Home News Feeds National Situation Updates
Newsfeeds
FEMA.gov


  • Bridge Repair
    Appeal Type: 
    2nd
    Report Type: 
    PW
    Appeal Categories: 
    Applicant Name: 
    Warren County Freeholders,
    Disaster Number: 
    4021-DR-NJ
    DSR: 
    1854
    Date Signed: 
    Tuesday, April 15, 2014
    PA ID: 
    027-06610-00
    Summary/Brief: 

    Conclusion: The Applicant failed to repair preexisting scouring at its bridge piers noted in a New Jersey Department of Transportation bridge inspection; thus, the repair of preexisting scouring is ineligible for FEMA Public Assistance funding.  However, the Applicant’s failure to implement countermeasure recommendations included in the same inspection does not impact the eligibility of the repair of the damage caused by the event.   

    Summary Paragraph  

    In August 2011, Hurricane Irene caused major damage to many of the Applicant’s bridges, including Bridge 13011.  In PW 1854, FEMA determined that some of the storm-related repairs
    due to storm damage were ineligible based on Bridge Inspection Reports, dated June 17, 2009 and June 8, 2011.  These reports, which were issued prior to Hurricane Irene striking the region, indicated that there was scour at the bridge piers in need of immediate corrective action.  Upon review of these reports, FEMA determined the damage to the bridge was the result of deferred maintenance and, consequently, ineligible for FEMA funding.  In the first appeal, the Applicant asserted that the preexisting scouring did not contribute in any way to the extent of damage caused by Hurricane Irene.  The Regional Administrator (RA) only partially approved the appeal because she determined the Applicant failed to implement the required repairs and recommended countermeasures by September 15, 2011.  The RA reduced the eligible cost for the repair of disaster damage by the cost estimates for the preexisting repair ($5,000) and countermeasure recommendations ($180,000), and FEMA obligated a version to PW 1854 for $193,666.23.  In the second appeal, the Applicant asserts that the RA erred in denying $180,000 in funding as this amount reflects countermeasure recommendations, not preexisting damage repair.  The Applicant asserts that PW 1854 should be revised to reflect the original cost estimate for the repair of disaster damage ($378,666.23)
    minus $5,000 (the amount required for the repair of preexisting damage).  

    Authorities Discussed

    • 44 C.F.R. § 206.223(a)(1) General Work Eligibility.

    Headnotes

    • 44 C.F.R. § 206.223(a)(1) states that an item of work must be the result of the emergency or major disaster event to be eligible for financial assistance. 
    o    Pursuant to 44 C.F.R. § 206.223, the repair of the preexisting damage is ineligible for Public Assistance funding as it is not required as a result of Hurricane Irene.
    o    However, countermeasure recommendations do not reflect preexisting damage, and thus, do not impact the amount of eligible Public Assistance funding.

     

    Letter: 

    April 15, 2014

    Colonel Rick Fuentes
    Director
    New Jersey Office of Emergency Management
    P.O. Box 7068
    West Trenton, NJ 08628

    Re:       Second Appeal–Warren County Freeholders, PA ID 027-06610-00, Bridge Repair, FEMA-4021-DR-NJ, Project Worksheet (PW) 1854

    Dear Colonel Fuentes:

    This is in response to your letter dated October 16, 2013, which transmitted the referenced second appeal on behalf of Warren County Freeholders (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of a portion of the cost of the repair of Bridge 13011.  The total amount in dispute is $180,000. 

    As explained in the enclosed analysis, I have determined that the Applicant is responsible for the repair of preexisting damage.  However, the $180,000 associated with the recommended countermeasures does not address preexisting damage. Therefore, the Applicant’s failure to implement countermeasure recommendations does not impact eligible funding for the repair of the bridge, and de-obligation of $180,000 associated with the recommended countermeasures was incorrect and should be restored.  Therefore, I am approving the appeal.  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/

    Brad Kieserman
    Assistant Administrator
    Recovery Directorate

    Enclosure

    cc:   JeromJerome Hatfield
           Regional Administrator
           FEMA Region IIe Hatfield

    Analysis: 

    Background

    In August 2011, Hurricane Irene caused major damage to many of the Warren County Freeholders’ (Applicant) bridges, including Bridge 13011.  Hurricane Irene produced vegetative debris that partially clogged the waterway under the bridge and caused major scouring and undermining at the bridge piers.  The Applicant’s contractor repaired the scouring, filled in the undermining, and repaired missing stones on certain sections of the bridge.[1]  FEMA prepared Project Worksheet (PW) 1854 to fund the bridge repairs, but later found the repairs ineligible based on pre-event Bridge Inspection Reports. 

    Prior to Hurricane Irene, Cherry, Weber, and Associates (consulting engineers) inspected the bridge and reported its findings in two Bridge Inspection Reports, dated June 17, 2009 and June 8, 2011.  These reports indicated that there was scour at three of the bridge piers requiring immediate corrective action that predated Hurricane Irene striking the region.  In a letter, dated June 17, 2011, (Priority 2 Repair letter) the consulting engineers recommended that the Applicant “underpin the undermined areas of the scour toes with concrete and protect with stone rip-rap” to repair the damage identified during the June 2011 inspection.[2]  The consulting engineers listed this as a “Priority 2” repair.[3]  The New Jersey Department of Transportation (NJ DOT) assigns Priority 2 status to bridges with an “imminent defect in the superstructure, substructure or deck which, if not repaired in the near future (within 3 months), may cause a load restriction or collapse of the structure.”[4]  The NJ DOT provides “substantial undermining of bearing area” and “major scour problems with footings on piles” as examples of Priority 2 repairs.[5]  Additionally, the June 2011 report recommended that the Applicant “install gabion mattresses extending across each span” of the bridge as a countermeasure to prevent future scour.[6]   The Applicant did not complete the repairs or the countermeasures prior to Hurricane Irene.  FEMA reviewed the reports, and Priority 2 Repair letter, and determined the damages claimed to have been caused by Hurricane Irene were actually the result of deferred maintenance.

    First Appeal

    The Applicant submitted its first appeal on May 23, 2012.  With the appeal, the Applicant asserted that Hurricane Irene caused high flood levels and high stream velocities resulting in extensive scour and channel erosion.  The Applicant also asserted that the preexisting scour was minimal and did not contribute in any way to the extent of damage caused by Hurricane Irene.  The Applicant stated that the Bridge Inspection Report, dated June 17, 2009, provided no repair or countermeasure recommendations and that the Priority 2 Repair letter was the first priority repair notification received for the bridge.  The Applicant maintained it was not able to complete the Priority 2 repairs before the disaster occurred. 

    In the first appeal, the Applicant referenced a Priority Emergency Repair letter, dated September 22, 2011, that identified the overall scope of damage caused by Hurricane Irene.[7]  In the letter, engineering consultants recommended the following emergency repairs: (1) remove unsound concrete and rebuild fractured and missing scour toe with reinforced concrete doweled into sound portions of the remaining toe, (2) underpin the undermined areas of the remaining scour toe with concrete, (3) riprap the full perimeter of the pier with suitably sized stone riprap, and (4) remove loose masonry and rebuild the east end of the stone masonry pier in-kind.[8]     

    In a letter, dated May 31, 2013, the Region II Acting Regional Administrator (RA) partially approved the appeal because, as she noted, the first report, dated June 17, 2009, did not provide any countermeasure recommendations.  The Acting RA stated that the second report, dated June 8, 2011, gave the Applicant ninety (90) days to implement corrective measures that included underpinning the undermined areas of the scour toes with concrete and installing gabion mattresses extending across each span.  Hurricane Irene occurred within the mandatory 90-day window.  The Acting RA reduced the original cost estimate for repair of disaster damage, $378,666.23, to exclude the costs associated with implementing the Priority 2 repair, that the consulting engineers estimated at $5,000, and countermeasure recommendations, estimated at $180,000.[9]  Accordingly, FEMA obligated a version to PW 1854 for $193,666.23.

    Second Appeal

    In its second appeal, dated August 30, 2013, the Applicant asserts that the damage caused to its bridge was not the result of deferred maintenance.  The Applicant states that the preexisting scouring was minimal and did not contribute to damage caused by Hurricane Irene.  The Applicant differentiates between the Priority 2 repair, which the Applicant had 90 days to implement, and the countermeasures, provided in the June 8, 2011 Report, that were recommendations, not requirements.  The Applicant states that the countermeasures would not have made much of a difference regarding the damage done by the disaster because they are designed to address typical storm events, not catastrophic events, like Hurricane Irene.  Finally, the Applicant asserts that the countermeasure recommendations would have been cost-prohibitive.  The Applicant requests that FEMA approve $180,000 in additional funding for the repair of the disaster damage. 

    Discussion

    Pursuant to Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.223(a)(1), an item of work must be required as the result of a major disaster event to be eligible for financial assistance (emphasis added).   As such, preexisting damage would not be the result of a Stafford Act event.  The Priority 2 Repair letter identified severe scouring at the bridge piers more than two months before Hurricane Irene.  Accordingly, the repairs associated with the scouring referenced in the Priority 2 Repair letter are ineligible for Public Assistance funding.

    It is important to note the difference between Priority 2 repairs and countermeasure recommendations.  The NJDOT requires immediate corrective action for Priority 2 repairs.  Conversely, a countermeasure is a recommendation meant to reduce future damage.  While the RA deducted the estimated cost of the countermeasures recommended in the Bridge Inspection Report, dated June 8, 2011, from the eligible funding amount, the countermeasures were recommendations to reduce the potential for additional scouring at the piers, but were not required to repair the preexisting damage.[10]

    Conclusion

    The Applicant failed to repair preexisting scouring identified in a Priority 2 Repair letter for Bridge 13011 prior to the event.  As the repair of preexisting damage is not eligible for Public Assistance, eligible funding for the repair of disaster damage must be reduced by the estimated cost of the repair of the preexisting damage ($5,000).  However, the Applicant’s failure to implement countermeasure recommendations does not impact eligible funding.  Therefore, de-obligation of $180,000 associated with the recommended countermeasures was incorrect and should be restored. 


    [1] In addition to these repairs, the Contractor filled in the river bottom with Core Rock.  The Damage Description and Dimensions section of PW 1854 states, “River bottom was severely scoured and washed out.”  See Project Worksheet 1854, Warren County Freeholders OFC, Version 1, at page 4 (October 8, 2013).

    [2] See Priority Letter- Str. No. 2101311, Cherry, Weber, and Associates, Consulting Engineers, dated June 17, 2011. 

    [3] Id.

    [4] New Jersey Department of Transportation, Priority Repair Procedure at 5.3-7, dated January 3, 2008 (2013 rev), http://www.nj.gov/transportation/eng/structeval/downloads.shtm.

    [5] Id.

    [6] See County of Warren Bridge Re-evaluation Survey Report: Structure No. 2101311 at 14-2, dated June 8, 2011 (14th Cycle).

    [7] See Priority E Letter- Str. 2101311, Cherry, Weber, and Associates, Consulting Engineers, dated September 22, 2011.

    [8] Id.

    [9] The original PW Cost estimate of $378,666.23 reflected work to repair the bridge that included repairing scouring, filling in the undermining, and repairing missing masonry between the stones on the remaining piers.  Installation of gabions mattresses was not part of the estimated work.  Based upon the consulting engineers’ recommendation to install gabion mattresses as a countermeasure in the June 17, 2011 Report, the Acting Regional Administrator determined the proposal of the countermeasure reflected deferred maintenance (emphasis added), and deducted $180,000 from the original cost estimate. 

    [10] See supra note 9.

     



  • Debris Removal
    Appeal Type: 
    2nd
    Report Type: 
    PW
    Appeal Categories: 
    Applicant Name: 
    Warren County Secondary Roads
    Disaster Number: 
    1930-DR-IA
    DSR: 
    1852
    Date Signed: 
    Tuesday, April 15, 2014
    PA ID: 
    181-U6TYS-00
    Summary/Brief: 

    Conclusion:  The Applicant has not demonstrated extenuating circumstances or unusual project requirements beyond their control.

    Summary Paragraph

    From June 1 through August 31, 2010, Warren County Secondary Roads (Applicant) experienced severe storms, tornadoes, and flooding which deposited silt on Arthur Street.  FEMA obligated PW 1852 to remove silt from the road and ditches.  The emergency work completion deadline was January 29, 2011, but the Applicant did not start work until August 24, 2011 and completed work on January 9, 2012.  The Applicant submitted a time extension request on December 27, 2011, but the Grantee misplaced it.  The Applicant submitted another time extension request on February 8, 2013, which Region VII denied.  In a first appeal letter submitted June 7, 2013, the Applicant challenged the denial of the time extension request.  The Grantee cited a sequence of events that were out of the control of the Applicant.  The FEMA Region VII Regional Administrator (RA) determined that the Applicant did not present documentation demonstrating extenuating circumstances which prevented it from completing the work within the time allowed and denied the first appeal on September 9, 2013.  The Applicant’s second appeal letter, dated September 27, 2013, reiterated the same arguments as the first appeal.

    Authorities and Second Appeals

    • 44 C.F.R. § 206.204(d)(2),

    • 44 C.F.R. § 206.204(c)(2)(ii)

    • Town of Fairfax, FEMA-1046-DR-CA  (June 7, 1999).

    • Harding University, FEMA-1472-DR-AR (Dec. 7, 2004).

    Headnotes

    • 44 C.F.R. § 206.204(d)(2) provides the authority for the Regional Administrator to grant or deny time extension requests.  44 C.F.R. § 206.204(c)(2)(ii) indicates that the Grantee can grant a time extension request if the applicant shows “extenuating circumstances or unusual project requirements beyond the control of the subgrantee.”

    • Second Appeal, Town of Fairfax, FEMA-1046-DR-CA:  The Applicant submitted a request for a net small project overrun, but the Grantee never received it or forwarded it to FEMA.  The Applicant claimed there was a “breakdown in the system.”  FEMA denied the appeal since the request was not received by the deadline.

      • Warren County argued that extenuating circumstances existed because the Grantee misplaced its time extension request.  FEMA does not recognize lost or misplaced documents as an extenuating circumstance.

    • Second Appeal, Harding University, FEMA-1472-DR-AR:   The Applicant cited misinformation and a lack of understanding of the FEMA Public Assistance program as a reason for a late RPA submittal.  FEMA denied the appeal.

      • Warren County argued that extenuating circumstances existed because of errors in the Grantee’s quarterly report.  FEMA doesn’t recognize misinformation as an extenuating circumstance.

    Letter: 

    April 15, 2014

    Mark Schouten
    Administrator
    Iowa Homeland Security and Emergency Management Division
    7105 NW 70th Avenue
    Camp Dodge, Bldg. W-4
    Johnston, Iowa 50131-1824

    Re: Second Appeal – Warren County Secondary Roads, PA ID 181-U6TYS-00, Debris Removal, FEMA-1930-DR-IA, Project Worksheet (PW) 1852

    Dear Mr. Schouten:

    This is in response to your letter dated November 25, 2013, which transmitted the referenced second appeal on behalf of Warren County Secondary Roads (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of its emergency work time extension request.

    As explained in the enclosed analysis, I have determined that Applicant has not demonstrated a compelling reason to reverse the Regional Administrator’s exercise of her discretion under 44 C.F.R. § 206.204(d)(2).  Therefore, I am denying the appeal. 

    Please inform the Applicant of my decision.  This determination constitutes the final decision on this matter pursuant to 44 C.F.R. § 206.206.

    Sincerely,

    /s/

    Brad J. Kieserman
    Assistant Administrator
    Recovery Directorate

    Enclosure

    cc:  Beth Freeman
          Regional Administrator
          FEMA Region VII

    Analysis: 

    Background

    From June 1 through August 31, 2010, Warren County Secondary Roads (Applicant) experienced severe storms, tornadoes, and flooding which deposited silt on Arthur Street.  On October 18, 2010, FEMA obligated Version 0 for $119,964 to remove silt from the road and ditches.  The emergency work completion deadline was January 29, 2011, but the Applicant did not start work until August 24, 2011 and completed work on January 9, 2012.  The Applicant submitted a time extension request on December 27, 2011, but it was misplaced by the Grantee.  The Applicant submitted another time extension request on February 8, 2013, which was denied by Region VII.  The Applicant requested a Large Project Closeout for $29,166 in actual debris removal costs on September 23, 2013. 

    First Appeal

    In a first appeal letter submitted June 7, 2013, the Applicant challenged the denial of the time extension request.  The Applicant noted that the PW was not obligated until after the January 29, 2011 emergency work deadline, that their initial time extension request was never received by FEMA, and explained how an incorrect quarterly report from the Grantee led to the decision to remove debris in conjunction with permanent repairs to Arthur Street.  The quarterly report indicated that the PW was category C and listed the work completion deadline as the permanent work deadline instead of the emergency work deadline.  The Grantee forwarded the appeal, citing a sequence of events that were beyond the control of the Applicant.  The Grantee noted that their quarterly report was incorrect and that they misplaced the initial time extension request.

    The FEMA Region VII Regional Administrator (RA) denied the first appeal on September 9, 2013 and limited costs to those incurred by the Applicant prior to January 29, 2011. The RA determined that the Applicant did not present documentation demonstrating extenuating circumstances which prevented it from completing the work within the time allowed.

    Second Appeal

    The Applicant’s second appeal letter, dated September 27, 2013, reiterates the first appeal and adds that a Right of Entry required for the disposal of the silt on private property took “a couple of months” to obtain.  The Grantee forwarded the second appeal endorsing the Applicant’s points.

    Discussion

    Pursuant to Title 44 Code of Federal Regulations (C.F.R.) § 206.204(d)(2), a grantee can grant a time extension request if the applicant demonstrates “extenuating circumstances or unusual project requirements beyond the control of the subgrantee.”  The Regional Administrator is afforded the authority under 44 C.F.R. § 206.204(c)(2)(ii) to grant or deny time extension requests beyond that provided by the grantee.  Traditionally, second appeals have upheld the Regional Administrator’s exercise of this discretion.[1]  As detailed below, the arguments raised in this appeal do not provide a compelling reason to do otherwise.

    PW Obligation after January 29, 2011 emergency work deadline

    The Applicant attended an Applicant Briefing on August 6, 2010, during which the emergency work deadline would have been discussed.  FEMA also conducted a Kickoff Meeting with the Applicant on August 26, 2010 during which the emergency work deadline was mentioned.[2]  Therefore, the Applicant was aware of the emergency work deadline, even if they had not received the PW at the time.

    Grantee Misplacing Original Time Extension Request

    In a second appeal decision dated June 7, 1999, the Town of Fairfax submitted a request for a net small project overrun, but the Grantee never received it or forwarded it to FEMA.[3]  The Applicant claimed that there was a “breakdown in the system.”[4]  In that case, which is analogous to this one, FEMA denied the appeal since the request was not received by the deadline.

    Obtaining Right of Entry

    The Right of Entry agreement was signed on March 1, 2011, which was approximately a month after the emergency work completion deadline.  The Applicant had six months to procure the Right of Entry agreement and complete the work, which is more than enough time.  The Applicant also could have requested a Scope of Work (SOW) change to deposit the debris in another approved location.

    Grantee Quarterly Report Deadlines for Completing Work. 

    Similar to this case, in a second appeal decision dated December 7, 2004, Harding University cited misinformation and a lack of understanding of the FEMA Public Assistance program as a reason for a late RPA submittal.[5]  The University stated that it was not aware of the RPA deadline.  Unpersuaded by that argument, FEMA denied the appeal.

    Conclusion

    The Applicant has not demonstrated a compelling reason to reverse the Regional Administrator’s exercise of her discretion under 44 C.F.R. § 206.204(d)(2).  Therefore, the time extension request second appeal is denied.


    [1] See, e.g., Sabine Pass Port Authority, FEMA-1606-DR-TX (June 23, 2009) (denying Request for Public Assistance submitted by applicant two years beyond RPA deadline); Resort Improvement District No. 1, FEMA-0943-DR-CA (Aug. 12, 1998) (denying request for project time extension submitted one year after last approved project deadline); Bay County, FEMA-1344-DR-FL (Dec. 19, 2003) (denying request for additional time extension, where Applicant failed to make progress on project during previously granted extension period); County of Santa Cruz, FEMA-1155-DR-CA (June 19, 2003) (denying request for additional time extension to complete projects, where work had not yet begun the projects more than six years after the damage was incurred); see also Clewiston Draining District, FEMA-1545-DR-FL (Oct. 12, 2006); California Department of Veterans Affairs, FEMA-1731-DR-CA (Jan. 13, 2009); Los Angeles Brotherhood Crusade, FEMA-1008-DR-CA (Aug. 13, 2009); Springdale Township, FEMA-1699-DR-KS (July 29, 2008); City of Waveland, FEMA-1604-DR-MS (Mar. 28, 2012); Sanford Health, FEMA-1907-DR-ND (June 26, 2012); Municipality of Yauco, FEMA-1247-DR-PR (June 23, 2000); Harding University, FEMA-1472-DR-AR (Dec. 7, 2004); Florida Department of Environmental Protection, FEMA-1069-DR-FL (Oct. 13, 1998); Rondout Valley Central School District, FEMA-1296-DR-NY (Jan. 20, 2004); Town of Fairfax, FEMA-1046-DR-CA (June 7, 1999); FEMA-1247-DR-PR, Municipality of Mayaguez, FEMA-0943-DR-CA (July 19, 2004), University of California Los Angeles, FEMA-1005-DR-CA (Nov. 8, 1999), James City County, FEMA-1491-DR-VA (June 17, 2005), San Bernardino County, FEMA-1498-DR-CA (Apr. 4, 2006); City of Redlands, FEMA-1044-DR-CA (Apr. 27, 1999); East Beach Water Control District, FEMA-1545-DR-FL (Oct. 12, 2006); Boundary County, FEMA-1102-DR-ID (June 16, 1999).

    [2] Notes from the EMMIE Case Management File indicate that FEMA discussed emergency work during the Applicant Kickoff Meeting.

    [3] FEMA Second Appeal Analysis, Town of Fairfax, PA ID 041-23168, FEMA-1046-DR-CA, (June 7, 1999).

    [4] Id.

    [5] FEMA Second Appeal Analysis, Harding University, FEMA-1472-DR-AR, (December 7, 2004).

     



  • Reasonable Costs
    Appeal Type: 
    2nd
    Report Type: 
    PW
    Appeal Categories: 
    Applicant Name: 
    Town of Rockport
    Disaster Number: 
    1895-DR-MA
    DSR: 
    891
    Date Signed: 
    Tuesday, April 15, 2014
    PA ID: 
    009-57880-00
    Summary/Brief: 

    Conclusion: The Applicant’s repair of its pier tip is an improved project, as defined by FEMA policy.  In addition, the Region I Acting Regional Administrator’s method for calculating eligible cost is reasonable and in accordance FEMA regulations and policy. 

    Summary Paragraph
     
    In March and April 2010, storm surges and waves damaged sections of the Applicant’s granite pier tip.  The original scope of work, under Project Worksheet (PW) 891, included replacing 325.92 CY of stone base and resetting and replacing 423.7 CY of armor stone.  PW 891 was initially obligated for $117,002.  In July 2010, the Applicant hired Vine Associates as consulting engineers to prepare design repair plans.  Vine Associates identified a significantly longer area of damage to the pier tip than was identified by FEMA in PW 891.  A contractor completed the repair work in September 2011.  During the close out process, FEMA determined that the Applicant repaired a greater linear distance of the pier tip; accordingly, FEMA classified the repair work as an improved project and reduced the eligible cost of the project to $31,069.43.  In the first appeal, the Applicant asserted that the work completed was not an improved project and that its final project costs were well below the original FEMA estimate.  The Acting Regional Administrator (RA) determined that the repair completed on the pier tip was an improved project, the actual volume of the damaged area was far less than FEMA’s estimate, and thereby reduced the eligible costs.  The Acting RA also identified issues with the procurement process that the Applicant used in the administration of the repairs.  Notwithstanding its improper procurement methods, the Acting RA reimbursed the Applicant for the federal cost share.  In its second appeal, the Applicant, again, asserts that the repairs to its pier tip do not constitute an improved project.  In addition, the Applicant provides an alternative method for calculating reasonable cost associated with the repair of its pier tip. 

    Authorities Discussed

    • Stafford Act § 406(e) Eligible Cost.
    • 44 C.F.R. § 206.201(j) Definitions- Permanent Work.       
    • 44 C.F.R. § 206.203(d)(1) Improved Projects.
    • 44 C.F.R. § 206.223 General Work Eligibility.
    • 44 C.F.R. § 206.226 Restoration of damaged facilities.

    Headnotes

    • Pursuant to 44 C.F.R. § 206.203(d)(1), an improved project occurs when an applicant makes additional improvements to a damaged facility while still restoring it to its pre-disaster function and capacity.

    o In the original PW, FEMA estimated the total area of damage to be 100 feet (length) x 22 feet (width), with damage to 65 feet of armor stone within that 100 feet, and damage to the base stone for the entire 100 feet. FEMA staff estimated a depth of 8 feet for the damaged armor and 4 feet for the base stone. However, a subsequent engineering report determined that the depth for the base stone and armor was the same, 4 feet. The Applicant repaired 170 feet (length) of the pier.  This constitutes an improved project because the repair work is outside of the original scope of PW 891.

    • Stafford Act § 406(e) limits permanent work reimbursement to the restoration of a damaged facility to its pre-disaster design, function, and capacity.  The costs must be reasonable and necessary to accomplish the eligible work. 

    o The Region I Acting RA calculated eligible cost by dividing the total construction costs incurred by the Applicant by the volume of the pier repaired.  This provided a unit cost.  The RA multiplied the unit cost by the eligible volume of the pier tip repair work.

    o The Acting RA’s method for calculating eligible costs is reasonable.

     

     

      

     

      

    Letter: 

    April 15, 2014

    Kurt N. Schwartz
    Director
    Massachusetts Emergency Management Agency
    400 Worcester Road
    Framingham, MA 01702-5399

    Re: Second Appeal – Town of Rockport, PA ID 009-57880-00, Reasonable Costs, FEMA-1895-DR-MA, Project Worksheet (PW) 891

    Dear Mr. Schwartz:

    This is in response to your letter dated October 21, 2013, which transmitted the referenced second appeal on behalf of the Town of Rockport (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) classification of the project referenced in Project Worksheet (PW) 891 as an “improved project” and calculation of eligible costs associated with the repair of the tip of the Applicant’s granite pier. 

    As explained in the enclosed analysis, I have determined that the FEMA Acting Region I Regional Administrator correctly classified the work completed by the Applicant as an “improved project.”  In addition, the Regional Administrator’s calculation of eligible costs associated with the work completed to repair the tip of the granite pier is reasonable and in accordance with FEMA regulations and policy.  Accordingly, I am denying this appeal.   

    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/

    Brad Kieserman
    Assistant Administrator
    Recovery Directorate

    Enclosure

    cc:  Paul Ford
          Acting Regional Administrator
          FEMA Region I

    Analysis: 

    Background

    Between March and April 2010, strong surge tides and waves that were part of severe storms damaged the inlet side of the tip (pier tip) of the Town of Rockport’s (Applicant) granite stone pier.  The pier measured 400 feet long by 50 feet wide and protected a public parking area and boat anchorage.  On June 17, 2010, FEMA conducted a site inspection of the pier tip and determined the damage dimensions to be 100 feet long x 22 feet wide, with damage to 65 feet of armor stone within that 100 feet and damage to base stone for the entire 100 feet. FEMA staff estimated a depth of 8 feet for the damaged armor stone and 4 feet for the base stone.  On September 28, 2010, FEMA obligated $117,002 in Project Worksheet (PW) 891 to fund repairs to the pier tip which included replacing 325.92 cubic yards (CY) of stone base, resetting 423.7 CY of large armor stones, and replacing 423.7 CY of large armor stones. 

    In July 2010, the Applicant hired Vine Associates (consulting engineer) to prepare design repair plans.  The consulting engineer surveyed the pier tip and prepared design plans that identified a length of 170 feet, area of 3020 square feet, depth of 4 feet, and volume of 450 CY of damage regarding the pier tip.  The length of damage in the consulting engineer’s plans exceeded FEMA’s measurement by 70 feet.  In addition, the consulting engineer measured the depth of damaged armor at 4 feet, well below the 8 feet estimated by FEMA.  The Applicant contracted Miller Golf to repair the pier tip, as part of a larger project, which was completed in September 2011.  

    In 2012, the Grantee requested the close-out of PW 891.  During the close-out process, FEMA discovered that the Applicant repaired a significantly greater linear distance of pier tip (170 feet) than what was included in the original scope of work in PW 891 (100 feet).  FEMA determined that the excess feet of work completed constituted an “improved project,” for which the Applicant had not sought or obtained approval from FEMA.  Accordingly, FEMA drafted a version to PW 891 with a new funding level.  The new funding level was calculated by adding the revised construction cost of $25,321.29, engineering cost of $4,436.14, and direct administrative cost of $1,312.00.  FEMA calculated the revised construction cost by apportioning the construction costs of the entire improved project to that attributable to the original FEMA-approved scope of work.  The new total cost for Version 1 of PW 891 was $31,069.43. 

    First Appeal

    The Applicant submitted its first appeal on December 10, 2012.  With the appeal, the Applicant asserted that FEMA’s determinations in Version 1 of PW 891 were erroneous and were based on a misunderstanding of the approved project scope and incurred costs.  The Applicant asserted that the work completed to repair the pier tip was not an improved project because the purpose of the project was to restore the pier to its pre-damage condition and the work undertaken by the Applicant was consistent with the project description that was approved by FEMA in the original version of PW 891.  The Applicant asserted that the additional repair work on the pier tip was minimal and that the Applicant considered this to be within the scope of the project.  In addition, the Applicant contested FEMA’s calculation of eligible costs in Version 1 of PW 891.  The Applicant claimed that the total cost of the project was $43,499.69, of which $37,623 was for construction costs, $4,564.69 for engineering and $1,312 for direct administrative costs (DAC).

    In a letter, dated June 19, 2013, the Region I Acting Regional Administrator (RA) denied the appeal regarding FEMA’s assertion that the work completed to repair the pier tip constituted an improved project and updated the eligible project costs.  The Acting RA determined that the length of the damaged pier tip was 100 feet, the depth was 4 feet and the volume was 264.7 CY.  The Acting RA calculated the eligible volume of damaged armor and base stone by multiplying 450 CY (the total volume repaired by the Applicant) by the ratio of 100 feet (the length of eligible damage), then dividing by 170 feet (the length actually repaired by the Applicant).     

    The Acting RA determined that the most reasonable and accurate manner to calculate the eligible cost for “the FEMA eligible scope of work” was to apportion the total cost of the repair to the granite pier tip under the improved project, to the repair of the original 100 linear feet and 264.7 CY of damage.  The Acting RA divided $37,623 (the total construction costs incurred by the Applicant) by 450 CY (total volume of the work, combining both armor and base stone, completed by the Applicant).  This provided a unit price of $83.61 per CY.  The Acting RA, then, multiplied this unit price by the total eligible volume (264.7 CY) to get the eligible construction costs ($22,131.57).  The Acting RA added $4,564.69 (the eligible engineering costs) and $1,312.00 (DAC) to $22,131.57, which equals $28,008.26—the total eligible cost.  Finally, the Acting RA determined that the federal share of the total eligible cost was $21,006.20. 

    Second Appeal

    In its second appeal, dated August 26, 2013, the Applicant contends that the work completed to repair its pier tip is not an improved project and that all costs should be considered as eligible for reimbursement.  In addition, the Applicant asserts that the project was subject to review by Massachusetts Emergency Management Agency (MEMA) and FEMA personnel during its design and construction stages, and the Applicant was never advised that the project exceeded the scope of what FEMA approved, or that the project would be characterized as an “improved project” that required further approvals.  The Applicant states that the cost of the additional length of repair is minimal because it did not involve the acquisition and transport of off-site stone, nor did it require labor costs.  Finally, the Applicant asserts that, if only a portion of the project is eligible for Public Assistance funding, calculating reimbursable costs by using a ratio of the tonnage of stone approved for the project in the PW, to the tonnage actually purchased and installed by the Applicant, would more accurately allocate the project costs than the method that the Acting RA used in his determination.   

    Discussion

    Work Eligibility

    Pursuant to Section 406 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), FEMA Public Assistance funding may be available to a state or local government for the repair, restoration, and replacement of damaged or destroyed facilities under a major disaster.[1]  However, the facility must be restored to its pre-disaster design, function, and capacity.[2]  Further, repair work must be the direct result of a major event or disaster, meaning work performed to repair damage caused by other circumstances is ineligible for Public Assistance funding.[3]

    In June 2010, FEMA staff conducted a site inspection of the pier tip.  The findings of the staff are documented in the original version of PW 891.  In the original version, the damage description documents the work to be completed as “Damage was to the inlet side near the end of the revetment for a cumulative total of 65 FT X 22 FT X 8 FT = 423.7 CY (847 Tons) of large armor stone. Also lost was a smaller base stone of 100 FT X 22 FT X 4 FT = 325.92 CY that is used as binding”[4]  It should be noted that FEMA staff were able to obtain the actual length (100 feet) and width (22 feet) of the pier tip.  However, the measurement for depths of the damaged armor stone (8 feet) and base stone (4 feet) were estimated. 

    The Applicant’s consulting engineer conducted a site visit and reported its initial findings in July 2010.  The consulting engineer’s report identified two zones to be repaired.  In a subsequent report, in October 2010, the consulting engineer reduced the area of damage of the pier tip to one zone and stated that the total length of the pier tip that needed repair was 170 feet and identified 450 CY as the volume of damaged armor stone and base stone.  The Applicant’s contractors began repair work on the damaged pier tip in February 2011 and completed it in September 2011.

    As stated in the first appeal determination, the Applicant’s consulting engineer’s October 2010 report refutes the Applicant’s assertion that the additional repair work was minimal.  The consulting engineer’s report purported that the length of damaged area of the pier tip was 170 feet and that the total volume was 450 CY.  These measurements were outside of the FEMA-approved scope of work.  Accordingly, the work completed as a result of the expanded scope of work is not eligible for Public Assistance funding.

    Improved Project

    Pursuant to Title 44 of the Code of Federal Regulations (C.F.R.) § 206.203(d)(1), Improved Projects, an Applicant may make improvements to a disaster-damaged facility while still restoring the pre-disaster function of that facility.[5]  Federal funding for such improved projects is limited to the federal share of the approved estimate of eligible costs.[6]  While Public Assistance funding may be used for improved projects,[7] FEMA must approve any project that results in significant change to the scope of work prior to the start of the repair work to ensure compliance with FEMA regulations and policy.[8]

    The Applicant has consistently stated that the repair work completed on the pier tip is not an improved project.  In its second appeal, the Applicant asserts that the purpose of the project was solely to restore the pier tip to its pre-damage conditions and function.  However, the Applicant based the repairs to the pier tip on its consulting engineer’s report, which significantly increased the length of the repair, not PW 891.  The Applicant repaired an additional 70 feet of pier tip than what was prescribed by PW 891.  Moreover, the actual depth for the damaged armor stone was 4 feet, not 8 feet as originally estimated by FEMA.  Thus, the repair work completed on the pier tip was beyond the scope of work in PW 891, and as such, constitutes an improved project.  Accordingly, relief for the total cost of the repair work to the pier tip cannot be granted to the Applicant. 

    Eligible Cost

    Generally, costs that can be directly tied to the performance of eligible work are eligible for Public Assistance funding.[9]  Eligible costs must be reasonable and necessary to accomplish the work.[10]  A cost is reasonable if, in its nature and amount, it does not exceed that which would be incurred by a prudent person under the circumstances prevailing at the time the decision was made to incur the cost.[11]  FEMA determines the reasonableness of costs and may consider the use of historical documentation for similar work, average costs for similar work in the area, published unit costs from national cost estimating databases, and FEMA cost codes in establishing such.[12]

    In the first appeal response, the Acting RA calculated the eligible costs of the repair work completed on the Applicant’s pier tip using the methodology explained above.  In its second appeal, the Applicant asserts that the method used by the Acting RA, based on the cost per cubic yard for the project as a whole, is not the most accurate method for calculating eligible costs because it relies on pre-construction design estimates of areas and volumes of work that do not accurately reflect the costs actually incurred for labor and materials.  The Applicant states that the most appropriate method for calculating eligible costs is for FEMA to reimburse the Applicant only for the tonnage of armor stone actually purchased and installed by the Applicant.  The Applicant asserts that $37,758.42 is the eligible cost for the repair of the pier tip.[13]    

    The methodology that the Acting RA used to calculate the eligible costs for repair work to the pier tip is reasonable pursuant to FEMA regulations and policy.[14]  Contrary to the Applicant’s assertion that the Acting RA’s calculation for eligible costs is based on pre-construction design estimates of areas and volumes of work, the Acting RA based the calculation on the length and width provided in the original version of PW 891 and the depth provided in the consulting engineer’s report.  The Acting RA’s calculation of eligible costs is both fair and equitable for the eligible repair work.  Furthermore, the Applicant failed to demonstrate that the Acting RA’s calculation of eligible costs is erroneous or unreasonable. 

    Conclusion

    The repair work completed on the Applicant’s pier tip was beyond the scope of work of PW 891.  Accordingly, the work constitutes an improved project, and as such, required the approval of FEMA and the Grantee prior to its start.  The Applicant did not obtain the required approval for the additional work completed.  Thus, the additional work is not eligible for Public Assistance funding.  In addition, the Acting RA’s calculation of eligible costs for the project is reasonable and in accordance with FEMA regulations and policy. 


    [1] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 § 406, 42 U.S.C. § 5170b (2007). 

    [2] Id. at § 406(e)(1).; see also,  44 C.F.R. §§ 206.201(j), 206.226 (2010).

    [3] See 44 C.F.R. § 206.223(a). 

    [4] Project Worksheet 891, Town of Rockport, Version 0 (Sept. 28, 2010).

    [5] 44 C.F.R. § 206.203(d)(1).

    [6] Id.

    [7] Id.

    [8] Public Assistance Guide, FEMA 322 (June 2007) at 111.

    [9] Id. at 40.

    [10] Id.

    [11] See OFFICE OF MGMT. & BUDGET, EXEC. OFFICE OF THE PRESIDENT, OMB CIRCULAR A-87, COST PRINCIPLES FOR STATE, LOCAL, AND INDIAN TRIBAL GOVERNMENTS, ATTACHMENT A, SECTION C.2 (2004); see also PA Guide, at 40.

    [12] PA Guide, at 41.

    [13] The Applicant derives this figure using the following calculations:

    Total Project Construction Costs:                                    $37,623.00

    Proportion of costs allowed:                                               x $84.74%

    Eligible Construction Costs:                                              $31,881.73

    Eligible Engineering Costs:                                              $   4,564.69

    Eligible Administrative Costs:                                           $   1,312.00

    Total Eligible Costs:                                                         $37,758.42                                                                          

    [14] PA Guide, at 40.

     



  • Reasonable Costs
    Appeal Type: 
    2nd
    Report Type: 
    PW
    Appeal Categories: 
    Applicant Name: 
    Town of Rockport
    Disaster Number: 
    1701-DR-MA
    DSR: 
    465
    Date Signed: 
    Tuesday, April 15, 2014
    PA ID: 
    009-57880-00
    Summary/Brief: 

    Conclusion: The Applicant’s repair of its pier was an improved project, as defined by FEMA policy.  In addition, the Applicant failed to demonstrate that the Region I Acting Regional Administrator’s method for calculating eligible cost is not reasonable or contrary to FEMA regulations and policy. 

    Summary Paragraph  

    In April 2007, the Applicant experienced severe storms and inland and coastal flooding resulting in damage to multiple sections of it granite stone pier. The original scope of work under Project Worksheet (PW) 465, included the removal, resetting, and/or replacing 180 feet x 30 feet x 10 feet (2,000 CY) of damaged pier, and the PW was obligated for $525,648.  In July 2010, the Applicant hired Vine
    Associates as consulting engineers to prepare design repair plans.  Vine Associates divided the pier into six distinct zones and identified 2040 CY as the volume of stone and base material that needed to be replaced.  A contractor completed the repair work in September 2011.  During the close out process, FEMA determined that the Applicant repaired a greater linear distance of the pier.  Accordingly, FEMA classified the repair work as an improved project and reduced the eligible cost of the project to $143,864.09.  In the first appeal, the Applicant asserted that the work completed was not an improved project and that FEMA’s original estimate of the replacement stone was incorrect.  The Acting Regional Administrator (RA) determined that 853 CY was the total volume of the areas of the pier that were damaged by Disaster 1701 and that the total eligible cost for repair to the pier was $121,487.70.  The RA also raised issues with the procurement process that the Applicant used in the administration of the repairs.  However, notwithstanding its improper procurement methods, the RA reimbursed the Applicant for the federal cost share.  In its second appeal, the Applicant, again, asserts that the repairs to its pier do not constitute an improved project.  In addition, the Applicant provides five alternative methods for calculating reasonable cost associate with the repair of its pier.  

    Headnotes

    • Pursuant to 44 C.F.R. § 206.203(d)(1), an improved project occurs when an applicant makes additional improvements to a damaged facility while still restoring it to its pre-disaster function and capacity.
    o In the original PW, FEMA estimated the total area of damage to be 180 feet (length) x 30 feet (width) x 10 feet (depth).  However, a subsequent engineering report determined that the depth was between 4 and 5 feet, not 10 feet.
    o The Applicant repaired 340 feet (length) of the pier.  This constitutes an improved project because the repair work is outside of the original scope of PW 465.
    • Stafford Act § 406(e) limits permanent work reimbursement to the restoration of a damaged facility to its pre-disaster design, function, and capacity.  The costs must be reasonable and necessary to accomplish the eligible work. 
    o In the first appeal, the Region I Regional Administrator calculated eligible cost by dividing the total construction costs incurred by the Applicant by the total volume of the pier repaired. This provided a unit cost. The RA multiplied the unit cost by the eligible volume of the pier repair work.
    o The Applicant provided five alternatives for calculating eligible construction cost for repair of the pier.  However, the Applicant provided no documentation demonstrating that the RA’s calculation for eligible cost is unreasonable. 

    Authorities Discussed
    • Stafford Act § 406(e), Eligible Cost.
    • 44 C.F.R. § 206.201(g) Definitions- Permanent Work.
    • 44 C.F.R. § 206.203(d)(1) Improved Projects.
    • 44 C.F.R. § 206.223 General Work Eligibility.
    • 44 C.F.R. § 206.226 Restoration of damaged facilities.

              

     

     

     

    Letter: 

    April 15, 2014

    Kurt N. Schwartz
    Director
    Massachusetts Emergency Management Agency
    400 Worcester Road
    Framingham, MA 01702-5399

    Re: Second Appeal – Town of Rockport, PA ID 009-57880-00, Reasonable Costs, FEMA-1701-DR-MA, Project Worksheet (PW) 465

    Dear Mr. Schwartz:

    This is in response to your letter dated October 21, 2013, which transmitted the referenced second appeal on behalf of the Town of Rockport (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) classification of the project referenced in Project Worksheet (PW) 465 as an “improved project” and calculation of eligible costs associated with the repair of the Applicant’s granite pier. 

    As explained in the enclosed analysis, I have determined that the FEMA Acting Region I Regional Administrator correctly classified the work completed by the Applicant as an “improved project.”  In addition, the Regional Administrator’s calculation of eligible costs associated with the work completed to repair the granite pier is reasonable and in accordance with FEMA regulations and policy.  Accordingly, I am denying this appeal.   

    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/

    Brad Kieserman
    Assistant Administrator
    Recovery Directorate

    Enclosure

    cc:  Paul Ford
          Acting Regional Administrator
          FEMA Region I

    Analysis: 

    Background

    In April 2007, severe storms and inland coastal flooding caused major damage to the Town of Rockport’s (Applicant) granite stone pier (pier).  The pier measured 400 feet long by 50 feet wide and protected a public parking area and boat anchorage.  On August 24, 2007, FEMA obligated $525,648 in Project Worksheet (PW) 465 to fund repairs to the pier which included removing, resetting, and/or replacing 2,000 cubic yards (CY) of stones (180 feet x 30 feet x 10 feet = 2,000 CY).  The Applicant accepted these dimensions at the time they were developed.    

    In July 2010, the Applicant hired Vine Associates (consulting engineer) to prepare design repair plans.  The consulting engineer surveyed the pier and prepared design plans that identified six distinct zones to be repaired.  The consulting engineer’s plans stated that the total length of the six zones was 340 feet and the volume of stone and based material to be replaced was 2040 CY.  However, the consulting engineer determined that the actual depth of the six zones was between 4 and 5 feet, not 10 feet as estimated by FEMA in PW 465.  In November 2010, the Applicant hired Miller Golf to repair the pier as part of a larger project.  The project was completed in September 2011.

    In 2012, the Grantee requested the close-out of PW 465.  During the close-out process, FEMA discovered that the Applicant repaired a significantly greater linear distance of pier (340 feet) than what was included in the original scope of work in PW 465 (180 feet).  FEMA determined that the excess length of work completed constituted an “improved project,” for which the Applicant had not sought or obtained approval from FEMA.  Accordingly, FEMA drafted a new version (Version 1) to PW 465.  Applying the dimensions approved in the original PW (180 feet by 30 feet) and the revised depth provided by the consulting engineer’s report (5 feet), FEMA recalculated the volume for the repairs to the pier to be 1,000 CY.  FEMA then recalculated the eligible cost by dividing the total cost to complete the project ($265,165.09) by the total volume of material (2037 CY) to obtain a unit price of $130.17 per CY.  The unit price was multiplied by the eligible volume (1,000 CY) to get $130,170.  FEMA, then, added $13,694.09—the costs associated with the services provided by the consulting engineer—for a total eligible cost of $143,864.09.   

    First Appeal

    The Applicant submitted its first appeal on December 12, 2012.  With the appeal, the Applicant asserted that FEMA’s determinations in Version 1 of PW 465 were erroneous and were based on a misunderstanding of the approved project scope and incurred costs.[1]  The Applicant argued that the work completed to repair the pier was not an improved project because the purpose of the project was to restore the pier to its pre-damage condition and maintain the pier’s function as a stable, protective revetment.  The Applicant stated that, after the repair work was completed, the pier looked the same, the footprint of the pier was not expanded, and there was no change in the height or mass of the pier.  Finally, the Applicant indicated that, if the scope of work for the project was limited to 180 feet, the calculation of eligible costs should be based on the actual cost to repair Zones 1, 2, and 3, where the most severe damage occurred.  The Applicant calculated the cost to repair Zones 1, 2, and 3 to be $256,832.59.   

    In a letter, dated June 14, 2013, the Region I Acting Regional Administrator (RA) denied the appeal regarding FEMA’s assertion that the work completed to repair the pier constituted an improved project and updated the eligible project costs.  The Acting RA determined that the correct dimensions of the area of the pier that the April 2007 disaster damaged was 180 feet by 30 feet, or 5400 square feet (SF).  The Applicant repaired an additional 7520 SF of non-disaster damaged areas.  The Acting RA concluded that this additional 7520 SF constituted an improved project.

    In addition, the Acting RA determined that 4.263 feet (the average depth of all of the damaged areas) was the most reasonable depth calculation.   Thus, the total eligible volume for the repair of the pier was 853 CY (180 feet x 30 feet x 4.263 feet =853 CY).  Using 853 CY as the eligible volume, the Acting RA determined that the most reasonable and accurate manner to calculate the eligible cost for “the FEMA eligible scope of work” was to divide $257,797.48 (the total construction costs incurred by the Applicant) by 2040 CY (total volume of the work completed by the Applicant).  This provided a unit price of $126.37 per CY.  The Acting RA, then, multiplied the total eligible volume (853 CY) by $126.37 to calculate the eligible construction costs ($107,793.61).  The Acting RA added $13,694.09 (the eligible engineering costs) for a total of $121,487.70 eligible costs. 

    Second Appeal

    In its second appeal, dated August 26, 2013, the Applicant contends that the work completed to repair its pier is not an improved project and that all costs should be considered as eligible for reimbursement.  Conversely, the Applicant asserts that if only a portion of the project area is to be considered reimbursable, then the Acting RA’s cost-per-cubic yard methodology inaccurately reflects the cost of the repairs in the areas repaired by the new revetment stone.  The Applicant asserts that FEMA should not base its determination that the work completed to repair the pier constituted an “improved project” on the design plan, but, instead, should consider what the extent of the actual work performed address each of the damaged zones depicted in the design plans. 

    The Applicant provides five preferred to alternatives for determining the proportion of total project costs that are eligible for reimbursement.  During a February 26, 2014, conference call with FEMA and the Grantee, the Applicant provided a written presentation and further explained the five alternatives presented in its second appeal.  The alternatives for calculation of eligible costs include:

    • Alternative One: All of the 2,411 tons of revetment stone that was installed in Zones 1, 2, 3, 4, and 5 is eligible for reimbursement.

    • Alternative Two: Only the 2,235 tons of revetment stone that was used to repair Zones 1, 2, and 3 is eligible for reimbursement.

    • Alternative Three: Only 2,200 tons of stone estimated by using Vine’s calculated depth of lost stone at 5.5 feet in Zones 1, 2, and 3 is eligible for reimbursement.

    • Alternative Four: Only 2,000 tons of new revetment stone estimated to be lost by PW 465 is eligible for reimbursement.

    • Alternative Five: Only 1,706 tons of stone as calculated using the ARA’s 853 CY of damaged revetment at 2 tons per CY is eligible for reimbursement.2]

    Discussion

    Work Eligibility

    Pursuant to Section 406 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), FEMA Public Assistance funding may be available to a state or local government for the repair, restoration, and replacement of damaged or destroyed facilities under a major disaster.[3]  Authorized work is typically designed to restore the facility to its pre-disaster design, function, and capacity.[4]  Further, the need for the repair work must be the direct result of a major event or disaster, meaning work performed to repair damage caused by other circumstances is ineligible for Public Assistance funding.[5]

    The disaster event occurred in April 2007.  FEMA staff conducted a site visit on July 23, 2007 during which the damaged area of the pier was physically taped and photographed.[6]  In the original version of PW 465, the scope of work documents the work to be completed as “remove, reset, and or replace 180’ x 30’ x 10’= 2,000 CY.”[7]  It should be noted that FEMA staff were able to obtain the actual length (180 feet) and width (30 feet) of the damaged portion of the pier.  The measurement for depth (10 feet) was estimated.  FEMA staff assessed the dimensions for the damaged area of pier, but did not divide the area into “zones.”

    The Applicant’s consulting engineer did not conduct a site visit and report its findings until July 2010, more than three years after the disaster event.  The consulting engineer’s report identified six zones to be repaired.  In a subsequent report, in October 2010, the consulting engineer stated that the total length of the pier that needed repair was 340 feet and identified 2040 CY as the volume of stone and base material to be replaced in the six zones.  The Applicant contends that the total area of damaged pier identified by its consulting engineer is the result of the April 2007 disaster and that the 180 feet identified in the original version of PW 465 is incorrect.  However, subsequent undeclared, smaller storms and one additional declared storm (FEMA-1895-DR, declared in March 2010) occurred between July 2007, when the FEMA site visit was conducted, and July 2010 when the consulting engineer conducted a site visit.  The Applicant’s contractors began repair work on the damaged areas of the pier in February 2011 and completed it in September 2011, more than four years after the disaster event.

    The Applicant’s assertion that the measurements for length and width provided in the original version of PW 465 were erroneous cannot be substantiated.  A level of deference must be given to the original PW because FEMA staff conducted a site visit much closer to the date of the disaster event than the Applicant’s consulting engineer, and the original PW contains information supporting the scope of work.  Moreover, the only measurement that was estimated in the original PW was the depth, for which the actual measurement, between 4 and 5 feet, was provided by the Applicant’s consulting engineer’s report. 

    There is no evidence demonstrating that the Applicant disputed the measurements for length and width of the damaged area when the original PW was obligated.  Moreover, the Applicant did provide documentation substantiating FEMA’s overestimation of the depth of the damaged area.  As such, the Applicant has failed to provide sufficient documentation that demonstrates that FEMA erred in its initial assessment of damage.  Accordingly, the Acting RA was correct in his determination that the 180 feet x 30 feet are the length and width dimensions of the damage to the pier due to the disaster event, as well as applying the depth figures provided by the Applicant.

    Improved Project

    Pursuant to Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.203(d)(1), Improved Projects, an Applicant may make improvements to a disaster-damaged facility in conjunction with restoring the pre-disaster function of that facility.  Federal funding for such improved projects is limited to the federal share of the approved estimate of eligible costs.[8]  While Public Assistance funding may be used for improved projects,[9] FEMA must approve projects that result in significant change to the scope of work prior to starting the repair work to ensure compliance with FEMA regulations and policy.[10]  Additionally, the Grantee’s approval for an improved project must also be obtained prior to the start of the project. 

    The Applicant has consistently stated that the repair work completed on the pier is not an improved project, and in its second appeal, asserts that the purpose of the project was to restore the pier to its pre-damage condition.[11]  However, the Applicant based the repairs to the pier on its 2010 consulting engineer’s report, not the 2007 PW 465.  Although the total volume of the two sets of dimensions of repair work is almost the same, 2000 CY compared to 2040 CY, the length of the repair was significantly increased in the consulting engineer’s report.  Based upon such, the Applicant repaired an additional 160 feet of pier than prescribed by PW 465.  In addition, when adjusted to reflect the actual depth of the damaged area of pier, between 4 and 5 feet, the total volume of the damaged area of the pier is reduced to 853 CY.  These calculations demonstrate that repair work completed on the pier was beyond the scope of work in PW 465.  Accordingly, the repair work completed constitutes an improved project.

    Eligible Cost

    Generally, costs that can be directly tied to the performance of eligible work are eligible for Public Assistance funding.[12]  Eligible costs must be reasonable and necessary to accomplish the work.[13]  A cost is reasonable if, in its nature and amount, it does not exceed that which would be incurred by a prudent person under the circumstances prevailing at the time the decision was made to incur the cost.[14]  FEMA determines the reasonableness of costs and may consider the use of historical documentation for similar work, average costs for similar work in the area, published unit costs from national cost estimating databases, and FEMA cost codes in establishing such.[15]

    In the first appeal response, the Acting RA calculated the eligible costs of the repair work completed on the Applicant’s pier using the methodology explained above.  In its second appeal, the Applicant asserts that the Acting RA relied on assumptions as to the cost per cubic yard for the project that were inaccurate when he calculated the eligible costs of the project.  The Applicant states that the Acting RA’s calculation of eligible costs relies on the assumption that the Applicant carried out the Vine Plan, as designed for the areas and depths estimated in the plan; however, the Applicant focused repair work on the zones where the depth of damage was the greatest. 

    The Applicant provides five alternatives for calculating the project’s eligible construction costs.  The Applicant uses tons as the unit of measurement for each alternative presented.  However, in the contract bid invitation, dated October 20, 2010, the Applicant uses square feet, not tons, as the unit of measurement.  For FEMA to consider using any of the Applicant’s alternatives, it would need to convert cubic yards to tons.  This is problematic because the density of the material would have to be known.[16]  As such, using tons, as opposed to square feet, is not a reasonable way to calculate eligible costs for this project. 

    Moreover, FEMA cannot consider some of the Applicant’s alternatives for additional reasons.  Alternative One proposes funding all repair work completed by the Applicant and uses the figures provided by the contractor’s report.  FEMA previously determined that this is not feasible because the total amount of work completed by the Applicant constitutes an improved project for which the Applicant did not have prior approval from FEMA or the Grantee.  In addition, Alternatives Two and Three rely on the “zones” concept, introduced by the Applicant’s consulting engineer, not FEMA.  As such, FEMA cannot definitively determine that the area of damage specified in the 2007 version of PW 465 is the same area of damage encompassed in Zones 1, 2, and 3.

    The methodology that the Acting RA used to calculate the eligible costs for repair work to the pier is reasonable and consistent with FEMA regulations and policy. [17]  The Acting RA used the length and width of the damaged portion of the pier, as documented in the original version of PW 465, and the average actual depth of the damaged area of pier, as documented in the consulting engineer’s report.  The Acting RA then applied the actual cost per CY to the revised eligible repair work to determine eligible costs.  The Acting RA’s calculation of eligible costs is both fair and equitable for the eligible repair work.  Furthermore, the Applicant failed to demonstrate that the Acting RA’s calculation of eligible costs is erroneous or unreasonable. 

    Conclusion

    The repair work completed on the Applicant’s pier was beyond the scope of work of PW 465.  Accordingly, the work constitutes an improved project, and as such, required the approval of FEMA and the Grantee prior to its start.  The Applicant failed to obtain approval for the additional work completed.  Thus, the additional work is not eligible for Public Assistance funding.  In addition, the Acting RA’s calculation of eligible costs for the project is reasonable and in accordance with FEMA regulations and policy. 


    [1] Even if, arguendo, FEMA accepts that the Applicant performed the excess work on its pier based on miscommunication regarding the approved project scope, according to the Applicant’s submitted documents, the miscommunication occurred between the Applicant and the Grantee, not the Applicant and FEMA.  See Second Appeal, Town of Rockport, PA ID 009-57880-00, FEMA-1701-DR-MA, Attachment 3 (Aug. 26, 2013)(referencing a telephone conversation, on January 18, 2011, between the Applicant and the Grantee).

    [2] Id. at 9; see also Power Point Presentation, Town of Rockport, Granite Pier Revetment Storm Damage Repair Project: PW #465 and PW #891 (Feb. 26, 2014) (on file with FEMA). 

    [3] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 §406, 42 U.S.C. § 5172 (2007). 

    [4] Id. at Stafford Act § 406(e)(1).; see also 44 C.F.R. §§ 206.201(g), 206.226 (2007).

    [5] See 44 C.F.R. § 206.223(a). 

    [6] Project Worksheet 465, Town of Rockport, Version 0, at page 2 (Aug. 3, 2007).

    [7] Id.

    [8] 44 C.F.R. § 206.203(d)(1).

    [9] Id.

    [10] Public Assistance Guide, FEMA 322 (June 2007) at 111.

    [11] Even if the Applicant asserted that the repair to its pier was an improved project, FEMA would only be authorized to reimburse the Applicant for actual costs, as the Acting RA did in the first appeal determination.  The Applicant would not be reimbursed based on the estimated costs provided in the 2007 version of PW 465, because this figure is based on an overestimation of the depth. 

    [12] PA Guide, at 40.

    [13] Id.

    [14] See OFFICE OF MGMT. & BUDGET, EXEC. OFFICE OF THE PRESIDENT, OMB CIRCULAR A-87, COST PRINCIPLES FOR STATE, LOCAL, AND INDIAN TRIBAL GOVERNMENTS, ATTACHMENT A, SECTION C.2 (2004); see also PA Guide, at 40.

    [15] PA Guide, at 41.

    [16] Based on Alternative Five, FEMA assumes the Applicant based its calculations on the conversion factor used in the 2007 version of PW 465.  This version uses the U.S. Army Corps of Engineers’ (USACE) conversion factor of 2 tons per cubic yard.  However, the conversion factor may range between 1.1 and over 2.0 tons per cubic yard depending on the density of the material.  

    [17] PA Guide, at 40.

     



  • Direct Result of Disaster
    Appeal Type: 
    2nd
    Report Type: 
    PW
    Appeal Categories: 
    Applicant Name: 
    City of Cedar Rapids
    Disaster Number: 
    1763-DR-IA
    DSR: 
    9000
    Date Signed: 
    Monday, March 31, 2014
    PA ID: 
    113-12000-00
    Summary/Brief: 

    Conclusion: The repairs to the Waste Heat Recovery Boiler (WHRB) and the Low Pressure Oxidation System Third Stage Heat Exchanger Tube (LPO) are eligible for funding because they were damaged as a result of the disaster.  The repairs to the Nine Large Burners and the Gas and Air Piping Valves are ineligible for funding because they were not damaged as a result of the disaster.

    Summary Paragraph

    Heavy rainfall that began on May 25, 2008 caused flooding on June 13, 2008 at the Water Pollution Control Facility, where the Applicant operates a sludge incinerator, and resulted in an emergency shutdown of the incinerator.  In August 2009, FEMA prepared a version of the PW9000 to fund replacement of the incinerator.  In March 2011, FEMA re-inspected the facility and determined: (1) certain components of the facility were not damaged as a result of the disaster; (2) at the time of the disaster, the facility was functioning at a lesser capacity than designed; and (3) certain improvements and code and standard upgrades were not eligible.  As a result of the inspection, in October 2011, FEMA prepared another version to the PW approving the revised repair estimate for the facility. In the first appeal, the Applicant requested FEMA find repair costs for eleven components of the incinerator eligible.  The Regional Administrator partially approved the first appeal.  On second appeal, the Applicant argues that repair costs associated four components should be found eligible.

    Authorities Discussed

    • 44 C.F.R. § 206.223(a)(1)

    • FEMA Disaster Assistance Policy DAP9524.4, Repair vs. Replacement of a Facility under 44 CFR §206.226(f) (The 50 Percent Rule) (Mar. 25, 2009)

    Headnotes

    • Under 44 CFR §206.223(a)(1), General work eligibility, in order to be eligible for financial assistance, an item of work must be required as the result of the emergency or major disaster event
      • The Applicant provided evidence that the WHRB and the LPO were damaged as a result of the disaster by substantiating the pre-disaster and post-disaster condition of the two components.  A review of affidavits from the Applicant’s engineer and employees demonstrate how these components were damaged after the disaster.  Therefore, these components are eligible for funding.
      • The Applicant failed to demonstrate that the Nine Large Burners or the Air and Gas Piping Valves were damaged as a result of the disaster.  The components were not submerged during the flooding, and the Applicant did not provide sufficient documentation to show that they were damaged.  Thus, those components are not eligible for public assistance funding. 
    Letter: 

    March 31, 2014

    Mark Schouten
    Administrator
    Iowa Homeland Security and Emergency Management Division
    7105 NW 70th Avenue
    Camp Dodge, Bldg. W-4
    Johnston, Iowa 50131-1824

    Re: Second Appeal – City of Cedar Rapids, PA ID 113-12000-00, FEMA-1763-DR-IA, Project Worksheet (PW) 9000 – Direct Result of Disaster

    Dear Mr. Schouten:

    This is in response to your letter dated November 28, 2012, which transmitted the referenced second appeal on behalf of the City of Cedar Rapids (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of reimbursement for costs related to repairing four components of an incinerator at its Water Pollution Control Facility.  The Applicant’s appeal does not include a specific amount in dispute.

    As explained in the enclosed analysis, the Applicant has demonstrated that repair of two of the four remaining incinerator components was required as the result of the disaster.  Therefore, I am partially granting this appeal.  By copy of this letter, I am requesting the Regional Administrator take appropriate action to implement this determination. 

    Please inform the Applicant of my decision.  This determination constitutes the final decision on this matter pursuant to 44 C.F.R. § 206.206.

    Sincerely,

    /s/

    Brad J. Kieserman
    Assistant Administrator
    Recovery Directorate

    Enclosure

    cc:  Beth Freeman
          Regional Administrator
          FEMA Region VII

    Analysis: 

    Background           

    On June 13, 2008, the Cedar Rapids Water Pollution Control Facility (WPCF) was flooded as a result of severe rainfall, which began on May 25, 2008.  That facility is owned and operated by the City of Cedar Rapids (Applicant).  The flooding inundated the basements of the sludge incinerator building with approximately 15 feet of water causing an operational failure at the WPCF and abrupt shutdown of the incinerator and ancillary equipment located on upper floors.  The flood waters damaged various components of the incinerator, which required the Applicant to haul additional sewage sludge to a landfill until the incinerator became operational.[1]  FEMA initially prepared PW 2774 to fund (1) the costs to haul and dispose of the sludge until the incinerator was operational and (2) emergency repairs to restore incinerator operations.  In March 2009, FEMA prepared Project Worksheet (PW) 9000 to reimburse the Applicant for repairs to the incinerator and other components.  In April 2009, FEMA prepared Version 1 to PW 9000 to fund additional permanent repairs and determined that some emergency repairs were temporary.  FEMA de-obligated the funding for the emergency repairs from PW 9000 and added the funding to PW 2774.  In August 2009, FEMA determined that the replacement of the incinerator was eligible in accordance with FEMA Disaster Assistance Policy DAP9524.4, Repair vs. Replacement of a Facility under 44 CFR §206.226(f) (The 50 Percent Rule) and prepared a second version to PW 9000 to fund the replacement ($29,455,000).

    On March 22, 2011, FEMA re-inspected the facility and determined: (1) certain components of the facility were not damaged as a result of the disaster; (2) at the time of the disaster, the facility was functioning at a lesser capacity than designed; and (3) certain improvements and code and standard upgrades were not eligible.  As a result of the inspection, FEMA developed a new cost estimate for the repair of components damaged by the event and also determined replacement of the facility was not eligible in accordance with the 50 Percent Rule.  In October 2011, FEMA prepared Version 3 to PW 9000 approving funding for the eligible repairs and including the eligible scope of work initially covered in PW 2774.  In approving PW 9000 Version 3, FEMA adjusted the eligible funding amount for repairs and sludge disposal to $8,106,635.  FEMA de-obligated all funds from PW 2774.

    First Appeal

    The Applicant submitted a first appeal on December 27, 2011, requesting reimbursement for repair and/or replacement costs for several components of the incinerator: (1) Waste Heat Recovery Boiler (WHRB); (2) High Pressure Process Air Compressor No. 2 (PAC No. 2); (3) Low Pressure Oxidation (LPO) System Third Stage Heat Exchanger Tube; (4) High Pressure Positive Displacement Pumps (HPP); (5) ID Fan Housing and Shroud; (6) Impingement Scrubber; (7) Sludge Combustion Air Fans and Retrofitted Ducts; (8) PLC Controller Panels; (9) Electrical Control Panels; (10) Nine large burners; and (11) Gas and Air Piping Valves.  The Applicant also requested additional funding for sludge hauling and disposal that occurred after July 30, 2009 (the date that the incinerator was able to operate at full capacity) because incinerator repairs continued to be made after that date.  The Applicant estimated the future costs of sludge disposal and argued that such costs should be added to the 50 Percent Rule calculation as part of the repair estimate.  The Grantee supported the Applicant’s appeal.

    On August 1, 2012, after considering all of the information provided by Applicant as well as various engineering and site visit reports generated by FEMA personnel, the FEMA Region VII Regional Administrator (RA) partially approved the first appeal, finding repair or replacement costs for seven of the eleven components were eligible for reimbursement, and increased the total eligible funding amount to $11,202,485.  The RA denied the Applicant’s request for repair or replacement costs related to the following components: (1) WHRB; (2) LPO System Third State Heat Exchanger Tubes; (3) Nine Large Burners and (4) Gas and Air Piping Valves.  With regard to the first two, the RA indicated that the pre-disaster condition of the components was “unclear,” and that the Applicant did not clearly demonstrate damages to them were a result of the declared disaster.  As for the nine large burners, the RA found that replacement costs were not eligible because they were not in compliance with environmental standards at the time of the disaster.  Finally, the RA found the gas and air piping valves to be ineligible because they were not flooded and did not require repairs. 

    The RA also found that the sludge hauling and disposal costs during the incinerator repairs were eligible, but did not consider them for purposes of the 50 Percent Rule calculation because those costs were not a direct repair or replacement of an item associated with the facility.[2]  Overall, based on a revised 50 Percent Rule calculation, adding in the additional eligible component repair and replacement costs, the RA determined that the replacement of the incinerator was not eligible. 

    Second Appeal

    The Applicant submitted a second appeal on September 28, 2012 and the Grantee indicated support for the appeal through its November 28, 2012 transmittal to FEMA.  Included with the second appeal was new information, not considered by the Regional Administrator, consisting of affidavits from the Applicant’s employees, state and county employees that regulate operations at the Applicant’s facility, and employees from Brown and Caldwell (B&C), the engineering firm consulting the Applicant in making determinations about component repairs and replacements at the facility.  The Applicant also provided for the first time copies of inspection certificates, invoices from cleaning services, and doctrine associated with principles for the cold shutdown of the incinerator.[3]

    In the second appeal, the Applicant maintains that the costs related to the remaining four components are eligible for reimbursement.  In asserting that the WHRB should be eligible for repair or replacement of damages that were the result of the disaster, the Applicant argues that the WHRB was in good condition before the flood and submitted certificates indicating passage of state inspections for the two years preceding the disaster to substantiate this claim.  Further, the Applicant documented that it cleaned the WHRB on July 31, 2008, and again on November 24, 2008.  Approximately 15 months after the disaster, the Applicant sought bids to address problems with the WHRB.  Within those bidding documents, the Applicant indicated that the WHRB “required significant repairs of leaks after sitting idle for 9 months.” 

    With regard to the LPO, the Applicant indicates that the emergency shutdown of the incinerator resulted in sludge remaining inside of the LPO tubes and not being removed for an extended period of time.  The Applicant explains that the sludge corroded the tubes and the “dried” sludge within the tubes can only be cleaned by double chemical washes.  The Applicant states that it did not perform double chemical washes before the flood and started chemical washes more than one year after the flood in the fall of 2009.   

    The Applicant also argues that the costs associated with replacing the nine large burners and the burner gas and air piping valves should be reimbursed.  While the Applicant concedes that flood waters did not submerge these components, it argues that FEMA should fund the repairs because they work in conjunction with parts of the Programmable Logic Controller (PLC).  The Applicant notes that FEMA funded replacement of the PLC components that were inundated during the event and that components that were not submerged had problems working with the replaced PLC components after the incinerator was restarted.  The Applicant asserts that if the incinerator continues to operate without the replacement parts for the nine large burners and the burner gas and air piping valves, then it will have problems meeting emission standards.  The Applicant also notes that it complied with environmental standards before the flood. 

    Discussion

    Waste Heat Recovery Boiler and Low Pressure Oxidation System Third State Heat Exchanger Tube

    Pursuant to Title 44 of the Code of Federal Regulations (44 CFR) 206.223(a)(1), General work eligibility, to be eligible for financial assistance, an item of work must be required as the result of the emergency or major disaster event.  The RA found that the Applicant did not substantiate the pre-disaster condition of the WHRB or the LPO nor clearly demonstrate the damages incurred were the result of the declared disaster.  In its second appeal, the Applicant demonstrated that the WHRB was in good working condition before the disaster based on passing inspections the two years preceding the disaster.  The Applicant provided boiler inspection notices in its second appeal demonstrating those results.  Additional information provided with the second appeal indicated that the WHRB was damaged as a result of the disaster.  The Grantee also provided an affidavit from a subcontractor hired to run a test of the WHRB, which indicated that a test of the component was run following the event, and it failed.[4]

    Through a review of all of the information submitted by the Applicant, both with its first appeal and new documentation supporting its second, FEMA finds that the WHRB was damaged as a result of the disaster, which caused an emergency shutdown of the incinerator and prolonged outage following the event.  Specifically, a B&C engineer stated that the WHRB experienced numerous leaks and mechanical valve failures due to a prolonged outage period in the immediate aftermath of the flood.[5]   Another B&C engineer also indicated that a normal incinerator shutdown can take several days and that, as a result of an emergency shutdown, “hot steam, baking sludge, and abrupt material expansion and contraction due to rapid thermal changes will otherwise damage the components of the incineration system.”[6]  To further support its point, the Applicant provided the incinerator shutdown principles with both its first and second appeal.  In a September 13, 2011 letter from the Applicant to the Grantee, the Applicant noted the several ways that the WHRB was damaged after the flood and why making repairs to the boiler did not happen immediately after the flood.  The Applicant stated that when power was lost, superheated water was trapped inside the boiler and the feed lines.  The Applicant indicated that flushing water with chemical stabilizers and corrosion inhibitors could not be circulated through the system due to the loss of power and controls to the recirculation pumps and water softening process.  The Applicant stated that the WHRB remained in an unstable state until power was restored, which was nine months after the flood.  Therefore, the Applicant through its first and second appeals provided support for its assertion that the WHRB was in good condition before the disaster, and it required repairs as result of the disaster. 

    In a January 21, 2009 B&C Memorandum submitted with the first and second appeals, B&C indicated that the WHRB provides steam to the LPO.  As the LPO’s operation is linked to the WHRB’s operation, the LPO was damaged because the WHRB was damaged.  Regarding the LPO, the Applicant in its second appeal submission provided some indication as to the condition of the LPO before the flood.  Specifically, the Utilities Plant Manager at the Applicant’s facility stated that the LPO was regularly chemically cleaned.[7]  In the above-mentioned September 13, 2011 letter submitted with the first appeal, the Applicant explained that the cool shutdown of LPO component takes four to five days.  As stated above, the immediate shutdown did not allow the plant managers to perform the proper cool shutdown of the system, which would have allowed the Applicant to remove any sludge that was being processed.  Through consultation with the LPO’s manufacturer, it was confirmed that an immediate shutdown in all likelihood would have caused a scale buildup on all tube surfaces.[8]

    As such, based upon previously considered and substantive, new information provided by the Applicant, sufficient evidence has been provided to demonstrate that the damage to the LPO was a result of the disaster.  Additionally, Applicant’s explanation that “the power and control for the pumps and compressors that feed the LPO was not fully restored and/or energized for many months following the flood, preventing staff from flushing the lines, reactors and heat exchangers” adequately explains why it was not able to clear sludge from the tubes sooner.[9]  Therefore, the Applicant has provided information about the condition of the LPO before the disaster and the damage that the LPO suffered as a result of the disaster.

    In both instances, the Applicant demonstrated that the repair of the components was required as a result of the disaster.  Therefore, the repair and/or replacement of these components is eligible for Public Assistance funding.

    Nine Large Burners

    The RA found that the burners were not flooded, that the damages were attributable to the age of the burners, and the Applicant did not demonstrate that the burners complied with applicable air emission standards in effect at the time of the disaster.  The Applicant has not demonstrated that the burners were flooded or required repairs as a result of the disaster.  In the January 21, 2009 Technical Memorandum, B & C indicated that the burners were not flooded but that replacing the burners would allow the Applicant to meet updated air pollution regulations and permits. The Applicant further indicated that the incinerator would have difficulty meeting air emission standards if the burners were not replaced.  As stated above, public assistance applicants need to demonstrate that repairs were required as a result of the disaster, not that repairs are required to meet air emission standards.  The Applicant has not shown that repair of the nine burners was required as a result of the disaster.  Therefore, repair or replacement of the nine burners is not eligible for Public Assistance funding.      

    Gas and Air Piping Valves

    The RA found that the gas and air piping valves were not flooded and did not require repairs as a result of the disaster.   The Applicant indicated that when it restarted the incinerator after replacing the damaged PLC components, the gas and air piping valves experienced various operational issues.  While the Applicant asserts that the operational issues occurred because the non-damaged components were not able to function properly with the newer, replaced components, it did not provide adequate documentation to demonstrate the gas and air piping valves were damaged or required repair as a result of the disaster.  None of the affidavits or the reports submitted with the second appeal sufficiently addressed damage to the gas and air piping valves.  Therefore, repair of the gas and air piping valves is not eligible for funding.      

    Conclusion

    The Applicant provided information necessary to demonstrate that repairs to both the WHRB and the LPO are required as a result of damage caused by the disaster.  As such, repair of the two components in question are eligible for public assistance funding.  The remaining two components, the nine burners and the gas and air piping valves, are ineligible for public assistance funding. 


    [1] Before the disaster, the Applicant incinerated most of the sludge but a portion was stockpiled, hauled away and land applied for agricultural purposes.  In PW 2774, FEMA captured costs and obligated funding for sludge hauling and disposal during emergency repairs at the facility.  The Applicant requested additional funding for sludge hauling and disposal while the Applicant was making permanent repairs to the facility.  

    [2] Page 36 of the Public Assistance Guide, FEMA 322, dated June 2007.

    [3] On second appeal, Applicant re-submitted some documents that were part of its first appeal including instructions for the cold shutdown of the incinerator and a January 21, 2009 Brown and Caldwell technical memorandum.

    [4] Jerry Dietsch Affidavit, dated November 27, 2012 (submitted with the second appeal).

    [5] Adam Keckler Affidavit, dated February 21, 2012 (submitted with the first appeal).

    [6] Brian Copeland Affidavit, dated February 22, 2012 (submitted with the first appeal).

    [7] Roy Hesemann Affidavit, dated September 28, 2012 (submitted with the second appeal).

    [8] Brian Copeland Affidavit, dated February 22, 2012 (submitted with the first appeal).

    [9] September 13, 2011 Letter from the Applicant to the Grantee (submitted with the first appeal).

     



 

Latest Events

No events

Who's Online

We have 9 guests online
© 2012 Minnesota ARES- Site Developed by Kevin Haney