Damage Surveys

Appeal Brief

Summary Paragraph

On May 22, 2011, an EF-5 tornado struck the City of Duquesne.  Afterwards, debris cleanup efforts unearthed and caused damage to sewer lateral lines that connect residential dwellings to the Applicant’s sewer main.  The Applicant became concerned that debris could enter the sewer lateral lines and cause blockages in the sewer main causing effluent to overflow, resulting in health hazards throughout the community.  The Applicant determined the damaged and exposed sewer lateral lines to be an immediate threat to public health and safety.  FEMA prepared PW 989 for the use of CCTV in the sewer main to locate damage and debris within the sewer main and to locate the connection points (taps) between the damaged lateral lines and the sewer main.  The Applicant completed the work and submitted actual closeout costs.  FEMA determined that the use of CCTV did not result in the identification of damage or debris within the sewer main.  However, it did reveal the locations of the taps between the damaged sewer lateral lines and the sewer main.  Because the use of CCTV to inspect the sewer lines did not yield any damage nor debris, at closeout FEMA categorized the work as a general damage survey.  Consequently, FEMA determined the work to be ineligible and deobligated PW 989.  The Applicant appealed.  The FEMA Regional Administrator (RA) denied the appeal for the same reasons determined at closeout.  On the second appeal, the Applicant argues that the CCTV work was a targeted action to locate the taps between the sewer main and the sewer laterals and have them capped at the lowest possible cost.  Since the work performed was in response to an immediate threat, it was not a general survey and should be eligible for PA funding.      

Authorities and Second Appeals

• Stafford Act § 403.
• 44 C.F.R. § 206.223(a)(1).
• 44 C.F.R. § 206.225(a)(3)(i)-(ii).

Headnotes

• Pursuant to 44 C.F.R. § 206.223(a)(1), to be eligible for financial assistance, an item of work must be required as the result of a major disaster event.
  • After an EF-5 tornado struck the City of Duquesne, the President declared a major disaster for the Applicant’s community.  Afterwards, debris cleanup efforts unearthed and caused damage to sewer lateral lines that connect residential dwellings to the Applicant’s sewer main.  
• Pursuant to 44 C.F.R. § 206.225(a)(3)(i)-(ii) emergency protective measures are eligible for funding if the measures eliminate or lessen immediate threats to life, public health or safety, or eliminate or lessen immediate threats of significant additional damage to improved public or private property through measures which are cost effective.

• The Applicant used CCTV as a cost-effective means to locate the taps between damaged and exposed sewer lateral lines and the Applicant’s sewer main.  After locating these taps, the Applicant capped the lateral lines at its right-of-way, thus eliminating an immediate threat to public health and safety that would have resulted from a sewage backup in the Applicant’s sewer main.  Capping the lateral lines also eliminated the immediate threat of significant additional damage to the sewer system.

Appeal Letter

Appeal Analysis

Background

On May 22, 2011, an EF-5 tornado struck the City of Duquesne (Applicant) and destroyed hundreds of residential buildings throughout the city.  In response to the disaster, FEMA accelerated debris removal from public and private property.  During building demolition and debris cleanup efforts, the Applicant observed unearthed and crushed sewer lateral lines that connected residential dwellings to the Applicant’s sewer main.  The Applicant became concerned that debris could enter the exposed sewer lateral lines and cause obstructions within the Applicant’s sewer main system.  As a result, FEMA prepared Project Worksheet (PW) 989, with an estimated cost of $68,410.50, to use a closed-circuit television camera (CCTV) system to identify damages, locate debris, and locate affected sewer lateral lines in order to cap them.  FEMA prepared a companion project (PW 990 Category B – Emergency Work) to capture the estimated cost of temporarily capping damaged and/or exposed sewer lateral lines.[1]   At the closeout of PW 989, the Applicant requested $95,053.60 in actual contract costs for the use of CCTV to examine its sewer lines.  FEMA issued a Public Assistance (PA) Determination Memorandum stating that the work was not eligible for reimbursement because the use of CCTV did not identify disaster-related damage or debris.[2]  As a result, FEMA deobligated $68,410.50 from PW 989.  In a letter dated March 31, 2015, FEMA notified the Missouri Department of Public Safety’s Emergency Management Agency (Grantee) of the deobligation.[3] 

First Appeal

On May 28, 2015, the Applicant appealed FEMA’s decision to deobligate PW 989.[4]  The Applicant argued that PW 989 specifically allowed the use of CCTV as a means to locate sewer lateral lines that needed temporary repairs.  The Applicant explained that it lacked the legal authority to enter onto private property to perform these temporary repairs and decided instead to access the sewer lateral lines through its public rights-of-way.[5]  The Applicant did not possess “as built” maps of its sewer system showing the location of the taps connecting the sewer lateral lines to the sewer main.[6]  As a result, the Applicant faced the prospect of physically digging up the earth around the sewer main in order to locate the taps to the sewer laterals.  Instead, the Applicant opted for the less costly alternative of using CCTV to locate the taps.[7]     

The Applicant argued that FEMA based its determination solely on the lack of any damage discovered by the use of CCTV and did not consider the other purpose of using CCTV to locate the taps between the sewer laterals and the sewer main and facilitate repairs needed to address an immediate threat.  The Applicant requested $95,053.60 in PA funds for the use of CCTV to locate the taps.  The Grantee forwarded the Applicant’s appeal to FEMA in a letter dated June 2, 2015.[8]

On November 24, 2015, the FEMA Region VII Regional Administrator (RA) denied the appeal.[9]  The RA found that “PW 989 was to pay for the costs of video inspection to the extent it identified damages.”[10]  As the CCTV work did not reveal any “event related damage to the main sewer system,” the RA classified use of CCTV as a general survey for damage and consequently not eligible for reimbursement.[11] 

Second Appeal

In a letter dated January 21, 2016, the Applicant appealed the RA’s decision and argued that the intent of the CCTV work was to locate the taps between the sewer main and the sewer laterals and facilitate capping them at the lowest possible cost. [12]   The Applicant asserts the use of CCTV was not a general survey, but rather work performed in response to an immediate threat.  The Grantee forwarded the Applicant’s appeal to FEMA through a letter dated January 26, 2016.[13]

Discussion

The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) § 403 authorizes FEMA to provide PA funding for activities essential to meeting immediate threats to life and property, resulting from a major disaster.^[14]  FEMA categorizes such actions as emergency work.  Emergency work “must be performed to reduce or eliminate an immediate threat to life, protect public health and safety, and to protect improved property that is threatened in a significant way as a result of the disaster.”^[15]  Emergency work includes either emergency protective measures or debris removal.[16]

Title 44 Code of Federal Regulations (44 C.F.R.) § 206.223(a)(1) provides that generally, to be eligible for financial assistance, an item of work must be required as the result of the emergency or disaster event.  For an emergency protective measure to be eligible for reimbursement, the measure must eliminate or lessen immediate threats to life, public health or safety; or eliminate or lessen immediate threats of significant additional damage to improved public or private property through cost-effective measures.[17]

In this instance, an EF-5 tornado devastated the Applicant’s community.  During cleanup and debris removal, the Applicant identified unearthed and crushed sewer lateral lines, which connect residential dwellings to its sewer main, and took action to prevent debris from entering the sewer main. Left unaddressed this condition could have potentially obstructed the sewer system and resulted in a public health and safety hazard.  The Applicant was also concerned about additional damage to its sewer system because of the exposed and crushed sewer laterals.

The emergency protective measure chosen by the Applicant was temporarily capping the damaged sewer laterals.  To cap the affected sewer laterals, the Applicant needed to know the exact location of the taps that connect the sewer laterals to the sewer main.  As the Applicant did not have “as built” diagrams of its sewer system nor the legal authority to enter onto private property to perform such temporary repairs, it opted to access the sewer laterals via its public rights-of-way.  The stated purpose described in PW 989 was to use CCTV to identify damages, locate debris, and locate affected sewer lateral lines in order to cap them.[18]  After locating the taps, the Applicant temporarily capped affected sewer lateral lines.  Although FEMA reimbursed the Applicant for the actual capping work through PW 990, the necessary work to locate the taps and affected lines remained unfunded.

FEMA finds that the Applicant’s use of CCTV was not a general survey for damage, but rather a necessary and cost-effective part of the approved emergency protective measure to locate and temporarily cap impacted sewer lateral lines.[19]  The Applicant could not perform the temporary capping without first locating the lateral line tap locations.  Therefore, this work and the associated costs are eligible for PA funding.

Conclusion

The Applicant used CCTV to locate the taps that connected the sewer main to the affected sewer laterals.  Once located, the affected sewer laterals were temporarily capped, as an emergency protective measure.  The use of CCTV was a necessary and cost-effective part of the temporary capping of the sewer laterals.  As such the cost of using CCTV is eligible for PA funding and the appeal is granted.