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Result of Declared Incident

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4241
ApplicantSouth Carolina Department of Transportation
Appeal TypeSecond
PA ID#000-URFSC-00
PW ID#PW 1148
Date Signed2021-02-02T17:00:00

Summary Paragraph

During the incident period of October 1 to 23, 2015, severe storms and flooding caused damage in South Carolina.  The Cherokee Trail Bridge (bridge) in Lexington County sustained damage and was closed on October 6, 2015, for the South Carolina Department of Transportation (Applicant) to complete repairs, and was reopened on October 13, 2015.  The area experienced additional rainfall, and on October 29, 2015, the Applicant performed a special inspection and closed the bridge after finding increased scour in the foundation and a major sag in the deck.  The Applicant requested Public Assistance, and FEMA created Project Worksheet (PW) 1148 to capture the damage.  The PW notes that a predisaster inspection report showed preexisting bridge damage.  The Applicant replaced the bridge with a larger bridge it claimed was eligible due to its own repair/replacement analysis and in accordance with codes and standards.  FEMA issued a determination memorandum finding the Applicant repaired event-related damage from October 6-13, 2015, but denied funding for the replacement bridge, finding the work was ineligible due to preexisting conditions and lack of proper maintenance.  The Applicant appealed, asserting the bridge was sound prior to the disaster and its replacement was directly related to the disaster.  The FEMA Region IV Regional Administrator denied the first appeal.  FEMA determined the damage resulted from scour that undermined the foundation, but it could not be determined that the damage resulted from the disaster, and FEMA is not authorized to reimburse work that results from preexisting conditions or events occurring before or after the disaster.  The Applicant submitted a second appeal asserting there were no preexisting conditions or deferred maintenance that would have led to the damage, and post-disaster rainfall would not have caused the scour.

Authorities and Second Appeals

  • 44 C.F.R. § 206.223(a)(1).
  • PA Guide, at 29, 33, 80.
  • Pawnee (Cnty), FEMA-4225-DR-NE, at 4-5; Republic Cty. Highway Dep 't, FEMA-4230-DR-KS, at 3-4.

Headnotes

  • Per 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 the emergency or major disaster event.  While the PA Guide, at 29, provides that damage that results from a cause other than the designated event is not eligible, it also states on page 80 that it may be possible to review predisaster bridge inspection reports to determine if damage to the bridge was present before the disaster.
    • Here, the Applicant has demonstrated it performed routine predisaster bridge inspections.  Based on FEMA’s review of the predisaster inspection report, FEMA was able to ascertain that no preexisting deficiencies existed that would have been severe enough as to cause the damage claimed.

Conclusion

FEMA finds that the Applicant has demonstrated additional work was required as a result of the disaster to address disaster-related damage.  However, FEMA has not made a determination regarding the eligibility of the costs requested by the Applicant.  Therefore, this appeal is partially approved.

 

Appeal Letter

Kim Stenson

Director

South Carolina Emergency Management Division

2779 Fish Hatchery Road

West Columbia, South Carolina 29172

 

Re:       Second Appeal – South Carolina Department of Transportation, PA ID: 000-URFSC-00, FEMA-4241-DR-SC, Project Worksheet 1148 – Result of Declared Incident

 

Dear Mr. Stenson:

This is in response to a letter from your office dated November 2, 2020, which transmitted the referenced second appeal on behalf of the South Carolina Department of Transportation (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding in the amount of $2,480,144.66 for the replacement of the Cherokee Trail Bridge.

As explained in the enclosed analysis, I have determined that the Applicant has demonstrated additional work was required as a result of the disaster to address disaster-related scour and sagging.  However, this decision does not represent approval of any requested costs on appeal, as additional issues concerning Public Assistance eligibility have yet to be adjudicated (e.g., environmental and historic preservation compliance, codes/standards upgrades’ eligibility, satisfaction of the 50 Percent Rule, etc.).  Therefore, this appeal is partially granted.  FEMA Region IV will work with the Applicant to revise Project Worksheet 1148 in accordance with the determinations contained in the decision.  By copy of this letter, I am requesting the Regional Administrator to take appropriate action to implement this determination. 

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/

                                                                            Ana Montero

                                                                           Division Director

                                                                           Public Assistance Division

                                                                       

cc:  Gracia Szczech  

Regional Administrator

FEMA Region IV

Appeal Analysis

Background

From October 1 to 23, 2015, severe storms and flooding caused damage throughout South Carolina, including Lexington County, the location of the Cherokee Trail Bridge (bridge or Facility), a 45 foot by 27.6-foot bridge owned and maintained by the South Carolina Department of Transportation (Applicant).  On October 6, 2015, the Applicant closed the bridge to complete repairs, including replacement of riprap and slope and shoulder washout.  The Applicant reopened the bridge on October 13, 2015.  Lexington County experienced additional rainfall, and on October 29, 2015, the Applicant performed a special inspection and closed the bridge after finding major scour[1] at the foundation and a major sag in the deck.[2]  Thereafter, the Applicant notified FEMA it intended to replace the bridge with a larger bridge.  FEMA prepared Project Worksheet (PW) 1148 to capture damages to the Facility.  The PW notes that a predisaster inspection report showed preexisting damage and deterioration, however, waterway and scour was rated “good.”[3]

On June 27, 2018, FEMA issued a determination memorandum explaining that the Applicant repaired disaster-related damage from October 6-13, 2015, using force account labor, which FEMA found to be eligible in the amount of $7,938.92.  However, FEMA denied funding to replace the Facility, explaining that any additional work was performed due to preexisting conditions and lack of proper maintenance, which is ineligible for Public Assistance (PA) reimbursement.

 

First Appeal

On September 28, 2018, the Applicant appealed, asserting that the Facility needed to be replaced as a result of the disaster, noting that upgrades were required by codes and standards.  The Applicant stated it adhered to an ongoing bridge inspection and maintenance program, completed numerous repairs from 2002-2012, and asserted there were no preexisting conditions or deferred maintenance issues that would have contributed to the damage sustained during the disaster.  The Applicant asserted that the predisaster inspection report noted only minor deterioration that did not constitute significant structural deficiencies.  It noted that National Bridge Inspection Standards (NBIS) regulations require that bridge owners identify bridges that are scour critical and to prepare a plan of action (POA) to monitor known and potential deficiencies.  The Applicant stated that it did not have to do a POA, as the Facility was not rated scour critical.

The Applicant described the damage that occurred as a result of the disaster and the initial repairs completed in an attempt to reopen the Facility.  It stated, however, initial repairs were insufficient to correct the damage.  The bridge settled, which created a sag in the deck, and the Applicant closed the bridge as a result.  The Applicant claimed that 80 percent of the bridge necessitated repair, so it was therefore eligible for replacement under the PA Program.  On August 1, 2017, it awarded a contract to replace the bridge with a larger 67.5-foot by 35-foot bridge and widen and repave the roadway and approaches in accordance with current codes and standards.  The Applicant requested $2,480,144.66 to replace the Facility.  The South Carolina Emergency Management Division (Grantee) supported the first appeal in a letter dated November 1, 2018.

FEMA sent a Request for Information asking for documentation that would demonstrate that the work was required as a result of the disaster, that the Facility was eligible for replacement under FEMA’s 50 Percent Rule, and that the costs for upgrades to comply with current codes and standards were eligible since State standards for construction with respect to the project were discretionary.  The Applicant replied, explaining that the work should be eligible because the Facility was properly maintained and open to traffic prior to the disaster, and provided additional documentation in support, including pictures, inspection reports, and its bridge inspection manual.  The Applicant also provided its 50 Percent Rule analysis to demonstrate the Facility was eligible for replacement and explained that State law allowed the Applicant to exercise discretionary authority for codes and standards upgrades with respect to highway projects in the secondary state highway system.

On July 9, 2020, the FEMA Region IV Regional Administrator denied the first appeal.  FEMA determined that the damage resulted from scour that undermined the foundation of the bridge, but prior to the disaster, the Applicant did not perform scour evaluations, implement a POA, nor install scour countermeasures as required by NBIS.  Further, scour was not repaired during the Applicant’s initial repairs, and there were additional rain events after the disaster.  As such, FEMA could not determine whether the damage was incurred before the disaster, as a result of the disaster, or after the disaster.  FEMA stated that because the Agency is not authorized to reimburse work that results from preexisting conditions or events occurring before or after the disaster, the work was ineligible for PA.

 

Second Appeal

The Applicant submitted a second appeal on September 4, 2020, stating that there were no preexisting conditions or deferred maintenance issues that would have contributed to the damage caused by the disaster.  With regard to predisaster inspections, the Applicant emphasizes that it performed bridge inspections every 12 months, which exceeded the NBIS requirement to perform inspections every 24 months, and stated that it performed underwater scour inspections annually utilizing the visual or tactile method, which is allowable pursuant to its bridge inspection manual.  The Applicant also provides documentation indicating that the post-disaster rain events were not uncommonly heavy and essentially insignificant in terms of turbulent flows that would have created scour.

Although the Applicant could not provide record of a scour evaluation, the Applicant routinely inspected the bridge every 12 months, which included underwater inspections and scour monitoring.  The available bridge inspection reports indicated that the Facility was not deemed scour critical and the predisaster inspection report did not indicate significant scour.  The subsequent inspection report (post-disaster) did indicate significant scour, and the Applicant claims that scour resulting from the disaster was initially disguised by washed-out material deposit and this loose sediment was then displaced by the subsequent small rain events, thus exposing the full extent of the scour.  Therefore, the Applicant requests that FEMA approve $2,480,144.66 to replace the Facility as the damages were a result of the major disaster.  In a letter dated November 2, 2020, the Grantee transmitted the second appeal to FEMA, recommending its approval.

 

Discussion

To be eligible for financial assistance, an item of work must be required as the result of the emergency or major disaster event.[4]  Damage that results from a cause other than the designated event, such as a pre-disaster damaging event, post-disaster damaging event, or work to correct inadequacies that existed prior to the disaster, is not eligible.[5]  It is an applicant’s responsibility to show that the damage is disaster-related and, where preexisting damage exists, to distinguish that damage from the disaster-related damage.[6]  In some cases, it may be possible to review predisaster bridge inspection reports to determine if damage to the bridge was present before the disaster.[7]

Based on a review of the predisaster inspection reports, the damage to the bridge that was identified following the declared event was not present prior to the declared event.  The Applicant conducted a special inspection after the disaster on October 29, 2015, which showed the extent of the scour that caused the major sag in the deck and resulted in the bridge closure.  The Applicant made initial repairs during the incident period and provided a reasonable explanation for why it did not install scour countermeasures at the time, surmising that the scour was disguised by washed-out material deposit.  FEMA also notes that the Applicant has demonstrated it performed routine predisaster bridge inspections every 12 months in line with its inspection manual, which exceeded the inspection requirements set forth in NBIS regulations.  Finally, the Applicant provided documentation in its second appeal demonstrating that post-disaster rainfall was not unusually heavy as to cause scour.  In this case, the Applicant has shown that damage to the bridge was not present before the disaster and that heavy rains and flooding from the disaster caused the scour that resulted in the major sag in the deck.

 

Conclusion

The Applicant has demonstrated that work was required as a result of the disaster to address disaster-related scour and sagging.  However, FEMA notes that this decision does not represent approval of any requested costs on appeal, as additional issues concerning PA eligibility have yet to be adjudicated (e.g., environmental and historic preservation compliance, codes/standards upgrades’ eligibility, satisfaction of the 50 Percent Rule, etc.).  Therefore, this appeal is partially granted.  FEMA Region IV will work with the Applicant to revise PW 1148 in accordance with the determinations contained in the decision.

 

[1] “Scour” is defined as “[e]rosion of streambed or bank material due to flowing water” (U.S. Dep’t of Transp. Federal Highway Admin., Nat’l Highway Inst., Publication No. FHWA-NHI-09-111, Hydraulic Eng’g Circular No. 23, Bridge Scour and Stream Instability Countermeasures: Experience, Selection, and Design Guidance-Third Edition, Vol. 1, at xxxi, (Sept. 2009) https://www.fhwa.dot.gov/engineering/hydraulics/pubs/09111/09111.pdf (last visited Jan. 8, 2021)).

[2] S.C. Dep’t of Transp. (SCDOT) Bridge Inspection, Bridge ID: 3270117100100 (Nov. 12, 2015).

[3] SCDOT Bridge Inspection, Bridge ID: 3270117100100 (Oct. 16, 2014).

[4] Title 44 Code of Federal Regulations § 206.223(a)(1) (2015).

[5] Public Assistance Guide, FEMA 322, at 29 (June 2007) [hereinafter PA Guide].

[6] Id. at 33; FEMA Second Appeal Analysis, Pawnee (Cnty), FEMA-4225-DR-NE, at 4-5 (June 23, 2020); FEMA Second Appeal Analysis, Republic Cty. Highway Dep 't, FEMA-4230-DR-KS, at 3 (July 26, 2017).

[7] PA Guide, at 80.

Last updated February 3, 2021