Landslides and Slopes Stabilization, Result of Declared Incident

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4595
Applicant	Boyd County
Appeal Type	Second
PA ID#	019-99019-00
PW ID#	GMP 186634/ PW 60
Date Signed	2023-06-07T16:00:00

Summary Paragraph

During the incident period of February 27 to March 14, 2021, Kentucky experienced severe storms, flooding, landslides, and mudslides. Boyd County (Applicant) sought Public Assistance (PA) funding for damages to a section of Rosewood Drive’s road surface, base, and shoulder (Facility). FEMA prepared Grants Manager Project 186634/Project Worksheet 60 to document the work and estimated repair costs of $95,868.83. FEMA performed a site inspection and recorded observed asphalt cracking and road slippage along the lower side of the Facility. FEMA issued a Request for Information, referencing a 2013 aerial image showing similar cracking, and requesting documentation demonstrating that the claimed damage occurred as a direct result of the disaster. The Applicant responded, providing a graph of the area’s geology and an engineer’s statement. FEMA issued a Determination Memorandum denying $95,868.83, finding the Applicant did not provide documentation to verify that the damage was a direct result of the disaster. The Applicant submitted a first appeal, asserting that the damage resulted from the disaster. Kentucky Emergency Management (Recipient) transmitted the appeal and recommended that FEMA reinstate the requested funding. FEMA denied the appeal, finding that the Applicant did not demonstrate that the damage occurred as a result of the disaster. The Applicant submitted a second appeal on February 16, 2023, reiterating its first appeal arguments and providing additional documents, including 2019-2020 work orders, a road work appropriations summary, a statement describing post-disaster damage, and an engineering report for a different road. The Recipient transmitted the appeal on February 22, 2023, requesting approval of the project.

Authorities and Second Appeals

• Stafford Act § 406(a)(1)(A).
• 44 C.F.R. § 206.223(a)(1).
• PAPPG, at 51-52, 63-64, 169-170, 181.
• Center, Twp. (Monroe Cnty.), FEMA-4424-DR-OH, at 3 (Mar. 24, 2023); Belgrade (Township of), FEMA-4390-DR-MN, at 2 (June 8, 2020).

Headnotes

• An item of work must be required as a result of the incident to be eligible for Public Assistance funding. It is the Applicant’s responsibility to demonstrate that the damage is the direct result of the incident.
  • Here, the Applicant has not substantiated through documentation that its damages are the direct result of the declared incident.
• FEMA may provide assistance to restore the integral ground that supports an eligible facility if the facility is located on a slope and is damaged as a result of a landslide or slope instability triggered by the incident.
  • Here, the Applicant has not demonstrated that either a landslide or slope instability triggered by the disaster damaged the Facility.

Conclusion

FEMA finds that the Applicant has not demonstrated that the claimed work was required as a result of the declared incident. Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

During the incident period of February 27 to March 14, 2021, Kentucky experienced severe storms, flooding, landslides, and mudslides.[1] Boyd County (Applicant) sought Public Assistance (PA) funding for damages to a section of Rosewood Drive’s road surface, base, and shoulder (Facility). The Applicant provided a statement that it performed routine maintenance, and a repair work and costs proposal. FEMA prepared Grants Manager Project 186634/Project Worksheet 60 to document the work and estimated repair costs of $95,868.83. On July 7, 2021, FEMA performed a site inspection (SI) and recorded observed asphalt cracking and road slippage along the lower side of the Facility in a site inspection report (SIR). FEMA issued a Request for Information to the Applicant through FEMA’s online grants management system, Grants Manager (GM). FEMA referenced a 2013 aerial image showing similar cracking to that observed in the SIR and requested documentation demonstrating that the claimed damage occurred as a direct result of the disaster. The Applicant responded via email, providing a graph of the area’s geology and an engineer’s statement, opining, among other things, that the disaster increased the Facility’s ongoing slope deterioration.[2]

On November 12, 2021, FEMA issued a Determination Memorandum denying $95,868.83, finding the Applicant did not provide supporting documentation to verify that the damage was a direct result of the disaster.

First Appeal

The Applicant submitted its first appeal in a letter dated January 10, 2022, asserting that the damage resulted from heavy flooding and landslides during the disaster, which compromised the substructure and integrity of the Facility. Kentucky Emergency Management (Recipient) transmitted the appeal on January 23, 2022 and recommended that FEMA approve the requested funding. On December 19, 2022, FEMA denied the appeal, finding that the Applicant did not demonstrate that the damage occurred as a result of the disaster. Rather, it found that the damage was due to the exacerbation of pre-existing deterioration. FEMA stated that a 2013 satellite image showed predisaster cracking in the claimed section of the roadway and the Applicant has not shown that this section of roadway has been replaced or otherwise repaired since 2013. Additionally, FEMA noted that the Applicant’s engineer explained that the surrounding area was susceptible to creep movement over time because of the area’s geology.

Second Appeal

The Applicant submitted a second appeal in GM on February 16, 2023, arguing that its appeal involves the road’s foundation and not the roadway surface, asserting that it properly documented that the damage was caused by the disaster, and referring to additional and previously provided documents. In addition to the documents previously submitted, the Applicant provided two 2019-2020 work orders,[3] a fiscal year 2020-2021 road work appropriations summary, and an employee’s statement describing post-disaster observations. The Applicant also provided an engineering report for a different road, approximately 5 miles from the Facility, asserting that it has similar topography and roadway characteristics. The Recipient transmitted the appeal on February 22, 2023, requesting approval of the project.

 

Discussion

FEMA provides PA funding to eligible applicants for the repair, restoration, reconstruction, or replacement of eligible facilities damaged or destroyed by major disasters.^[4] To be eligible for PA funding, work must be required as a result of the disaster.^[5] FEMA does not provide PA funding for repair of damage caused by deterioration, deferred maintenance, the applicant’s failure to take measures to protect a facility from further damage, or negligence.^[6] When evaluating eligibility of reported road damage, in addition to evaluating how the incident caused the damage, FEMA reviews maintenance records or documentation establishing that the applicant has a routine maintenance program.^[7] Such documentation may be helpful to establish the predisaster condition of a facility and demonstrate that the damage was directly caused by the incident.^[8] 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.^[9] Restoration of the integral ground that supports the facility may also be eligible.^[10] 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; and documentation supporting pre-disaster condition of the facility.^[11] If the Applicant does not provide sufficient documentation to support its claim as eligible, FEMA cannot provide PA funding for the work.[12]

FEMA’s SI photographs noted slippage and showed roadway cracking. A 2013 satellite image shows similar cracking as that observed in the SIR, in the same section of the roadway currently claimed as damaged from this disaster. In order to differentiate any predisaster deterioration from potentially eligible disaster-related damage, FEMA requested documentation to show that the damage was directly caused by the declared incident. The Applicant provided an engineer’s statement, and accompanying graph, describing the geological characteristics of the Facility’s area, asserting that there is evidence of creep, and opining that “[s]pring 2021 rains acted as a catalyst to the ongoing creep, causing more significant damage to the slopes than would normally be expected…”[13] However, the response did not establish that the disaster caused the claimed damage. Instead, it indicates the presence of an ongoing landslide that shows that the slope was unstable prior to the disaster.

The Applicant also provided a statement describing its routine road inspection and maintenance process, but it does not include details of inspections and/or maintenance specifically related to the Facility. Similarly, the Applicant did not provide documentation to support its employee’s post-disaster statement that described multiple predisaster road inspections, such as reports or photographs.[14] Finally, the Applicant’s 2020-2021 road work appropriations summary and two work orders similarly lack details tying the funding and work to the Facility and the damage claimed.

On second appeal, a FEMA engineer reviewed the Applicant’s documentation, finding that it does not support the Applicant’s claims that that the Facility was damaged as a result of the storms and associated flooding, or landslide or slope instability caused by the event, nor that the embankment became unstable as a result of the disaster.[15] Notably, the Applicant provided a repair work and costs proposal addressing a slide, scarp and cracking; however, the document does not provide the cause of the damage, nor any geotechnical investigation establishing a landslide. The Applicant also provided an engineering report for another road, asserting that its topography and roadway characteristics are similar to that of the Facility. Nonetheless, it does not to support the Applicant’s claim as eligible and show that work is required to address damage caused by the disaster. As FEMA is unable to distinguish any disaster-related damage from the predisaster condition of the Facility, the Applicant has not demonstrated that the Facility was damaged as a direct result of the disaster.

 

Conclusion

FEMA finds that the Applicant has not demonstrated that the claimed work was required as a result of the declared incident. Therefore, this appeal is denied.