Landslides and Slope Stabilization, Result of Declared Incident

Appeal Brief

Summary Paragraph

From February 27 to March 14, 2021, Kentucky experienced severe storms, flooding, landslides, and mudslides. The City of Paintsville (Applicant) requested Public Assistance to address embankment erosion, and claimed boardwalk and parking lot damage. FEMA conducted a site inspection and estimated $284,937.33 for the repairs. The Applicant provided a maintenance statement, and a geotechnical report. FEMA sought routine maintenance records, inspection reports, and documentation to verify predisaster stability of the embankment. The Applicant stated that it could not provide maintenance records due to flooding in its storage location. FEMA issued a Determination Memorandum denying $284,937.33. FEMA found that the Applicant did not (1) distinguish disaster-related damage from deterioration and/or deferred maintenance; (2) establish that the embankment was designed, constructed, and maintained; (3) establish that the embankment was stable predisaster; nor (4) demonstrate that requested costs were reasonable. The Applicant submitted a first appeal on April 15, 2022, requesting $1,983,484.50 for parking lot and boardwalk reconstruction, and embankment stabilization. The FEMA Region 4 Regional Administrator denied the appeal, finding that the Applicant did not demonstrate that the site was stable predisaster, therefore the damage could not be attributed to the disaster. The Applicant submits an August 25, 2023 dated second appeal reasserting its first appeal arguments and addressing FEMA’s first appeal determination. The Kentucky Emergency Management transmitted the appeal with its August 28, 2023 letter recommending approval. 

Authorities

• Stafford Act § 406(a)(1)(A).
• 44 C.F.R. § 206.223(a)(1).
• PAPPG, at 51-52, 63-64, 181.
• Escambia County, FEMA-4564-DR-FL, at 3; Vinton County Engineer, FEMA-4424-DR-OH, at 3; Jefferson City, FEMA-4451-DR-MO, at 4.

Headnotes

• To be eligible for Public Assistance, work must be required as a result of the disaster, and the applicant must demonstrate that the damage was directly caused by the incident. 
  • The Applicant has not demonstrated that the embankment was stable prior to the disaster, nor distinguished pre-existing damage from disaster-related damage. Therefore, the Applicant has not established that the parking lot and boardwalk repair work is required as a result of the disaster.
• 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 Public Assistance funding for restoration of the integral ground that supports the otherwise eligible facility.
  • Since the parking lot and boardwalk were not damaged as a result of the disaster, then the work to repair the integral ground supporting the parking lot and boardwalk is not eligible for assistance.

Conclusion The Applicant has not demonstrated that that the requested parking lot and boardwalk repairs were required as the result of the disaster, nor that the embankment is integral ground that supports an eligible disaster-damaged facility. Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

From February 27 to March 14, 2021, Kentucky experienced severe storms, flooding, landslides, and mudslides.[1] The City of Paintsville (Applicant) requested Public Assistance (PA) from FEMA. The Applicant reported that high flood waters from the Paint Creek caused embankment erosion, which damaged a boardwalk and parking lot, located at the top of the embankment. FEMA prepared Grants Manager Project (GMP) 241964 to document the damage, estimating $284,937.33 in costs for the repairs. On August 11, 2021, FEMA conducted a site inspection. The Site Inspection Report (SIR) documented the claimed damage, including photographs of parking lot cracking.[2] The Applicant provided a maintenance statement, and a geotechnical report in support of its request.^[3] 

FEMA issued multiple Requests for Information (RFI) via Grants Portal, including a December 20, 2021 RFI, seeking routine maintenance records and inspection reports specific to the boardwalk and parking lot, as well as documentation to verify the stability of the embankment prior to the incident. In the Applicant’s response, it stated that it could not provide maintenance records due to flooding in its storage location. 

On February 17, 2022, FEMA issued a Determination Memorandum denying $284,937.33. FEMA found that the Applicant (1) did not provide documentation, such as maintenance records, showing the predisaster condition of the parking lot and boardwalk to distinguish disaster-related damage from deterioration and/or deferred maintenance; (2) did not establish that the embankment was designed, constructed, and maintained; (3) did not establish that the embankment was stable prior to the event; and (4) did not demonstrate that requested costs were reasonable. 

First Appeal 

The Applicant submitted a first appeal on April 15, 2022, requesting $1,983,484.50 for parking lot and boardwalk reconstruction, and embankment stabilization. The Applicant stated that it concurred with FEMA’s determination that the embankment was a natural feature, and not a designed and maintained feature and thus not, by itself, an eligible facility. The Applicant emphasized that the boardwalk was functional predisaster, and became non-functional after the disaster, attaching and referencing the Paint Creek Boardwalk Repair Geotechnical Design Report, a June 2018 Google Street View photograph, and photographs from 2017-2019 showing the parking lot in use. The Applicant stated that, although it could not provide maintenance records, it previously submitted a maintenance statement, asserting that the statement and predisaster photographs show that the boardwalk and parking lot were in good condition and functional prior to the disaster. The Applicant asserted that its APS Geotechnical Report provided a scope of work and costs for the most efficient and technically feasible repair method for the embankment. Finally, the Applicant requested funding for the boardwalk and parking lot even if FEMA found that the slope was unstable prior to the disaster, on the condition that the Applicant would stabilize the integral ground. The Kentucky Emergency Management (Recipient) transmitted the appeal on April 18, 2022, recommending approval. On June 26, 2023, the FEMA Region 4 Regional Administrator denied the appeal, finding that the Applicant did not demonstrate that the site was stable prior to the disaster, therefore the damage could not be attributed to the disaster.

Second Appeal

The Applicant submits a second appeal dated August 25, 2023, reasserting its first appeal arguments. The Applicant confirms its previous statement that the embankment is neither improved nor maintained. The Applicant asserts that FEMA erred in its first appeal decision when it found that the APS Geotechnical Report indicated that the embankment was unstable prior to the disaster. The Applicant contends that FEMA erroneously determined predisaster embankment instability based on post-disaster photographs. The Applicant includes a previously submitted June 2018 image it asserts shows the parking lot without the significant cracking apparent after the disaster. The Recipient transmitted the appeal with its August 28, 2023 letter recommending approval.

Discussion

FEMA may provide funding to a local government for the repair of a public facility damaged by a major disaster.^[4] 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.^[5] FEMA does not provide funding for repair of damage caused by deterioration or deferred maintenance.[6] It is the applicant’s responsibility to demonstrate that claimed damage was directly caused by the incident, and where pre-existing damage exists, to distinguish that damage from the disaster-related damage.^[7] If a facility was functioning prior to the disaster and the disaster caused damage that rendered the facility non-functional, the facility may be eligible provided the pre-disaster condition was not a significant contributing factor in the cause of failure.[8] When necessary to validate damage, the applicant may be required to provide predisaster photographs of the impacted site or documentation supporting the predisaster condition of the facility (e.g., facility maintenance records, inspection/safety reports).[9] If the applicant does not provide documentation to support its claim as eligible, FEMA cannot provide PA funding for the work.[10]

If an eligible facility is located on a slope and is damaged as a result of a landslide or slope instability triggered by the incident, FEMA determines the stability of the slope that supports the facility before it approves PA funding to restore the facility.[11] Restoration of the integral ground that supports the facility may also be eligible.[12] If the site is unstable and there is evidence of predisaster instability after the facility was constructed, restoration of the facility’s integral ground is ineligible.[13] 

In order to distinguish pre-existing damage from the disaster-related damage, FEMA requested information, including routine maintenance records and inspection reports specific to the boardwalk and parking lot as well as documentation to verify the stability of the embankment prior to the incident. The Applicant did not provide maintenance records; instead, it asserted that predisaster photographs showing the boardwalk and parking lot in active use indicate that the boardwalk and parking lot were in good condition and functional predisaster. FEMA’s site inspection photographs show asphalt cracking throughout the parking lot, including wider cracks along the edge adjacent to the concrete curb and boardwalk. The 2018 Google Street View photograph shows damage, such as cracking, in the same areas of the parking lot the Applicant attributes to embankment failure caused by the disaster. The same predisaster photograph shows vegetation in the cracks along the parking lot’s edge adjacent to the curb and boardwalk indicating that water was able to infiltrate to the embankment below. Furthermore, the APS Geotechnical Report stated that surface runoff from the parking lot entered tension cracks, saturating the soils and potentially contributing to slope movement.[14] Additionally, the Applicant-provided photographs either do not show the areas of the parking lot where the claimed damage is located, or objects, such as tables and vehicles, obstruct the view. 

Similarly, the Applicant’s photographs of the boardwalk do not show details of the claimed damaged area that demonstrate predisaster condition. The maintenance statement provides only a general overview of the Applicant’s maintenance of public facilities and does not specify any maintenance performed to the boardwalk or parking lot, nor provides supporting documentation, such as inspection/work reports.^[15] Accordingly, the Applicant has not documented the predisaster condition of the parking lot and boardwalk to distinguish pre-existing damage from the disaster-related damage.

In addition, the Applicant has not demonstrated that the embankment was stable prior to the disaster. Therefore, the Applicant has not established that the parking lot and boardwalk damage occurred as a result of a landslide or slope instability triggered by the incident. Consequently, even if the parking lot and boardwalk were rendered non-functional after the disaster, the Applicant has not demonstrated that the requested repair and restoration work is required as a result of the disaster. Thus, the embankment is not eligible for PA as integral ground because the Applicant has not established that it supports a disaster-damaged facility, nor that it was stable prior to the disaster.^[16]

Conclusion

The Applicant has not demonstrated that that the requested parking lot and boardwalk repairs were required as the result of the disaster, nor that the embankment is integral ground that supports an eligible disaster-damaged facility. Therefore, this appeal is denied.