U.S. flag

An official website of the United States government

Dot gov

Official websites use .gov

A .gov website belongs to an official government organization in the United States.

Https

Secure .gov websites use HTTPS

A lock ( ) or https:// means you’ve safely connected to the .gov website. Share sensitive information only on official, secure websites..

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 1132
Date Signed2021-04-02T16:00:00

Summary Paragraph

During the incident period of October 1 to 23, 2015, severe storms and flooding caused damage in South Carolina.  The Facility was damaged by scour and debris.  Attempted repairs by the Applicant were suspended and ultimately contracted out with work being completed on August 1, 2016, including a larger bridge built in accordance with codes and standards.  FEMA prepared Project Worksheet (PW) 1132 on January 25, 2018, to provide PA funding for estimated replacement costs, repair costs equaled 71 percent of replacement costs.  The Applicant requested a scope of work (SOW) change to incorporate the codes and standards, along with associated roadway and drainage work not included in the original PW.  FEMA denied the SOW change as the Applicant had not demonstrated the completed SOW was required by codes and standards.  The Applicant appealed citing the codes and standards which met the five criteria for FEMA eligibility requirements.  FEMA Region IV Regional Administrator partially granted the appeal, stating the work to upgrade the bridge was eligible, as such a new 50 percent calculation was required.  However, the roadway and drainage damage were not the direct result of the disaster.  The Applicant filed a second appeal, providing inspection reports from the incident for the roadway approaches and correspondence regarding additional repairs. 

 

Authorities and Second Appeals

  • 44 C.F.R. § 206.223(a)(1).
  • PA Guide, at 29, 33.
  • Pawnee (Cnty.), FEMA-4225-DR-NE, at 4-5; Republic Cnty. 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.  The PA Guide, at 29, provides that work to address the damage that results from a cause other than the designated event is not eligible.  The PA Guide, at 33, also states that 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.
    • Here the Applicant demonstrates through damage inspection reports that the disaster indeed damaged the roadway approaches at both ends of the Facility.  FEMA can ascertain that the roadway conditions was not a cause or factor in the damages it received.

 

Conclusion

The Applicant has demonstrated that work up to 600 feet of roadway identified and culvert repair at station 85+30 was required as a result of the disaster.  However, the additional roadway work, pipe repairs and guardrail were not substantiated.  This appeal is partially granted, and FEMA will revise PW 1132 to incorporate reasonable costs for the eligible work.  FEMA Region IV will work with the Applicant to revise PW 1132 in accordance with the determinations contained in this decision.

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 1132 – Result of Declared Incident

 

Dear Mr. Stenson:

This is in response to your letter dated January 21, 2021, which transmitted the referenced second appeal on behalf of 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 $3,403,918.42 for work to repair the Battery Park Road Bridge and associated roadway damaged by flooding.  

As explained in the enclosed analysis, I have determined that the Applicant has demonstrated that 600 feet of roadway work, and pipe repair at station 85+30 was required as a result of the disaster to address disaster-related damage.  Therefore, this appeal is partially granted.  FEMA Region IV will work with the Applicant to revise Project Worksheet 1132 in accordance with the determinations contained in this 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

 

Enclosure

cc:  Gracia Szczech  

Regional Administrator

FEMA Region IV

Appeal Analysis

Background

During the incident period, October 1 through October 23, 2015, a precipitative cold front gained strength from Hurricane Joaquin, which resulted in 1-in-1000-year levels of rainfall in South Carolina.[1]  The Battery Park Road Bridge (Facility), a 28.2-foot wide by 135-foot long structure owned and maintained by the South Carolina Department of Transportation (Applicant), was damaged by debris and scour.  Attempted repairs by the Applicant were suspended and ultimately contracted out.  

The request for proposals (RFP) was sent on December 4, 2015; a contractor was selected on December 15, 2015, and work was completed on August 1, 2016.  The work included significant changes beyond the pre-disaster condition.  As the estimated repair costs exceeded 50 percent of replacement costs of the Facility, FEMA prepared Project Worksheet (PW) 1132 on January 25, 2018, based on the estimated costs to replace the bridge.[2]  FEMA obligated the project on September 7, 2018 for $796,934.64 to replace the bridge.[3]

On October 31, 2018, the Applicant requested a Scope of Work (SOW) change to capture upgrades required by codes and standards along with additional work it claimed was omitted from the original PW, including the construction of roadway approaches, additional roadway, and drainage work necessary to tie the new approaches to the existing roadway, replacement of a 36-inch cross-drain pipe, and rework of bridge end fill slopes.  FEMA denied the request on April 24, 2019, in a Determination Memo as the Applicant did not demonstrate the change in SOW was required by eligible codes and standards.  

 

First Appeal

The Applicant appealed on June 12, 2019.  It stated that the upgrades met the five criteria for codes and standards eligibility and included the applicable codes cited in their appeal.[4]  It also included plans for additional roadway and pipe repairs.

FEMA issued a Request for Information on February 20, 2020, requesting: (1) a description of omitted damage from the PW; (2) final claimed construction costs for all claimed work performed outside the bridge approaches with a schedule of values (SOVs); (3) final construction cost for the bridge replacement, with SOVs; (4) existing roadway, bridge and drainage designs revised to conform to eligible codes and standards with citations; and (5) final Direct Administrative Costs (DAC).[5] 

The Applicant responded in a letter dated April 20, 2020, with a majority of the items requested, minus SOVs and existing roadway, bridge, or drainage design elements revised to conform to eligible codes and standards.

The FEMA Region IV Regional Administrator (RA) partially granted the appeal on September 29, 2020, stating that the Applicant had not provided documentation demonstrating additional roadway and drainage work outside the bridge limits was required as a direct result of the disaster.  However, the replacement bridge design conformed to eligible codes and standards.  Therefore, FEMA would formulate an updated repair cost estimate and compare findings to the actual replacement cost presented in the appeal, and if the repair cost no longer equals 50 percent or more of the replacement cost, FEMA would limit PA funding to the estimated repair cost.

 

Second Appeal

The Applicant filed a second appeal on November 25, 2020.  It states the additional roadway repair and drainage work was disaster-related and provides documentation to support the claim.  The additional roadway and drainage work includes: (1) Reconstruction of 2,736 feet of 2-lane roadway beyond the limit of the bridge, including grading, embankment construction, and drainage work; (2) Removal of a 36-inch culvert pipe at station 85+30 and replacement with a 42-inch pipe; (3) Addition of a 30-inch pipe at station 87+75; and (4) Installation of 3,475 feet of steel beam guardrail.  Furthermore, the Applicant states that a code was overlooked in granting the bridge replacement designs and requests that it be considered for the updated calculations.[6]  It indicates that replacement costs should be $3,403,918.42, not $2,592,716.10.  The Grantee forwarded the appeal on January 22, 2021, in support of the Applicant’s claim. 

 

Discussion

To be eligible for financial assistance, an item of work must be required as the result of the emergency or major disaster event.[7]  Work to address damage that results from a cause other than the designated event, such as a pre-disaster damaging event, post-disaster damaging event, or inadequacies that existed prior to the disaster, is not eligible.[8]  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.[9]

On second appeal, the Applicant provided two site inspection reports from October 2015 with descriptions of the damages to both roadway approaches.  The first inspection report identifies the roadway washed out up to 600 ft,[10] and provides quantified repair amounts to restore the roadway.  The second inspection report identifies the damages related to the culvert washout and the erosion of the material foundation of the culvert at station 85+30.[11]  Both reports indicate that the damage was caused by the disaster event.  In addition, photographs included in the reports show the roadway to be in a good condition at the time of the disaster. 

Additional correspondence provided by the Applicant on second appeal shows that costs claimed in the original project formulation included the additional roadway repairs along with the bridge work.[12]  PW 1132 also had several attachments referencing the roadway and piping repair work.  Correspondence between the Applicant and FEMA showed that the PW did not accurately reflect the damage claimed to be due to the event and there was no attempt to revise the PW before the SOW change request.[13] 

In this instance, the inspection reports and other information provided on second appeal as well as documentation attached to the PW support the claim that work done to repair portions of the damaged roadway and piping was required as a result of the disaster.  However, the Applicant did not provide information to substantiate that some of the remaining work claimed was required as a direct result of the disaster.

 

Conclusion

The Applicant has demonstrated that work up to 600 feet of roadway identified and culvert repair at station 85+30 was required as a result of the disaster.  However, the additional roadway work, pipe repairs and guardrail were not substantiated.  This appeal is partially granted, and FEMA will revise PW 1132 to incorporate reasonable costs for the eligible work.  FEMA Region IV will work with the Applicant to revise PW 1132 in accordance with the determinations contained in this decision.

 

[1] The event was declared a major disaster on October 5, 2015 (FEMA-4241-DR-SC).

[2] See FEMA Project Worksheet (PW) 132, South Carolina Department of Transportation, Version 0 (Sept. 7, 2018).  The Applicant (SCDOT), having replaced the structure with a larger Facility, was assumed by FEMA to plan to request an improved project.  Furthermore, actual costs for completed costs were available but not used by FEMA. 

[3] The cost of repair equaled 71 percent.

[4] These included its Roadway Design Manual, Bridge Design Manual, and Requirements for Hydraulic Design Studies

[5] During first appeal, FEMA issued Recovery Interim Policy FP-104-009-11, Consensus-Based Codes, Specifications and Standards for Public Assistance (Nov. 6, 2019, rev. Dec. 20, 2019).  The Applicant elected to opt into the policy on December 3, 2019; FEMA Region IV elected to review the codes and standards provided by the Applicant under this policy as a result.

[6] The Applicant is specifically referring to the Load and Resistance Factor Design standard due to the increased width of paneling from 8” to 24”.  Based on FEMA’s review, the Codes and Standards analysis on first appeal appears to have unintentionally overlooked this design standard.  As such it should be considered in the incorporation of the codes and standards for the 50 percent recalculation. 

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

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

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

[10] See SCDOT Preliminary Damage Assessment Report, 45-S-P03-005 (Oct. 10, 2015). 

[11] See SCDOT Preliminary Damage Assessment Report, 45-S-P03-004 (Oct. 10, 2015).  Note: this pipe was also identified in the RFP the Applicant sent for contractors.   

[12] Email from State Maint. Eng’r., SCDOT, to Contractor, FEMA (Jan. 16, 2016, 0946 EST). 

[13] See Email from Dir. of Maint., SCDOT, to Pub. Assistance Site Inspector, FEMA at 1 (Jan. 24, 2018, 1128 EST).  Specifically, the Applicant denied that this PW would be an improved project and stated that they provided the code and standards that should have been applied.

Last updated April 7, 2021