Result of Declared Incident – Hazard Mitigation

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4394
Applicant	Conway Hospital
Appeal Type	Second
PA ID#	051-USUE8-00
PW ID#	PW 142
Date Signed	2021-07-07T16:00:00

Summary Paragraph

Following Hurricane Florence in September 2018, the Conway Hospital (Applicant) reported property damages, including to its roof which consisted of layered membranes, making it difficult to observe water damage.  FEMA’s site inspector observed no visible damage to the roof, but the Applicant hired a contractor (Tremco) to inspect it.  The Applicant informed the site inspector that the roof did not regularly leak but did leak during wind driven rain events.  Tremco’s infrared analysis identified damages and recommended replacement for sections 14, 21, and 52.  The Applicant provided roof maintenance records to FEMA showing it replaced two roof sections in 2014 and 2016, constructed similar to sections 14, 21, and 52, and observed that the roofs were not up to code, had exceeded their life expectancy, and had deficiencies consistent with roofs of this age and type.  FEMA issued a Determination Memorandum finding that the Applicant had not demonstrated that the roof repairs were required as a result of the disaster, concluding that the documentation showed that the roof had deteriorated and was subject to leaks before the disaster.  The Applicant appealed, asserting that the roof functioned prior to the disaster and failed as a result of the disaster.  The FEMA Region IV Regional Administrator concluded the Applicant failed to demonstrate that the work was required as a direct result of the disaster and denied the appeal, citing documented deterioration, ongoing issues with leaks, and the Applicant’s decision to continue implementing spot repairs instead of replacing the roof.  In its second appeal, the Applicant reiterates its first appeal arguments.

Authorities and Second Appeals

• Stafford Act §§ 406(a), 406(e).
• 44 C.F.R. §§ 206.223(a)(1), 206.226(e).
• PAPPG, at 19-20, 97, 99, 118.
• El Paso Cty., FEMA-4229-DR-CO, at 8.

Headnotes

• The Stafford Act authorizes FEMA to provide Public Assistance (PA) funding for facilities damaged or destroyed by disasters.  It is the Applicant’s responsibility to demonstrate that damage was caused directly by the declared incident, and where pre-existing damage exists, to distinguish that damage from disaster-related damage.
  • The Applicant fails to demonstrate the repairs are required as a result of the disaster and not due to the pre-existing deterioration of the roof sections in question.
• The Stafford Act authorizes FEMA to provide PA funding for hazard mitigation measures for facilities damaged by a disaster.
  • Because the Applicant has not demonstrated that roof sections 14, 21, and 52 were damaged by the disaster, the work is ineligible for hazard mitigation funding.

Conclusion

The Applicant has not demonstrated that work to replace roof sections 14, 21, and 52 is required as a direct result of the disaster, rather than the result of predisaster conditions or deferred maintenance.  Such work is ineligible for PA funding.  Consequently, the Applicant’s hazard mitigation proposal is also ineligible.  Therefore, this appeal is denied.

 

Appeal Letter

Appeal Analysis

Background

Hurricane Florence produced heavy winds and rainfall across portions of South Carolina and was declared a major disaster on September 16, 2018.  The Conway Hospital (Applicant), a Private Nonprofit medical provider, reported damages after the storm to parking lots and buildings it owned and maintained, including damage to its Conway Medical Center roof.  FEMA prepared Project Worksheet (PW) 142 to document damages to the Applicant’s property.[1]

FEMA conducted a site inspection on December 13, 2018, at which time the site inspector observed no damage but noted that the Applicant was hiring a licensed roof contractor (Tremco) to inspect the roof.[2]  The site inspector identified the roof as having been built in 1982 and noted that the Applicant informed the site inspector that the roof did not leak in regular rain storms, and only leaked during wind driven rain events.[3]  The Applicant’s roof consisted of multiple membrane types, including the originally installed styrene-butadiene-styrene modified bitumen (SMS), ethylene propylene diene terpolymer (EPDM), and EPDM with ballast rock on top of the membrane.  Because ballasted EPDM can make seeing physical damage difficult, Tremco conducted an infrared study to identify any damage to the Applicant’s roofing system.  Tremco’s analysis identified damages to various sections of the Applicant’s roof and recommended replacement for sections 14, 21, and 52.  A FEMA Costing Specialist estimated the repair cost of all damaged roof areas based on Tremco’s infrared study.  The Applicant disagreed with the repair costs for roof sections 14, 21, and 52, requesting that these roof sections be replaced rather than repaired.

The Applicant provided maintenance records documenting repairs and replacements made to its roof from 2010 to 2019.  Based on these maintenance records, FEMA noted that damages were regularly found to the ballasted EPDM sections, including open field seams losing their watertight integrity, numerous attempts to repair seams and patches due to membrane shrinkage, lifting and dislodgement of metal perimeter edge leaving perimeter of building open to water penetration, and several voids in the EPDM membrane flashing.  The Applicant replaced certain roof sections in 2014 and 2016, reasoning that the roofs were worn out, not up to code, had exceeded their life expectancy, and were subject to deficiencies consistent with roofs of this age and type.[4]  FEMA noted that, like these roof sections, roof sections 14, 21, and 52 are similarly ballasted EPDM installed over the original SMS roof.

FEMA issued a February 6, 2020 Determination Memorandum finding that the Applicant had not demonstrated that the repairs to its roof were required as a result of the disaster, denying the request for reimbursement of $2,139,835.60 and concluding that the Applicant’s documentation instead supported that the roof had deteriorated and was subject to leaks before the disaster

 

First Appeal

The Applicant submitted a first appeal letter dated April 6, 2020, requesting $2,139,835.60 to replace roof sections 14, 21, and 52.  The Applicant argued that the replacement of these roof sections could be viewed as eligible hazard mitigation in accordance with state and local hazard mitigation plans and modern building code, to better fortify the hospital in future disasters.[5]  It asserted that its roof functioned with no detriment to hospital operations prior to the disaster and failed as a result of the disaster rather than due to age or material.  In a transmittal letter dated June 1, 2020, the South Carolina Emergency Management Division (Grantee) expressed support for the appeal.

The FEMA Region IV Regional Administrator (RA) denied the first appeal in a December 18, 2020 decision, finding that the Applicant did not provide sufficient documentation to demonstrate that the requested work was required as a direct result of the disaster.  The RA concluded that the roof system was deficient prior to the disaster, citing documentation of observed deterioration, ongoing issues with leaks, and the Applicant’s decision to continue implementing spot repairs instead of replacing the roof despite knowing it was out of code.

 

Second Appeal

The Applicant submits its second appeal by letter dated February 16, 2021, requesting approval of $2,139,835.60 to replace roof sections 14, 21, and 52.  The Applicant reiterates the arguments raised in its first appeal and emphasizes that the sheer amount of water generated by the disaster caused the roof to fail; not its age or outdated design.  In a transmittal letter dated April 14, 2021, the Grantee expresses support for the appeal, citing that the roof remained functional throughout a winter storm in 2014, major flooding in 2015, and Hurricane Matthew in 2016.

 

Discussion

Result of Declared Incident

FEMA provides Public Assistance (PA) funding to eligible applicants for the repair, restoration, reconstruction, or replacement of facilities damaged or destroyed by disasters.[6]  To be eligible for PA funding, an item of work must be required as a direct result of the disaster.[7]  FEMA does not provide PA funding for repair of damage caused by deterioration, deferred maintenance, the applicant’s failure to take measures to protect a facility from further damage, or negligence.[8]  For buildings and building systems, distinguishing between damage caused by the incident and pre-existing damage may be difficult.[9]  Before making an eligibility determination, FEMA considers each of the following: the age of the building and building systems; evidence of regular maintenance or pre-existing issues; and the severity and impacts of the incident.[10]  It is the applicant’s responsibility to demonstrate that damage was caused directly by the declared incident, and where pre-existing damage exists, to distinguish that damage from the disaster-related damage.[11]

The layered construction of the Applicant’s roof made it difficult to identify water damage and infiltration,[12] so the Applicant hired Tremco to conduct a post-disaster infrared study to identify any damage to the its roofing system.  The Applicant has provided no record of any infrared study conducted prior to the disaster, but maintenance records from 2010 to 2018 indicate consistent reports of damages to the roofing system.[13]  In 2014 and 2016, the Applicant replaced two similarly constructed adjacent sections of the roofing system after determining that they had exceeded their life expectancy, had multiple leaks, and had deficiencies consistent with roofs of this type.[14]  In its 2019 inspection of roof sections 14, 21, and 52, Tremco noted “failing flashings, ponding water, and typical membrane deterioration for roof sections of this age.”[15]  The Applicant further acknowledged to FEMA’s site inspector that its roof leaked during wind-driven rain events.[16]  The documentation provided by the Applicant demonstrates that it was aware the ballasted EPDM roof system was not code-compliant, subject to leaking, and suffering deterioration prior to the disaster.

Eligible work must be required as a result of the declared event and the Applicant has the burden to demonstrate that the requested work is necessary.  In light of the above findings, FEMA determines that the Applicant has not demonstrated work is required as a direct result of the disaster.  Therefore, the work the Applicant is claiming on appeal is ineligible for PA funding.

 

Hazard Mitigation

FEMA has the authority to provide PA funding for cost-effective hazard mitigation measures for facilities damaged by the incident.[17]  Generally, eligible mitigation measures are those the applicant performs on the damaged portion(s) of the facility.[18]  If the applicant proposes mitigation measures that are distinct and separate from the damaged portion(s) of the facility, FEMA evaluates the proposal and determines eligibility on a case-by-case basis considering how the mitigation measure protects the damaged portion(s) of the facility and whether the mitigation measure is reasonable based on the extent of the damage.[19]

The roof sections the Applicant seeks to replace using hazard mitigation funds had existing deterioration.  Because section 406 hazard mitigation funding is only available for facilities that are damaged by the disaster and not for pre-existing damage, and in light of the analysis in the preceding section, the work is not eligible for hazard mitigation funding.

 

Conclusion

The Applicant has not demonstrated that work to replace roof sections 14, 21, and 52 is required as a direct result of the disaster, rather than the result of predisaster conditions or deferred maintenance.  Such work is ineligible for PA funding.  Consequently, the Applicant’s hazard mitigation proposal is also ineligible.  Therefore, this appeal is denied.

 

[1] The corresponding Grants Manager Project Number is 71392.

[2] FEMA Site Inspection Report, Work Ord. 28142, at 6 (Dec. 13, 2018).

[3] Id.

[4] Roof Replacement Request from Conway Hosp. to Conway Hosp. Bd. of Tr., at 2 (Apr. 2014); Roof Replacement Request from Conway Hosp. to Conway Hosp. Bd. of Tr. (2016); Capital Request from Conway Hosp. to Conway Hosp. Bd. of Tr., at 1 (Apr. 2, 2014); Roof Replacement Request from Conway Hosp. to Conway Hosp. Bd. of Tr. (2016).

[5] First Appeal Letter from Conway Med. Ctr. to Dir., S.C. Emergency Mgmt. Div., at 2, 5 (Apr. 6, 2020) (citing Section 406 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act).

[6] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act, as amended, § 406(a), 42 U.S.C. § 5172 (2017).

[7] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.223(a)(1) (2017); Public Assistance Program and Policy Guide, FP 104-009-2, at 19 (Apr. 1, 2018) [hereinafter PAPPG].

[8] PAPPG, at 19-20.

[9] Id. at 118.

[10] Id.

[11] Id. at 19; FEMA Second Appeal Analysis, El Paso Cty., FEMA-4229-DR-CO, at 8 (Apr. 4, 2019).

[12] Letter from Field Advisor, Tremco Roofing Inc., to Eng’g Dept., Conway Hosp., at 2 (2019); Invoice No. 9399 from Spann Repair Services LLC to Conway Med. Ctr. (Dec. 28, 2015).

[13] See e.g., Invoice No. 5160 from Spann Repair Services LLC to Conway Med. Ctr. (Aug. 20, 2013); Invoice No. 5463 from Spann Repair Services LLC to Conway Med. Ctr. (Nov. 4, 2013); Invoice No. 5800 from Spann Repair Services LLC to Conway Med. Ctr. (Feb. 18, 2014); Invoice No. 10763 from Spann Repair Services LLC to Conway Med. Ctr. (Oct. 14, 2016); Invoice No. 12062 from Spann Repair Services LLC to Conway Med. Ctr. (June 29, 2017); Invoice No. 12430 from Spann Repair Services LLC to Conway Med. Ctr. (Sept. 25, 2017); Invoice No. 12558 from Spann Repair Services LLC to Conway Med. Ctr. (Oct. 18, 2017); Invoice No. 12812 from Spann Repair Services LLC to Conway Med. Ctr. (Nov. 21, 2017); Invoice No. 14086 from Spann Repair Services LLC to Conway Med. Ctr. (Sept. 20, 2018).

[14] Roof Replacement Request from Conway Hosp. to Conway Hosp. Bd. of Tr., at 2 (Apr. 2014); Capital Request from Conway Hosp. to Conway Hosp. Bd. of Tr., at 1 (Apr. 2, 2014); Roof Replacement Request from Conway Hosp. to Conway Hosp. Bd. of Tr. (2016).

[15] Letter from Field Advisor, Tremco Roofing Inc., to Facilities and Operations Vice President, Conway Med. Ctr., at 1 (Sept. 27, 2019).

[16] FEMA Site Inspection Report, at 6.

[17] Stafford Act § 406(e); 44 C.F.R. § 206.226(e); PAPPG, at 97.

[18] PAPPG, at 99.

[19] Id.