Result of Declared Incident – Hazard Mitigation

Appeal Brief

Summary Paragraph

From August 23 through September 15, 2017, high winds, heavy rains, and storm surge from Hurricane Harvey caused damage throughout Texas.  The Applicant, a Private Nonprofit (PNP), requested FEMA assistance, specifically identifying damage to the roof of its Museum of Gene-o-cide and the Environmental Holocaust (Facility).  The Applicant sought FEMA assistance for claimed damage caused by the disaster to the roof of one of the Facility buildings, the Sawmill Building, as well as hazard mitigation to replace the old roofs for the other buildings which make up the Facility.  FEMA assigned Grants Manager Project (GMP) number 40652 to the project.  FEMA later issued a Determination Memorandum finding that the Sawmill’s roof was deteriorated prior to the disaster due to deferred maintenance.  The Applicant appealed, requesting $10,000.00 for repairs to the Sawmill roof and $72,000.00 in hazard mitigation funds to replace old roofs for other buildings to prevent them from becoming dangerous during the next storm.  The FEMA Region VI Regional Administrator (RA) denied the appeal, finding that the Applicant did not demonstrate that the disaster was the direct result of the damage to the roof of the Facility.  Additionally, the RA found that hazard mitigation funds are only available to facilities damaged by the disaster in order to prevent the same type of damage from occurring again and thus the old roofs the Applicant intended to replace but suffered no disaster related damage were not eligible.  On second appeal, the Applicant renews its arguments and incorporates its first appeal. 

Authorities and Second Appeals

• Stafford Act § 406(a)(1)(B).
• 44 C.F.R. § 206.223(a).
• PAPPG, at 19, 97, 99, 133-35.
• El Paso Cty., FEMA-4229-DR-CO (Apr. 4, 2019).
• City of Brenham, FEMA-4272-DR-TX (Mar. 12, 2019).

Headnotes

• An eligible item of work must be required as a result of the disaster event.  For permanent work, the Applicant must demonstrate that damage was caused by the declared incident; FEMA does not provide funding for repair of damage caused by deterioration or deferred maintenance.
  • FEMA noted at its inspection of the Facility deterioration of the roof that predated the disaster.  The Applicant has not provided any documentation of the predisaster state or maintenance of the Facility’s Sawmill roof.
• Hazard mitigation funding is only available for facilities damaged by the incident as to directly reduce the potential of future, similar damage to the facility.
  • The Applicant has requested hazard mitigation funds to repair roofs which were not damaged by the disaster.
     

Conclusion

The Applicant has not demonstrated that the claimed damage was caused by the disaster or that the Facility is eligible for hazard mitigation funding.  Accordingly, the appeal is denied.

Appeal Letter

Appeal Analysis

Background

From August 23 through September 15, 2017, Hurricane Harvey struck the state of Texas.  High winds, heavy rains, and storm surge caused damage throughout the state.  The Ethician Foundation (Applicant), a Private Nonprofit (PNP) entity, requested FEMA assistance, specifically identifying damage to its Museum of Gene-o-cide and The Environmental Holocaust (Facility).  The Facility is made up of several buildings, one of these buildings is the Sawmill Building, which the Applicant claimed was damaged by the disaster.

The Applicant sought FEMA assistance for damage to the Sawmill Building roof.  FEMA assigned Grants Manager Project (GMP) number 40652 to the project.  On May 1, 2018, FEMA and the Applicant met to inspect the damage.  The Applicant explained that the sheet metal roof of the Sawmill Building was damaged during the disaster and that some panels had blown off.

FEMA issued a Determination Memorandum (DM) dated October 12, 2018, denying funding.  FEMA found that the Facility’s roof had suffered damage and deferred maintenance prior to the disaster.  FEMA stated that satellite imagery along with the site inspection showed predisaster damage.  While FEMA found that the damage to the roof did become worse during the event, it found that the roof had failed before the disaster and did not properly function.  FEMA therefore determined the claimed damage was not the direct result of the disaster.

First Appeal

On December 14, 2018, the Applicant appealed.  The Applicant stated the amount in question as $82,000.00, consisting of $10,000.00 for repairs to the roof at the Sawmill Building, and $72,000.00 for hazard mitigation funding to replace the roofs of other buildings which make up the Facility.  

The Applicant stated that from 2016-2018 it spent $95,695.71 on maintenance, repairs, and restoration work.  Further, it stated that on February 13, 2017, it spent $9,701.02 on new metal for half the Sawmill Building roof.  The Applicant argued that the Sawmill Building’s roof was new and did not have a trace of rust like the roofs of some of the other buildings, and therefore it could not have been neglected before the disaster.  The Applicant also noted that a panel had blown off before the disaster. 

With respect to the hazard mitigation funds, the Applicant requested funding to replace any of the old roofs on the other buildings at the Facility so that they do not blow off during the next hurricane and become dangerous.

On January 25, 2019, the Texas Division of Emergency Management (Grantee) forwarded the appeal with its support.

On May 21, 2019, FEMA issued a Request for Information (RFI) seeking additional information to support the appeal.  The Applicant participated in a facilitated discussion regarding the RFI with FEMA and the Grantee, where FEMA encouraged the Applicant to submit any additional documents to establish the predisaster condition and its maintenance of the Facility.  The Applicant supplied no further documentation.

On October 2, 2019, the FEMA Region VI Regional Administrator (RA) denied the appeal, stating that the site inspection and satellite photos identified numerous areas of specific predisaster damage.  Further, transaction reports which laid out the amount spent on Facility maintenance, repairs, and restoration work were not specific as to the work being done and did not provide evidence of regular maintenance.  As a result, FEMA determined that the Applicant had not shown that the Facility’s roof damage was a direct result of the disaster.

Additionally, FEMA found that the Applicant’s claim for hazard mitigation funding was ineligible as the Applicant requested funding for “old roofs” which were already in a deteriorated condition prior to the disaster and for which there was no documentation to show they were damaged by the disaster.  Because hazard mitigation funding can only be used for damage incurred during the declared disaster, the RA determined that the roofs were not eligible.

Second Appeal

The Applicant’s second appeal incorporates by reference its first appeal.  The appeal states that the amount requested is for repairs associated with the disaster and for necessary hazard mitigation measures to prevent additional damage from future disasters.  Further, the Applicant notes that the roof of the Sawmill Building was virtually brand new and that FEMA inspectors saw fresh metal that had been blown off.  On December 18, 2019, the Grantee forwarded the appeal to FEMA noting its support.

Discussion

Result of Declared Incident

An eligible item of work must be required as the result of a major disaster event.^[1]  For permanent work, an applicant must demonstrate that damage was caused directly by the declared incident; FEMA does not provide Public Assistance (PA) funding for repair of damage caused by deterioration or deferred maintenance.^[2]  If FEMA cannot substantiate through other means that the damage was caused as a direct result of the disaster, an applicant may need to provide documentation to substantiate eligibility.[3]  FEMA accepts a variety of documentation to substantiate eligibility (e.g., facility maintenance records, inspection/safety reports).^[4] 

It is the applicant’s responsibility to demonstrate that the damage is disaster-related, and where pre-existing damage exists, to distinguish that damage from the disaster-related damage.^[5]  In order to meet this burden, an applicant must provide more than statements or opinions to substantiate its claims; documentation or other evidence supporting its position must be submitted.[6] 

FEMA reviewed Google Earth satellite imagery of the Sawmill building prior to the disaster.  The imagery from January 2017 shows that there was pre-existing damage to the Sawmill Building roof prior to the disaster.  From these photographs and the site inspection, FEMA could not determine what damage to the roof existed prior to the disaster and which was caused or worsened by the disaster.

As such, it is the Applicant’s responsibility to demonstrate eligibility.  The Applicant submitted an expense log outlining expenses from 2016-2018 and contends that the log shows it spent $91,695.71 on repairs.  Most of the entries in this log do not have detailed descriptions as to the reason for the costs, and/or are listed as “cleaning” or “repairs” with no further description.  Only a few entries include more detailed descriptions such as “saw mill electrical,” “rock at the saw mill,” and “septic tank pumping.”  One entry with more specific description occurred February 13, 2017, and indicates that the Applicant spent $9,701.02, on “roof metal for saw mill.”  However, FEMA was not able to confirm through the site inspection or the satellite images that a new roof had been installed between February 2017 and the disaster.  The Applicant submitted no other maintenance logs or routine maintenance logs or records to suggest that the roof was routinely inspected or repaired.  Further, the Applicant acknowledged that one panel of the roof had blown off prior to the disaster and that it had not been replaced.

FEMA sought additional documentation from the Applicant to demonstrate the predisaster condition of the Facility, but has only the satellite imagery and site inspection report with which to analyze the damage caused by the disaster.  Accordingly, with no documentation to distinguish predisaster damage from disaster-related damage, the Applicant has not satisfied its burden on appeal.  Therefore, the claim is denied.  

Hazard Mitigation

FEMA has the authority to provide Public Assistance (PA) funding for cost-effective Section 406 hazard mitigation measures for facilities damaged by the incident.[7]  “To be eligible, the mitigation measures must directly reduce the potential of future, similar damage to the facility.”[8]

The Applicant has stated that the roofs it seeks to replace using the hazard mitigation funds were, “old roofs that could blow off and become lethal weapons during the next hurricane.”[9]  The Applicant also noted the funding would be used, “to help with new roofs on the facilities that had deteriorated long before we [the Applicant] acquired the facility.”[10]

Because section 406 hazard mitigation funding is only available for facilities that are damaged by the disaster, and not for pre-existing damage, the old  roofs that were not damaged by the disaster, and rather were already damaged and deteriorated before the disaster are not eligible for hazard mitigation funding.  As such, this claim is denied.

Conclusion

As explained in the enclosed analysis, the Applicant has not demonstrated that damage to the roof of the Sawmill Building was caused by the disaster, rather than pre-existing damage and deterioration or deferred maintenance.  Additionally, the other buildings’ roofs are not eligible for hazard mitigation because the damage to those roofs was not caused by the disaster.  Accordingly, the second appeal is denied.