Direct Result of Disaster
Appeal Brief
Appeal Letter
Appeal Analysis
Sincerely,
Appeal Brief
| Disaster | FEMA-1980 |
| Applicant | City of Joplin |
| Appeal Type | Second |
| PA ID# | ID 097-37592-00 |
| PW ID# | PW) 1521 |
| Date Signed | 2018-03-26T00:00:00 |
Conclusion: The City of Joplin (Applicant) has not demonstrated that the claimed sewer damages are the direct result of the disaster. Consequently, the costs associated with the repair of those damages are ineligible for Public Assistance (PA) funding and this appeal is denied.
Summary
As a result of an EF-5 tornado striking the Applicant, FEMA approved Project Worksheet 1521, obligating $1.00 for the purpose of performing permanent work on potentially damaged sewer lines. FEMA stated actual disaster related damages could not be determined until the sewer lines had been inspected via television. After the Applicant completed television inspections, it submitted its request for a revised scope of work (SOW), seeking $457,490.44 in reimbursement for the repair of 81 damaged sites. It provided photographs of the 81 sites taken after the disaster, which it asserted demonstrated disaster related damage. FEMA, however, denied the Applicant’s request for a change in SOW, concluding it had not provided documentation, such as the most recent predisaster video inspection of the damaged locations, to demonstrate the damages were a direct result of the disaster. The Applicant appealed FEMA’s denial and requested reimbursement in the amount of $435,031.44 for the permanent repairs completed to the damaged sewer pipes. It provided maps of prior relining projects completed throughout the sewer system from 2002 through 2010, maps of the sites repaired under this project, and its annual sanitary sewer budgets from 2000 through 2010. FEMA Region VII’s Acting Regional Administrator denied the appeal, determining the Applicant had not substantiated that the claimed damages were the direct result of the disaster because it had not demonstrated the predisaster condition of the damaged locations. The Applicant appeals FEMA’s first appeal decision, requesting $329,456.31 in reimbursement, and positing generally, the same arguments raised on first appeal.
Authorities and Second Appeals
- Stafford Act § 406.
- 44 C.F.R. §§ 206.206(a), 206.223(a)(1).
- PA Guide, at 29, 33, 100.
- Pleasant Grove Twp., FEMA-4287-DR-KS, at 3.
- Lowe Twp., FEMA-4230-DR-KS, at 4.
- Republic Cty. Highway Dep’t, FEMA-4230-DR-KS, at 3.
Headnotes
- 44 C.F.R. § 206.223(a)(1) provides that to be eligible for PA, an item of work must be the result of the disaster. The PA Guide narrows this condition further by stating that the work must be required as a direct result of the disaster. In addition, the PA Guide notes that the specific cause of damage must relate to the incident for which the disaster was declared in order for the work to be eligible for PA.
- Although the Applicant produces annual budgets that demonstrate a program of general routine sewer maintenance, it does not produce any other documentation that establishes the predisaster condition of the specific sites at issue in this appeal. Therefore, it has not demonstrated the claimed sewer damages occurred as a direct result of the disaster. Accordingly, the costs associated with work to repair said damages are ineligible for PA.
Appeal Letter
Ernie Rhodes
Director
Missouri Department of Public Safety
State Emergency Management Agency
2302 Militia Drive, P.O. Box 116
Jefferson City, MO 65102
Re: Second Appeal – City of Joplin, PA ID 097-37592-00, FEMA-1980-DR-MO,
Project Worksheet (PW) 1521 – Direct Result of Disaster
Dear Mr. Rhodes:
This is in response to a letter from your office dated December 21, 2017, which transmitted the referenced second appeal on behalf of the City of Joplin (Applicant). The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of costs associated with a request to change the scope of work for sewer repairs.
As explained in the enclosed analysis, I have determined that the Applicant has not demonstrated the claimed sewer damages are a direct result of the disaster. Therefore, the requested $329,456.31 in funding for those costs is ineligible for Public Assistance. 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: Paul Taylor
Regional Administrator
FEMA Region VII
Appeal Analysis
Background
On May 22, 2011, an EF-5 tornado struck the City of Joplin (Applicant). On February 13, 2012, FEMA approved Project Worksheet (PW) 1521 for the purpose of performing permanent work on potentially damaged main sewer lines (encompassing 482 miles of 8, 10, 12, and 15 inch diameter lines, constructed of clay, concrete, and polyvinyl chloride (PVC)) and lateral sewer lines (comprised of 52,040 linear feet of 4 to 6 inch diameter lines, constructed of concrete, orangeburg pipe, PVC, and clay). FEMA approved eligible costs of $1.00, stating actual damages could not be determined until completion of television inspections.[1] In PW 1521, FEMA advised the Applicant that it was responsible to submit a revised scope of work (SOW) to the State of Missouri Emergency Management Agency (Grantee), based on the results of the television inspections identifying tornado related damage and an estimate of repairs necessary to restore the lines to predisaster condition. FEMA additionally noted that reimbursement would be contingent upon actual damage identified and documentation to support those damages.
In a letter to the Grantee dated September 13, 2016, the Applicant submitted its request for a revised SOW, attaching three spreadsheets that each listed 81 damaged sites, including corresponding information for each site, such as photographs, GPS coordinates, descriptions of damage, narratives of proposed repair work, and itemized costs. Moreover, the spreadsheets indicated the total requested reimbursement was $457,490.44. In addition, the Applicant attached maps that identified the locations of the 81 damaged sites. Finally, the Applicant transmitted a December 19, 2011 contract it executed with a construction company, in which the company agreed to clean, televise, and cap service risers in the tornado-damaged area. The Grantee transmitted the Applicant’s request for the SOW revision to FEMA by way of a September 14, 2016 letter.
In a November 2, 2016 letter, the Applicant responded to questions previously sent by FEMA, and set forth its seven main contentions and factual assertions. First, the Applicant confirmed that the photographs it provided of the 81 damaged sites were taken after the disaster and after the pipes were cleaned. It explained that this is industry standard practice, as the contractor must first use a water jetter to remove debris before the robotic camera can go into the pipes so as to prevent the camera from getting stuck. Second, the Applicant stated it performed regular sewer maintenance on an annual basis, budgeting between $1 million and $1.5 million each year for the work. Moreover, it noted that prior to the disaster, it performed television camera inspections in identified areas and in response to trouble calls from residents. Additionally, it stated that contractors who had been awarded the project of performing relining work on an annual basis, took pre-lining and post-lining videos. Therefore, the Applicant utilized the 2010 video to create a map of the relining performed that year (as support for the annual maintenance completed in 2010) and the 81 damaged sites. It stated that the 81 damaged sites were not close in proximity to the work completed in 2010, and therefore, contended the map illustrated that the damage was the direct result of the disaster.
Third, the Applicant noted that there are two ways a structural failure can occur in sewer lines buried greater than six feet deep. It stated that the disaster uprooted thousands of trees, with root systems up to 23 feet deep. Therefore, the force of the tree being uprooted transferred down the root and caught the sewer pipes, causing them to collapse. Next, it asserted that heavy loads of tracked vehicles during the rescue/recovery efforts and point loads dropped on top of the sewer laterals can cause the lateral sewer line to be pushed down into the main sewer line, causing it to collapse. Fourth, the Applicant withdrew sites 15 and 17 from its request for reimbursement. Fifth, the Applicant described how its contractor excavated and exposed the broken lateral sewer lines, cut clean ends, and capped the lines at those points. Afterward, the contractor would backfill the excavation and mark the locations.
Sixth, the Applicant stated that as a result of the disaster, it was necessary to cut 100 service laterals, because the only method of fixing laterals protruding so far into a pipe that a robotic camera could not pass, was to cut them. Lastly, the Applicant asserted that it needed to employ a lateral launch system with a locator head to locate 50 service laterals, as the disaster had destroyed the structures those laterals had been previously connected to.
By way of a Public Assistance (PA) determination memorandum dated December 8, 2016, FEMA denied the Applicant’s request for a change in SOW, concluding it had not provided documentation, such as the most recent predisaster video inspection of the damaged locations, to demonstrate the damages were a direct result of the disaster. FEMA transmitted the determination memorandum to the Grantee and the Applicant via a January 23, 2017 letter.
First Appeal
The Applicant appealed FEMA’s denial in a letter dated March 9, 2017, requesting reimbursement in the amount of $435,031.44, [2] for the permanent repairs completed to the damaged sewer pipes. It argued the repairs were the direct result of the disaster, and listed three reasons for support. First, the Applicant contended that the tornado caused collapsed sewer lines. As support, it stated that while sewer lines are on average six to eight feet deep, the disaster damaged 17,000 to 18,000 trees, which have an average root ball depth of four to ten feet. Thus, it argued “the sewer line collapses were typically caused by tree roots pulling the sewer line apart as trees were uprooted in the tornado.”[3] Second, it stated the disaster caused tornado debris to collect in the sewer pipes. Lastly, it pointed out that the disaster destroyed houses, which it asserted caused service laterals to become open/uncapped, allowing storm water and debris to enter the sewer collection pipes.
Next, the Applicant stated the repairs were neither normal maintenance, nor the result of deferred maintenance. For support, the Applicant attached the Sewer Maintenance Division’s budgets for fiscal years (FY) 1976 and 1984, to demonstrate its Sewer Maintenance Division had been operating for at least 35 years prior to the disaster.[4] Moreover, it included the sanitary sewer annual budgets from FY 2000 through FY 2010, which show the amount of money budgeted for, and expended from, (1) the sewer rehabilitation program (i.e. the relining projects), and (2) the sewer maintenance program used to fund various work (e.g. pest control, sewer repairs, and general equipment repairs). The Applicant explained that during the routine maintenance performed by the Sewer Maintenance Division, it began to document pipe defects and overall pipe conditions, and rank the conditions according to the level of deterioration. As a result, more than 20 years ago, it commenced the sewer rehabilitation program, which allowed the Applicant to contract annually for sewer relining and rehabilitation to be completed at specific locations. This also included repairs using trenchless technologies, traditional open cut and various other methods of repair, replacement, and rehabilitation of sanitary sewer pipes, laterals, and manholes. Furthermore, in addition to the sewer rehabilitation, the budget documentation included allocations for sewer maintenance staffing.
Then, the Applicant provided ordinances from FY 2000 through FY 2010, approving the contracts for sewer relining and rehabilitation, along with a map of the locations of the sewer relining projects for each of those years, to substantiate the information contained in the annual budgets for those years. The Applicant contended the above documentation concerning (1) the routine maintenance, in effect for at least 35 years prior to the disaster, and (2) the sewer rehabilitation program, in effect for at least 20 years, demonstrated it performed substantial annual maintenance to avoid deferred maintenance issues with its sewer lines.
In order to further substantiate its assertions that it performed routine maintenance, and that the claimed damages were the result of the disaster, it submitted maps, photographs, and videos. First, it transmitted a map of the tornado zone that showed the locations of the prior annual sewer relining projects from 2002 through 2010. Second, it forwarded a map of the locations of the sewer repairs completed under this project. Third, it produced sewer relining videos showing the inside of sewer pipes, from 2002 and 2008, provided by the contractor as part of the annual sewer rehabilitation program for those years.[5]
Fourth, it presented photographs that it asserted compared tornado damage versus normal maintenance issues, to demonstrate the difference in damages that is caused by each. For instance, the Applicant included photographs of collapsed sewer pipes that showed evidence of toilet paper and other foreign objects, which it asserted demonstrated normal maintenance issues. To contrast those pictures, it presented photographs of the 81 damaged sites at issue under this appeal, which showed collapsed, flooded, and blocked sewer lines, cracked pipes, lateral lines pushing through the sewer lines, and liquid without debris or foreign objects. The Applicant asserted the photographs demonstrated the damages were the result of the disaster, i.e. caused by the physical ripping of trees and root balls from the ground during the disaster.
By way of a letter dated March 10, 2017, the Grantee forwarded the Applicant’s appeal. It did not include a recommendation for approval. On June 15, 2017, FEMA transmitted a Final RFI to the Applicant and the Grantee, seeking documentation that supported the Applicant’s assertion the claimed damages were the direct result of the disaster. FEMA requested the Applicant provide (1) the date the photographs of damages, attached to the first appeal, were taken, (2) a map with manhole numbering listed in order to allow FEMA to compare the predisaster video with the claimed site, and (3) the most recent predisaster video of the lines the Applicant asserted were damaged as a result of the disaster. FEMA noted the third request was because the previously provided videos were not labeled to correlate with the photographs that the Applicant contended demonstrated the disaster damage. Next, FEMA pointed out that in the letter dated November 2, 2016, the Applicant referenced a map that identified the 81 sites at issue in this appeal. FEMA requested the Applicant provide a clear copy of the map. Finally, FEMA asked the Applicant to provide any cleaning or repair records, such as copies of daily inspection reports or repairs to the sewer lines at issue in this appeal, for the six months to a year before the disaster.
The Applicant responded in a letter dated July 17, 2017. First, the Applicant stated the photographs of the damaged sites were taken on various dates between January 11, 2012 and March 13, 2012, before the contractor finished the field work on May 22, 2012. It attached a listing of the repairs by locations that included the date each photograph was taken. Second, the Applicant provided ten maps that identified the manhole numbers for all manholes within the Applicant’s jurisdiction.
Third, the Applicant conceded it did not have isolated predisaster video of the specific area the tornado followed (i.e. the lines claimed in the appeal). It reiterated, however, its assertion that the Sewer Maintenance Division had performed preventative maintenance, which included daily inspections of the sewer lines and responding to trouble calls, for decades before the disaster. It also emphasized its annual funding for sewer relining and rehabilitation projects prior to the disaster. Additionally, it contended the damage that was repaired was the direct result of the disaster because it was of such a magnitude, that the Applicant would have been experiencing ongoing sewer backups throughout the entire disaster area if the damage had existed prior to the disaster. Therefore, as the Applicant stated the claimed sewer lines were in good working condition prior to the disaster, it asserted this demonstrated the damages are the direct result of the disaster.
Fourth, the Applicant resubmitted the map that identified the 81 damaged sites. Lastly, the Applicant stated it was unable to provide the requested daily inspection logs for the year prior to the disaster because they were previously destroyed. The Applicant noted that due to record storage limitations, it destroyed annual inspection logs one year after completion of the prior year’s rehabilitation and relining contract. Therefore, the 2010 inspection logs were destroyed years before FEMA’s request. However, the Applicant noted that it provided maps with its first appeal, which showed the locations of the sewer relining projects for FYs 2000 through 2010. Thus, it stated it provided FEMA with documentation of the sewer lines repaired prior to the disaster, which it argued were ultimately the final product of the daily inspections performed by its sewer maintenance employees.
On October 16, 2017, the FEMA Region VII Acting Regional Administrator (Acting RA) denied the appeal, determining that the Applicant had not demonstrated the repair work was a direct result of the disaster. The Acting RA commented that FEMA was unable to correlate the 2002 and 2008 videos with the locations that the Applicant contended sustained disaster related damages. Moreover, the Acting RA noted that FEMA requested the most recent predisaster video of the lines at issue in the appeal, but the Applicant responded it did not have isolated predisaster video of those lines. Furthermore, the Acting RA pointed out that the Applicant was unable to provide any cleaning or repair records, including daily inspection reports, for the year prior to the disaster as they had previously been destroyed. Accordingly, the Acting RA determined that although the Applicant had provided the sewer rehabilitation budgets for FYs 2000 through 2010, thereby establishing it relined portions of its sewer systems during those years, the Applicant had not demonstrated the damaged sites at issue in this appeal were repaired and in good working order before the disaster.
The Acting RA then noted that while the Applicant argued the sewer line collapses were caused by tree roots pulling the sewer line apart when trees were uprooted in the tornado, FEMA’s review of the GPS locations of damaged sites demonstrated that multiple locations were in the middle of alley ways or streets, in areas where trees were not located prior the disaster, or in a location that had not suffered specific tornado damage. Therefore, the Acting RA determined the Applicant had not provided adequate predisaster maintenance documentation of the damaged sites. As a result, the Acting RA concluded the Applicant had not substantiated that the claimed damages were the direct result of the disaster because it had not demonstrated the predisaster condition of the damaged locations. Consequently, the Acting RA determined the work was ineligible for PA funding.[6]
Second Appeal
By way of a letter dated December 14, 2017, the Applicant appeals FEMA’s denial of funding for repairs to the damaged sewer lines, and requests reimbursement of $329,456.31.[7] The Applicant reiterates its first appeal arguments, and additionally, responds to specific findings made in the first appeal decision. First, it emphasizes that it sent all predisaster maintenance and repair/relining contracts from 2000 through 2010, which demonstrate that the Applicant has a long-standing history of continued sewer maintenance throughout its community. Second, the Applicant asserts that the costs associated with the requested change to the SOW are the direct result of only the disaster, and not the result of normal maintenance issues or deferred maintenance. It states that the damages would have been repaired if they existed predisaster, because residences would not have been able to operate their toiletry facilities otherwise.
Third, while the Applicant acknowledges it could not produce daily inspection logs due to storage limitations which necessitated the destruction of the logs, it argues the sewer rehabilitation and relining contracts it provided establish the work completed in the years immediately preceding the disaster. Finally, in response to the Acting RA’s determination that many repaired sewer mains were not directly underneath uprooted trees, the Applicant notes that trees were located near the lateral lines connected to the sewer mains. Consequently, when uprooted trees damaged lateral lines, the force of the damage pushed back into the main sewer lines, causing the claimed damages. The Grantee forwarded the appeal to FEMA through a December 21, 2017 letter that recommended approval.
Discussion
FEMA may fund the cost of repairing, restoring, reconstructing, or replacing a facility damaged or destroyed by a major disaster.[8] However, to be eligible for financial assistance, an item of work must be required as the result of the disaster.[9] Stated differently, the “specific cause of damage must relate to the incident for which the disaster was declared” in order for the work to be eligible.[10] For facilities that require routine maintenance to maintain their designated function, such as dams or bridges, FEMA may review the predisaster maintenance or inspection reports to verify the predisaster condition and assess eligible disaster damage.[11] In the absence of maintenance records, FEMA will review material purchase invoices and activity logs to confirm the performance of normal maintenance activities.[12] It is the applicant’s responsibility to demonstrate that damage is disaster related[13] and to provide documented justification supporting its position.[14]
Here, the Applicant provides its annual budgets from 2000 through 2010, to demonstrate the amount of money budgeted for, and expended from, the sewer rehabilitation program that paid for the relining projects. However, the existence of a predisaster routine rehabilitation program does not, by itself, allow FEMA to grant PA funding for repair work without a sufficient nexus established between the program and the specific damage sites.[15] FEMA also relies on routine maintenance or inspection reports, as FEMA must verify the predisaster condition of a facility in order to assess or verify claimed disaster damage. In contrast to the supporting documentation and videos the Applicant provided for the relining projects (none of which pertained to the specific sites on appeal), the Applicant does not produce documentation demonstrating the details of sewer repairs or other maintenance work done prior to the disaster; the Applicant also states it cannot provide predisaster inspection records as those have been destroyed. Consequently, the Applicant has not provided sufficient records of maintenance that would assist FEMA in verifying the predisaster condition of the facility at the specific sites on appeal, or support its assertion the locations were clear and free of these damages prior to the disaster.[16] Therefore, it has not demonstrated the predisaster condition of the facility or the predisaster condition of the 81 sites on appeal.
Conversely, while the Applicant does not produce predisaster inspection reports or activity logs, it does provide photographs of each site taken after the disaster, as well as photographs comparing normal maintenance issues to disaster related damage, to support its assertion the repair work at issue in this appeal pertained only to disaster related damage. However, the photographs comparing normal damage with tornado damage submitted by the Applicant show almost the same type of pipe failures in both cases. The normal damage photographs show pipe sewer sections that have collapsed and they are similar to the tornado damaged sections. Additionally, the photographs of the 81 sites are dated between eight to ten months after the disaster. Therefore, based on the above, the Applicant has not demonstrated when the damages noted in the photographs occurred, nor the cause of the damages.[17] Accordingly, it has not demonstrated that the claimed damages occurred as a direct result of the disaster.
Conclusion
The Applicant has not demonstrated that the claimed sewer damages are a direct result of the disaster. Consequently, the costs associated with those repairs are ineligible for PA funding and this appeal is denied.
[1] See generally Project Worksheet 1016, Joplin, Version 0 (undated) (Under PW 1016, FEMA approved funding for television inspections to identify damages and to locate debris and affected lateral lines, in order to determine the actual damages eligible for funding under PW 1521).
[2] This amount excluded the $22,459.00 in closed caption television costs previously included in a spreadsheet that accompanied the Applicant’s request to change the SOW.
[3] Letter from Fin. Dir., City of Joplin, to Dir., State of Missouri Emergency Mgmt. Agency (SEMA), at 1 (Mar. 9, 2017).
[4] Id. at 2 (stating the Sewer Maintenance Division is responsible for maintenance of the sewer collection system through daily inspections of the sewer lines and responding to citizen trouble calls).
[5] Id. at 4 (stating that both the 2002 and 2008 videos include footage from repairs made in the tornado zone).
[6] Additionally, the Acting RA denied costs associated with conducting the television inspections, as the cost for that work was previously approved under PW 1016.
[7] Letter from Fin. Dir., City of Joplin, to Dir., SEMA, at 2 (Dec. 14, 2017) (including an attached spreadsheet that demonstrates the decreased requested reimbursement is due to change orders on multiple site locations, resulting in an overall decreased amount for the project).
[8] 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 (2006).
[9] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.223(a)(1) (2010); Public Assistance Guide, FEMA 322, at 29 (2007) [hereinafter PA Guide] (“work must be required as a direct result of the declared major disaster”).
[10] PA Guide, at 100; FEMA Second Appeal Analysis, Republic Cty. Highway Dep’t, FEMA-4230-DR-KS, at 3 (July 26, 2017).
[11] Id. at 33.
[12] FEMA Second Appeal Analysis, Pleasant Grove Twp., FEMA-4287-DR-KS, at 3 (Mar. 5, 2018).
[13] PA Guide, at 33
[14] 44 C.F.R. § 206.206(a).
[15] See PA Guide, at 33; FEMA Second Appeal Analysis, Lowe Twp., FEMA-4230-DR-KS, at 4 (Feb. 1, 2018) (relying on both annual budgets as well as predisaster material purchase invoices that demonstrated the Applicant completed predisaster work on some of the same culvert sites alleged to have been damaged from the disaster to grant PA funding).
[16] Though the Applicant argues the damages must be the result of the disaster because it would have had to repair them if they existed predisaster, this is not tantamount to providing documentation or other direct evidence that establishes the sites were undamaged predisaster.
[17] Additionally, although the Applicant contends that the disaster uprooted thousands of trees which caused the damages to the sewer lines, and that heavy equipment used during recovery after the disaster produced point loads that damaged the sewer lines, it does not produce documentation of the type of damage at each location and/or photographs of the above-ground damage to support these claims.
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