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Result of Declared Incident, Project Documentation and Closeout

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4241
ApplicantBerkeley (County
Appeal TypeSecond
PA ID#015-99015-00
PW ID#PW 1076
Date Signed2021-04-06T16:00:00

Summary Paragraph

During the incident period October 1 through October 23, 2015, Berkeley County experienced severe storms and flooding.  FEMA prepared Project Worksheet (PW) 1076 to document damage to the Berkeley County Detention Center (Facility).  The Applicant provided a cost estimating format (CEF), which estimated $724,357.85 in repairs for completed and uncompleted work, and an additional $5,619.41 in direct administrative costs (DAC).  On August 3, 2018, FEMA determined a portion of the work performed was not a direct result of the disaster and deducted $691,801.98 in ineligible repair and DAC costs and $36,395.54 in actual and anticipated insurance proceeds, resulting in an approved amount of $1,779.74 for the project.  The Applicant appealed, arguing: FEMA errantly reduced eligible costs for anticipated insurance proceeds; FEMA attributed incorrect cost estimates to the CEF; and, FEMA denied roof repairs because it lacked access to maintenance records that had been provided to FEMA personnel that had previously worked on the project.  The FEMA Region IV Regional Administrator (RA) partially approved the appeal, finding the Applicant demonstrated it had received all available insurance funding, so FEMA reinstated $31,136.04 accordingly.  However, FEMA determined the Applicant did not demonstrate that a roof replacement and other work were required as the direct result of the disaster or that the CEF should be adjusted.  The Applicant submitted a second appeal reiterating prior arguments.

 

Authorities and Second Appeals

  • Stafford Act § 406(e)(1).
  • 44 C.F.R. §§ 206.206(a), 206.223(a)(1).
  • PA Guide, at 29.
  • CEF for Large Projects Instructional Guide V2. I, at 1-2, 3-3, 4-8, App. E, at 5 (Sept. 2009).
  • Village of Waterford, FEMA-4020-DR-NY, at 3.

Headnotes

  • To be eligible for financial assistance, an item of work must be required as the result of the emergency or major disaster event. 
    • The documentation submitted by the Applicant does not demonstrate that the work to replace the roof is a result of the disaster.
  • The CEF provides a uniform method of estimating costs for large projects designed to capture the detailed construction costs required to complete the eligible SOW.
    • The documentation provided by the Applicant does not demonstrate that the original CEF should be amended or increased.

Conclusion

FEMA finds the documentation submitted by the Applicant does not demonstrate that the work to repair the claimed damage is required as a result of the disaster and provides no basis to increase the costs. Therefore, the appeal is denied.

Appeal Letter

Kim Stenson

Director

South Carolina Emergency Management Division

2779 Fish Hatchery Road

West Columbia, South Carolina 29172

 

Re:  Second Appeal – Berkeley (County), PA ID: 015-99015-00, FEMA-4241-DR-SC, Project Worksheet 1076 – Result of Declared Incident, Project Documentation and Closeout

 

Dear Mr. Stenson:

This is in response to a letter from your office dated July 29, 2020, which transmitted the referenced second appeal on behalf of Berkeley County (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $2,196,130.00 in Public Assistance (PA) funding.  

As explained in the enclosed analysis, I have determined that the documentation submitted by the Applicant does not demonstrate that the work to repair the claimed damage is required as a result of the disaster and provides no basis to increase the costs.  Therefore, the appeal is denied.

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 of October 1 through 23, 2015, Berkeley County (Applicant) experienced severe storms and flooding.  FEMA prepared Project Worksheet (PW) 1076 to document damage to the roof and interior of the Berkeley County Detention Center (Facility).  The Applicant provided a cost estimating format (CEF) which estimated $724,357.85 in repairs for completed and uncompleted work, and an additional $5,619.41 in direct administrative costs (DAC).  On August 3, 2018, FEMA determined a portion of the work performed was not related to the event and deducted $691,801.98 in ineligible repair costs and DAC and $36,395.54 in actual and anticipated insurance proceeds, resulting in an approved amount of $1,779.74 for the project.[1]

 

First Appeal

In its undated appeal,[2] the Applicant stated FEMA errantly reduced eligible costs for anticipated insurance proceeds that its insurance provider had denied, therefore the reduction should be reversed.  The Applicant requested that FEMA accept and validate its revised CEF, stating that FEMA attributed incorrect cost estimates (supplied by its architects and roofing contractors) in the CEF, and the correct estimate should have been $2,196,130.00.  The Applicant also claimed FEMA denied its roof replacement because FEMA staff lacked access to maintenance records that had been provided to FEMA personnel that had previously worked on the project.  The Applicant provided a damage assessment report of the Facility (Report), a Roof Evaluation and Moisture Survey (Survey), emails documenting a meeting involving the Applicant, the Grantee and FEMA, insurance documentation, 45 pages of work orders from December 1, 2012 to January 13, 2016, and its CEF.  The South Carolina Division of Emergency Management (Grantee) forwarded the appeal and its recommendation that the appeal be granted.[3]

On May 21, 2019, FEMA issued a Request for Information (RFI).[4]  FEMA requested: (1) the correct amount in dispute including if the appeal includes the amount of DAC reduced or actual insurance proceeds; (2) clarification as to whether work had been completed and, if so, documentation regarding actual costs; (3) description of how inspection reports and maintenance records supported the appeal, and prior inspection reports of the roof or other information establishing the predisaster condition of the roof; (4) if the work is not complete, a review of reductions FEMA made to the CEF where damage was deemed not caused by the disaster and to either confirm agreement or to express disagreement and explain why it disagreed, and to provide information to support its position; and, (5) confirmation FEMA errantly reduced eligible costs for anticipated insurance proceeds, documentation of efforts taken by the Applicant to dispute the denial letter from its insurance provider, and a copy of the Applicant’s current insurance policy.  The Applicant responded on June 20, 2019.[5]  The Applicant cited the Survey in support of finding disaster-related damage and asserted the CEF it provided with the first appeal is correct.  The Applicant explained why it concluded a challenge of the denial of claim insurance would not be successful, clarifying that it was challenging the insurance reduction of $31,136.04 for damage to the interior of the structure but not $5,259.50 for actual insurance proceeds for damage to the Detention Center, and provided a copy of the current insurance policy.

The FEMA Region IV Regional Administrator (RA) partially approved the appeal on April 22, 2020.[6]  FEMA found that the Applicant demonstrated that it had received all eligible funding from its insurance carrier.  Therefore, FEMA reinstated the $31,136.04 previously deducted for anticipated insurance proceeds.  However, FEMA determined the Applicant did not provide sufficient documentation to demonstrate that all claimed damages, including total roof replacement, resulted from the disaster or that adjustments to the CEF are warranted.

 

Second Appeal

In its second appeal dated May 26, 2020, the Applicant reiterates prior arguments regarding FEMA’s use of an inaccurate CEF and FEMA’s determination that claimed damages were not disaster-related.[7]  The Grantee forwarded the second appeal in a letter dated July 29, 2020, recommending its approval.[8]

 

Discussion

Result of Declared Incident

Section 406 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act authorizes FEMA to fund the repair or replacement of buildings and contents damaged or destroyed by a major disaster on the basis of the design of such facility as it existed immediately prior to the major disaster.[9]  To be eligible for financial assistance, an item of work must be required as the result of the major disaster event.[10]  The applicant has the burden of substantiating its claims on appeal.[11]

While the Report describes damage to the corner of a roof near the inmate courtyard and a section of roofing felt that flew off the eave, both of which may be storm-related, it also shows preexisting damage.  Specifically, the photographs in the Report illustrate age-related damage.  In addition, language in the Survey, the purpose of which was to determine if moisture was present within the existing roof system and if moisture was entering the concrete block walls of the Facility, is subjective and speculative, and does not demonstrate that the engineer was able to determine the work was required by the disaster.[12]  Finally, the work orders/maintenance records are not specific to the roof and do not support the Applicant’s claim that the roof was maintained.  Though the documentation the Applicant  provided may indicate some disaster-related damage, the documentation does not differentiate between preexisting damage and disaster-related damage nor does it substantiate that a total roof replacement is required as a result of the disaster.    

 

Cost Estimating Factors

The CEF provides a uniform method of estimating costs for large projects.[13]  It includes base construction costs, as well as additional eligible project costs that are usually encountered during the course of a construction project.[14]  The CEF provides an estimate of the total eligible funding at the beginning of the project and may be used to obligate funds if work is less than 90 percent complete at the time of inspection, but estimated costs will be reconciled against actual costs after project completion with the grant amount adjusted accordingly.[15]   

The Applicant states the CEF it provided with its first appeal is accurate and requests that FEMA accept it.  FEMA reviewed the Applicant’s CEF and provided the Applicant with an opportunity to: clarify whether work was complete; review reductions FEMA made based on its disaster-related damage findings; explain any disagreement with those reductions; and provide information to support its position.  The Applicant did not respond to FEMA’s request.  In its second appeal, the Applicant asserts the CEF it submitted with its first appeal is correct.  As the Applicant did not indicate whether the work was complete and did not provide information FEMA could use to clarify the claim, FEMA has no basis to replace its original CEF.

 

Conclusion

FEMA finds the documentation submitted by the Applicant does not demonstrate that work to repair the claimed damage is required as a result of the disaster and provides no basis to increase the costs.  Therefore, the appeal is denied.

 

 

[1] Letter from Pub. Assistance (PA) Group Supervisor, FEMA Region IV, to PA Officer, S.C. Emergency Mgmt. Div. (SCEMD) and Deputy Cty. Supervisor, Berkeley Cty. (Aug. 3, 2018).

[2] Letter from Berkeley Cty., to PA Group Supervisor, FEMA Region IV (undated).

[3] Letter from Alternate Governor’s Authorized Representative, SCEMD, to Reg’l. Adm’r, FEMA Region IV (Feb. 11, 2019).

[4] Letter from Dir., Recovery Div., FEMA Region IV, to Dir., SCEMD and Dir., Emergency Preparedness, Berkeley Cty. (May 21, 2019).

[5] Letter from Dir., Emergency Preparedness, Berkeley Cty., to Dir., Recovery Div., FEMA Region IV (June 20, 2019).

[6] Letter from Reg’l Adm’r, FEMA Region IV, to Dir., SCEMD, and Dir.  Emergency Preparedness, Berkeley Cty. (Apr. 22, 2020).

[7] Letter from Dir., Berkeley Cty. Emergency Mgmt., to Assistant Dir., Recovery Directorate, FEMA (May 26, 2020).

[8] Letter from Chief, Recovery and Mitigation, SCEMD, to Reg’l. Adm’r., FEMA Region IV (July 29, 2020).

[9] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 406(e)(1), 42 U.S.C. § 5172(e) (2012).

[10] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.223(a)(1) (2015); Public Assistance Guide, FEMA 322, at 29 (June 2007).

[11] 44 C.F.R. § 206.206 (a); FEMA Second Appeal Analysis, Village of Waterford, FEMA-4020-DR-NY, at 3 (Sept. 4, 2014).

[12] See, e.g., REI Engineers, Roof Evaluation and Moisture Survey: Berkeley County Detention Center, at 23 (Feb. 2, 2016) (“In areas with air pockets, damage can occur for several reasons. . . . [P]unctures or holes may have been created or size increased due to the loads imposed by extended rains.”).

[13] CEF for Large Projects Instructional Guide V2. I, at 1-2 (Sept. 2009).

[14] 1d.

[15] Id. at 1-2, 1-4.

Last updated April 7, 2021