Result of Declared Incident

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4442
Applicant	Freeborn (County) / Highway Department
Appeal Type	Second
PA ID#	047-9904-02
PW ID#	PW 154889
Date Signed	2022-03-17T16:00:00

Summary Paragraph

Between March 12 and April 28, 2019, Minnesota experienced severe winter storms, straight-line winds, and flooding that impacted several counties, including Freeborn County.  The Freeborn County Highway Department (Applicant) requested reimbursement for costs to repair 12 roads (Facilities) damaged by the declared disaster.  On November 13, 2020, FEMA issued a Determination Memorandum denying the Applicant’s request for PA funding due to a lack of documentation that the Facilities were damaged due to the declared event.  The Applicant appealed, stating that it had demonstrated the damage to the Facilities was the direct result of the disaster, rather than  a result of deferred maintenance.  The FEMA Region V Regional Administrator denied the appeal on August 30, 2021, determining that the Applicant had not provided documentation to establish that the claimed damages to the Facilities were a direct result of the declared event.  The Applicant appealed this decision, reiterating arguments from the first appeal that it had provided documentation to show that the damage was a result of the declared disaster.  On second appeal, FEMA finds that the Applicant has demonstrated through maintenance records, invoices, and photographs that damage to the county roads was a direct result of the disaster.  Therefore, this appeal is granted.

Authorities and Second Appeals

• Stafford Act § 406.
• 44 C.F.R. § 206.223(a)(1).
• PAPPG at 19, 20, 116, 133.
• Conway Hosp., FEMA-4394-DR-SC, at 3, Perry Twp. (Monroe), FEMA-4424-DR-OH, at 2.

Headnotes

• Per 44 C.F.R. § 206.223(a)(1), to be eligible for PA funding, an item of work must be required as a result of the declared incident.  The PAPPG, at 116, provides that FEMA may review invoices and maintenance records to establish that the applicant has a routine maintenance program, but in the absence of those records, FEMA reviews material purchase invoices and activity logs or other documentation to establish the predisaster condition of the facility. 
  • The Applicant has demonstrated through maintenance records, invoices, and photographs that it maintains the roadways and that the damage was caused by the disaster.

Conclusion

The Applicant has demonstrated that work to repair damage to the Facilities was a direct result of the disaster.  Therefore, this appeal is granted in the amount of $685,672.00.

Appeal Letter

Appeal Analysis

Background

Between March 12 and April 28, 2019, Minnesota experienced severe winter storms, straight-line winds, and flooding that impacted several counties, including Freeborn County.  Freeborn County Highway (Applicant) requested Public Assistance (PA) to repair twelve roads (Facilities) damaged by the declared disaster.  FEMA did not conduct site inspections because the Applicant indicated that the work was 100 percent completed at the time of the Recovery Scoping Meeting.[1]  The Applicant submitted invoices, maintenance records, and photographs of the damage to the Facilities, but FEMA was unable to determine whether the Facilities sustained damage directly due to the disaster or whether the damage was due to a lack of maintenance.

On May 20, 2020, FEMA issued a Request for Information (RFI) to the Applicant requesting documentation to demonstrate that the damage to the Facilities was disaster-related and the costs were necessary and reasonable.  The Applicant responded to the RFI asking FEMA to reconsider the documentation it previously submitted, but did not provide additional information.  However, the Applicant followed up in October 2020 with an email containing the “Cost Ledger for 2018” showing the amount spent on the Facilities for “spot graveling and culvert repair” as well as various other types of routine maintenance.

Following the RFI response, FEMA issued a Determination Memorandum denying the Applicant’s request for PA funding due to a lack of documentation demonstrating that the damage to the Facilities was the result of the declared event.

First Appeal

On January 6, 2021, the Applicant appealed, stating it provided documentation showing that the damages were not a result of deferred maintenance.  It attached maintenance records, work orders, a press release, and a map of the road closures.  The State of Minnesota, Division of Homeland Security and Emergency Management (Grantee) forwarded the Applicant’s appeal, with its support, to FEMA Region V.

FEMA issued an RFI on May 10, 2021, requesting additional photographs or documentation demonstrating visible and quantifiable surface damages caused by the declared disaster after the flood waters receded, a spreadsheet listing the 12 claimed damaged locations, and corresponding invoices that indicate the amount of gravel and cost to repair each site to predisaster conditions.  Additionally, FEMA requested an explanation and supporting documentation concerning any rutting on the roads.

The Applicant responded stating that all available photographs on file have been submitted, with no additional documentation available.  Additionally, the Applicant stated the soft spots and roadbed washout were too numerous to specifically map out, and gravel needed to be widespread to restore the roadways to predisaster condition.  The Applicant also stated that the rutting observed on the damaged roads was a direct result of essential travel by a variety of vehicles, including residential, maintenance, and emergency vehicles, noting that roads were closed for a period of time and reopened to minimum traffic after they had dried enough, which is when the recovery effort to rebuild the roads began.

The FEMA Region V Regional Administrator denied the first appeal on August 30, 2021, finding that the Applicant had not provided sufficient documentation to establish that the claimed damages to the Facilities were a direct result of the declared event.  FEMA found that the photographs the Applicant provided did not demonstrate displaced gravel, “soft spots,” “roadbed washouts,” or visible and quantifiable surface damage.  Additionally, FEMA stated the documentation the Applicant provided does not contain specific locations where the disaster-related damage occurred or reference specific locations where work was performed at the Facilities. 

Second Appeal

The Applicant appeals in a letter dated October 26, 2021, requesting $685,672.00 in PA funding.  The Applicant states that FEMA failed to acknowledge several key factors related to maintenance of the Facilities, including the customized maintenance on each roadway based on traffic volume, traffic loading, and in-place aggregate depths.  It additionally states that the wide spreading of gravel is not the only way to show a consistent effort towards maintaining the gravel surface, nor is there a set frequency for when it should take place.  The Grantee forwarded the Applicant’s second appeal, stating it supports the Applicant’s appeal for the disaster damaged roadway repairs and the request for $685,672.00 in PA funding.

 

Discussion

FEMA provides PA funding to eligible applicants for the repair, restoration, reconstruction, or replacement of facilities damaged or destroyed by disasters.[2]  To be eligible for PA funding, an item of work must be required as a result of the declared incident.[3]  The applicant is responsible for providing documentation to support its claim as eligible, show that work is required to address damage caused by the disaster, and where pre-existing damage exists, distinguish that damage from the disaster-related damage.[4]  When evaluating eligibility of reported road damage, FEMA may review invoices and maintenance records to establish that the applicant has a routine maintenance program.[5]  In the absence of maintenance records, FEMA reviews material purchase invoices and activity logs and inspects other sections of the applicant’s road system to confirm the performance of normal maintenance activities.[6]  Such documentation may help to establish the predisaster condition of a facility and demonstrate that the damage was directly caused by the incident.[7] 

As noted by the Applicant, the “Damage Description and Dimensions” page of Grants Manager/Grants Portal breaks down the individual sites with starting and stopping GPS coordinates, and indicates how much gravel was used to repair the roads along those coordinates.  The Applicant supported this information with its “Contract Work Summary,” showing the materials and corresponding invoices, the labor summary, and the cost validation spreadsheet.  Additionally, the Applicant provided photographs of the Facilities showing flooded sections which are labeled with site names and GPS coordinates.  These photographs show standing water on and rutting of the roadway surface, as well as water overtopping the road and running off the opposite side.  These photographs also show road closure and traffic guidance signs to prevent traffic and additional damage to the roads following the disaster.  Finally, the Applicant submits its “Road Cost Ledger,” showing the breakdown of work done to maintain the roads prior to the disaster.  This document shows when the work was done and on which road, what materials were used, and the labor, equipment, material, and other costs. 

The Applicant has provided documentation showing the predisaster condition of the roads, and demonstrating that the damage to the Facilities was caused by the incident.

 

Conclusion

The Applicant has demonstrated that work to repair damage to the Facilities was a direct result of the disaster.  Therefore, this appeal is granted in the amount of $685,672.00.

 

 

[1] The Recovery Scoping Meeting took place on Oct. 8, 2019.

[2] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 406(a)(1)(A), Title 42, United States Code 5172(a)(1)(A) (2018).

[3] Title 44, Code of Federal Regulations (44 C.F.R.) § 206.223(a)(1) (2018); Public Assistance Program and Policy Guide, FP-104-009-2, at 19 (Apr. 1, 2018) [hereinafter PAPPG].

[4] PAPPG at 19, 116, 133; FEMA Second Appeal Analysis, Conway Hosp., FEMA-4394-DR-SC, at 3 (July 7, 2021).

[5] Id. at 116.

[6] Id.

[7] FEMA Second Appeal Analysis, Perry Twp. (Monroe), FEMA-4424-DR-OH, at 2 (Nov. 10, 2021).