Appeals, Result of Declared Incident

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4424
Applicant	Perry Township
Appeal Type	Second
PA ID#	111-61952-00
PW ID#	GMP 104094, 104120, 104123, 104223, 104218, 106653, 133856
Date Signed	2021-07-23T16:00:00

Summary Paragraph

From February 5 to 13, 2019, severe storms and flooding afflicted Perry Township, Ohio (Applicant).  FEMA formulated Grants Manager Projects (GMP) 104094, 104120, 104218, 106653, 104123, 104223, and 133856 to address repair work to the Applicant’s roads, ditches, and culverts (Facilities).  The Applicant informed FEMA that it did not have a formal road maintenance policy and based repairs on recommendations made by its Trustees.  FEMA conducted site inspections for all projects except GMP 133856; for that project, the Applicant indicated it had completed the repair work.  FEMA requested information to support the damage claims, but the Applicant did not respond with the information requested.  FEMA denied PA funding.  The Applicant submitted three appeals for the projects attaching activity logs and photographs for the Facilities.  FEMA denied all three.  For the GMP 133856 appeal, FEMA determined the Applicant failed to provide the requested documentation to support its claim.  For the GMPs 104094, 104120, 104218 and 106653 appeal and for the GMPs 104123 and 104223 appeal, FEMA determined there was no documentation to substantiate that the declared event caused the damage at the Facilities.  The Applicant’s second appeal is for GMPs 104094, 104120, 104218, and 106653 only and states that it submitted all items in its first appeal.  The Grantee’s transmittal references all of the projects. 

 

Authorities and Second Appeals

• Stafford Act §§ 406, 423.
• 44 C.F.R. §§ 206.206(a), 206.223(a)(1).
• PAPPG (v 3.1) at 19-20, 116, 133, 135.
• Franklin County, FEMA-4230-DR-KS, at 6-7; Pulaski Cty., FEMA-4250-DR-MO, at 4; Republic Cty. Highway Dep’t, FEMA-4230-DR-KS, at 3.

 

Headnotes

• 44 C.F.R. § 206.206(a) requires that applicants make their appeal in writing through the grantee to FEMA. 
  • The Applicant’s second appeal is for GMPs 104094, 104120, 104218, and 106653 only.  As such, FEMA will not consider a second appeal for GMPs 104123 and 104223, or GMP 133856 because there is no appeal for these projects that meets the regulatory format and content requirements of an appeal. 
• Section 406 of the Stafford Act authorizes FEMA to provide assistance for the repair, restoration reconstruction or replacement of facilities damaged by a major disaster.  Such work must be required as a direct result of the declared major disaster or emergency.  It is the Applicant’s responsibility to substantiate its claim. 
  • The Applicant has not established that work to repair the damages to the Facilities was a direct result of the declared disaster.

Conclusion

The Applicant’s second appeal is for GMPs 104094, 104120, 104218, and 106653 only.  As such, FEMA will not consider a second appeal for GMPs 104123 and 104223, or GMP 133856 because there is no appeal for these projects that meets the regulatory format and content requirements of an appeal.  For GMPs 104094, 104120, 104218, and 106653, the Applicant has not demonstrated that work to repair damages to the Facilities was a direct result of the declared disaster.

 

Appeal Letter

Appeal Analysis

Background

From February 5 to 13, 2019, severe storms caused flooding and damage throughout Perry Township, Ohio (Applicant).  FEMA formulated Grants Manager Projects (GMP) 104094, 104120, 104218, 106653, 104123, 104223, and 133856 to address repair work to the Applicant’s roads, ditches, and culverts (Facilities).  The Applicant informed FEMA that it did not have a formal road maintenance policy and that repairs were based on recommendations made by its Trustees that inspected the roads.[1] 

FEMA conducted site inspections for all projects except GMP 133856 as the Applicant indicated it had completed repair work for that project.  For GMP 133856, FEMA requested supporting documentation to verify that work was completed and costs, and to develop the project’s damage description and dimensions, scope, and cost.  For the other projects, FEMA expressed concern about the eligibility of claimed damages because site inspections and photographs taken to verify site conditions indicated damages such as road surface erosion, rock loss and ditch damage that may have occurred over time from other causes.[2]  FEMA requested supporting documentation, including construction plans, maintenance records, material invoices, photographs, inspection reports or other information, demonstrating that the Applicant regularly maintained ditches running along the road sites, and that roads and culverts were regularly maintained and in good condition prior to the disaster.  The Applicant commented for GMP 133856 in FEMA’s Grants Portal that the work was done by Trustees whose time was not recorded as they cannot charge for labor and that it had already provided maintenance records.  The Applicant requested that FEMA to move the project forward as funds were needed for necessary repairs. 

FEMA issued Determination Memoranda (DM) for GMPs 104094, 104120, 104218 and 106653 in June 2020, and for GMPs 104123 and 104223 in September 2020, denying Public Assistance (PA) funding as there was no documentation to substantiate that the declared event caused the damage at the Facilities.  FEMA issued a DM for GMP 133856 in August 2020 denying PA funding as the Applicant failed to provide the requested documentation to support its claim.

 

First Appeals

The Applicant submitted three separate appeals.[3]  With its appeals, the Applicant submitted activity logs for work done on roads from January 2019 through July 2020, along with undated photographs attached to emails that were dated August 2020.  The Ohio Emergency Management Agency (Grantee) supported the appeals in its transmittal letters.

FEMA issued Requests for Information (RFI) for all three appeals that repeated and expanded on the earlier RFIs.  For instance, all three RFIs requested photographs, inspection reports, or other information substantiating the predisaster condition of the road surfaces, culverts and ditches at each of the sites at issue in the appeals, as well as activity logs/maintenance records for the five years preceding the declared event.  The Applicant did not provide any further information in response to the RFIs.

FEMA denied all three appeals.  On March 1, 2021, for GMPs 104094, 104120, 104218 and 106653, and on March 3, 2021, for GMPs 104123 and 104223, FEMA determined the Applicant did not establish that the claimed damages to the Facilities were the result of the declared disaster in accordance with Title 44 Code of Federal Regulations (44 C.F.R.) § 206.223(a)(1).  On March 29, 2021, for GMP 133856, FEMA determined the Applicant’s appeal letter did not satisfy the content requirements of 44 C.F.R. § 206.206(a) and the Applicant did not demonstrate the eligibility of the work completed or validate the costs claimed. 

 

Second Appeal

In a letter dated April 10, 2021, the Applicant filed a second appeal for GMPs 104094, 104120, 104218, and 106653 and stated that it submitted all information in its first appeal of those projects.[4]  The Grantee’s April 23, 2021 transmittal states it received a second appeal from the Applicant for all the GMPs at issue in the three first appeal denials, though it only submitted the April 10, 2021 appeal for GMPs 104094, 104120, 104218, and 106653 to FEMA.  The Grantee argues that maintenance records that postdate the disaster do not mean that the Applicant did not maintain its roads, only that it did not adequately record when maintenance was performed on their roads.  The Grantee also notes FEMA policy states, in the absence of maintenance records, FEMA inspects other sections of the road system to confirm regular maintenance but did not do so in this case.  The Grantee recommends approval in the amount of $668,992.57. 

 

Discussion

Appeals

Section 423(a) of the Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act provides that any decision regarding eligibility for assistance may be appealed within 60 days after the date on which the applicant for such assistance is notified of the award or denial of award of such assistance.[5]  Implementing this provision, 44 C.F.R. § 206.206(a) requires that an applicant make its appeal in writing, through the grantee, who then reviews and evaluates the appeal before submission to FEMA.[6]  Regarding a grantee’s right of appeal, federal regulation provides that grantees may make grantee-related appeals to FEMA.[7] 

The Grantee’s April 23, 2021 transmittal indicates that it is submitting the Applicant’s appeals for GMPs 104094, 104120, 104218, and 106653, GMPs 104123 and 104223, and GMP 133856.  However, it did not submit a written second appeal from the Applicant for GMPs 104123 and 104223, or GMP 133856.  The Applicant’s second appeal is for GMPs 104094, 104120, 104218, and 106653 only.  As such, FEMA will not consider a second appeal for GMPs 104123 and 104223, or GMP 133856 because there is no appeal for these projects that meets the regulatory format and content requirements of an appeal.

 

Result of Declared Incident

FEMA may provide PA funding to a local government for the repair of a public facility damaged by a major disaster.[8]  To be eligible, work must be required as a result of the declared incident.[9]  FEMA requires documentation to support that the work is eligible.[10]  The applicant is responsible for providing documentation to support its claim as eligible and show that work is required to address damage caused by the disaster.[11]  When evaluating eligibility of reported road damage, FEMA may review invoices and maintenance records to establish that the Applicant has a routine maintenance program.[12]  Such documentation may be helpful to establish the predisaster condition of a facility and demonstrate that the damage was directly caused by the incident.[13]  FEMA does not provide PA funding for normal maintenance or the repair of damage caused by deterioration.[14]

While logs and photographs are not required in order to receive FEMA assistance, they may be helpful to demonstrate that the damage was directly caused by the incident.[15]  The Applicant provided activity logs for work done on roads and undated photographs claimed to show regular maintenance.  The logs show the Applicant “hauled stone” on 3 of the 14 roads on

January 16, 2019, but the Applicant did not provide activity logs FEMA requested that would show maintenance for the five years preceding the declared event.  The information on these logs and the undated photographs do not provide sufficient detail to confirm the performance of normal maintenance activities and distinguish between pre-existing damage and damage caused by the incident.  In addition, the Applicant acknowledged it does not have a formal written road maintenance policy, and that repairs are based on recommendations made by the Trustees (along with temporary workers) that inspect the roads.[16]  Accordingly, the Applicant has not established that work to repair the damages to the Facilities was a direct result of the declared disaster.[17] 

 

Conclusion

The Applicant’s second appeal is for GMPs 104094, 104120, 104218, and 106653 only.  As such, FEMA will not consider a second appeal for GMPs 104123 and 104223, or GMP 133856 because there is no appeal for these projects that meets the regulatory format and content requirements of an appeal.  For GMPs 104094, 104120, 104218, and 106653, the Applicant has not demonstrated that work to repair damages to the Facilities was a direct result of the declared disaster.  Accordingly, the appeal is denied.  

 

[1] Letter from President, Perry Township Trustees to FEMA, re: Township Road Maintenance (Sept. 3, 2019) [hereinafter Township Road Maintenance Letter].

[2] See, for example, FEMA Site Inspection Photo Pages, 300999, at 2-3 (Aug. 12, 2019)

[3] The appeal for GMPs 104094, 104120, 104218 and 106653 was dated June 23, 2020 for a total of $483,808.87.  The appeal for GMPs 104123 and 104223 was dated September 14, 2020 for a total of $174,066.91.  The Applicant appealed GMP 133856 on September 28, 2020 for $10,500.00. 

[4] The appeal covered claimed damages to 14 different roads and ditch and culvert damages in 31 locations.  The amount at issue in the Applicant’s appeal request is $483,808.87.

[5] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act § 423(a), Title 42, United States Code (42 U.S.C.) § 5189a(a) (2018).

[6] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.206(a) (2018).

[7] Id.

[8] Stafford Act § 406(a)(1)(A), 42 U.S.C. § 5172(a)(1)(A).

[9] 44 C.F.R. § 206.223(a).

[10] Public Assistance Program and Policy Guide, FP-104-009-2, at 133 (Apr. 2018) [hereinafter PAPPG].

[11] Id, at 19, 116, 133.

[12] Id, at 116.

[13] Id. at 116, 135.

[14] Id. at 19, 116.

[15] Id. at 116.

[16] See Township Road Maintenance Letter.  This documentation also does not establish the performance of normal maintenance activities.  See FEMA Second Appeal Analysis, Republic Cnty. Highway Dep’t, FEMA-4230-DR-KS, at 3 (July 26, 2017) (determining that FEMA could not rely solely on the Applicant’s statements that it had an informal maintenance program and that repairs were done on an as needed basis, to conclude the Applicant had a predisaster maintenance program).

[17] See FEMA Second Appeal Analysis, Franklin Cnty., FEMA-4230-DR-KS, at 6-7 (Mar. 12, 2019) (finding that the Applicant had not established the work was required as a result of the disaster, in part because it had not produced documents of maintenance work to enable FEMA to assess the predisaster condition of sites on appeal).