Result of Declared Incident

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4424
Applicant	Center, Township, (Monroe County)
Appeal Type	Second
PA ID#	111-12966-00
PW ID#	GMP 100041
Date Signed	2023-03-24T16:00:00

Summary Paragraph

From February 5, 2019, through February 13, 2019, severe storms and flooding occurred throughout Monroe County, Ohio. Center Township (Applicant) claimed disaster related damage to repair the road base, embankment, shoulder and culvert, and associated rip-rap on Hines Road/TR2324 (Facility). FEMA prepared Grants Manager Project 100041 to capture the architectural and engineering costs in the amount of $50,000.00. FEMA conducted two site inspections, which noted a four-foot settlement, culvert separation, road and shoulder damage and some temporary road repairs. FEMA sent a request for information (RFI), requesting documentation to substantiate the method of repair, maintenance records showing the last time material was placed at the site, and photos or other documentation showing that the site was regularly maintained and in good condition prior to the declared incident. The Applicant provided roadway maintenance records and technical justifications. FEMA found that the Applicant did not demonstrate the site was stable prior to the disaster, and repair of the road’s surface and base would be eligible only after the Applicant first stabilized the slope and restored the embankment. The Applicant filed a first appeal contending the predisaster photographs demonstrate that the site was stable and maintained. The Applicant included a cost estimate to stabilize the embankment and return the facility back to its predisaster function in the amount of $291,200.00. FEMA sent a second RFI requesting similar documentation as the first RFI. FEMA also commissioned an independent technical review that opined that the damage was not a direct result of the disaster but was pre-existing over time and from a culvert not placed at the lowest point of water collection. The FEMA Region 5 Regional Administrator denied the first appeal, finding the Applicant did not substantiate the work was required as a result of the declared incident. The Applicant files its second appeal, reiterating its first appeal arguments and challenging a technical review FEMA had relied on. The Recipient forwarded the appeal in support of the Applicant’s position.

Authorities and Second Appeals

·       Stafford Act § 406(a)(1)(A).

·       44 C.F.R. § 206.223(a)(1).

·       PAPPG, at 19-20, 116, 128, 133.

·       City of Brenham, FEMA-4272-DR-TX, at 4 (Mar. 12, 2019).

Headnotes

·       An item of work must be required as a direct result of the declared incident to be eligible for Public Assistance funding. It is the Applicant’s responsibility to demonstrate that the damage is disaster-related.

            o   Here, the Applicant has not substantiated through documentation that its damages are the direct result of the declared incident.

Conclusion

The Applicant has not demonstrated the work to repair damages to its Facility is required as a direct result of the declared incident. Therefore, the appeal is denied.

Appeal Letter

Appeal Analysis

Background

From February 5 - 13, 2019, severe storms and flooding impacted Monroe County, Ohio. Monroe County Center Township (Applicant) claimed that soil saturation with slope instability caused damages to its gravel road (Hines Road/TR 2324), road base, embankment, shoulder and culvert, and associated rip-rap (collectively referred to as “Facility”). The Applicant requested Public Assistance (PA) funding to repair the Facility. FEMA conducted two site inspections, which noted the damages included an eroded road and embankment with a 4-foot drop and
8-foot slip and a separated or bent culvert, with some temporary repairs of the road surface completed.   

FEMA sent the Applicant a Request for Information (RFI) dated December 18, 2019, expressing concern, in part, about whether the damages were disaster-related. Accordingly, FEMA requested maintenance records to show the Facility was maintained and in good condition prior to the disaster. The Applicant responded to the RFI on December 20, 2019, by providing a statement that Hines Road/TR 2324 was last re-surfaced August 9, 2017, and included a general note outlining its annual maintenance routine.

In a Determination Memorandum (DM) dated September 30, 2020, FEMA denied the Applicant’s request for PA funding, noting that site inspections indicated that the road damage was pre-existing and the Applicant had not submitted sufficient documentation to validate that the road damages were caused by the disaster or to show that the Facility was in good condition prior to the event.

First Appeal

The Applicant submitted a first appeal on October 29, 2020, including predisaster aerial imagery, and predisaster documentation in an attempt to show the Facility was stable, maintained, and undamaged prior to the disaster. Additionally, the Applicant included a cost estimate to stabilize the embankment and return the Facility back to its predisaster function. The estimate included geotechnical work, construction, and inspection to complete the repair. The total repair costs were $291,200.00. The Ohio Emergency Management Agency (Recipient) supported the appeal and recommended approval of the repair costs.

FEMA requested an independent technical review of the Facility to assess the cause of the Applicant’s claimed damages. The review noted damages but indicated there was no evidence that rainfall during the disaster caused embankment slip damage at the location. The review noted that there was a dip in the drainage channel and the culvert was not located at the lowest point of the roadway, so it could not convey water there. Instead, the location of the culvert allowed for water to accumulate and possibly overtop the road. The review indicated that drops in the road were due to erosion from water overtopping the road and soil saturation was unlikely because the ground was frozen at the time of the event. The review also found that neither the dip nor the culvert is associated with slope failure because no tension cracks were present. Based on this collective information, the independent technical reviewer found that the damage was likely to have been caused over time and not as a result of the disaster.[1]

FEMA issued an RFI on March 24, 2021, requesting photographs, inspection reports, or other information substantiating the predisaster condition of the road surface, culvert, and embankment. Additionally, the RFI requested documentation showing the last time the road was surfaced or resurfaced, as-built drawings, engineering and design documentation, construction records, and other technical studies of the damaged site.

On April 21, 2021, the Applicant responded to the RFI stating it had previously provided predisaster aerial photography from 2018 to show the site was in stable condition. Additionally, the Applicant stated that the Township trustees visually inspect roadways and culverts on a routine basis, particularly after heavy rainfalls and severe weather events, at which point damages and non-functioning areas are documented and addressed in order of importance. The Applicant asserted that the Township provided sufficient detail of the Facility to validate the predisaster condition of the damaged area, including aerial photography, maintenance records and explanations of those maintenance records.

On August 18, 2022, the FEMA Region 5 Regional Administrator denied the appeal. FEMA found that the Applicant did not demonstrate that the Facility was damaged or made unstable by a landslide or slope failure triggered by the declared disaster, or that the claimed surface, culvert, or embankment damages were caused by the disaster.

Second Appeal

The Applicant filed a second appeal in a letter dated September 27, 2022. The Applicant reiterates its first appeal arguments and states that the disaster caused significant damage throughout Monroe County. The Applicant disputes the findings of the independent technical review that stated that the amount of rainfall during the event was not unprecedented. In contrast, the Applicant claims significant rainfall occurred during the disaster. The Recipient recommends approval of this second appeal in the amount of $291,200.00 and supports the Applicant’s arguments. The Recipient disagrees with FEMA’s reliance on the independent technical review and submits that the independent technical reviewer did not visit the site and used inappropriate tools and methods for the review. The Recipient argues that the reviewer’s analysis of rainfall amounts is irrelevant to the establishing of disaster damages. The Recipient says the County Engineer visited the site and despite FEMA’s assertion to the contrary, the Applicant conducted a technical assessment of the slope instability when it assessed the site conditions as specified in the Ohio Department of Transportation Landslide Inventory.

 

Discussion

FEMA may provide PA funding to a local government for the repair of a public facility damaged by a major disaster.[2] To be eligible, work must be required as a direct result of the declared incident.[3] The applicant is responsible for providing documentation to support its claim as eligible and show that the work is required to address damage caused directly by the disaster.[4] When evaluating eligibility of reported road damage, FEMA may review maintenance records or documentation establishing that the Applicant has a routine maintenance program.[5] Such documentation may be helpful to establish the predisaster condition of a facility and demonstrate that the damage was directly caused by the incident.[6] FEMA does not provide PA funding for repair of damage caused by deterioration, deferred maintenance, or negligence.[7] An applicant must provide more than post-disaster statements or opinions to substantiate predisaster maintenance; documentation or other evidence must be submitted.[8]

Here, FEMA’s site inspections and technical report noted damage to the Facility but raised questions as to the cause of the damage. FEMA requested additional documentation to establish the damages were a direct result of the disaster, including through two formal RFIs. The Applicant did not provide technical assessments or predisaster photographs to support the damages were a direct result of the disaster.[9] While it did provide post-disaster photographs, they do not tie the damages claimed to the declared incident, nor do they provide any comparison between pre- and post-disaster conditions. Similarly, the reported maintenance records do not establish the predisaster condition of the Facility. Rather the Applicant submitted: (1) a general letter explaining the Applicant’s trustees are each responsible for inspecting and reporting damage to roads; (2) a post-disaster statement from a contractor broadly outlining the work it does each year; (3) documentation pertaining to the installation of the culvert in 2017; and (4) maintenance records for grading, snow plowing and gravel laying between 2017 through 2019 on various roads at unspecific locations. However, the Applicant does not show a routine maintenance program or the predisaster condition of the site location relevant to this appeal.[10] This documentation, along with the Applicant’s statements on appeal, do not support its claim that the damage was directly caused by the disaster, as it does not distinguish between disaster-caused damage and pre-existing conditions.

 

Conclusion

The Applicant has not demonstrated the work to repair damages to its Facility is required as a direct result of the declared incident. Therefore, the appeal is denied.

 

 

[1] Timothy D. Stark, Ph.D., DR-4424-OH Landslides and Slope Stabilization, Expert Review, 100041 – Center

Township Road 2324 (Aug. 18, 2021) [hereinafter Independent Technical Review].

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

[3] Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.223(a)(1) (2018); Public Assistance Program and Policy Guide, FP 104-009-2, at 19 (Apr. 2018) [hereinafter PAPPG].

[4] PAPPG, at 19, 133.

[5] Id. at 116.

[6] Id.

[7] Id. at 19-20.

[8] FEMA Second Appeal Analysis, City of Brenham, FEMA-4272-DR-TX, at 4 (Mar. 12, 2019).

[9] Although the Recipient states the Applicant assessed site conditions, as specified in the Ohio Department of Transportation Landslide Inventory, neither the Recipient nor the Applicant supplied a copy of the associated technical assessment; instead, the Recipient provided a link to an instructional web page for the state’s landslide inventory requirements. The Applicant did provide an undated statement titled Center TR2324 Embankment Failure Technical Justification for anticipated method of repair, but this was only in support of installing an H-piling as a method of repair.

[10] Letter from Fiscal Officer, Center Township to Whom it May Concern (undated); Sparta Steel & Equipment statement (undated) (indicating one time culvert replacement, as well as annual work on the road as needed); see also Certificates of Labor (July 31, 2017, to Aug. 26, 2018) (documenting instances of the work referenced in the Sparta Steel & Equipment statement). Although the Applicant previously stated it last re-surfaced the road in question on August 9, 2017, the predisaster maintenance log sheet does not include/delineate resurfacing activities to the specific site location at issue in this appeal.