Repair of Flood-Damaged Streets

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Desastre	FEMA-1044-DR
Applicant	City of East Palo Alto
Appeal Type	Third
PA ID#	081-20956
PW ID#	12490
Date Signed	1998-05-04T04:00:00

PURPOSE: Respond to third appeal submitted by the City of East Palo Alto for street repair and the construction of a storm drain system as hazard mitigation.

DISCUSSION: Heavy rains associated with FEMA-1044-DR-CA resulted in damage to streets in the City of East Palo Alto. Damage survey report (DSR) 12490 was initially prepared to fund the reconstruction of 5.3 miles of residential streets in the City at a cost of $2,679,261. Upon review, it was determined that the street damage had occurred prior to the disaster, and that the only eligible cost was for pothole repairs, reducing eligible funding to $32,916. A hazard mitigation proposal for storm drain installation, in the amount of $3,341,191, was attached to the DSR. It was denied because it was much more expensive than the repair cost of the potholes. FEMA's response to the first and second appeals was to deny them for the reason given above. Based on consideration of the arguments presented in the third appeal, on a thorough review of the files, and on a site visit in February 1998 by a TAC geotechnical engineer, no reason could be found for overturning the conclusions of the second appeal. The third appeal should be denied.

RECOMMENDATION ACTION: Sign the attached letter denying the appeal.

Appeal Letter

Appeal Analysis

BACKGROUND
Presidential disaster declaration FEMA-1044-DR-CA was signed on January 10, 1995, because of severe winter storms that struck California beginning January 3, 1995. The City of East Palo Alto (City) applied for federal assistance to repair flood-damaged streets. On February 7, 1995, representatives from FEMA, the California Office of Emergency Services (OES) and the City visited the site to inspect the damages, and prepared damage survey report (DSR) 12490. The DSR described cracked and broken asphalt concrete pavement, weakened street base and soil liquefaction damage to 5.3 miles of roadway. The estimated cost of street repairs was $2,679,261. A hazard mitigation proposal (HMP) was attached to DSR 12490 to provide drainage systems and sidewalks on the undamaged streets, and to replace pavement and install storm drainage on the damaged streets to mitigate against future storm damage. The estimated cost of the hazard mitigation measures was $3,342,191.

During the normal DSR eligibility review process, several questions arose regarding the condition of the streets prior to the disaster. Accordingly, a reinspection of the site was made on or about May 25, 1995. As part of the review process, documentation showing the predisaster history of street improvements was examined. It appeared that the City has been in the process of slowly improving the streets in the area for a number of years. Streets that had been improved and provided with storm drains did not sustain storm damage. The streets that had not been improved, on the other hand, were the ones the City claimed were damaged by the disaster. The City was unable to show the predisaster condition of the streets because they did not have a pavement management system. The last time that a seal coat was placed on the streets was in the 1970 to 1980 time frame. Routine maintenance consisted of filling potholes. Following this review, FEMA determined that the damages to the streets were pre-disaster conditions except for the potholes. Therefore, the DSR was reduced to $32,916 to repair the potholes. FEMA denied the HMP because it was not cost-effective.

First Appeal
OES forwarded the City's appeal to FEMA in a letter dated December 19, 1995. OES reiterated the City's position and supported their appeal.

A meeting was held with representatives of the City at their offices on February 25, 1996. The evidence presented at this meeting strongly supported FEMA's findings that the streets for which the DSR was written were in a state of disrepair prior to the disaster. The Regional Director, therefore, denied the first appeal in an April 4, 1996, letter to OES. The letter pointed out that no evidence was presented to support the City's claim that the pavement damage resulted from the disaster. FEMA's review of documentation and inspections revealed that the damage resulted primarily from inadequate maintenance.

Second Appeal
In a July 22, 1996, letter to OES, the City filed the second appeal of FEMA's reduction of DSR 12490 to $32,916. To refute FEMA's finding in the first appeal response, the City attested that: 1) portions of roadway in close proximity to the severely damaged sections did not experience damage; 2) the only difference between the damaged and undamaged streets was that the damaged streets had a subbase that suffered liquefaction; 3) the estimated useful remaining life of the damaged streets was at least five years; and 4) the documentation that was supplied in the first appeal showed that the streets were adequately maintained.

OES forwarded the second appeal to FEMA in a September 23, 1996, letter. OES requested that FEMA address the validity of the original DSR, the validity of the corresponding HMP, and the methodology used to estimate the cost of pothole repair. OES repeated the City's argument that excessive water from the rains weakened the street base and caused the soil foundation to swell. This swelling of the soil foundation resulted in pavement breakage and extensive damage to the streets.

The second appeal was denied by the Executive Associate Director of FEMA in a letter dated February 27, 1997. The Executive Associate Director concluded that the streets in the City were damaged before the flood event of January 1995 and did not sustain any significant additional damage from the flood. Therefore, the damage claimed by the City was not the direct result of the disaster, and no public assistance funds could be used for the replacement of the streets. Since the eligible damage was limited to pothole repair, the HMP was not cost-effective and was consequently denied.

Third Appeal
The City sent their third appeal to OES in a letter dated August 1, 1997. The City questioned how the report (DSR) of the initial FEMA inspector who was on-site shortly after the storm could be discounted by other FEMA personnel who had never seen the site. Regarding street maintenance, the City stated that they obviously did more than pothole repair; they improved streets as well. The appeal continues by saying that although the streets were not up to the improved standards, they were functional and had a remaining useful life at the time of the storm. OES forwarded the third appeal to FEMA in a letter dated September 29, 1997. Although not specifically addressed in the City's appeal letter, the OES transmittal letter indicates that the City also requests that FEMA approve the Hazard Mitigation Proposal in the amount of $3,342,191. It is noted that OES did not support the appeal because the City did not provide any additional information that would support the reversal of FEMA's determination in the second appeal.

DISCUSSION

Disaster Related Damages and Eligible Repairs
The central issue in this appeal is whether damage to the City's streets was the result of the disaster as required by 44 CFR 206.223. The initial DSR inspection team observed streets that were in very poor condition. They attributed this pavement distress to disaster 1044 and wrote a DSR for street reconstruction. Subsequently, FEMA's reviewers re-inspected the site. They observed that the claimed streets have a pavement section consisting of 2 to 3 inches of asphalt concrete underlain by little or no aggregate base. The subsoils reportedly consist of clay (bay mud). Even with light subdivision traffic, pavements would be expected to have a useful life of less than 20 years under the above conditions. At the time of disaster 1044, the claimed street pavements had been in existence for at least 25 years.

The reviewers observed that the City responded to the disaster by filling in the potholes and ruts with gravel. No asphalt concrete was used for patching at that time. Therefore, the observed extensive asphalt concrete patching had to have been placed prior to disaster 1044. The City recognized the need to replace the pavements of the streets as evidenced by the presence of several re-paved streets in the area. One street in the area, Euclid Street, was under re-construction at the time of the initial site inspection. The City has stated that they were slowly re-constructing the claimed streets as funding allowed.

The DSR reviewers and the first and second appeal reviewers all came to the conclusion that the damage to the street pavements was a pre-disaster condition. The disaster did cause potholes and ruts for which the City received $32,916 by DSR 12490.

A geotechnical engineer, who works as a contractor to FEMA, but had no previous involvement with this project visited the site on February 28, 1998. He observed that most of the claimed streets are still not reconstructed. There are many current potholes and some larger areas where the asphalt concrete has almost completely disintegratedar areas, but reduced speeds were necessary on perhaps half to two-thirds of the claimed streets because of the potholes, ruts, and uneven pavement. However, all of the streets could be driven even though the area had received more than 30 inches of rain this year. Standing water was present on the unpaved street shoulders in numerous areas.

Based on this review of the project site and the available documentation, it is concluded that the city streets can still be used provided that the potholes and ruts are patched. This situation can probably continue for several more years although street conditions will continue to deteriorate. The streets continue to have "useful life" in the sense that they can be driven on. This was undoubtedly the case immediately prior to disaster 1044. However, the condition of the streets was so poor at that time that no monetary value can be assigned to the alleged reduction in useful life claimed by the City. FEMA's only obligation is to fund the repair of the potholes and ruts that were caused by the disaster.

It is noted that at the time of preparing this analysis, the roads at issue remain virtually unrepaired. Eligible funding for this project is limited to the costs associated with the quantified damages provided in DSR 12490. Any further damages which may have occurred to the roads since the 1995 Winter Storms, due to the City's failure to repair the disaster related damages, are not eligible for FEMA assistance.

Hazard Mitigation Proposal
The City had submitted a Hazard Mitigation Proposal with their initial DSR to provide drainage systems and sidewalks on the undamaged streets, and to replace pavement and install storm drainage on the damaged streets to mitigate against future storm damage. The estimated cost of the hazard mitigation measures was $3,342,191. To be eligible for FEMA assistance, hazard mitigation measures must be both cost effective and required by the Regional Director. Additionally, hazard mitigation measures authorized by Section 406 of the Stafford Act must be specifically related to repair of disaster related damages. As the eligible scope of work is limited to repair of potholes and ruts (eligible funding $32,916), it has been concluded that the proposed hazard mitigation proposal was not cost effective in relation to the disaster damage and eligible scope of restorative work. Accordingly, the hazard mitigation portion of the proposed work scope was properly denied.

Role of the Inspector
It is noted that the City has raised issue with the how the report (DSR) of the initial FEMA inspector who was on-site shortly after the storm could be discounted by other FEMA personnel who had never seen the site. As noted herein, revisions to the initial inspector's proposed scope of work were in fact based on a reinspection of the site. The project site has been revisited not only during review of the initial DSR, but also in response to the City's first and third appeal submittals. The initial inspector's account of existing street conditions was not in question, rather the eligibility of funding for the reported damages required further consideration during eligibility review. It should be understood that the purpose of the field inspection is to document any apparent damage as reported by the applicant, and to make a recommendation relative to eligibility. Neither the FEMA field inspector, nor the state or local representative, are authorized to make final judgment relative to facility or project scope eligibility. Title 44 CFR 206.202(e) further indicates that the DSR is subject to review by the Regional Director before providing approval.

CONCLUSION
Most of the damage to the claimed streets had occurred prior to disaster 1044. The cost for street reconstruction is not eligible because the damage was not caused by the disaster. Eligible funding is limited to pothole and rut repair as provided for in DSR 12490. Further, because the eligible funding is limited to the pothole repair, the HMP is not cost-effective. Accordingly, the City's third appeal is denied.