Damage Caused While Performing Eligible Work

Appeal Brief

Summary Paragraph

From December 10 to 11, 2021, severe storms, tornadoes, straight-line winds, and flooding caused extensive damage in the Commonwealth of Kentucky. Princeton (Applicant) reported damage to multiple roads due to post-disaster/tornado emergency protective measures and debris operations. FEMA prepared Grants Manager Project 673161 to capture the reported damage and requested repair costs of $245,718.15. FEMA conducted a site inspection, documenting the claimed road damage, and noting such as cracks, scour, and edge damages. FEMA issued a request for information, seeking documentation to support that the claimed damage was disaster related. The Applicant responded by providing post-disaster photographs of the roads. FEMA issued a determination memorandum denying the requested amount, finding that the Applicant did not provide documentation demonstrating that the claimed damage resulted from the performance of eligible debris removal operations. The Applicant submitted a first appeal asserting that it damaged the roads during emergency protective measures and debris removal operations performed under emergency work projects. The FEMA Region 4 Regional Administrator denied the appeal finding that the Applicant did not demonstrate that the claimed road damage occurred as a direct result of the disaster rather than pre-existing deficiencies and/or deferred maintenance. The Applicant submitted a second appeal requesting $245,718.15, reiterating its first appeal arguments, and providing pre- and post disaster photographs. On May 20, 2024, the Recipient transmitted the appeal with its support.

Authorities

• Stafford Act § 406(a)(1)(A).
• 44 C.F.R. § 206.223(a)(1).
• PAPPG, at 51-52, 63, 64, 138-139.
• Marshall County, FEMA-4630-DR-KY, at 3; City of Brunswick, FEMA-4451-DR-MO, at 4.

Headnotes

• If an applicant damages property while performing eligible emergency work, the repair of that damage may be eligible as part of that respective emergency work project.
  • The Applicant did not demonstrate that it damaged the roads while performing eligible emergency work.

Conclusion

The Applicant has not demonstrated the claimed damage occurred during its performance of eligible emergency response activities or debris removal operations. Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

From December 10 to 11, 2021, severe storms, tornadoes, straight-line winds, and flooding caused extensive damage in the Commonwealth of Kentucky.[1] Princeton (Applicant) stated that post-disaster emergency protective measures and debris operations caused damage to six roads (Facilities) located in the Country Club Hills Subdivision. The Applicant stated that tornado winds created considerable vegetative debris, necessitating removal by heavy equipment. The Applicant claimed this equipment caused damage to the Facilities. FEMA prepared Grants Manager Project (GMP) 673161 to capture the reported damage and claimed costs of $245,718.15. FEMA conducted a site inspection on June 29, 2022, documenting and photographing the Applicant’s claimed damage in a site inspection report (SIR), in which FEMA noted damages to the asphalt surface of the Facilities, such as cracks, scour, and edge damages. 

On August 4, 2022, FEMA issued a Request for Information to verify the pre- and post-disaster condition of the claimed sites. Specifically, FEMA requested additional information and documentation on road restrictions and weight limits, the predisaster condition and maintenance of the roads, and the debris hauling contractor’s liability for damage to the roads. In response, the Applicant stated that it posted weight limit signs on bridges, however, the debris removal trucks used were beyond the capacity for which the Facilities were designed. The Applicant submitted pre- and post-disaster photographs of the Facilities.

In a Determination Memorandum dated January 25, 2023, FEMA denied the Applicant’s claimed road repair costs of $245,718.15, finding that the Applicant did not establish that the work claimed was necessary to repair damages directly resulting from the performance of eligible debris removal operations.[2] FEMA found that the documentation provided, specifically a general maintenance statement and seven-year-old photographs, some of which showed early signs of fatigue cracking, did not provide sufficient evidence to establish the Facilities’ condition at the time of the debris removal operations. FEMA noted the site inspector’s photographs illustrated damages, including potholes and fatigue cracking, that occur over time and were due to lack of maintenance and exhaustion of the road surface life. FEMA also noted the Applicant did not establish that the damage was due to severe conditions resulting from the incident, was unavoidable, and not due to improper or excessive use.

First Appeal

The Applicant appealed the denial of $245,718.15 on April 7, 2023, reiterating its claim that the asphalt surfaces of the roads were damaged by heavy equipment from emergency response and debris removal activities. The Applicant asserted that it maintained the roads prior to the disaster and in support, provided predisaster maintenance records from 2018 through 2021 and a maintenance statement detailing the predisaster routine maintenance and annual improvement program that was guided by regular inspections performed by the Applicant’s staff and elected officials. The Applicant stated that each of the roads at issue received a complete asphalt overlay within the 15 years prior to the disaster. Additionally, the Applicant asserted it meticulously inspected, repaired, and regularly resurfaced its roads. Finally, the Applicant explained the Facilities were designed to support residential traffic loads only and the heavy equipment and loads required to execute the emergency response and debris removal caused permanent surface ruts, depressions, and cracks on the roads. Kentucky Emergency Management (Recipient) transmitted the appeal to FEMA on April 16, 2023, expressing its support. 

The FEMA Region 4 Regional Administrator denied the appeal on March 19, 2024, finding that the Applicant did not demonstrate that the claimed asphalt road damage occurred as a direct result of the disaster rather than pre-existing deficiencies and/or deferred maintenance. FEMA stated that while the Applicant claimed it last replaced the roads in 2012, FEMA reviewed the claimed damaged roads using 2014 historical images from Google Maps and found the predisaster historical images of the asphalt roads substantially correspond with the damage captured in the post-disaster photographs. FEMA found that since the claimed road damage appeared to have predated the disaster, the Applicant had not demonstrated the repairs were eligible for Public Assistance.

Second Appeal

The Applicant submitted a second appeal on May 17, 2024, for $245,718.15, reiterating its first appeal arguments. The Applicant also argues that heavy equipment can stress and damage roadway surfaces more than commuter vehicles, especially on residential roads. In support, it references an experiment conducted by the American Association of State Highway Officials, which found the damage caused by a dump truck to a road is 938 times that of a sedan. The Recipient transmitted the Applicant’s second appeal in a letter dated May 20, 2024, expressing its support.

Discussion

FEMA may provide funding to a local government for the repair of a public facility damaged by a major disaster.[3] To be eligible, an item of work must be required as a result of the declared incident.[4] If an applicant damages property while performing eligible emergency response activities or debris removal operations, the repair of that damage may be eligible as part of that respective emergency work project if certain other conditions are met.[5] Damage that results from a cause other than the designated event, such as deterioration or deferred maintenance, is not eligible.[6] It is the applicant’s responsibility to substantiate its claim as eligible.[7] If the applicant does not provide sufficient documentation to support its claim as eligible, FEMA cannot provide PA funding for the work.[8]

Here, the Applicant does not allege that the declared incident, i.e., tornadoes, straight-line winds, and flooding, caused the claimed road damage. Rather, the Applicant attributes the claimed road damage to emergency response and debris removal operations. However, the SIR photographs show road surface damage such as rutting, alligator cracks, and sunken asphalt, that are consistent with pre-existing deterioration. Therefore, FEMA requested documentation demonstrating the Facilities’ predisaster condition to assist in evaluating whether the claimed damage was caused directly by the disaster. 

In its post-disaster maintenance statement, the Applicant states that prior to the disaster, it routinely maintained the Facilities and the Applicant’s elected officials inspected them. The Applicant also provided predisaster maintenance records that reflected activities such as snow removal, occasional patching, and leaf pickup, but the records do not include locations or otherwise demonstrate the predisaster condition of the Facilities at issue. Although the Applicant also provided a post-disaster letter in the form of its maintenance statement from its road department stating that it performs annual maintenance, including surface repaving, an applicant must provide more than post-disaster statements or opinions to substantiate predisaster maintenance.[9]

In this case, the Applicant has not submitted documentation, such as predisaster maintenance records, road inspection reports, or material purchase invoices, that distinguishes pre-existing damage and deterioration from claimed disaster-related damage.[10] Based on the above, the Applicant has not demonstrated the claimed damage was caused by emergency response efforts, nor that the work was required as a result of the declared incident rather than pre-existing damage or deterioration.[11]

Conclusion

The Applicant has not demonstrated the claimed damage occurred during its performance of eligible emergency response activities or debris removal operations. Therefore, this appeal is denied.