Immediate Threat

Appeal Brief

Summary Paragraph

From February 27 to March 14, 2021, severe storms caused damages throughout the State of Kentucky. Paintsville Utilities (Applicant) claimed that the incident caused damage to an embankment that was overtop an underground sewer line. FEMA issued a Determination Memorandum denying $134,750.00 for embankment repairs. Although the site inspection noted embankment damages, FEMA found that the Applicant did not establish that the sewer line was damaged from the disaster; thus, FEMA found the embankment was not eligible as integral ground. The Applicant appealed stating that the embankment was an improved natural feature and alternatively, that it served as integral ground for the sewer line. FEMA issued an RFI requesting construction plans, predisaster maintenance and repair records. The Applicant confirmed the sewer line was buried 30 feet underneath the embankment, regularly monitored, and that it conducted a temporary repair after the incident to secure the sewer line. FEMA’s Region 4 Regional Administrator denied the appeal stating, among other findings, that the Applicant had not shown that the embankment was an improved and maintained natural feature or stable before the disaster. The Applicant filed a second appeal reiterating first appeal arguments and additionally stating that if the work was not eligible as permanent work, it was eligible as emergency work.

Authorities

• Stafford Act §§ 403(a), 406(a)(1)(A), 406(e)(1). 
• 44 C.F.R. §§ 206.201(b), 206.206(a), 206.221(c), 206.223(a)(1), 206.225(a)(3), 206.226.
• PAPPG, at 51-52, 55-56, 97, 110, 176, 181, 196, 214.
• The University of Alabama, FEMA-4546-DR-AL, at 3; Paintsville Utilities, FEMA-4595-DR-KY, at 3-4.

Headnotes

• A natural feature may itself be an eligible facility if it is improved and maintained. 
  • Here the Applicant has not demonstrated that the embankment has a designed and constructed improvement to its natural characteristics.
• FEMA may approve PA funding for the restoration of the integral ground that supports an eligible facility damaged by the disaster.
  • Here the Applicant has not demonstrated damage to an eligible facility (the sewer line) occurred as a result of the incident. 
• An immediate threat is a threat of additional damage or destruction from an incident that can reasonably be expected to occur within five years of the declared incident.
  • Here the Applicant has not demonstrated that the work to prevent future erosion, not yet completed, is required to eliminate an immediate threat. 

Conclusion

The Applicant did not demonstrate that the embankment is an eligible facility, or integral ground that supports an eligible facility damaged by the disaster, or that the work to restore the embankment is eligible as emergency work. Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

From February 27 to March 14, 2021, severe storms, flooding, landslides, and mudslides caused damages throughout Kentucky. Paintsville Utilities (Applicant), a Special District Government, claimed that the disaster caused an embankment failure, affecting its sewer line that was located underground beneath the embankment. It requested Public Assistance (PA) in the amount of $134,750.00 for embankment stabilization. FEMA conducted a site inspection on 

October 4, 2021, noting an embankment failure. The site inspection report (SIR) included photographs of the locations, which showed dense vegetation in the area. The Applicant submitted a geotechnical report dated October 29, 2021, conducted by Anderson Professional Services (APS). In the report, APS concluded that even though it did not know the exact timeline of the embankment failure, it understood the movement observed was a result of a rapid drawdown that occurred during the incident.[1]

FEMA transmitted a Request for Information (RFI) on January 26, 2022, requesting additional information including: (1) correct GPS coordinates of the site; and (2) an accurate technical report, because the one submitted from APS appeared to be from a different site. On 

February 10, 2022, the Applicant responded, confirming that the technical report submitted was the correct one for the site damaged, as it contained the site’s actual GPS coordinates. 

FEMA issued a Determination Memorandum (DM) on June 1, 2022, denying the requested $134,750.00. FEMA found that the Applicant did not demonstrate the claimed damages were a result of the declared incident or that the work was necessary to restore the structural integrity of the embankment. Specifically, FEMA stated that the Applicant did not establish that the ground was integral to the support of the sewer line, that the ground was damaged by the event, or that the structural stability of the sewer line was threatened because of the disaster.  

First Appeal 

The Applicant submitted a first appeal in a letter dated July 31, 2022, claiming that the embankment was the integral ground for the sewer line, and the embankment failure and slope’s continued instability left the sewer line unsupported and susceptible to additional damages and failure. Further, the Applicant submitted a new report from Bocook Engineering, the Engineer of Record for Paintsville Utilities, and a signed affidavit from its engineer, indicating that the sewer lines were in imminent danger. 

The Applicant stated even if the sewer line itself was not in imminent danger of damage, the embankment was an eligible facility because it was an improved and maintained facility. Specifically, it stated the construction of the sewer line required the installation of pipes and backfill to protect and stabilize the line, and it maintained and inspected the area. 

Further, the Applicant claimed that even if FEMA determined that the embankment was not an improved facility, the embankment should be eligible as integral ground for the sewer line. The Applicant stated that the documentation provided, specifically the engineer’s affidavit, demonstrated that the failure area was integral ground to the sewer line, and that other documents demonstrated there was no evidence of predisaster slope instability. Specifically, it stated that no predisaster work orders for repairs to concealed lines were needed or therefore produced by its preventive maintenance program. 

The Applicant additionally explained that the APS report included a conceptual repair and stated that to return this site to its predisaster form and function, multiple repairs should be conducted including: (1) removing existing failure mass; (2) importing and placing free-draining structural ground; and (3) including a rip rap slope protection.  

Alternatively, the Applicant claimed that if the requested work was not eligible as permanent work, this should be considered emergency work because of the immediate threat of failure of the sewer line. Specifically, the Applicant noted that its PE stated the failure of the line was inevitable because of future high-water events. Kentucky Emergency Management (Recipient) forwarded Applicant’s appeal in an email dated August 5, 2022, in support of the Applicant’s position.

FEMA issued an RFI dated April 20, 2023, requesting additional information including design and construction plans of the embankment, evidence of predisaster routine maintenance, precise locations and depths of the sewer line(s), and repairs conducted to the sewer line. The Applicant responded in a letter dated May 19, 2023, including a Declaration from its General Manager, and predisaster inspection documentation. The Applicant stated that it did not have the original construction plans, but it knew the sewer line was buried at least 30-inches below the ground. Regarding predisaster maintenance, the Applicant reiterated that the lines were regularly monitored including inspections in 2018, 2019, and 2020 following flood events, and no damage was recorded to the embankment. Finally, the Applicant claimed a 110-foot portion of the sewer line associated with the embankment failure had disaster damage, based on tensile pressure on the line due to the loss of lateral support and exposure to the sun’s ultraviolet rays, and the Applicant installed fittings and t-posts to the sewer line as a temporary measure to avoid it rupturing and spilling into the river.

The FEMA Region 4 Regional Administrator, in a letter dated September 5, 2023, denied the Applicant’s first appeal. FEMA found the Applicant had not demonstrated that the embankment was stable prior to the disaster. Further, FEMA determined the site suffered from age-related deterioration. Finally, FEMA stated that the Applicant did not demonstrate that the damaged embankment was an enhanced natural feature or part of a designed or improved slope that is routinely maintained.

Second Appeal

In a letter dated November 3, 2023, the Applicant filed a second appeal reiterating first appeal arguments, and resubmitting documents submitted on first appeal. Additionally, the Applicant disputes some of FEMA’s first appeal findings, including the site coordinates used by FEMA and the predisaster instability of the embankment. The Applicant references FEMA policy, which states that restoration of the integral ground for a disaster-damaged facility is eligible if the site is unstable and there is no evidence of predisaster instability. The Applicant states that what is required is the absence of evidence that there was any damage prior to the disaster, and that requirement has been met.

Finally, the Applicant compares this project to others in prior second appeal decisions where FEMA found slope stabilization measures eligible as permanent work, or alternatively, emergency work. The Recipient forwarded the appeal in a letter dated November 15, 2023, in support of the Applicant’s position.

Discussion

Improved Property/Natural Feature

FEMA has the authority to provide assistance for the repair, restoration, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster based on pre-disaster design and function and in conformity with current applicable codes, specifications, and standards.^[2] An eligible facility includes a system (e.g., sewage treatment and collection) or an improved and maintained natural feature.[3] A natural feature is improved and maintained if it meets all of the following conditions: (1) the natural feature has a designed and constructed improvement to its natural characteristics, such as a terraced slope or realigned channel; (2) the constructed improvement enhances the function of the unimproved natural feature; and, (3) the applicant maintains the improvement on a regular schedule to ensure that the improvement performs as designed.^[4] Alternatively, if an eligible public facility is located on a slope and is damaged as a result of a landslide or slope instability triggered by the incident, FEMA may approve PA funding for the restoration of the integral ground that supports the facility.^[5] To be eligible for PA funding, work must be required as a result of the disaster, and the applicant must demonstrate that the damage was directly caused by the incident.[6]It is the applicant’s responsibility to provide documentation to substantiate its claim as eligible and to clearly explain how those records support the appeal.^[7]

Here, the Applicant claims that the damaged embankment is an improved and maintained natural feature, and consequently, an eligible facility. However, the administrative record does not substantiate that the embankment meets the definition of an improved natural feature. Rather, the Applicant states it installed the sewer line at least 30-inches underground and added backfill, neither of which constitute a designed and constructed improvement to the embankment’s natural characteristics, such as a terraced slope.[8] In contrast, the costs requested for the embankment stabilization work include importing free-draining structural and rip rap slope protection, which would constitute a designed and constructed improvement to enhance the function of the embankment. However, the embankment did not have these improvements prior to the disaster; thus, this work goes beyond restoring the embankment to its predisaster design and function.[9] Moreover, post-disaster photographs of the embankment from the SIR show substantial wild vegetative growth, additional information that contradicts the Applicant’s assertion the embankments had designed or constructed improvements that were maintained on a regular schedule. In other words, while the Applicant has shown the embankment is above a buried sewer line, the Applicant has not demonstrated there are improvements to the embankment itself that required maintenance on a regular schedule to ensure that the improvement performed as designed. Therefore, the embankment does not constitute an eligible improved and maintained natural feature.

The Applicant alternatively suggests that the embankment is eligible as integral ground supporting the sewer line. However, the requested costs pertain only to restore and improve the embankment; the documentation in the record does not indicate that the Applicant has requested PA funding to repair an eligible facility (i.e., the sewer line).[10] The repair recommendations in the APS report were formulated “only to protect the water line from damage,” and not to repair any purported damages to the sewer line directly caused by the incident.[11] Moreover, APS acknowledged in its report that it did not know the exact timeline of the embankment failure, which the Applicant has previously asserted was the cause of the sewer line damages. Based on the documentation in the record, the Applicant has not demonstrated that the sewer line sustained damages as a direct result of the disaster. Therefore, as the Applicant has not substantiated that an eligible facility purportedly supported by the embankment was damaged as a direct result of the disaster, the embankment is not eligible for PA funding for restoration work under FEMA policy applicable to integral ground. 

Based on the above, the embankment is not an eligible facility, nor is it eligible for restoration work as claimed integral ground to the sewer line.

Immediate Threat

FEMA is authorized to provide PA funding for emergency work which must be done immediately to eliminate or lessen immediate threats: (1) to lives, public health, or safety; or (2) of significant additional damage to improved public or private property in a cost-effective manner.^[12] An immediate threat is a threat of additional damage or destruction from an incident that can reasonably be expected to occur within five years of the declared incident.^[13] FEMA considers the urgency with which the applicant proceeds with work when evaluating eligibility.[14] 

As an alternative to its argument concerning the eligibility of the embankment restoration work as permanent work, the Applicant states the requested work is eligible as emergency work to eliminate or lessen an immediate threat.[15] The Applicant provides a sworn statement from its engineer that states future high-water events will further reduce the stability of the embankment and its failure is inevitable in its current conditions.[16] However, this engineer’s statement does not demonstrate that the embankment’s condition poses an immediate threat. A long-term increased risk of erosion does not equate to an immediate threat.[17] Additionally, the Applicant has not yet completed the requested work, more than a year and a half after the disaster.[18] Therefore, the lack of urgency shown by the Applicant in completing the requested work raises additional concern regarding the eligibility of the work as emergency work.[19] 

The Applicant has not substantiated that the requested work is eligible emergency work as the Applicant has not demonstrated it must be done to eliminate or lessen an immediate threat.

Conclusion

The Applicant did not demonstrate that the embankment is an eligible facility, or integral ground that supports an eligible facility damaged by the disaster, or that the work to restore the embankment is eligible as emergency work. Therefore, this appeal is denied.