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  • Sewer Lift Station Repairs
    Appeal Type: 
    2nd
    Report Type: 
    PW
    Appeal Categories: 
    Applicant Name: 
    City of Minot
    Disaster Number: 
    1981-DR-ND
    DSR: 
    4744 and 4745
    Date Signed: 
    Tuesday, December 2, 2014
    PA ID: 
    101-53380-00
    Summary/Brief: 

     

    Conclusion: The contracted electrical repair work was necessary to restore the City of Minot’s (Applicant) lift stations and the bid costs were reasonable.  The cost increase related to the change in scope of work approved at first appeal is eligible; however, as these are small projects, the cost increase not associated with scope changes must be requested through small project netting.  The Applicant did not substantiate that claimed costs for engineering and design services were tied to the approved scope of work.  Further, heating and ventilation system upgrades performed at both lift stations were not required by a code or standard and are not eligible for funding.

    Summary Paragraph

    The Applicant’s Carney and Burdick Lift Stations were damaged during a 2011 flood event.  FEMA prepared PWs 4744 and 4745 for the permanent repairs to the damaged pumps and electrical and mechanical components at each lift station. The Applicant’s first appeals asserted that the funding approved was for emergency repair and did not include costs for permanent repairs or required code upgrades for certain mechanical components.  The Applicant also requested funding for engineering and design services for each lift station.  FEMA partially approved the appeal, providing additional estimated costs for permanent repairs and engineering and design services, but denied funding for upgrades to the mechanical components because they were not required by codes or standards.  The Applicant’s second appeal asserted that the plans provided to FEMA included a detailed description of the permanent electrical repairs and that the PWs did not encompass all of the necessary repair work.  The Applicant also asserted that FEMA underestimated project costs; the mechanical upgrades were required by code; and that its design engineer evenly divided actual costs for work performed for multiple facilities at each impacted ones.

    Authorities Discussed

    • 44 C.F.R. § 206.204(e)(2).
    • 44 C.F.R. § 206.226(d).
    • PA Guide, at 40.

    Headnotes

    • 44 C.F.R. § 206.204(e)(2) provides that the applicant may submit an appeal for additional funding for small projects within 60 days following the completion of all its small projects
    • 44 C.F.R. § 206.226(d) provides that codes and standards must apply to the type of repair required.  The standards referenced in the Applicant’s appeals provide recommendations for the safe design of wastewater treatment facilities, but neither standard requires upgrades to damaged components of a ventilation system.
    • The PA Guide states that costs must be directly tied to the performance of eligible work
      • The Applicant failed to demonstrate its claimed costs for engineering and design services were directly tied to the approved scope of work. 
    • The contracted electrical repair work was necessary to restore the lift stations and the bid costs were reasonable.
      • A technical specialist reviewed the documented damage descriptions and repair work detailed in the bid documents and determined the electrical work described in the plans and specifications was necessary to repair the lift stations and the bid costs for that work were reasonable.


     

    •  
    Letter: 
     

    December 2, 2014

    Major General David Sprynczynatyk
    Director
    North Dakota Department of Emergency Services
    PO Box 5511
    Bismarck, North Dakota 58506-5511

    Re:  Second Appeal – City of Minot, PA ID 101-53380-00, Sewer Lift Station Repairs, FEMA-1981-DR-ND, Project Worksheets (PW) 4744 and 4745

    Dear General Sprynczynatyk:

    This is in response to letters from your office dated February 11, 2013, transmitting the referenced City of Minot (Applicant) second appeals.  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of a portion of the funding requested for repairs to the Carney and Burdick Lift Stations, $95,734.78 and $63,750.84, respectively.

    As explained in the enclosed analysis, cost increases for small projects must be addressed through a net small project overrun. As such, the additional cost for such repairs in PWs 4744 and 4745, including the explosion proof lights, should be addressed in a request for a net small project overrun.  However, I have determined that the bid cost for an additional $23,443.00 for the electrical repairs for PW 4744, associated with changes of scope approved at first appeal is reasonable.

    With regard to the Applicant’s request for the actual costs for engineering and design services for each lift station, the amount claimed may be reasonable based on the eligible work performed.  However, because the Applicant did not demonstrate that the costs claimed are directly related to the repair of the specific lift stations, FEMA applied the cost curves for above-average complexity projects, to estimate additional costs of $10,475.00 for PW 4744 and $3,661.00 for PW 4745. 

    Lastly, the heating and ventilation system upgrades performed at both lift stations were not required by a formally adopted code or standard.  Consequently, these costs are not eligible.

    Accordingly, I am partially granting the two appeals for PW 4744 and 4745 in the amount of $37,579.00. 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 CFR § 206.206, Appeals.

    Sincerely,

    /s/

    William W. Roche
    Director
    Recovery Directorate

    Enclosure

    cc:  Sharon Loper
           Acting Regional Administrator
           FEMA Region VIII

    Analysis: 

    Background

    During the flooding event that occurred from February 14 to July 20, 2011, numerous sanitary sewer and storm water lift stations owned and operated by the City of Minot (Applicant) were inundated and damaged.  This analysis collectively addresses the appeals related to Project Worksheets (PWs) 4744 and 4745 that were prepared for repairs to the Carney and Burdick Lift Stations, respectively. 

    Carney Lift Station

    The Carney Lift Station is comprised of a wet and dry well and a one-story well house.  The flooding filled the 25.5-foot deep wet and dry wells and inundated the well house to a depth of six feet.  The flooding damaged two pumps in the dry well, two electric motors in the motor house, ventilation fans in the wet and dry wells, and associated electrical and mechanical equipment.  FEMA prepared PW 4744 for $11,730.91 for the permanent repairs to the damaged pumps and electrical and mechanical components.

    Burdick Lift Station

    The Burdick Lift Station is also comprised of a wet and dry well and a one-story well house.  The flooding inundated the well house to a depth of two feet and damaged ventilation fans in the wet and dry wells, two motor starters for the sewage pumps, and associated electrical and mechanical equipment.  The sewage pumps in the dry well were not submerged or damaged.   FEMA prepared PW 4745 for $17,812.11 for the permanent repairs to the damaged electrical and mechanical components.

    First Appeal

    Carney Lift Station- PW 4744

    The Applicant submitted a first appeal of PW 4744 on May 21, 2012, asserting the funding approved did not include costs for all required permanent repairs. The Applicant requested approval of an additional $121,262.78, including $47,696.00 for repairs to the electrical system, $33,400.02 for upgrades to the heating and ventilation systems, $18,253.96 for engineering and design, and $21,912.80 for cost adjustments to account for the bid cost of the approved scope of work.

    On October 31, 2012, the FEMA Region VIII Regional Administrator (RA) partially approved the appeal providing an additional $25,446.00 for permanent repairs to the electrical system and engineering and design services.  The RA first requested additional information regarding the Applicant’s bid process, the bids received, and a detailed description of the permanent repairs.  The Applicant did not provide all of the requested information.  FEMA reviewed the available documentation and determined that PW 4744 did not include all of the eligible electrical scope of work items.  The RA approved $19,801.00 for the additional eligible scope of work items based on a cost estimate FEMA developed using RS Means.  Further, FEMA used its Engineering and Design Services of Average Complexity graph[1] to estimate $4,490.00 for engineering and design services because the Applicant’s requested amount was based on a percentage of its overall engineering and design costs for all damaged lift station repairs. 

    The RA denied most of the Applicant’s request for additional funding to repair heating and ventilation systems.  While the RA approved $655.00 for the repair of damaged controls, the remaining requested funding associated with upgrades to the heating and ventilation system that the Applicant asserted was required by code was denied.  The RA determined that the extent of the repair of disaster damage did not trigger the referenced code and standard requirements and consequently the work associated with the upgrades was not eligible for funding.  The RA also found that the work associated with upgrading the facility from electric to gas heat was ineligible because it was not required by code.

    Lastly, the RA denied the additional funding requested to adjust approved costs in accordance with bid costs.  The RA found that because PW 4744 is a small project, cost adjustments should be handled through a request for a net small project overrun.

    Burdick Lift Station- PW 4745

    The Applicant submitted a first appeal of PW 4745 on July 2, 2012, stating that the funding approved did not include the cost of all required permanent repairs. The Applicant requested approval of an additional $74,819.84, including $50,706.02 for upgrades to the heating and ventilation systems, $18,253.96 for engineering and design, and $5,859.86 for cost adjustments to account for the bid cost of the approved scope of work.

    On October 31, 2012, the RA partially approved the appeal providing an additional $10,484.00 for permanent repairs to the ventilation system and engineering and design services.  As it did for the PW 4744 appeal issues, the RA first requested additional information regarding the Applicant’s bid process, the bids received, and a detailed description of the permanent repairs.  Similarly, when the Applicant did not provide all of the requested information, FEMA reviewed the available documentation and determined PW 4745 did not include all of the eligible scope of work items.  To remedy such, the RA approved $6,581.00 for the additional eligible scope of work items based on a cost estimate FEMA developed using RS Means.  Further,  FEMA applied its policy based Engineering and Design Services of Average Complexity graph[2] to estimate $3,903.00 for engineering and design services because the Applicant’s requested amount was based on a percentage of its overall engineering and design costs for all damaged lift station repairs.

    The RA denied the majority of the Applicant’s request for additional funding for repair to the heating and ventilation systems but approved $1,310.00 for the repair of damaged controls.  The remaining funding requested was associated with upgrades to the heating and ventilation system that the Applicant asserted was required by code.  Like it did for PW 4744, the RA determined that the extent of the repair of disaster damage did not trigger the referenced code and standard requirements and the work associated with the upgrades therefore was not eligible for funding.  Similarly, the RA determined that work associated with upgrading the facility from electric to gas heat was not required by code and consequently not eligible for funding. 

    Finally, the RA denied the additional funding requested to adjust approved costs in accordance with bid costs.  Like PW 4744, the RA found that PW 4745 is a small project and consequently cost adjustments should be handled through a request for a net small project overrun.

    Second Appeal

    Carney Lift Station- PW 4744

    On December 18, 2012, the Applicant submitted a second appeal of the scope of work and funding provided in PW 4744, arguing for $95,734.78 in additional funding based on bid costs for electrical (including explosion proof lights) and mechanical repairs and code upgrades and the actual cost for engineering and design services.  The Applicant asserts that the plans and specifications provided to FEMA included a detailed description of the necessary permanent repairs and that the scope of work of PW 4744 did not encompass all of the repair work nor code mandated upgrades required to restore the lift station.  Further, the Applicant, maintaining it procured the contract for the work properly and competitively, asserts that FEMA’s approach of using RS Means to develop the cost of the repairs FEMA approved in PW 4744 underestimated the project costs.  The Applicant maintains it competitively bid the lump sum contract for the electrical and mechanical work based on items detailed on the plans and specifications and therefore the eligible cost should be based on the bid cost for the detailed work.  While the contracts are lump sum contracts for both the electrical work and the mechanical work at multiple lift stations, the Applicant provided a breakdown of the bid cost by site.

    Regarding the code upgrades, the Applicant asserts that the heating and ventilation fans and motors damaged by the flood did not provide enough air flow to meet National Fire Protection Association 820 (NFPA 820), Standard for Fire Protection in Wastewater Treatment and Collection Facilities, and the Ten States Standards (Ten States), Recommended Standards for Wastewater Facilities.  In addition, the Applicant states that the existing ductwork was not large enough to distribute sufficient air flow generated by the larger fans.  The Applicant replaced the entire system to ventilate the lift station and the Applicant argues the upgrades were triggered by NFPA 820 and Ten States ventilation standards.  The Applicant also installed a new makeup air unit (MAU) to provide sufficient airflow and connected the new MAU to gas heating and asserts in its appeal that a “connection to gas service is more cost effective than attempting to heat the increased influent air flow by ceiling-mounted electric heaters.”

    With respect to engineering and design services, the Applicant objects to FEMA’s application of Curve B (average complexity) rather than Curve A (above average complexity) to the Engineering and Design Services graph in its Public Assistance Guide to estimate costs because FEMA’s policy describes pumping stations within Curve A activities.[3]  Further, the Applicant asserts the cost curves do not include expenses for bidding services and shop drawing reviews, which are services its design engineer performed.  Finally, the Applicant explains that its approach of using one engineering and design firm for all of its damaged lift stations was less expensive than procuring engineering and design services for each lift station and that its design engineer divided costs for activities performed that impacted multiple facilities evenly against each impacted facility.

    Burdick Lift Station- PW 4745

    The Applicant submitted its second appeal of the scope of work and funding provided in PW 4745 on December 27, 2012.   Through it, the Applicant is requesting $63,750.84 in additional funding based on bid costs for explosion proof lights (no additional electrical work included in appeal), mechanical repairs and code upgrades and the actual costs for engineering and design services.  The Applicant asserts that the plans and specifications provided to FEMA included detailed descriptions of the permanent repairs and that the scope of work of PW 4745 did not encompass all of the necessary repair work and code mandated upgrades.  Further, the Applicant, maintaining it procured the contract for the work properly and competitively, argues that FEMA’s approach of using RS Means to develop the cost of the repairs that FEMA approved in PW 4745 underestimated the project costs.  The Applicant asserts it competitively bid the lump sum contract for the electrical (including replacement of explosion proof lights) and mechanical work based on work detailed on the plans and specifications and therefore the eligible cost should be based on the bid cost for the detailed work.  While the contracts are lump sum contracts for both the electrical work and the mechanical work at multiple lift stations, the Applicant provided a breakdown of the bid cost by site.  Regarding the code upgrades and engineering and designs services, the Applicant reiterates the position advanced in its appeal for PW 4744. 

    Discussion

    Electrical Repairs

    Pursuant to Title 44 Code of Federal Regulation (C.F.R.) § 206.206(d), FEMA submitted the appeal documentation for PWs 4744 and 4745 to a specialist with expertise in electrical components of lift stations for technical review.  Based upon information received through that process as well as review of all materials included with the appeal process, FEMA finds that the electrical work detailed in the plans and specifications was necessary to repair the lift stations. Regarding PW 4744, at first appeal the Applicant requested $26,693.00 for an omitted control panel and safety disconnect.  FEMA approved the additional scope of work, calculating the cost as $3,250.00 using RS Means. Upon review, FEMA finds the bid costs to be reasonable, and as such the remaining $23,443.00 is eligible.  

    As to the electrical repairs covered in PW 4745 (Burdick Lift Station), the Applicant’s appeal addresses only the replacement of the explosion proof lights, not all electrical repairs.  FEMA has approved $5,484.00 for the demolition and replacement of four explosion proof lights, while the Applicant states that the bid cost for the lights is $14,081.00.  The Applicant provided a spreadsheet which includes the bid cost of the lights as a line item, but provided no source documentation for that entry.  As this item is requested as a cost increase and not a change in scope of work, the Applicant should include this increase in a request for a net small project overrun, however, sufficient documentation supporting the actual cost of the explosion proof lights would need to be provided. 

    HVAC Upgrades

    Section 406(e)(1) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act authorizes FEMA to reimburse an eligible applicant for the “cost of repairing, restoring, reconstructing, or replacing a public facility or private nonprofit facility on the basis of the design of such facility as it existed immediately prior to the major disaster and in conformity with current applicable codes, specifications, and standards.” [4]  However, for costs related to repair or replacement standards that change the predisaster construction of a facility to be eligible, the standards must:

    (1) Apply to the type of repair or restoration required[ ] (Standards may be different for new construction and repair work)[;] (2) Be appropriate to the predisaster use of the facility; (3) (i) Be found reasonable, in writing, and formally adopted and implemented by the State or local government on or before the disaster declaration date or be a legal Federal requirement applicable to the type of restoration…. (4) Apply uniformly to all similar types of facilities within the jurisdiction of [the] owner of the facility; and (5) For any standard in effect at the time of a disaster, it must have been enforced during the time it was in effect.[5]

    The Applicant asserts that NFPA 820 and the Ten States ventilation standards “are triggers requiring upgrades to the fans, motors, and ductwork,” and new makeup air units (MAU) were also required to provide sufficient airflow as required by the standards.  The Applicant’s consultant prepared a Technical Memorandum titled Lift Station – Required HVAC Code Compliance Upgrades (March 7, 2012) which states that both Carney and Burdick Lift Stations “had mechanical HVAC systems submerged,” and “must have the required repairs brought up to current HVAC code.”  The memo states that the ventilation systems in both lift stations should be replaced to comply with ventilation rates recommended in NFPA 820, because the fans, motors, and the ductwork are not large enough to handle the current ventilation standards.  While such recommendations may be sound and prudent, they do not equate to legally enforceable or enforced codes or standards for purposes of eligibility for Public Assistance grants.[6]   

    Moreover, codes and standards must apply to the type of repair required.[7]  Both NFPA 820 and the Ten States standards provide recommendations for the safe design of wastewater treatment facilities.  However, neither the NFPA 820 nor the Ten States standards require upgrades to damaged components of a ventilation system to meet the safety requirements set forth in the standards.  Engineering design firms are obligated to follow safety standards such as those set forth in NFPA 820 and Ten States when designing wastewater treatment facilities; however, neither NFPA 820 nor Ten States standards apply to the repair of damaged ventilation system components.  In the first appeal response, the FEMA Region VIII Regional Administrator stated that the damaged fans and motors were repairable and the ductwork was not damaged.  Further, there is no documentation to support that the MAUs in either lift station were damaged and required replacement.  The Applicant does not contest these facts in its appeal, but only asserts that the components were undersized and had to be replaced to meet current NFPA 820 and Ten States requirements.

    It is the Applicant’s responsibility to provide documented justification supporting its position.[8] The Applicant did not provide documentation demonstrating that upgrades of the damaged ventilation systems at the Carney and Burdick Lift Stations were required by a formally adopted code or standard.  Therefore, the costs associated with those upgrades are not eligible for funding.  Further, the work associated with the connection of the new MAUs to gas heating was not required as the result of the disaster and is not eligible for funding. [9]

    Engineering and Design Services    

    The Applicant requests $18,253.96 for engineering and design services for each lift station based on its total actual costs divided amongst all facilities addressed in its contract for engineering and design services.  The PA Guide provides that “costs that can be directly tied to the performance of eligible work are eligible.”[10]  The Applicant has not substantiated that the amount requested is directly related to the repair of the specific lift stations.  At first appeal, FEMA calculated the engineering and design services using the PA Guide Curve B for projects of average complexity.[11]  The Applicant has correctly stated that pumping stations should be calculated with Curve A for projects of above-average complexity.[12]  The engineering and design cost for PW 4745 is increased by $3,661.00 for a total of $7,564.00; and for PW 4744 by $10,475.00 for a total of $15,465.00.

    Conclusion

    The Applicant followed competitive procurement procedures for the repair of the Carney and Burdick Lift Stations and demonstrated that the contracted electrical repair work was necessary to restore both lift stations.  The cost increase related to the change in scope of work approved at first appeal is eligible in the amount of $23,443.00 for PW 4744.  However, as mentioned in the first appeal response, since both projects are small projects, the cost increase not associated with scope changes, including the explosion proof lights, must be requested through a small project netting. [13]  Regarding the ventilation system upgrades performed at both lift stations, the standards referenced in the Applicant’s appeals do not apply to the repair of the damaged ventilation system components nor has the Applicant sufficiently demonstrated that the state of North Dakota or the City of Minot has formally adopted the standards.  Therefore, all work associated with the ventilation system upgrades is not eligible.  Finally, while the amount claimed by the Applicant for engineering and design services at each lift station may be reasonable, the Applicant did not demonstrate that the costs are directly related to the repair of each specific lift station.  As such, FEMA recalculated these costs applying appropriate cost curves for an additional amount of $3,661.00 for PW 4745 and $10,475.00 for PW 4744.


    [1] See Public Assistance Guide, FEMA 322, at 60 (June 2007) [hereinafter PA Guide].

    [2] Id.

    [3] PA Guide, supra note 1 at 57-60.

    [4] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 406, 42 U.S.C. § 5172 (2007).

    [5] 44 C.F.R. § 206.226(d).

    [6] During the review of the Applicant’s second appeal documentation, FEMA requested additional information from the Grantee to confirm if either the State of North Dakota or City of Minot formally adopted NFPA 820 or Ten States as state or local codes in accordance with 44 CFR §206.226(d)(3).  The Grantee forwarded a response from the Applicant’s design engineer that indicated that the state of North Dakota had formally adopted Ten States, but did not confirm the assertion.  Regarding NFPA 820, in the request for additional information, FEMA specifically requested “information and supporting documentation regarding the authority having jurisdiction for enforcing NFPA 820 in the City of Minot and information and supporting documentation regarding any evaluations/assessments performed by that authority addressing the condition of the ventilation systems at the Burdick and Carney Sanitary Lift Stations post event.”  The response was silent on the matter.  In an attempt to validate if the NFPA 820 or Ten States Standards had been formally adopted, FEMA’s Professional Engineer searched State, local and the City Engineer’s web sites, and found no formal adoption of them.

    [7] 44 C.F.R. § 206.226(d)(1).

    [8] 44 C.F.R § 206.206(a).

    [9] See 44 C.F.R. § 206.223(a)(1).

    [10] PA Guide, at 40.

    [11] PA Guide, at 60.

    [12] PA Guide, at 58.

    [13] PA Guide, at 109.  (“[I]f the applicant incurs costs significantly greater than the total amount approved for all small projects, the applicant may appeal for additional funding.”) (emphasis in original).

     



  • Slope Stabilization – Immediate Threat
    Appeal Type: 
    2nd
    Report Type: 
    PW
    Appeal Categories: 
    Applicant Name: 
    Town of Boonton
    Disaster Number: 
    4021-DR-NJ
    DSR: 
    1539
    Date Signed: 
    Wednesday, November 5, 2014
    PA ID: 
    027-06610-00
    Summary/Brief: 

    Conclusion:  On second appeal, the Town of Boonton (Applicant) fails to demonstrate that the slope failure caused by Hurricane Irene presents an immediate threat to life or improved property. 

    Summary Paragraph

    In August 2011, rain and flooding resulting from Hurricane Irene caused the Applicant’s slope, located at Grace Lord Park, to fail.  The Applicant requested PA funding for emergency protective measures, including placing large Rip Rap along the base of the of the slope failure, to stabilize it. In PW 1539, FEMA determined that emergency protective measures to stabilize the slope were ineligible because of the lack of immediate threat to improved property, required by 44 C.F.R. § 206.221(c) and FEMA RP 9524.2.  In the first appeal, the Applicant asserted that the slope failure was the result of erosion due to flood waters caused by Hurricane Irene.  In addition, the Applicant asserted that, based on U.S. Geological Survey (USGS) records, additional erosion caused by future flooding could reasonably result in a threat to lives and improved property.  The Region II Acting Regional Administrator (RA) denied the appeal because “it was determined that the 600 foot section of failed slope… is a Natural Ground Slope and is classified as an unimproved earthen material which has not been reworked, mechanically altered or improved.”  In addition, the Acting RA agreed with the initial determination that the slope failure did not present an immediate threat to life or improved property.  In the second appeal, the Applicant asserts that the slope failure presents an immediate threat to improved property.   

    Authorities and Second Appeals

    • Stafford Act § 403, 42 U.S.C. § 5170b.
    • 44 CFR § 206.201(b).
    • 44 CFR § 206.204(c), (d).
    • 44 CFR § 206.225(a).
    • 44 CFR § 206.221(c).
    • PA Guide, at 1, 2, 29, 71, 74.
    • RP 9524.2, Landslides and Slope Stability Related to Public Facilities, at 5.

    Headnotes

    • Stafford Act § 403 authorizes FEMA to “provide assistance essential to meeting immediate threats to life and property resulting from a major disaster.”
    • Pursuant to 44 C.F.R. § 206.225(a), emergency protective measures to save lives, to protect public health and safety, and to protect improved property are eligible for PA funding.
    • Under 44 C.F.R. § 206.204(c), emergency work must be completed within six months of a disaster unless extenuating circumstances are present.
      • The Applicant failed to implement any emergency protective measures to stabilize its slope more than 32 months after Hurricane Irene occurred.
    • According to the PA Guide at 2, recovery actions should not be dependent upon whether there will be Federal assistance.
      • The Applicant asserts that, due to FEMA’s lack of diligence, it has not yet implemented emergency protective measures to stabilize its slope.
      • Anticipation of a FEMA eligibility determination is not a basis for delay of emergency work.
    • According to the PA Guide at 71, FEMA considers emergency protective measures to include activities undertaken by a community before, during, and following a disaster to eliminate or reduce an immediate threat to improved public or private property.
      • The Applicant failed to demonstrate that the slope failure presents an immediate threat to improved property.
    Letter: 

    November 5, 2014

    Christian Schulz
    Assistant Deputy State Director
    New Jersey Office of Emergency Management
    P.O. Box 7086
    River RD
    West Trenton, NJ 08628-0068

    Re: Second Appeal – Town of Boonton, FEMA-4021-DR-NJ, PA ID 027-06610-00, Project Worksheet (PW) 1539 – Slope Stabilization – Immediate Threat

    Dear Mr. Schulz:

    This is in response to a letter from your office dated September 23, 2013, which transmitted the referenced second appeal on behalf of the Town of Boonton (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding in connection with the stabilization of a slope at Grace Lord Park.

    As explained in the enclosed analysis, I have determined that the Applicant failed to provide sufficient documentation demonstrating that an immediate threat to life or improved property existed as a result of the slope failure.  Therefore, I am denying the 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/

    William W. Roche
    Director
    Public Assistance Division

    Enclosure

    cc:  Jerome Hatfield
           Regional Administrator
           FEMA Region II

    Analysis: 

    Background

    In August 2011, rain and flooding resulting from Hurricane Irene caused a slope, located at Grace Lord Park, in the Town of Boonton (Applicant) to fail.  As an emergency protective measure, the Applicant requested FEMA Public Assistance (PA) funding to install Shotroc Fill (large Rip Rap) along the base of the slope failure, approximately 600 feet long.  A FEMA Geotechnical Specialist conducted a site visit on November 9, 2011 and reported that “support loss from the lower slope… will not need Emergency Work repairs to minimize the continued erosion of the slope…”[1]  In PW 1539, FEMA determined that emergency protective measures to stabilize the slope were ineligible because of the lack of immediate threat to improved property, as per Title 44 of the Federal Code of Regulations (44 C.F.R.) § 206.221(c) and FEMA Recovery Policy (RP) 9524.2, Landslides and Slope Stability Related to Public Facilities.[2]

    First Appeal

    In a first appeal letter submitted January 27, 2012, the Applicant claims that the slope failure represents an immediate threat to improved property.  The Applicant asserted that the slope failure was the result of erosion due to flood waters caused by Hurricane Irene.  The Applicant asserted that, by hiring a geotechnical consultant and completing an extensive report authored by its engineer, it took quick action to investigate the cause of the slope failure.  In addition, the Applicant asserted that, based on U.S. Geological Survey (USGS) records, additional erosion caused by future flooding could reasonably result in a threat to lives and improved property.

    The FEMA Region II Acting Regional Administrator (RA) denied the first appeal on June 19, 2012 finding that “the 600 foot section of failed slope… is a Natural Ground Slope and is classified as an unimproved earthen material which has not been reworked, mechanically altered or improved.”  In addition, the Acting RA agreed with the initial determination that the slope failure did not present an immediate threat to life or improved property.

    Second Appeal

    The Applicant argues in a second appeal letter, dated January 7, 2013, that the slope failure does present an immediate threat to improved property.  In support of this claim, the Applicant sites to a Geotechnical Investigation Report (hereinafter “October 2011 Report”) issued by SESI Consulting Engineers (consulting engineers) that states, it is our opinion that there is an adequate factor of safety against a global stability failure for the existing residents located above the slope failure area; however, unless emergency protective measures are implemented, the slope will continue to erode and the factor of safety will continue to be reduced to a point that an inadequate factor of safety will be present.[3]

    The October 2011 Report also states, “Besides the damage to the Town’s property, there are four homes that could be impacted should the slope continue to erode”[4]  and recommends that emergency measures—such as placing shotrock fill along the base of the slope, conducting soil borings, soil testing and stability analysis, and blocking off a minimum of 50 feet above the top of the slope to prevent unauthorized access—be performed.[5]  Along with the consulting engineers’ recommendation to implement emergency protective measures, the October 2011 Report also provides pictures of the damaged site and cost estimates to complete the emergency work.[6]

    Discussion

    Emergency Work

    Pursuant to 44 C.F.R. § 206.201(b), emergency work means work which must be done immediately to save lives and to protect improved property and public health and safety, or to avert or lessen the threat of a major disaster.  FEMA classifies debris removal and emergency protective measures as “emergency work.”[7]

    Pursuant to 44 C.F.R. § 206.225(a), emergency protective measures to save lives, to protect public health and safety, and to protect improved property are eligible for PA funding.  Emergency protective measures to protect lives or improved property include, but are not limited to: 1) temporary levees, berms, dikes and sandbagging, 2) buttressing, bracing, or shoring of a damaged structure to protect against further damage to the structure, and 3) emergency repairs to protective facilities (work is limited to that which would provide protection from a 5-year event or would restore the facility to its pre-disaster design, whichever is less).[8]

    In his determination, the Acting RA states, “it was determined that the 600 foot section of failed slope… is a Natural Ground Slope and is classified as an unimproved earthen material which has not been reworked, mechanically altered or improved…. Therefore, the appeal is denied, as the failed slope… is not eligible for funding under the Public Assistance program.”  FEMA RP 9524.2 states, “permanent repair to stabilize natural ground that is not integral to an eligible facility’s function…” and “permanent repair or restoration of natural ground” are ineligible for funding.[9]  However, as correctly noted by the Applicant and the Grantee, PW 1539 was written as a Category B—Emergency Protective Measures—project, not permanent work.  Emergency protective measures may be used on natural features that have not been improved and maintained.[10]  Accordingly, PA funding for this project is not denied based on the eligibility of the type of work designated in PW 1539 because emergency work may be eligible. 

    Immediate Threat

    As previously stated, emergency protective measures to save lives, protect public health and safety, and protect improved property are eligible for PA funding.  FEMA considers emergency protective measures to include activities undertaken by a community before, during, and following a disaster to eliminate or reduce an immediate threat to improved public or private property.[11]  Immediate threat means the threat of additional damage or destruction from an event that can reasonably be expected to occur within five years.[12]

    In PW 1539, FEMA determined that the project was ineligible due to lack of an immediate threat to improved property.  FEMA’s determination in PW 1539 was supported by a FEMA Geotechnical Specialist’s Geotechnical Site Visit Report, which noted, “The collapse of the downslope soil… has not impacted the integral ground support of the residential properties…. The support loss from the lower slope at the riverbank will not need Emergency Work repairs to minimize the continued erosion of the slope from the flow of the Rockaway River.”  The Specialist recommended permanent measures be implemented, including replacing rock drainage structures, installing a slope dewatering pipe system, and other mitigation measures to reduce sources of slope saturation.[13]  Finally, the Specialist concluded that a geotechnical and hydraulic evaluation was not suggested as emergency work for slope protection. 

    The Applicant asserts that the October 2011 Report issued by its consulting engineer refutes the conclusions made by the FEMA Geotechnical Specialist.  The October 2011 Report states, “Besides the damage to the Town’s property, there are four homes that could be impacted should the slope continue to erode.”  In addition, the Report states, “it is our opinion that there is an adequate factor of safety against a global stability failure for the existing residences above the slope failure area; however, unless emergency protective measures are implemented, the slope will continue to erode and the factor of safety will continue to be reduced…” 

    The Applicant asserts that the October 2011 Report sufficiently demonstrates that the slope failure presents an immediate threat to the residences located above the slope.  However, the October 2011 Report explicitly notes that, following the disaster, there was an adequate level of support for the residences above the slope.  Although the October 2011 Report states that the slope may continue to erode, and if such erosion occurred, the factor of safety would be reduced, it is speculative regarding whether such erosion would occur, whether the residences would be impacted, and if so, to what extent.  FEMA regulations provide that an “immediate threat” is one that may reasonably be expected to occur within five years.  The October 2011 Report also does not conclude that the impact to the residences can be expected to occur within five years of the disaster. 

    Arguably, reflective of an absence of an immediate threat, the Applicant stated that it has not taken any steps to stabilize the slope, vacated the residences located above the slope, or implemented other remedial measures to reduce the possibility of further damage caused by the slope failure.[14]  It should also be noted that the FEMA Geotechnical Specialist factored the residences into his assessment, noting that the homes are located approximately 200 to 300 feet horizontally (above) from the Rockaway River, but concluding that the slope failure had not impacted the integral ground support of the residences.

    Project Performance Deadline

    Typically, FEMA mandates that emergency work be completed within six months of the disaster, but the Grantee may extend the deadline by an additional six months, only if extenuating circumstances or unusual project requirements beyond the control of the Applicant exist.[15]  For emergency work, an extension beyond an additional six months requires FEMA approval, must be in writing, and must include a detailed justification for the delay and a projected completion date.[16]  Anticipation of a FEMA eligibility determination is not a justification for not completing emergency work.[17]  

    In its second appeal, the Applicant asserts, “Due to FEMA’s lack of diligence on this project, no emergency measures have been commenced to stabilize the failing slope in Grace Lord Park.”[18]  However, the role of PA is not to fund projects upfront, but to reimburse state and local governments for the federal share of costs incurred due to a federally declared disaster.[19]  It is the responsibility of the Applicant to protect its citizens and improved property by taking prudent action to implement emergency protective measures immediately after a disaster regardless of whether federal funding is available.[20]  In a memorandum to FEMA, dated February 24, 2014, the Applicant stated it had not taken any measures to stabilize the slope since the disaster.  In a subsequent letter to FEMA, dated April 7, 2014, the Applicant clarified its previous statement by stating, “we have received an engineering estimated cost of approximately $600,000 to remediate.  The Town is about to engage the services of Boswell Engineering to assist in designing the appropriate remediation.”  At that point, 32 months after the disaster event, the Applicant had not undertaken any of the emergency protective measures recommended by its consulting engineers to stabilize its slope.  Accordingly, the Applicant failed to complete the work within the regulatory deadline.  In addition, the Applicant did not submit documentation demonstrating that it requested, and received, an extension from FEMA to delay the deadline for completion of the work. 

    Conclusion

    The Applicant failed to demonstrate that an immediate threat to life or improved property exists as a result of the slope failure.  Therefore, emergency protective measures to stabilize the slope are ineligible for PA funding.  In addition, the Applicant failed to complete the emergency work necessary to stabilize its slope within the FEMA regulatory deadline or request a time extension. 


    [1] Memorandum from Geotechnical Specialist, FEMA, to PA Crew Leader (PAC), FEMA, at 2 (Nov. 15, 2011) (on file with FEMA).

    [2] Recovery Policy RP9524.2, Landslides and Slope Stability Related to Public Facilities (Oct. 8, 2010).

    [3] See SESI Consulting Engineers, Summary of Findings for Emergency Protective Measures Rockaway River Slope Failure (Oct. 24, 2011). 

    [4] Id.

    [5] Id.

    [6] Id.

    [7] Public Assistance Guide, FEMA 322 at 29 (June 2007) [hereinafter PA Guide].

    [8] Id., at 74.

    [9] RP 9524.2, Landslides and Slope Stability Related to Public Facilities, at 5.

    [10] Id. at 3-4.  

    [11] PA Guide, at 71.

    [12] 44 C.F.R. § 206.221(c).

    [13] The Applicant submitted a Stafford Act § 404 Hazard Mitigation Proposal, dated October 5, 2011, to the Grantee, which requested FEMA funding to place large rip-rap along the base of the failure, flatten the existing slope by extending the toe of the slope to the east closer to its original position, soil nailing of the face of the slope, construct an access road, and partially divert the Rockaway river to all construction to occur in the dry, if necessary.  Pursuant to Stafford Act § 404, 42 U.S.C. § 5171(c), hazard mitigation is action taken to reduce or eliminate long-term risk to people and property from natural hazards and their effects.  “404 Mitigation”, as it is known, is allocated from a different funding source than PA assistance, and if, awarded for the same project, constitutes a duplication of benefits.  PA Guide, at 41.  The mitigation measures requested in the “404 Mitigation” proposal and the recommendations by the FEMA Geotechnical Specialist are very similar.  If the Applicant was awarded “404 Mitigation” funding, it cannot also receive PA funding to implement the proposed mitigation measures.  PA Guide, at 41.

    [14] See Letter from Legal Counsel for the Town of Boonton, to PA Program Specialist, FEMA (Apr. 7, 2014) (stating “The homes have not yet been vacated, but within the next five years, engineers believe that these homes will be severely compromised or jeopardized.”) (on file with FEMA).

    [15] 44 C.F.R. § 206.204(c)(1), (2).

    [16] Id. at § 206.204(d).

    [17] See PA Guide, at 2 (stating that “While the request is being processed, local and State government officials should not delay in taking the necessary response and recovery actions.  Such actions should not be dependent upon whether there will be Federal assistance.”).

    [18] Second Appeal Letter, Town of Boonton, FEMA-4021-DR-NJ, at 6 (Jan. 7, 2013).

    [19] See 44 C.F.R. §.206.205(b)(2) (stating “the Regional Administrator shall review the accounting to determine the eligible amount of reimbursement for each large project and approve eligible costs.) (emphasis added).

    [20] See PA Guide, at 1 (providing that “communities are responsible for the protection of their residents…. The intent of the Stafford Act is that Federal assistance be supplemental to local, State and private relief organizations.); see also FEMA Second Appeal Analysis, Lincoln County, FEMA-1672-DR-OR, PW 172 (Apr. 21, 2009) (approving the second appeal because FEMA determined that the Applicant took prudent actions to establish safe ingress and egress for the property owners and businesses located above the damaged section of its road.) (emphasis added).

     



  • Beaches-Support Documentation
    Appeal Type: 
    2nd
    Report Type: 
    PW
    Appeal Categories: 
    Applicant Name: 
    Town of Westerly
    Disaster Number: 
    4089-DR-RI
    DSR: 
    41
    Date Signed: 
    Monday, November 3, 2014
    PA ID: 
    009-77000-00
    Summary/Brief: 

    Conclusion: Replacement of grass on sand dunes near the New Beach Pavilion (Site 2) is ineligible for Public Assistance (PA) funding.  The Town of Westerly (Applicant) did not produce sufficient documentation to demonstrate that the sand dune was an improved and maintained feature nor is the sand dune eligible for the purpose of stabilizing slopes to protect an eligible facility.

    Summary Paragraph

    In the first appeal, the Applicant asserted that the planting of dune grass at both Site 1 and Site 2 was necessary to stabilize the dune slopes and is eligible pursuant to FEMA Disaster Assistance Policy No. 9524.5, Tree, Shrubs, and Other Plantings Associated with Facilities.  According to the Applicant, dune grass was necessary to stabilize the dune slopes.  The Regional Administrator (RA) partially granted the appeal, determining that the replacement of dune grass in the vicinity of Site 1 was eligible for PA funding because the Applicant provided sufficient information to demonstrate that the dune grass was (1) essential to protecting and supporting the structural integrity and utility of the rear portion of the Site and (2) necessary to stabilize the slope upon which the facility is located.  The RA also determined that the replacement of grass on the dune in the vicinity of Site 2 was ineligible because the replacement of the grass was not associated with the repair of an eligible facility.  In the second appeal, the Applicant contends that the dune at Site 2 provides protection from storm surge and slope stabilization for other facilities and serves as vital mitigation measure.  The Grantee adds that the Dunes are an eligible improved and maintained feature but did not produce documentation that supports this claim.

    Authorities and Second Appeals

    • 44 C.F.R. § 206.201(c)
    •    DAP 9524.5 Tree, Shrubs, and Other Plantings Associated with Facilities
    •  RP 9524.2 Landslides and Slope Stability Related to Public Facilities

    Headnotes

    • 44 C.F.R. § 206.201(c) defines facility as “any publicly or privately owned building, works, system, or equipment, built or manufactured, or an improved and maintained natural feature.”
    • FEMA DAP 9524.5, Tree, Shrubs, and Other Plantings Associated with Facilities
      •  Grass and sod are eligible only when necessary to stabilize slopes and minimize erosion. 
    • FEMA RP 9524.2 Landslides and Slope Stability Related to Public Facilities
      • Natural or improved ground that is not integral ground to an eligible facility, however, is not eligible for Public Assistance.

     

    Letter: 

    October 31, 2014

    Jamia McDonald
    Executive Director
    Rhode Island Emergency Management Agency
    645 New London Avenue
    Cranston, RI 02920

    Re:  Second Appeal – Town of Westerly, PA ID 009-77000-00, FEMA-4089-DR-RI, Project Worksheet 41- Beaches-Support Documentation                                                   

    Dear Ms. McDonald:

    This is in response to your letter dated November 5, 2013, which transmitted the referenced second appeal on behalf of the Town of Westerly (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding in the amount of $38,147.5 for the purpose of replacing grass on sand dunes near the New Beach Pavilion at New Town Beach.     

    As explained in the enclosed analysis, I have determined that the emergency work requested is ineligible because the Applicant did not produce sufficient documentation to demonstrate that the sand dune was an improved and maintained feature nor is the sand dune eligible for the purpose of stabilizing slopes to protect an eligible facility.  Therefore, the Applicant’s appeal is denied.

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

       Sincerely,

       William W. Roche
       Director
       Public Assistance Division

       Enclosure

       cc:  Paul Ford
              Acting Regional Administrator
              FEMA Region I

    Analysis: 

    Background

    The high winds, tidal surge, and flooding during Hurricane Sandy, from October 26 through 31, 2012, damaged two of the Town of Westerly’s (Applicant) beach recreational facilities.  The first facility, which is not at issue in this appeal, was the Old Town Pavilion (Site 1).  The second facility was the New Beach Pavilion (Site 2), located at 311-315 Atlantic Avenue in the area known as “New Town Beach.”  The damage to Site 2 consisted of the loss of portions of the facility’s façade and decking and damage to the facility’s plumbing and electrical systems.  The tidal surge and wave action also washed away an established sand dune near the westerly side of Site 2 and deposited this sand onto an adjacent parking lot and roadway. 

    The Federal Emergency Management Agency (FEMA) prepared Project Worksheet (PW) 41 for the replacement of grass as a stabilization measure on the damaged sand dunes at Sites 1 and 2.  FEMA used the Cost Estimating Format (CEF) tool[1] to estimate the cost to replace the dune grass at both sites.  For Site 1, FEMA estimated the cost to replace the dune grass to be $123,688.00; for Site 2, FEMA estimated the cost to replace the dune grass to be $38,147.50.  In finalizing PW 41, however, FEMA determined that the replacement of grass to stabilize the dunes at Sites 1 and 2 was not eligible for Public Assistance (PA) funding because it was “permanent work to a natural beach.”[2]

    First Appeal

    On March 25, 2012, in a letter from the Applicant to the Rhode Island Emergency Management Agency (Grantee), the Applicant requested that FEMA reconsider its decision regarding the eligibility of the replacement of dune grass at both Site 1 and Site 2.  In its appeal, the Applicant claimed the planting of dune grass was necessary to stabilize the dune slopes.  The Applicant contended that these repairs were eligible pursuant to FEMA Disaster Assistance Policy (DAP) 9524.5 Tree, Shrubs, and Other Plantings Associated with Facilities for the purpose of slope stabilization.  Specifically, the Applicant concluded that, without dune grass, there was no stabilization of dune slopes, and they would not provide an effective mitigation measure as intended. 

    On August 29, 2013, the Acting Regional Administrator (RA) issued a first appeal decision, partially granting the appeal.  The RA determined that the replacement of beach grass on the dunes at Site 1 was eligible for PA funding because the Applicant provided sufficient information to demonstrate that in accordance with FEMA DAP 9524.5:

    1. the dunes located at Site 1 were essential to protecting and supporting the structural integrity and utility of the rear portion of the Site; and
    2. the replacement of grass at Site 1 was necessary to stabilize the slope upon which the facility is located and to minimize sediment runoff. 

    The RA also concluded that the replacement of grass on the dune in the vicinity of Site 2 was ineligible for PA funding because the replacement of the grass near Site 2 for the purpose of slope stabilization was not associated with the repair of an eligible facility.  According to the RA, the dune was physically separated from and located south of Site 2 and did not protect or support the structural integrity and utility of the Site 2 pavilion. 

    Second Appeal

    The Applicant’s second appeal, dated October 4, 2013, contests the RA’s first appeal decision with regard to the replacement of grass on the dune near Site 2.  According to the Applicant, the dune near Site 2 provides protection from storm surge and slope stabilization for a parking area, lifeguard first-aid station, shed for employees, and bathroom facility.  Further, the Applicant states that the dune is approximately 133 feet from the guardrails and the street, both of which sustained damage during storms without ample protection.  Finally, the Applicant argues that the dunes provide a vital mitigation measure for the area and without them there would be constant breaches onto public property and impact to the public right of way on Atlantic Avenue.   

    The Rhode Island Office of the Governor (Grantee), in its second appeal transmission, raises an additional issue.  Citing to the “scope of work” section in PW 41,[3] the Grantee claims that the dunes near Site 2 are an improved and maintained feature and, therefore, should be eligible for PA funding.[4]

    Discussion

    Replacement of Grass for Slope Stabilization

    Section 406 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) authorizes FEMA to provide grant assistance to local governments for the repair and replacement of facilities damaged or destroyed by a major disaster.[5]  In general, certain features, such as planted trees, shrubs, and grass, do not qualify as eligible facilities.[6]

    FEMA DAP 9524.5 establishes criteria used to define both ineligible work related to trees, shrubs, and other plantings and the limited eligibility for replacement of grass and sod associated with facilities eligible for repair and restoration.[7]  According to this policy, while trees, shrubs, and other plantings are generally not eligible for replacement under Section 406 of the Stafford Act, there are instances where replacement of plantings can be eligible for PA as part of the repair of another eligible facility.[8]  Grass and sod replacement is eligible when it is necessary to stabilize slopes and minimize sediment runoff.[9]  The replacement of grass and sod for purposes other than slope stabilization or minimization of sediment runoff is considered cosmetic and is not eligible for reimbursement.[10]

    FEMA Recovery Policy (RP) 9524.2 sets forth the criteria used to evaluate the eligibility of permanent work to repair facilities damaged by landslides or slopes that failed during a major disaster.[11]  According to this policy, FEMA will fund the permanent work to restore an eligible facility and its “integral ground” if the site is unstable and the instability is the direct result of the declared disaster.[12]  “Integral ground” refers to natural or improved ground upon which an eligible facility is located and which is essential to support the structural integrity and utility of the facility.[13]  Natural or improved ground that is not integral ground to an eligible facility, however, is not eligible for Public Assistance.[14]

    The Applicant claims that the planting of the grass near Site 2 is a vegetative mitigation activity and that the replacement of the grass is necessary to stabilize the slope.  Additionally, the Applicant asserts that the dune near Site 2 provides protection from storm surge and slope stabilization for a parking area, lifeguard first-aid station, shed for employees, and bathroom facility.  However, vegetative mitigation activities and replacing grass for the purpose of slope stabilization are only eligible under DAP 9524.5 when associated with the repair of an eligible facility.  The Applicant has not provided sufficient information to demonstrate that the dune at Site 2 is an integral ground of the pavilion or associated with the repair of an eligible facility.  The dune is physically separated from Site 2 and does not protect or support the structural integrity and utility of the Site 2 pavilion.  Further, the Applicant does not provide any documentation that demonstrates that the parking area, lifeguard first-aid station, employee shed, and bathroom facility are eligible facilities.   

    Though the Grantee points to language in the “scope of work” section in PW 41 as proof that the dune was improved and maintained, neither the Grantee nor the Applicant provided actual documentation that confirms the language in the “scope of work” or otherwise demonstrates that the sand dune was, in fact, an improved and maintained natural feature. Therefore, the dune is an ineligible facility, making the replacement of grass on the dune also ineligible. 

    Conclusion

    The replacement of grass on the dune in the vicinity of Site 2 is ineligible for PA funding because the replacement of the grass as a slope stabilization measure is not associated with the repair of an eligible facility and no documentation was provided to demonstrate that the dune was an improved and maintained nature feature.  As such, the appeal is denied.


    [1] Cost Estimating Format (CEF) for Large Projects Instructional Guide V2.1, September 2009

    [2] See Project Worksheet 41, Town of Westerly, Version 0, at page 8.

    [3] See Project Worksheet 41, Town of Westerly, Version 0, at  8 (November 29, 2012) (stating that “Dunes were established by the Town of Westerly and maintained by the Recreation Department.  Records indicate that Site #2 for the New Town Beach Pavilion, that the Dunes were engineered and installed by an approved plan of the Zoning Board of Appeals on 09/26/2007…Plans were revised April 30, 2004 prepared by a professional engineer.”)

    [4] FEMA requested documentation from the Applicant regarding the dune engineering and maintenance plan.  The Applicant explained that the plans referenced in the PW referred to part of a structure but not to the dune itself. 

    [5] Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5172 (1974).

    [6] See Public Assistance Guide, FEMA 322, at 22 (2007).

    [7] DAP9524.5 Tree, Shrubs, and Other Plantings Associated with Facilities  (July 18, 2007), at 1-2 

    [8] Id.

    [9] Id.

    [10] Id.

    [11] RP9524.2, Landslides and Slope Stability Related to Public Facilities (Oct. 14, 2010). 

    [12] Id.

    [13] Id.

    [14] Id.

     



  • Slope Failure
    Appeal Type: 
    2nd
    Report Type: 
    PW
    Appeal Categories: 
    Applicant Name: 
    Town of Colchester
    Disaster Number: 
    4031-DR-NY
    DSR: 
    2245
    Date Signed: 
    Tuesday, October 28, 2014
    PA ID: 
    025-16793-00
    Summary/Brief: 

    Conclusion: Emergency work to stabilize the embankment and the permanent work to restore the damaged facilities (the road and retaining wall) and the integral ground are eligible for funding.  Hazard mitigation measures meeting eligibility requirements may also be eligible. 

    Summary Paragraph

    The Applicant is appealing FEMA’s determination that the repair of the Morton Road slope (Slope) is inconsistent with FEMA’s slope stability policy.  In the first appeal, the Applicant asserted that the roadway and side slope were stable prior to the disaster.  According to the Applicant, the last time that the Slope needed stabilization was in 2007, as the result of DR 1710, after which FEMA wrote PW 94 to add sheet piling to the Slope.  The Grantee provided documentation from the NYSOEM Engineering staff in support of the Applicant’s claim.  The FEMA Region II Acting Regional Administrator denied the appeal, asserting that the slope was inspected by a FEMA Geo-technical Engineer who determined that the site was unstable before the incident and the Applicant must stabilize the site before Public Assistance funds are provided to repair it.  In the second appeal, the Applicant attached a copy of a report from Delaware Engineering, P.C., which reviewed the project and road history after the first appeal was denied.   The Applicant contends that this report supports its claim that the Slope did not have instability issues prior to the 2007 disaster.  

    Authorities Discussed

    • 44 C.F.R. § 206.223(a)(1)
    • FEMA RP9524.2, Landslides and Slope Stability Related to Public Facilities, at 4-5.

    Headnotes

    • Pursuant to 44 C.F.R. § 206.223(a)(1), an item of work must be the result of an emergency or disaster in order to be eligible for PA funding.
      • Here, the Applicant submitted evidence to establish that the slope was not unstable prior to the disaster event.
    • According to FEMA RP9524.2, Landslides and Slope Stability Related to Public Facilities, if a site has a history of instability, FEMA will not fund the repair of the site; in such cases, it is the responsibility of the Applicant to stabilize the site before Public Assistance funds are provided to repair the facility.
      • The Applicant submitted documentation to establish that the site did not have a history of instability and is eligible for Public Assistance.
    Letter: 

    October 28, 2014

    Mr. Andrew X. Feeney
    Alternate Governor’s Authorized Representative
    New York State Office of Emergency Management
    1220 Washington Avenue, Building 7A, Suite 710
    Albany, New York 12245

    Re:  Second Appeal – Town of Colchester, PA ID025-16793-00, FEMA-4031-DR-NY, Project Worksheet 2245 – Slope Failure

    Dear Mr. Feeney:

    This is in response to your letter dated October 2, 2013, which transmitted the referenced second appeal on behalf of the Town of Colchester (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of repairs to the Morton Hill Road embankment. 

    As explained in the enclosed analysis, I have determined that the emergency work already performed is eligible, as are permanent work repairs necessary to safely restore the function of the retaining wall, Morton Hill Road and its integral ground.  Therefore, the Applicant’s appeal is approved.

    Region II should prepare a Category B Project Worksheet (PW) to fund the emergency work.  The Region should also work with the Applicant to draft a version of PW 2245 to fund the permanent repair to the road and retaining wall.    

    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/

    William W. Roche
    Director
    Public Assistance Division

    Enclosure

    cc:  Jerome Hatfield
          Regional Administrator
          FEMA Region II


     

    Analysis: 

    Background

    In 2011, Tropical Storm Lee caused flooding in the Town of Colchester (Applicant).  During the incident period, a portion of the embankment along Morton Hill Road surrounding a sheet pile wall subsided along with the adjacent road shoulder.  In May 2012, FEMA conducted a site visit and determined that the damage to the embankment and road shoulder was associated with pre-existing rotational wedge slippage.  Based upon the conclusion that the embankment was unstable prior to the incident period,  FEMA determined that the repair of damage was not eligible for Public Assistance (PA) funding pursuant to FEMA Recovery Policy (RP) 9524.2 Landslides and Slope Stability Related to Public Facilities and the Public Assistance Guide.[1]  Accordingly, FEMA prepared PW 2245 to document the damage, but did not approve funding for the repair. 

    First Appeal

    On August 13, 2012, in a letter from the Applicant to the State of New York Office of Emergency Management (Grantee), the Applicant requested that FEMA reconsider its decision regarding the eligibility of the repair.  In its appeal, the Applicant claimed that the disaster caused the slope instability.  The Applicant contended that the last time there was an issue with the embankment was during the incident period of FEMA-1710-DR-NY, June 19, 2007, after which FEMA approved funding to install a sheet pile wall along Morton Hill Road.[2]  The Applicant included with its appeal a May 11, 2010 engineering report from Hawk Engineering, PC, documenting the results of a survey and geotechnical investigation of the section of Morton Hill Road impacted during FEMA-1710-DR-NY.    Regarding the cause of damage documented in PW 2245, the Applicant asserted that the sheet pile wall was exposed after Tropical Storm Lee and was in danger of collapsing.  Further, the Applicant claimed, on May 16, 2012, it had to declare a state of emergency for Morton Hill Road since the embankment was on verge of collapse and, as a result, hired an excavating company to temporarily repair the embankment at an estimated cost of $174,000.  Finally, the Applicant contended that FEMA had written PWs for sites similar to the Morton Hill Road embankment failure.[3]

    On May 16, 2013, the Acting Regional Administrator (RA) issued a decision denying the Applicant’s first appeal because FEMA determined the embankment had pre-existing documented instability that must be stabilized, pursuant to RP9524.2, before PA funds could be provided for any repairs.  The RA cited to FEMA’s Geotechnical Site Visit Report, listing six factors that FEMA’s Geotechnical Specialist described to show that the site was unstable prior to the disaster: 

    (1) the embankment has an established history of subsidence and failure (previous incident in same location); (2) his observance of at least two locations of previous sloughing activity along the natural slope; (3) the steep slope angle; (4) the unconsolidated nature of subsurface soils; (5) the presence of 2 or more rotational wedge slope scars located on the embankment south of the current failure zone; and (6) the fact that the brook flows against the slope toe.[4]

    Second Appeal

    In its second appeal, dated September 13, 2013, the Applicant requests assistance for emergency repair measures to stabilize the Morton Hill embankment.  The Applicant provides a report from Delaware Engineering, PC (Consultant), which it contracted with after the first appeal denial to review the project and Morton Hill Road and embankment history.  Through the Consultant’s site assessment and review of the area’s previous repairs, it concluded that the embankment was stable prior to being destabilized by the 2011 disaster.  Further, the Consultant concluded that the embankment failure was not due to previous instability or progressive failure but rather “directly linked to the intensified and concentrated runoff generated during the storm event.”  The Consultant’s report addresses the six factors that the RA considered in denying the first appeal, and provides a different opinion regarding each.[5]

    Discussion

    Generally, work required as the result of a disaster is eligible.[6]  According to FEMA RP 9524.2, “FEMA must determine the stability of the site where the damaged facility is located before it can approve funding to repair or restore an eligible facility and its integral ground…If a site is unstable and the instability is the direct result of the declared disaster, FEMA will fund the permanent repair or restoration of an eligible facility and its integral ground.” [7]

    In reviewing the additional documentation submitted with the second appeal, Applicant has sufficiently demonstrated that the embankment failure was caused by the intensified and concentrated runoff generated by the storm event.  As Delaware Engineers explains in its assessment addressing FEMA’s findings on first appeal, the only prior evidence of slope failure on Morton Hill Road occurred in 2007 as a result of severe storms and flooding. The road was repaired and no further instability occurred until Tropical Storm Lee in 2011.  Further, slope instability was not established based on a history of erosion nor was it established by the fact that a slope is steep or that a brook, stream, or river flows at the toe of a slope.  If enough erosion occurs during a declared event and as a result of that erosion damage to an eligible facility or the integral ground of an eligible facility occurs, cost effective measures to stabilize the site and the repair of the damage is eligible for funding.[8]  As a result of the new information provided on second appeal, the Applicant has shown that the failure occurred as an immediate result of Tropical Storm Lee and is therefore eligible as disaster-related damage. [9]  Accordingly, permanent work required to restore the road and its integral ground is eligible for funding.  Further, the emergency work to stabilize the embankment already performed is eligible for PA funding. 

    Conclusion

    The Morton Hill Road site was not unstable prior to the event; rather, the damage was caused by the disaster.  Thus, emergency work to stabilize the embankment and the permanent work to restore the road, retaining wall, and the integral ground are eligible for funding.


    [1] See Public Assistance Guide, FEMA 322 at 81-82 (June 2007) [hereinafter PA Guide]. 

    [2] Project Worksheet 94, Town of Colchester (2007). 

    [3] Applicant lists PWs 4795, 4138, and 3891 for slope failures related to DR-1650.  Note: The incident period for this disaster was June 26, 2006 to July 10, 2006, when FEMA operated under different policy guidance in relation to slope stabilization than it does now and did at the time of the disaster in question.  Nonetheless, the policy, as it relates to the facts and issues considered in this appeal, are consistent with the current policy.

    [4] FEMA First Appeal Letter from the Acting Regional Administrator, to the New York State Alternate Governor’s Authorized Representative, (May 16, 2013) (filed with FEMA).

    [5] See Letter from Delaware Engineering to Supervisor, Town of Colchester. (September 12, 2013) (filed with FEMA). The report responded to each factor as follows:  (1) the embankment has an established history of subsidence and failure (previous incident in same location); the Consultant found that the prior repair to the Morton Hill Roadway does not appear to be in the same location as the current failure, as the prior repair does not appear to have been intended to stabilize the lower embankment area.  Hawk Engineering’s report did not include any stabilization issues related to the lower embankment area, and the coordinates of the damage from these two incidents are in different locations.  Further, the Applicant has maintained Morton Hill Road for more than 100 years and the only failure prior to the 2011 disaster was in 2007, to a part of the roadway above the current failure; (2) of at least two locations of previous sloughing activity along the natural slope; the Consultant indicated it “cannot accurately identify these locations without some type of mapped location;” (3) steep slope angle; the Consultant contends that the slope angle is steep but that the instability was likely caused by a concentrated flow of excess runoff due to the disaster.  (4) the unconsolidated nature of subsurface soils; the Consultant noted that, as identified in Hawk’s Geotechnical Report, fill soils were “identified as loose to firm silt, sand and gravel.  Below these fill materials; soils were identified as glacial till deposits in a density ranging from firm to very compact.  Materials which likely compose the majority of the embankment are likely therefore firm to very compact and not unconsolidated.”  (5) the presence of 2 or more rotational wedge slop scars located on the embankment south of the current failure zone; the Consultant explains that this area was also the area of highest runoff concentration and erosion.  Further, according to the Consultants, “when the large concentrations of stormwater runoff eroded the embankment, it is likely that the large, well established, root structures pulled and destabilized a considerable amount of the adjacent embankment.  These large root systems provide a great deal of embankment stabilization by forming an interlock within soils, when the soils are washed away, their connection is lost;”  (6) and the fact that the brook flows against the slope toe;  the Consultant commented that the Morton Hill Road and advancement embankment have been operational and historically stable, and Morton Hill Road is no different from many other roads throughout Delaware County, as the roads abut brooks, streams and rivers and are tightly constricted by adjacent hillsides

    Letter from Delaware Engineering to Supervisor, Town of Colchester. (September 12, 2013) (filed with FEMA).

    [6] 44 C.F.R. § 206.223 (a)(1) (2010).

    [7] Recovery Policy RP9524.2, Landslides and Slope Stability Related to Public Facilities at 4 (2010).

    [8] See RP9524.2, Landslides and Slope Stability Related to Public Facilities at 4.

    [9] See  Email from Civil Engineer, P.E., FEMA to PA Lead Appeals Analyst, FEMA (Sep. 3, 2014, 18:48 pm)(filed with FEMA)

     



  • Scope of Work
    Appeal Type: 
    2nd
    Report Type: 
    PW
    Appeal Categories: 
    Applicant Name: 
    Lewis and Clark Rural Water System
    Disaster Number: 
    1984-DR-SD
    DSR: 
    2373
    Date Signed: 
    Tuesday, October 21, 2014
    PA ID: 
    000-UMD4Z-00
    Summary/Brief: 

    Conclusion: The bank stabilization system at Mulberry Point is a single facility with multiple location reference points, including Sites B and C.  Notification of new damage in a previously inspected facility is required pursuant to 44 C.F.R. § 206.204(e).  The Applicant adequately documented that the newly discovered damage at Site C was disaster-related; therefore, the change in the scope of work is eligible.

    Summary Paragraph

    During the declared flooding event, rising floodwaters and high river flow caused extensive erosion to the Applicant’s engineered bank stabilization system.  FEMA conducted a site visit while the water flow was still high, and observed disaster-related damage at Site B of the bank stabilization system.  After the water flow dropped, the Applicant discovered additional damage at Sites B and C of the bank stabilization system, and proceeded with the repairs.  The Applicant requested a change in the scope of work to include additional funding for the repair of the newly discovered damage at Sites B and C, as well as hazard mitigation funding.  FEMA denied the requests and obligated PW 2373 Version 0 for $459,744.00 to repair the original damage inspected at Site B.  In its first appeal, the Applicant claimed that additional damage at Sites B and C were under high river flows and not visible during the FEMA site visit.  The Applicant also argued that hazard mitigation was necessary to prevent future embankment erosion. Upon review, the Regional Administrator partially approved the first appeal and obligated an additional $393,940.35 for the additional damage at Site B.  In its second appeal, the Applicant requests $402,641.52 associated with Site C, arguing additional notification for the new damage at Site C should not have been required because the entire bank stabilization system is a single facility. 

    Authorities and Second Appeals

    • 44 C.F.R. § 206.201(c).
    • 44 C.F.R. § 206.201(i).
    • 44 C.F.R. § 206.202(d)(ii).
    • 44 C.F.R. § 206.204(e).
    • PA Guide, at 96.
    • PA Guide, at 140.

    Headnotes

    • 44 C.F.R. § 206.201(c) defines facility as any publicly or privately owned building, works, system, or equipment, built or manufactured, or an improved and maintained natural feature. 
    • The bank stabilization system at Mulberry Point is a single continuous system; therefore, it is a single facility with multiple location reference points. 
    • 44 C.F.R. § 206.202(d)(ii) requires an applicant to identify and report all damage within 60 days following its first substantive meeting with FEMA.  Public Assistance Guide further clarifies that this requirement applies to any newly discovered damaged facilities.  44 C.F.R. § 206.204(e) requires an applicant to evaluate and report cost overruns for reasons including a change in the scope of eligible work.
      • As a single facility already reported as damaged, the 60-day timeframe does not apply to any newly discovered damage. 
      • However, the Applicant is still required to report new damage within a timely manner pursuant to 44 C.F.R. § 206.204(e).

     

    Letter: 

    October 21, 2014

    Kristi Turman
    Director
    South Dakota Office of Emergency Management
    118 West Capitol Avenue
    Pierre, South Dakota 57501

    Re:  Second Appeal – Lewis and Clark Rural Water System, PA ID 000-UMD4Z-00, FEMA-1984-DR-SD, Project Worksheet (PW) 2373, Scope of Work

    Dear Ms. Turman:

    This is in response to your letter dated August 2, 2013, which transmitted the referenced second appeal on behalf of Lewis and Clark Rural Water System (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of additional funding of $402,641.52 associated with a change in scope of work request for PW 2373. 

    As explained in the enclosed analysis, I have determined that the bank stabilization system (facility) is a single facility, and the requirement to report new damaged facilities within a 60-day timeframe is not applicable.  Although not reported until after the repair, the Applicant did document that the newly identified damage at Site C was caused by the disaster.  Therefore, I am granting this appeal for $402,641.52, contingent upon a formal FEMA environmental and historic review.  By this letter, I am requesting that the Regional Administrator take appropriate action to implement my 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, Appeals.

    Sincerely,

    /s/

    Brad J. Kieserman
    Assistant Administrator
    Recovery Directorate

    Enclosure

    cc:  Tony Russell
           Acting Regional Administrator
           FEMA Region VIII

    Analysis: 

    Background

    An above-normal level of snow fall in South Dakota during the winter of 2010–2011 resulted in significant water run-off and flooding as the temperatures warmed up in March 2011.  A major disaster for flooding was declared on May 13, 2011 with the incident period of March 11, 2011 to July 22, 2011.  Along Mulberry Point on the Missouri River, rising floodwaters with high velocity river flow redirected the main river channel and caused extensive erosion to portions of the engineered bank stabilization system, owned and operated by Lewis and Clark Rural Water System (Applicant).[1]  Flood damage included partial to complete washout of portions of the bank stabilization system comprised of various engineered components—a combination of a stone toe base, bank stabilization material, locked logs, and planted vegetation.  Completed in 2008, the bank stabilization system was designed to stabilize and strengthen the embankment, which in turn protects the Applicant’s water system that provides potable water to over 300,000 people in three states along the Missouri River.     

    The Applicant provided documentation to show that the normal high water level (NHW) at this site was set as being equal to the Construction Reference Plane (CRP) for the bank stabilization system site design, which was determined by the U.S. Army Corp of Engineers (USACE) to be 29,000 cubic feet per second (cfs). The ordinary high water level (OHW) was set two feet above the NHW, corresponding to the start of willow plantings on the bank stabilization system.  The 100-year flood level corresponded to the top of the bank stabilization system, equivalent to a river flow of about 100,000 cfs.  During the flood event of 2011, the maximum river flow exceeded 160,000 cfs.

    The upper (north) end of the embankment failure was noted only after the river flow had dropped to approximately 90,000 cfs around September 2011.  The river flow then dropped to 40,000 cfs around the beginning of October 2011 and maintained that level until mid-December 2011.

    On October 4, 2011,[2] FEMA conducted a site visit to observe the area of the bank stabilization system failure and identified extensive embankment damage at a location identified by the Applicant as Site B at Mulberry Point[3].  Due to the above-average water flows covering the entire shoreline, the full extent of the damage to the embankment was not visible at this time.  FEMA prepared Project Worksheet (PW) 2373 with an estimated cost of $459,744.00 to repair the visible damage.  The PW scope of work (SOW) included in-kind replacement of the engineered embankment material eroded by floodwaters and high velocity river flow along 877 linear feet (LF) of the bank stabilization system at Site B.  The recent completion of the construction of the bank stabilization system (less than three years prior to the flooding disaster) allowed for the use of the original engineering plans as a baseline for takeoff measurements for estimating lost quantities of material necessary for the repair.

    After the river flows decreased and the water level receded closer to the NHW, the Applicant conducted a full evaluation of all flood damage to the bank stabilization system on December 27, 2011.  During this evaluation, the Applicant identified additional damage at Site B, increasing the total length of the damaged section from 877 feet to 1,500 feet.  The Applicant also discovered another damaged section about 410 feet in length located approximately 200 feet downstream at Site C; this damaged section was under water at the time of the previous FEMA site visit due to it being further downstream at a lower elevation.

    In early 2012, the Applicant made several inquiries regarding the status of its PW.  During the spring of 2012, the Applicant proceeded with the repair of all damages at the bank stabilization system in consideration of past environmental restrictions that limited construction activity to winter and early spring, as well as relatively low river flows which aided in the construction.[4]

    The Applicant reported the newly identified damage to the South Dakota Department of Public Safety (Grantee) on June 11, 2012; the Grantee notified FEMA immediately.  On June 20, 2012, FEMA conducted a second site visit to view the additional damage.  On July 26, 2012, the Applicant submitted two requests for additional funding for the work required to repair the bank stabilization system: 1) a change in SOW to include additional embankment material needed to repair the damage previously unseen under the high water level ($393,940.45) and hazard mitigation completed ($264,544.43) at Site B; and 2) a new PW to address the newly identified damage ($402,641.52) at Site C.

    On August 10, 2012, FEMA obligated PW 2373 Version 0 for $459,744.00 for the original SOW.  The PW noted the additional costs associated with newly discovered damage and hazard mitigation requested by the Applicant were not included.  Regarding the Applicant’s funding request for the repair of the newly identified damaged section, FEMA indicated the PW repair estimate based on the bank stabilization system’s original design specification did not deduct for any undamaged useable material, which should provide the Applicant with a surplus of materials.  On August 20, 2012, FEMA issued responses to the Applicant’s July 26, 2012 requests, denying both requests.  Hazard mitigation funding for Site B was denied because the Applicant completed work beyond the pre-disaster configuration without FEMA approval prior to construction.  Funding for Site C was denied because the Applicant did not identify nor report the new damage within the 60-day period following the Kickoff Meeting, which FEMA considered to have taken place on the same date as the site visit on the October 4, 2011.

    First Appeal

    On October 17, 2012, the Applicant sent its first appeal to the Grantee, requesting that FEMA obligate an additional $1,061.126.40.  The Grantee transmitted the Applicant’s first appeal to FEMA Region VIII, indicating its partial support of the appeal, on December 7, 2012. 

    First, the Applicant claimed that the additional quantities of engineered embankment material were necessary to fully repair the flood damage at Site B.  The Applicant reasoned that FEMA’s initial estimate was based on only a part of the entire damaged section visible above the high river level at the time of the site inspection. 

    Second, the Applicant argued that hazard mitigation was necessary and designed in cooperation with a USACE river bank restoration expert to prevent further embankment erosion and future damage to the well fields.  The Grantee did not support this portion of the appeal.

    Finally, the Applicant asserted that the damage at Site C could not be assessed during FEMA’s initial site visit as it was underwater below the continued high flows in the Missouri River.  The Applicant further contended that it was not aware of the requirement to report additional damage within 60 days of the Kickoff Meeting, because this was not explained by FEMA during the October 4, 2011 site inspection that also served as the Kickoff Meeting.  The Applicant indicated that it would have reported the newly identified damage as soon as it could after the discovery in late December 2011, had it understood the damage reporting requirement.

    The FEMA Region VIII Regional Administrator (RA) partially granted the first appeal on May 13, 2013.  The RA determined that the Applicant adequately demonstrated the additional embankment material required at Site B was needed to repair the damage that was a direct result of the disaster, and approved an additional $393,940.35.  However, the RA denied funding for the damage at Site C due to the Applicant’s failure to report the additional damage in a timely manner.  The RA also denied funding for Section 406 mitigation because the Applicant consulted with neither the Grantee nor FEMA prior to completing the mitigation measures for the bank stabilization system beyond the pre-disaster footprint.  On June 3, 2013, FEMA approved PW2373 Version 1 for an additional $393,940.35.

    Second Appeal

    On August 2, 2013, the Grantee transmitted the Applicant’s second appeal letter dated July 11, 2013, indicating its support of the appeal.  In its second appeal, the Applicant requests reconsideration of the unreported cost of $402,641.52 associated with Site C.  The Applicant indicates that it accepts FEMA’s ineligibility determination for the Section 406 mitigation. 

    The Applicant contends that additional notification for the newly identified damage at Site C should not have been required because the entire bank stabilization system at Mulberry Point is a single continuous system; it provides detailed descriptions and technical drawings[5] to demonstrate this point.  The Applicant also reiterates its first appeal argument that the notification requirement of 60 days could not be met because the newly identified damage was under the continued high river flows and not visible well beyond the 60-day deadline to report additional damage.

    Discussion

    Mulberry Point Bank Stabilization System as a Single Facility

    Title 44 Code of Federal Regulations (C.F.R.) § 206.201(c) defines facility as any publicly or privately owned building, works, system, or equipment, built or manufactured, or an improved and maintained natural feature.[6]  Regulations further define project as a logical grouping of work required as a result of the declared major disaster or emergency, whereby the SOW and cost estimate for a project are documented on a PW; a project may include eligible work at several sites.[7]  The Applicant asserted that the bank stabilization system at Mulberry Point is a single continuous system, and therefore, a single facility with multiple sites including Sites B and C.  As a single facility, the Applicant argued that an additional notification for the newly identified damage at Site C should not have been required.

    The Applicant provided extensive details regarding its genesis as a Private Nonprofit organization with a mission to provide safe and reliable drinking water to its member municipalities and rural water systems.  The water delivery system consists of many components including: a traditional lime treatment facility, along with multiple pump stations and reservoirs; a series of well fields located on the Missouri River, including a site known as Mulberry Point; and a bank stabilization system to protect the embankment from erosion, which in turn protects the Mulberry Point well field.  The Applicant explained that the Mulberry Point well field consists of well locations referred to as Sites A through E, lettered from north to south.

    Near the Mulberry Point well field, the bank stabilization system in question was constructed as a single continuous system over 5,000 feet in length.  There are no separate and distinct sections of the bank stabilization system, the Applicant explained, as it was constructed as a single system to protect the entire well field at Mulberry Point.  The Applicant clarified that the reference to a location of the bank stabilization system, such as Site B, refers to the closest Mulberry well field site location.  This naming convention is easier to use, rather than referring to a specific location along the bank stabilization system by its original station designation, ranging from station 0+00 at the south end of the bank stabilization system to station 52+20 at the north end.  The Applicant stated that the new damage discovered at Site C is located about 200 feet downstream (south) of Site B.  As the elevation of the bank stabilization system decreased from north to south due to the river gradient, it is logical that most of the embankment at Site C was still under the high water flows when some of the damage at Site B was visible during the initial FEMA site visit.

    Based on a thorough review of the documentation, including technical drawings and photographs, FEMA agrees with the Applicant that the bank stabilization system should be considered a single facility.  However, FEMA disputes the Applicant’s claim that additional notification for the newly identified damage at Site C is not required because Site C is part of the same facility as Site B.  FEMA guidance specifies that when additional damage to a facility is found after the PW is completed, the Applicant must document the damage, show that it is disaster-related, and request a re-inspection by FEMA.[8]

    Timeliness of Reporting New Damage

    Regulations provide that an applicant has 60 days following its first substantive meeting with FEMA to identify and to report damage to FEMA.[9]  The Public Assistance Guide further clarifies that an applicant must request assistance for any newly discovered damaged facilities within 60 days of the first substantive meeting, which is typically the Kickoff Meeting.[10]  However, there is a distinction between newly discovered damaged facility versus newly discovered damage at a facility already reported as damaged (i.e., hidden damage).

    Here, the newly discovered damage at Site C is located at a facility already reported as damaged.  FEMA previously inspected the disaster-caused damage at Site B within the same facility (i.e., the bank stabilization system).  As Site C damage is not considered damage at a newly discovered damaged facility, the 60-day requirement to report newly discovered damaged facilities as outlined in FEMA regulations and guidance[11] does not apply.

    Notwithstanding the inapplicability of the above-mentioned 60-day requirement, the Applicant is still required to report any newly discovered damage in a timely manner, even at a facility previously identified as damaged and already inspected by FEMA, pursuant to requirements outlined in regulations.[12]  Although regulations do not establish a specific deadline to report newly discovered damage at an already-inspected facility, FEMA guidance clearly states that to determine eligibility of any additional damage, FEMA may conduct another site visit, which should be timed to allow an inspection of the newly discovered damage before it is covered up or repaired.[13]

    In this case, the Applicant completed all repair work at the bank stabilization system facility at both Sites B and C, before it reported the additional damage to the State and FEMA.  The Applicant and the Grantee both claimed the Applicant was not aware of any requirement to report additional damage to FEMA, and that it would have done so in a timelier manner otherwise. 

    The Applicant’s limited level of awareness or knowledge of the federal requirements and guidelines for Public Assistance funding is not a justification for FEMA to grant time extensions or exceptions for reporting new damage.  Nevertheless, FEMA recognizes the time frame of the Applicant’s construction activities at the bank stabilization facility was limited by various environmental requirements and restrictions, and the original version of PW 2373 (which included specific language regarding the requirement to report any additional damage) was not processed and approved until ten months after the initial site inspection.  The Applicant also presented information (e.g., summary of site inspection notes and photographs) to document the newly identified damage at Site C was disaster-related.

    In partially granting the first appeal, the RA approved extra funding to repair additional disaster-related damage at Site B, which was not reported to FEMA until after the project completion.  Under the circumstances discussed above, FEMA finds that the RA was correct to grant funding to repair the newly discovered disaster-caused damage at Site B.  Accordingly, additional funding for the disaster-caused damage at Site C of the same facility should also be eligible.

    The Applicant stated that all construction activities at Sites B and C were conducted in accordance with previous environmental requirements, and the approval of PW 2373 Versions 0 and 1 did not modify any of the environmental requirements.  During the review of the Applicant’s second appeal, FEMA conducted a preliminary environmental and historic preservation (EHP) compliance review of the project at Site C.  FEMA anticipates that the formal EHP review will find the project compliant with applicable law, regulation, and policy, as long as the SOW completed at Site C is in line with the SOW submitted in the environmental consultation documents and the Applicant complied with all the conditions outlined in the agency responses. For a complete EHP review, the Applicant will need to submit any necessary documentation to verify compliance with project conditions when PW 2373 Version 2 is prepared to fund the work already completed at Site C.

    Conclusion

    The Applicant has adequately demonstrated that the bank stabilization system is a single continuous system, and hence, a single facility.  As a single facility that was already identified as disaster-damaged (at Site B) and inspected by FEMA, the newly identified damage at Site C of the same facility is not subject to the 60-day requirement after the first substantive meeting with FEMA to report new damaged facilities.  However, the Applicant is still required to report any new damage to facilities already identified as damaged.  Although the Applicant did not report the newly identified damage at Site C until after it was repaired, the Applicant documented that it was disaster-related.  Therefore, the request for a change in SOW to include its repair is approved, contingent upon successful completion of a formal EHP review.  FEMA will prepare PW 2373 Version 2 to obligate an additional $402,641.52.


    [1] The Applicant’s Request for Public Assistance (RPA) was approved under the name Lewis and Clark Rural Water System, Inc.  However, it appears that the Applicant is also referred to as Lewis and Clark Regional Water System, Inc, according to its current letterhead and website.  For the purposes of this second appeal analysis, the two names are interchangeable and refer to the same Applicant.

    [2] The Applicant’s second appeal states the FEMA inspection occurred on October 4, 2011.  PW 2373 incorrectly states it occurred on October 7, 2011.

    [3] The Applicant explained that the water well fields are known as Sites A through E—collectively referred to as Mulberry Point well fields.  The different locations along the bank stabilization system are also commonly referred to as Sites A through E, corresponding to the closest water well field Site marker.

    [4] The Applicant stated all of the work done at the Mulberry Point well field was subject to several environmental restrictions.  The preferred unrestricted time for construction was from September through December, followed by the period from January through April.  The most restrictive time is from mid-April through August due to nesting birds and presence of raptors.

    [5] Much of the documentation was also previously submitted with the SOW change request and the first appeal request.

    [6] 44 C.F.R. § 206.201(c) (2010).

    [7] See 44 C.F.R. § 206.201(i).

    [8] See Public Assistance Guide, FEMA 322, at 101 (June 2007) [hereinafter PA Guide].

    [9] See 44 C.F.R. § 206.202 (d)(ii).

    [10] See PA Guide, at  96 and at 140.

    [11] See 44 C.F.R. § 206.202 (d)(ii); see also id.

    [12] See 44 C.F.R. § 206.204(e) (discussing the Applicant requirement to evaluate and report cost overruns for reasons including a change in the scope of eligible work).

    [13] See PA Guide, at 140.

     



 

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