Landslides and Slopes Stabilization

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4424
Applicant	Ohio Township (Monroe)
Appeal Type	Second
PA ID#	111-57988-00
PW ID#	GMP 100637
Date Signed	2022-09-21T16:00:00

Summary Paragraph

From February 5 through13, 2019, severe storms and flooding impacted Monroe County, Ohio.  Ohio Township (Applicant) claimed roadway damage and slope instability on the Township Road 428-Boston Hill Road (Facility), a slope-adjacent asphalt road running above a buried culvert.  FEMA developed Grants Manager Project 100637/Damage Inventory #294833 for restoration of the roadway and slope stabilization work.  FEMA issued a Request for Information, requesting documentation demonstrating that the Facility was in good repair prior to the declared disaster, that the Facility was damaged as a direct result of the disaster, any tests, reports or studies demonstrating that the Facility is now unstable or compromised as a result of the disaster, and that the road was stable prior to the declared incident period.  The Applicant responded with four invoices for road repairs from 2017.  FEMA issued a Determination Memorandum, denying the Applicant’s request for PA funding because the Applicant did not demonstrate that the Facility was damaged due to the disaster, specifically finding that the Applicant did not provide documentation showing that the Facility was in good condition prior to the event.  The Applicant filed a first appeal, making no new arguments but attaching previously provided documents.  The Ohio Department of Public Safety (Recipient) forwarded, with its support, stating that the 2017 records demonstrated the predisaster condition of the Facility.  FEMA issued an RFI, and the Applicant responded with photographs, and explained the Applicant’s practice for inspecting roads, as well as information regarding the types of soil found in the area.  The FEMA Region V Regional Administrator partially granted the Applicant’s appeal, finding that the $14,200 requested for Facility surface repairs was eligible.  FEMA found that the Applicant had not provided documentation or evidence demonstrating that the Facility was made unstable due to the disaster and therefore denied the remaining $260,000.00 for work to stabilize the slope.  The Applicant filed a second appeal reiterating previously raised arguments, and requesting that FEMA fund site inspections to determine site stability.  The Recipient forwarded with its support. 

Authorities and Second Appeals

• Stafford Act 406(a)(1)(A).
• 44 C.F.R. § 206.223(a)(1).
• PAPPG, at 19, 128, and 133.
• FEMA Second Appeal Analysis, Grand Strand Water & Sewer, FEMA-4286-DR-SC, at 3 (Oct. 19, 2020).

Headnotes

• FEMA may also provide assistance to restore the integral ground that supports a facility 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.  Site inspections and limited geotechnical assessments to determine site stability and to obtain a technical opinion of the cause of the slope failure may be eligible for PA funding.
  • Here, the Applicant has neither demonstrated that the disaster triggered a landslide or slope instability, nor that either purported event caused the damage to the Facility.  Therefore, FEMA denies the requested geotechnical assessments and site inspections to determine site stability and obtain a technical opinion of the cause of the slope failure.

Conclusion

FEMA finds that because the Applicant has not demonstrated that the Facility was damaged as a result of a landslide or slope instability triggered by the incident, slope stabilization work is not eligible for PA funding.  Therefore, this appeal is denied.     

 

Appeal Letter

Appeal Analysis

Background

From February 5-13, 2019, severe storms and flooding impacted Ohio Township (Applicant) which claimed that heavy rains saturated the road foundation of Township Road 428-Boston Hill Road (Facility),[1] a slope-adjacent asphalt road covering a buried culvert.  FEMA prepared Grants Manager Project 100637 to capture the Applicant’s claimed damages to the Facility’s surface, subsurface, and adjacent slope.  FEMA subsequently conducted a site inspection on July 22, 2019.  FEMA’s Site Inspection Report (SIR) noted two holes in the Facility’s surface, surface cracks over existing patching, and pavement deflection in the new asphalt overlay.[2]  

FEMA issued a Request for Information (RFI) on February 7, 2020 because the Agency had concerns regarding whether the claimed damage was a direct result of the disaster.  Based on FEMA’s site inspection, it appeared the damage was a result of deterioration and not the disaster.  Accordingly, FEMA requested: (1) maintenance records, material invoices, photographs, or other documentation showing that the Facility was regularly-maintained and that the surface was in good condition prior to the declared disaster; (2) documentation, technical studies, inspections, and other information demonstrating that the Facility was damaged as a direct result of the disaster; (3) geotechnical studies, field tests, or other technical reports demonstrating that the site was now unstable, or the structural integrity of the Facility was now compromised, as a direct result of the disaster; and, (4) geotechnical studies, soil studies or other documentation demonstrating that the site was stable prior to the declared incident period.  The Applicant responded on February 10, 2020, with four invoices from 2017 for repairs (e.g., paving) to the Facility.

In a Determination Memorandum signed on October 13, 2020, FEMA denied Public Assistance (PA) funding, finding that the Applicant did not demonstrate that the Facility was damaged as a result of the disaster.

First Appeal

The Applicant submitted its first appeal via letter dated October 30, 2020, requesting FEMA grant PA funding for costs to repair the Facility and slope.  The Applicant attached the estimates for similar projects, a letter describing the Applicant’s maintenance procedure for all of its roads, the previously submitted 2017 invoices, and FEMA’s site inspection photographs, as well as an engineer’s cost estimate for repair work to the Facility (i.e., repairing 75 feet of asphalt surface) and stabilization work to the slope, totaling $274,200.00.  The Ohio Emergency Management Agency (Recipient) forwarded the Applicant’s appeal to FEMA in a letter dated December 22, 2020, stating that the photographs and SIR demonstrated evidence of a landslide.

FEMA issued an RFI on March 22, 2021 requesting: (1) photographs, inspection reports, or other information substantiating the predisaster condition of the Facility’s surface and slope; (2) a technical report or engineering study to address why inadequate drainage was not the cause of the claimed damage, and why a retaining wall was the appropriate solution; and (3) geotechnical studies, slope stability analyses, subsurface explorations, or other site-specific technical assessments demonstrating that the Facility was damaged by a landslide or slope failure triggered by the declared disaster.  To demonstrate disaster-related damages to the Facility and site, the Applicant provided aerial photographs of the roadway from 2014 and 2018.  The Applicant also noted it inspected its roads once a month.  Responding to the landslide issue, the Applicant cited to a U.S. Department of Agriculture (USDA) Soil Survey, noting that Monroe County’s soil makes the area slip-prone, and arguing that this demonstrates a disaster-related landslide occurred at the site.

As part of the first appeal review, a FEMA engineer assessed this project and ultimately could not validate there was a landslide.[3]  He noted that the edges of the road and shoulders were in place and not moved laterally.  Additionally, while the engineer noted a transverse crack extended along the width of the Facility, he observed that this is not a normal scarp that occurs in the case of a landslide.  Finally, he pointed out that the transverse crack, sinkholes, and local settlement of the Facility’s pavement were all located in close proximity to the buried culvert.  He noted that these types of damages over a culvert often develop as a result of seepage along the outside of a culvert.

The FEMA Region V Regional Administrator partially approved the appeal, finding that the Applicant established that the Facility was damaged due to the declared incident, and approved $14,200.00 in funding for repairs to its surface.  FEMA noted that the site inspection photographs revealed that outside of the Facility’s damage area, the asphalt surface of the overall road appeared to be in good condition, without similar cracking or deterioration.  In addition, FEMA observed that the Applicant provided predisaster aerial imagery for the Facility showing the holes and cracking above the culvert were not present before the disaster.  FEMA then found, however, that the Applicant did not demonstrate that the Facility had been made unstable due to the disaster, or that the surface damages were the result of a landslide or slope failure triggered by the disaster, and denied the remaining $260,000.00 for work to stabilize the slope. 

Second Appeal

The Applicant submitted a second appeal via letter dated April 21, 2022, seeking $260,000.00 for slope stabilization work.  For support, the Applicant notes that the FEMA site inspector observed a slip at the time of the inspection.[4]  The Applicant also requests that FEMA fund geotechnical assessments and site inspections to determine site stability and obtain a technical opinion of the cause of the slope failure, as the Applicant is not able to do so financially.[5]  The Recipient forwarded the Applicant’s appeal, in a letter dated June 16, 2022, with its support.

 

Discussion

FEMA may provide PA funding to a local government for the repair of a public facility damaged by a major disaster.[6]  FEMA may also provide assistance to restore the integral ground that supports a facility 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.[7]  The applicant is responsible for providing documentation to support its claim as eligible and show that work is required to address damage caused by the disaster.[8]  The burden to substantiate appeals with documented justification falls exclusively to the applicant and hinges upon the applicant’s ability to not only produce its own records, but to clearly explain how those records support the appeal.[9]

The Applicant has not demonstrated that the disaster triggered either a landslide or slope instability at the Facility’s site.  The Applicant cites to a USDA Soil Survey that indicates Monroe County’s soil may be slip-prone.  This however does not establish the existence of a landslide or slope instability at the particular site on appeal nor does it establish that this disaster triggered either event to occur.  Next, the Applicant points out that the FEMA site inspector noted a slip at the time of his inspection.  The Applicant does not clearly explain how notation of a slip equates to slope instability.  It seems to imply the two items are synonymous but does not provide documentation or explanation to support that assertion.   

In contrast to the Applicant’s assertions, the SIR did not find the presence of a landslide or slope instability at the site.[10]  Moreover, FEMA’s engineering assessment performed on first appeal similarly could not validate a landslide had occurred.  Rather, the FEMA engineer explained that the transverse crack, sinkholes, and local settlement of the Facility’s pavement were all located in close proximity to the buried culvert and often develop as a result of seepage along the outside of a culvert.  Consequently, the Applicant has also not demonstrated either a landslide or slope instability triggered by the incident event caused the damage to the Facility that FEMA approved on first appeal.  Therefore, the Applicant’s requested slope stabilization work is not eligible for PA funding.[11]  

 

Conclusion

As the Applicant has not demonstrated that the Facility was damaged as a result of a landslide or slope instability triggered by the incident, slope stabilization work is not eligible for PA funding.  Therefore, this appeal is denied. 

 

[1] This Facility is referenced as Site 7 in the administrative record.

[2] FEMA Site Inspection Report, Work Order (WO) 43669, Damage Inventory (DI) 294833, at 2-3 (Jul. 22, 2019); FEMA Site Inspection Photo Page, WO 43669, DI 294833, at 1-2 (Jul. 22, 2019).

[3] Email from Eng’r, FEMA Region V to Appeals Analysts, FEMA Region V (July 20, 2021, at 17:45 CST) (hereinafter Engineering Email). 

[4] Letter from Ohio Twp. Fiscal Officer, to FEMA Region V and Ohio Emergency Mgmt. Agency, at 1 (April 21, 2022) (internal emphasis omitted).

[5] Id. at 1-2.

[6] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act § 406(a)(1)(A), Title 42, United States Code (42 U.S.C) § 5172(a)(1)(A) (2018).

[7] Public Assistance Program and Policy Guide, FP104-009-2, at 128 (Apr. 1, 2018).

[8] Id. at 19, 133.

[9] Title 44 of the Code of Federal Regulation § 206.206(a); FEMA Second Appeal Analysis, Grand Strand Water & Sewer, FEMA-4286-DR-SC, at 3 (Oct. 19, 2020).

[10] Site Inspection Report, WO 43669, DI 294833, at 1-4; Grants Manager Project Report, Ohio Township (111- 57988-00), Project 100637, at 1.

[11] As the Applicant has not demonstrated the presence of either a landslide or slope instability, FEMA also denies its request for geotechnical assessments and site inspections to determine site stability and obtain a technical opinion of the cause of the slope failure.