Eligibility

Appeal Brief

Summary Paragraph

After severe storms and heavy rainfall from Tropical Storm Lee, the Applicant reported that high river flows in West Canada Creek damaged the East German Street Extension.  FEMA conducted a site visit and identified a 170-foot long section of the road with damage consisting of alligator cracks, stress cracks, and ground subsidence.  FEMA also noted that the adjacent retaining wall did not sustain any observable damage as the result of flooding.  Based on the field observations, FEMA found the road damage to be a result of pre-existing conditions and obligated PW 2531 for zero dollars.  In its first appeal, the Applicant claimed that the damage was a direct result of the disaster, contending that the road and the retaining wall had no history of subsidence-related damage, and requested an estimated repair cost of $140,000.  Upon review, the Regional Administrator denied the first appeal, finding that the road damage was not a direct result of the disaster. In its second appeal, the Applicant revises the funding request to a range between $500,000 and $1,000,000 and argues that all damage was a direct result of the disaster.  

Authorities and Second Appeals

• 44 C.F.R. § 206.223(a)(1).

• PA Guide, at 29-30.

Headnotes

• 44 C.F.R. § 206.223(a)(1) states that an item of work must be required as the result of the emergency or disaster to be eligible for Public Assistance.The PA Guide further provides that work must be required as a direct result of the declared major disaster or emergency.

• The damage on East German Street Extension and the adjacent retaining wall cannot be directly tied to the declared disaster.Accordingly, all the work performed to repair the damage is ineligible for Public Assistance.

• The Applicant documented that the road failure was detected at some point after the disaster, outside of the incident period.However, the Applicant did not provide any documentation demonstrating that the damage, or its underlying cause, was absent prior to the disaster, or that the damage was a direct result of the disaster.Therefore, the work required to address the damage is ineligible.

Appeal Letter

Appeal Analysis

Background

During the incident period of September 7 to 9, 2011, severe storms and heavy rainfall from Tropical Storm Lee caused high river flows in West Canada Creek, which flows through the Town of Herkimer (Applicant).  This storm closely followed Hurricane Irene, another major disaster with an incident period of August 26, 2011 to September 5, 2011.  The Town of Herkimer is located in Herkimer County, which was included in both disaster declarations.[1]   The Applicant reported that high river flows during the disaster damaged the East German Street Extension, a 25-foot wide asphalt-paved dead-end road running along West Canada Creek, and caused significant settlement.  The damage required a road closure and traffic detour for residents with homes on the impacted section of the road.

In July 2012, FEMA conducted a field inspection and identified a 170-foot long damaged roadway section.  The damage consisted of a 45-foot long, 6-foot wide semi-oval section of asphalt with ground subsidence, stress cracks, and erosion of crusher run underneath it.  By this time, the Applicant had performed temporary repairs to patch the damaged section with cement slurry, asphalt, and crusher run, in order to provide residents access to their homes.  The Applicant also indicated that the entire road had subsided over time and needed more comprehensive permanent repairs.  FEMA’s July 20, 2012 geotechnical report documented field inspection observations including widespread visible alligator and longitudinal cracking, road settlement over time in comparison to auxiliary structures, and the lack of any observable flooding-related damage to the adjacent retaining wall, which served as a buttress for the soil underlying the road and protected it from West Canada Creek.  The report concluded that the road settlement had been ongoing prior to the disaster and, thus, was not a direct result of the high river flows during the declared disaster. 

FEMA prepared Project Worksheet (PW) 2531 to document the road damage and the scope of work.  The PW included the temporary work completed ($5,070.24) and a geotechnical subsurface investigation as work to be completed (cost estimated at $7,187.60) to determine the actual nature and cause of the damage.  FEMA deemed the PW scope of work ineligible because, based on the field observations and report conclusions, the road damage appeared to be pre-existing conditions, not a direct result of the disaster. [2]  FEMA notified the New York State Office of Emergency Management (Grantee) of the ineligibility determination on November 14, 2012.

First Appeal

With a letter dated January 10, 2013, the Applicant submitted its first appeal and requested that FEMA reconsider its decision that the road damage was ineligible.  The Applicant indicated that it contracted with Hogan Engineering to provide additional information to support its appeal request.  The Grantee transmitted the Applicant’s first appeal to FEMA Region II with supporting documentation on June 14, 2013.  The documentation provided consisted of a 1904 design plan for the retaining wall, a February 13, 2013 leak detection study on the pressurized water lines in the area, a February 12, 2013 geotechnical investigation report prepared for the Applicant, and the Grantee’s analysis and recommendation.

In its analysis, the Grantee stated that its engineers and the Applicant’s consultants investigated the road site conditions and concluded that the high river flows in West Canada Creek during the declared disaster caused the road damage.  The Grantee explained that the road subsidence began in late April 2012 and progressed rapidly, necessitating a road closure with a detour for the nearby residents.  While the Grantee concurred with FEMA’s field observations documented in the geotechnical report, it disagreed with FEMA’s conclusion that the road failure was a slow, long term failure.  Instead, the Grantee claimed that the road failure was sudden, but not due to a broken water or sewer main (as FEMA speculated), since the leak detection study results disproved this theory.

As to the potential cause of the road failure, the Grantee proffered  the following: over the more than one hundred years since the retaining wall was built, a filter cake had developed on the inside of the wall preventing silt and sand behind the wall from migrating through the wall even in areas where original grout had been displaced (due to wear and tear); the high river flows in West Canada Creek during Tropical Storm Lee penetrated through the wall and destroyed this filter cake, allowing sand and silt to flow through; sufficient water in the sand and silt prior to the winter freeze cycle allowed only a minimum amount of material to flow through the wall during the fall of 2011; and when the sand and silt dried up in the spring of 2012, the material flowed freely through the wall, causing rapid subsidence of the roadway.  The Grantee stated that there is evidence at the base of the wall that sand and silt had recently been flowing through the wall.

The Grantee asserted that neither the retaining wall nor the road had a past history of subsidence, and claimed that the scenario presented above supports a sudden failure mechanism for the road subsidence.  Moreover, the Grantee informed FEMA that the Applicant had an engineer’s estimate of $140,000 to repair the road and install measures to prevent future migration of sand and silt material through the retaining wall. 

The FEMA Region II Regional Administrator (RA) denied the first appeal on
November 15, 2013.  Upon review of all available supporting documentation presented with the first appeal, the RA found that the timeline of the road failure could not be conclusively associated with the declared disaster.  The RA stated that the observations made at the damage site, as supported by the Applicant’s own geotechnical and leak detection investigations, indicated that road settlement had been occurring over time.  In accordance with Title 44 of the Code of Federal Regulations (C.F.R.) Section 206.223, the RA determined that the work associated with the road damage was ineligible because it was not the result of the emergency or major disaster event.[3]

Second Appeal

On May 7, 2014, the Grantee transmitted the Applicant’s second appeal letter dated January 20, 2014, indicating its support of the appeal.  Hogan Engineering prepared and signed the second appeal letter on behalf of the Applicant.  In the second appeal, the Applicant contends that FEMA did not consider and analyze all pre-event facts and post-event damages before denying the first appeal.  The Applicant clarifies that it interprets the statement “over time, the road has settled” to mean the time from the disaster event to current day.[4]  Furthermore, the Applicant revises the initial estimate of $140,000 to repair the roadway damage to a range between $500,000 and $1,000,000.  Finally, the Applicant provides several reasons to support its assertion of work eligibility and dispute FEMA’s first appeal determination and accompanying analysis.

First, the Applicant agrees that the alligator and longitudinal cracking had been ongoing, but claims that it is the result of traffic loading over a poorly supported asphalt pavement, which is common on many roadways, and outside the damaged roadway section impacted by the event.  The Applicant maintains that, although the alligator cracks along the shoulder were evident throughout the entire roadway prior to the disaster event, the diagonal and stress separation did not occur until after the event.  The Applicant also disagrees with FEMA’s July 20, 2012 geotechnical report, wherein FEMA indicated the retaining wall supporting the roadway appeared to be intact with no apparent cracks or deformation.  The Applicant contends that a new investigation report prepared by CME Engineering Group (CEG), submitted with the second appeal, indicates contradictory evidence.

Second, the Applicant refers to the Grantee’s first appeal analysis[5] and asserts that, prior to the disaster event, neither sand nor silt flowed through the wall, no retaining wall settlement occurred, and no wall movement was observed.  The Applicant also points out that the roadway and the retaining wall have been in service since the early 1900s and there has been no documentation or eye witness account of retaining wall settlement or movement in the area.

Third, the Applicant suggests that FEMA misinterpreted the leak detection report and the geotechnical investigation report submitted with the first appeal.  The Applicant also argues that the fact that the damage did not occur immediately after the disaster in September 2011 does not mean it was not caused by the event, because the incident period for a flood event could be weeks or months later; in this case, the upstate New York winter months may have extended the saturated state of the soil until the following spring 2012.

In addition to disputing FEMA’s first appeal analysis, the Applicant describes the emergency repair work performed on the roadway during August 2013.  During the repair work, the Applicant discovered expanded horizontal and vertical construction joint separations of the monolithic sections of the retaining wall.  The Applicant alleges that these construction joints were not observed prior to August 2013 due to the vegetation covering the face of the wall.  The Applicant presumes that these joint separations acted as the conduit for the rising river water getting through and behind the wall, saturating the soil under the roadway, leading to roadway subsidence.

Finally, the Applicant refers to the December 6, 2013 investigation report from CEG, whom it contracted to investigate and comment on the cause of the surface fractures, both within the roadway and on the surface of the retaining wall.  CEG determined that the roadway and the adjacent retaining wall were stable from a global slope stability stand point prior to the declared disaster in September 2011.  CEG also confirmed that the emergency repair work performed in August 2013 did not stabilize the wall and the slope, which will continue to move and lead to a possible catastrophic failure. 

During its evaluation of the second appeal, FEMA issued a Request for Information (RFI) for any pre-disaster maintenance records of the East German Street Extension as well as any records demonstrating the pre-disaster condition of sewer lines in the area.  The Applicant responded that it has no maintenance documentation for the road, because no repairs relating to road subsidence, sub-base failure, or retaining wall failure were necessary on this road over the last 40 years.  However, the Applicant attested that all town roads are inspected at least once a month, and generally resurfaced with stone and oil every three to five years.  The Applicant also confirmed that there are no sewer lines in the area.

Discussion

Pursuant to 44 C.F.R. § 206.223(a)(1), an item of work must be required as the result of the emergency or  disaster to be eligible for Public Assistance (PA).[6]  Additionally, the Public Assistance Guide (PA Guide) specifies that work must be required as a direct result of the declared major disaster or emergency.[7]  The PA Guide further provides that damage that results from a cause other than the designated event, such as a pre- or post-disaster damaging event, or work to correct inadequacies that existed prior to the disaster, is not eligible.[8]  Damage that occurs during the incident period, or damage that is the direct result of events that occurred during the incident period, is eligible; furthermore, damage that occurs after the close of an incident period that can be tied directly to the declared event may also be eligible.[9]

In this case, the Applicant concedes that the alligator and longitudinal cracking is a pre-disaster condition, but asserts that this is common on many roadways and outside the damaged roadway area.  The Applicant argues that the roadway failure is a direct result of the disaster, largely based on the fact that the road and the retaining wall protecting it had not experienced any similar damage or failure in nearly 110 years.  However, the absence of similar damage in nearly 110 years does not, in and of itself, and in consideration with the other assertions made by the Applicant, establish that the subject damage is a result of the declared disaster. Similarly, the age of the retaining wall alone does not substantiate its pre-disaster stability.   

The Applicant’s second appeal states that, prior to August 2013 (when the Applicant performed emergency repair work), neither FEMA nor the Grantee observed the construction joint separations on the monolithic sections of the wall during any site visits because of vegetation covering the face of the wall.  However, the inability to observe the damage on the wall prior to August 2013 neither precludes the possibility of pre-disaster damage nor establishes that the damage occurred as a direct result of the disaster.

To support its position that the damage was a direct result of the disaster, the Applicant presents geotechnical reports that document field observations made in 2012 and 2013, and discuss numerous damages ranging from longitudinal cracks in the roadway to separated construction joints in the retaining wall.  However, the Applicant did not provide any documentation that allows comparison of the retaining wall’s pre- and post-disaster structural conditions.  Without any photographs, inspection records, or any other maintenance records to account for the pre-disaster condition, FEMA cannot find that the damage is the direct result of the disaster.

The January 2013 report prepared by Hogan Engineering cited a U.S. Geological Survey data collected over the past 90 years and stated that the average daily discharge of water of the West Canada Creek at Kast Bridge, located 1.57 miles upstream from East German Road Extension, was 1,381 cubic feet per second (cfs).  The report also indicated that the average daily discharge of water exceeded the 90-year average six times since 2004.[10]  Although 2011 (the year of Tropical Storm Lee) represented the year with the highest discharge, there were five other years between 2004 and 2011 in which discharges exceeded the 90-year average.  This data suggests that while the flows from Tropical Storm Lee disaster event may have been the highest, they closely followed several other above-average rain events with high flows that also could have damaged the retaining wall prior to the declared disaster, leading to the gradual failure of the roadway.

CEG’s December 2013 report described its observations during the field site visit on October 22, 2013, explained its slope stability analysis, and expressed its professional opinion that a classical global slope failure occurred at the damage site at some point after the disaster event in 2011.[11]  Noting such, it must be recognized that CEG made certain assumptions regarding the site conditions in developing its slope stability analysis.[12]  First, the report’s conclusion that a global slope failure occurred at some point after the disaster event does not definitively establish the failure as a direct result of the disaster because pre-disaster damage conditions could have caused a failure occurring after the disaster.  Second, the findings of the slope stability analysis were based on unsubstantiated best-case-scenario assumptions. Using a pre-flood model based on undocumented stability indicator assumptions (i.e., no scour at the toe, consistent rip-rap levels, and the peak effective internal friction angles), the report concluded that the East German Street Extension site was stable from a global slope stability stand point prior to the disaster, and the global slope failure occurred after the disaster.  The results of a model based on unsubstantiated assumptions are inadequate to demonstrate that the damage to the retaining wall is a direct result of the disaster.

Further, it should be noted that the damage did not occur during the disaster incident period, but began several months afterwards and continued to worsen over the following years.  In accordance with the requirement set forth in the PA Guide, damage that occurs after the close of an incident period must be tied directly to the declared disaster to be considered eligible.[13]  The Applicant presents several investigation reports claiming that the damage was a direct result of the disaster.  However, based on a thorough review and analysis of all submitted information, FEMA does not find that the documentation demonstrates the damage was caused as a direct result of the disaster.

Conclusion

The Applicant did not provide sufficient documentation to demonstrate the damage to the roadway and the adjacent retaining wall was a direct result of the disaster.  Although the Applicant presented studies and analysis reports claiming the damage occurred at some point after the disaster, the documentation provided did not establish the pre-disaster condition of the roadway and the wall, nor did it show that the damage was not present before the disaster.  Rather, it only demonstrated that the Applicant documented the damage at some point after the disaster, which is insufficient to meet the regulatory requirement that the damage be a direct result of the disaster.  Therefore, any work required to address the damage is ineligible for PA assistance.