecipient has demonstrated an established annual program of prioritized, routine predisaster road maintenance.[16]
 
In this instance, the invoices and statements of work that correspond to the “roads” category in prior year budgets, establish that Sites 5, 6, 8, 9, 10, and 12 were routinely maintained and functioning as designed prior to the disaster.  However, the invoices and statements provided also demonstrate that the Subrecipient did not maintain Sites 3, 4, and 11 as evidenced by the lack of aggregate purchased and deposited at those sites.  Specifically, the Subrecipient provided statements and invoices from various vendors performing maintenance activities from 2013 to 2016.[17]  Unlike complex infrastructure, such as electrical systems and conductors which may require more rigorous documentation to support a finding the facility was properly maintained as designed (due to complexity and safety concern), the material purchase invoices in combination with the annual budgets demonstrate, in this instance, that certain gravel road sites were properly maintained.[18]  The invoices show such work occurred at several of the sites on appeal (Sites 5, 6, 8, 9, 10, and 12 – based on the large amount of aggregate purchased and deposited during the years and months prior to the disaster).[19]  Aside from Sites 3, 4, and 11, the invoices demonstrate that the Subrecipient regularly and quickly applied gravel or took other corrective actions to address weather-related damage prior to the declared disaster.  Similarly, to the extent that the invoices demonstrate the performance of spot repairs, such repairs would generally constitute evidence of maintenance, especially in regard to gravel roads, because it shows the Subrecipient quickly acted to address any weather-related damage prior to the declared disaster.  In contrast, when subrecipients fail to conduct repairs following weather events, it may be an indication of a lack of routine maintenance prior to the disaster. 
 
Following the disaster, the PW notes that the Subrecipient contracted services to replace washed off road surface material to “[restore] the [roads] to [their] pre-disaster condition.”[20]  FEMA’s observations at Sites 1-2, 5-10, and 12, as documented in the PW, showed  “continuous road surface washout” and “gullies and grooves” caused by high velocity waters,[21] which would be expected to result from this type of disaster (i.e., severe storms and extensive flooding).  FEMA also attached photographs and accompanying descriptions of the sites to the PW, which included both likely disaster related damage (such as washed out gravel found adjacent to the roadways) and gradual wear patterns (such as wheelmarks and impressions).  It should be noted, the photographs were taken months after the disaster, and after most sites were repaired; therefore, the wear patterns brought about by vehicular traffic should not be confused with a lack of disaster related damage.  Following completion of the repair work, vehicles would have traveled on the roads causing wheelmarks and impressions in the road.  Thus, when considering FEMA’s photographs and desciptions of damage at the sites, in context of whether the Subrecipient performed predisaster maintenance at the sites, FEMA agrees with the Subrecipient that Sites 5, 6, 8, 9, 10, and 12 were damaged by the disaster. 
 
Conclusion
 
The Subrecipient has established that the repair work for Sites 5, 6, 8, 9, 10, and 12 was required as a direct result of the disaster.  Accordingly, the appeal is partially granted and FEMA finds $19,345.86[22] eligible for PA funding.
 
[1] Project Worksheet 47, Pleasant Grove Twp., Version 0 (Jan. 17, 2017) (stating 38 people populated the Township as of 2010). 
[2] Id.
[3] FEMA Pub. Asst. Determination Memo (Amend.), at 1-2 (Feb. 14, 2017) (finding that Sites 3, 5, 6, 8, 9, 10, 11 and 12 were in a maintained state, but with no discernable disaster related damage or loss.  FEMA found that the photographs taken by FEMA depicted gradual wear patterns brought about by wheel path of vehicular traffic as well as aggregate surfacing on the remainder of the roadway with no displaced materials visible adjacent to the driving surface.  In contrast, FEMA found Site 4 depicted a minimally maintained (dirt) roadway with no evidence of damage or loss.  Photographs taken at the eligible Sites 1, 2, and 7 showed displaced materials.  FEMA additionally noted that from January 2016 through the disaster, the Subrecipient placed 8 loads of gravel at Site 1, no loads at Sites 2-4, 30 loads at Site 5, 28 loads at Site 6, 9 loads at Site 7, 7 loads at Site 8, 1 load at Site 9 (incorporating Site 13), 2 loads at Site 10, no loads at Site 11, and 6 loads at Site 12.  FEMA noted that with regard to the sites with no record of materials being applied, it was not possible to determine predisaster gravel depths or the degree in which all claimed roadway segments were maintained prior to the incident period beyond visual inspections.).
[4] Letter from Dep. Dir., Kan. Div. of Emer. Mgmt., to Acting Reg’l Adm’r, FEMA Region VII, at 5(Mar. 27, 2017).
[5] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 406, 42 U.S.C. § 5172 (2013).
[6] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.223(a)(1) (2015).
[7] Id. § 206.226.
[8] Public Assistance Program and Policy Guide, FP-104-009-02, at 110 (Jan. 1, 2016) [hereinafter PAPPG].
[9] Id.
[10] Id.
[11] PAPPG, at 110; FEMA Second Appeal Analysis, Village of Waterford, FEMA-4020-DR-NY, at 4 (Sept. 4, 2014) (stating “[t]he Subrecipient has the burden of substantiating its claims”).
[12] Annual Financial Report of Pleasant Grove Twp., for year ending in 2012; Annual Financial Report of Pleasant Grove Twp., for year ending in 2013; Notice of Budget Hearing for Pleasant Grove Twp., Proposed Budget for 2014 and expenditures for 2013; Pleasant Grove Twp. 2015 Adopted Budget [hereinafter 2012-2015 Budget and Expenditure Reports].
[13] Kansas Historical Society, Kansas Civil Townships and Independent Cities, https://www.kshs.org/p/kansas-civil-townships-and-independent-cities/11308 (last visited Oct. 5, 2017) (stating “[c]ivil townships … are political subdivisions within a county, usually responsible for activities such as road maintenance and fire protection in rural areas”). 
[14] The budget data shows in 2012, the Subrecipient expended $24,890.69, or 85 percent of its total budget, to its roads; in 2013, Subrecipient expended $28,453.85, or 86 percent of the budget, to its roads; in 2014, the Subrecipient allocated $27,255.00, or 82 percent of the budget, to road; and in 2015, the Subrecipient allocated $44,200.00, or 77 percent of the budget, to its roads.
[15] 2012-2015 Budget and Expenditure Reports.
[16] FEMA Second Appeal Analysis, Lowe Township, FEMA-4230-DR-KS, at 4 (Feb. 1, 2018). 
[17] Statements and Invoices included: (1) Larcom & Son Construction Statements: February and March 2013 to; May 2013 to grade Cummings Rd; August 2013 to “repair washouts;” an illegible date showing work to grade Cory Baker Rd (Site 6), Larry Hibbard Rd (Site 10), Kim Boones Rd (Site 8), and grade and repair washouts on Ron Boones Rd (Site 7); February 2014 to haul quarry gravel; March 2014 to fill up ruts to get to FEMA work; March 2014 to haul quarry gravel at Sites 2, 3, 4, 6, 8, 10, 11; April 2014 to haul quarry gravel on EE 75th St (Site 10) May 2014, clean and move and put back in entrance; June 2014 to haul quarry and spread gravel at Sites 5, 6, 7, 8, 9, 10, and 11; July 2014 to grade and repair washouts at Sites 1, 6, 8, 10, 13; September 2014 to haul, gravel, etc. at Sites 5-8, 10; December 2014 to haul and gravel to Sites 1, 6, 9, 10, 13; January 2015 to grade Sites 5-8, 10; May 2015 for hauling gravel and grading Sites 5-10, 12, 13; July 2015 to grade Sites 5-9; February 2016 to haul gravel and grade Sites 5-8, 10, 12; April 2016 to haul gravel and grade Sites 5, 6, 8; June 2016 to haul gravel to bad spots in road at Sites 5-6; July 2016 to haul gravel and grade Sites 1, 5, 6, 7, 10, 12, 13; and September 1, 2016 (rest of invoice was during/after the disaster) to haul gravel to Sites 6, 7/8.  There are also additional entries for work during and after the disaster for Sites 1, 4-13; (2) Nelson Quarries Reflect work in February, April, and November 2013; March, May, June, August and September 2014; January 2015; (3) Vinsen Tree Care statement from 2014 for tree removal to mitigate washouts; (4) CMC invoice May 2014; (5) 4F Enterprise LLC invoices for April and December 2015, and March and June 2016 for road repairs at Sites 6 and 9; (6) Greenwood County Road & Bridge invoices for July, August, September, October, and December 2014 for material for culverts; (7) Harshman Construction invoices for March, April, May, July, November, and December 2014 and January 2015 for Braden – 1 ½ RR in tons; (8) Brooks Directional and Drilling invoice from November 2014 for truck and backhoe/hammer services; and (9) Ecton and Ecton Farms (undated) for.  
[18] The level of documentation FEMA may deem necessary to adequately document the predisaster condition can fluctuate based on nature of the facility.  For example, in FEMA’s PAPPG, the Agency notes that photographs, detailed damage descriptions, plans, maintenance records, etc., are all examples of documentation to support disaster related damage findings, but then further requests specific documentation for electric transmission and distribution facilities and conductors, such as letters from licensed engineers certifying predisaster conditions, construction plans, corrective action plans, and staking sheets (see PAPPG, at 129).
[19] The three sites FEMA previously found eligible (Sites 1, 2, and 7) had 8, 0, and 9 loads of gravel placed over the year prior to the disaster; this is comparable to Sites 8 and 12 which had 7 and 6 loads of gravel placed; Sites 9 and 10 had 1 and 2 loads placed, and Sites 5 and 6 had 30 and 28 loads placed. 
[20] Id.
[21] PW 47, Pleasant Grove Twp. (describing the damage at Sites 1-2, 5-10, and 12). 
[22] This amount reflects the eligible costs associated with the work at Sites 5, 6, 8, 9, 10, and 12 as noted in PW 47.
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