Result of Declared Incident, Landslides and Slope Stabilization

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4424
ApplicantMonroe County Engineer
Appeal TypeSecond
PA ID#111-059CA-00
PW ID#GMP 100455
Date Signed2021-11-10T17:00:00

Summary Paragraph

From February 5 – 13, 2019, severe storms and flooding impacted Monroe County, Ohio.  The Applicant reported embankment damage and requested PA funding for slope stabilization for Witten Creek Road, CR15 – 5.88.  FEMA conducted a site inspection finding no embankment instability.  FEMA reviewed the site inspection report with photographs and the Applicant’s response to a request for information (RFI).  FEMA then issued a Determination Memorandum finding the work was ineligible because the Applicant had not demonstrated that the claimed damage was disaster related.  The Applicant appealed with documents including a cost estimate for the proposed repair work, photographs that it claimed showed damages from the heavy rain, and predisaster maintenance records.  The Ohio Emergency Management Agency transmitted the appeal to FEMA, recommending the project be approved for $168,166.00.  The FEMA Region V Acting Regional Administrator denied the first appeal, stating the Applicant did not demonstrate that the road was damaged or made unstable by a landslide or slope failure triggered by the declared disaster.  The Applicant’s second appeal requests additional funding for a geotechnical assessment of the slope stability. 

Authorities and Second Appeals

  • Stafford Act § 406(a)(1)(A).
  • 44 C.F.R. § 206.223(a)(1).
  • PAPPG (v 3.1) at 19, 21, 39, 116, 128, 133.

Headnotes

  • Section 406 of the Stafford Act authorizes FEMA to provide assistance for the repair, restoration, reconstruction or replacement of facilities damaged by a major disaster.  Such work must be required as a direct result of the declared major disaster or emergency.  It is the Applicant’s responsibility to substantiate its claim. 
  • If an eligible facility is located on a slope and is damaged as a result of a landslide or slope instability triggered by the declared incident, FEMA determines the stability of the slope that supports the facility before it approves PA funding to restore the facility.  Site inspections and limited geotechnical assessments to determine site stability and to obtain a technical opinion of the cause of the slope failure may also be eligible.
    • The Applicant has not provided documentation showing that the road was damaged by a landslide or slope failure triggered by the declared disaster.  Accordingly, the costs requested to conduct a geotechnical assessment of the slope stability supporting the road is not eligible for funding.

Conclusion

FEMA finds the Applicant has not demonstrated that the embankment or adjacent road were damaged by the declared incident.  Accordingly, work to repair the embankment is ineligible for funding.  Therefore, this appeal is denied.

Appeal Letter

Sima S. Merick

Executive Director

Ohio Emergency Management Agency

2855 W. Dublin-Granville Road

Columbus, OH 43235-2206   

 

Re:  Second Appeal – Monroe County Engineer, PA ID 111-059CA-00, FEMA-4424-DR-OH, Grants Manager Project 100455 Result of Declared Incident, Landslides and Slope Stabilization  

 

Dear Ms. Merick:

This is in response to your letter dated August 12, 2021, which transmitted the referenced second appeal on behalf of Monroe County Engineer (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding in the amount of $168,166.00 for slope stabilization, as well as requesting costs to conduct a geotechnical assessment of the slope’s stability.

As explained in the enclosed analysis, I have determined that the Applicant has not demonstrated that the embankment or adjacent road were damaged by the declared incident.  Accordingly, work to repair the embankment is ineligible for funding.  Therefore, this appeal is denied.

Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.

 

                                                                       Sincerely,

                                                                           /S/

                                                                       Ana Montero

                                                                      Division Director

                                                                      Public Assistance Division

 

 

cc:  Moises Dugan

Regional Administrator

FEMA Region V

 

Appeal Analysis

Background

From February 5 – 13, 2019, severe storms and flooding impacted Monroe County, Ohio.[1]  Monroe County Engineer (Applicant) reported damage to the sloped embankment adjacent to Witten Creek Road, CR15 - 5.88 (road) and requested Public Assistance (PA) to stabilize the sloped embankment.  FEMA prepared Grants Manager Project 100455 to document the claimed damage.  FEMA conducted a site inspection, and FEMA’s observations did not validate the Applicant’s claimed embankment instability.[2] 

On May 29, 2020, FEMA issued a Request for Information (RFI) for documentation demonstrating that the claimed damaged area of the embankment constitutes integral ground necessary to support the road and that the damaged area is threatening the stability of the road.  The Applicant responded to the RFI providing photographs and a diagram of a typical Cut & Fill road construction.  Also, the Applicant stated that the site has heavy vegetation making it difficult to photograph. 

FEMA issued a Determination Memorandum on October 30, 2020, denying work eligibility as the Applicant did not demonstrate that damage to the embankment was a direct result of the disaster. 

First Appeal            

On December 15, 2020, the Applicant submitted a first appeal, providing documents including a cost estimate for the proposed repair work, an aerial image from 2018, photographs that it asserted showed damages, and predisaster maintenance records.  The Applicant stated that predisaster aerial imagery and documentation demonstrate that the site was stable, maintained and without damage prior to the disaster.  Further, the Applicant claimed the standard Monroe County right-of-way includes the embankment adjacent to the roadway which the Applicant stated was structurally integral in the support of the road.  The Ohio Emergency Management Agency (Grantee) transmitted the Applicant’s first appeal to FEMA recommending approval for $168,166.00.  The Grantee asserted that the Applicant demonstrated through submitted site inspections’ results and its engineer’s technical opinion, that the slope impacting the integral ground of the road dropped and was unstable as a result of the disaster. 

The FEMA Region V Acting Regional Administrator denied the first appeal on May 5, 2021, finding that the Applicant did not claim or report damages to the road itself but instead claimed damages to the adjacent embankment and requested PA funding to stabilize the slope.  FEMA noted that the Applicant declined to provide technical assessments demonstrating that the road was damaged and made unstable by the disaster, and that inspection and photographs did not validate disaster-related damage or instability.  FEMA pointed out that damage to an eligible facility is a baseline requirement for FEMA funding and, in this case, the Applicant did not demonstrate that the road was damaged or that the slope was made unstable by the disaster.

Second Appeal

On June 17, 2021, the Applicant submitted its second appeal request to the Grantee.  The Applicant contends FEMA policy allows FEMA to fund: (1) the cost of limited site inspections and geotechnical assessments to determine site stability, and (2) the cost to obtain a technical opinion of the cause of the slope failure.  Therefore, the Applicant requests an estimated $15,000.00 for a geotechnical assessment.  The Applicant also provided a legal opinion regarding the width determination of county roads under state law, to clarify the eligible facility is not limited to the road but includes drainage and integral ground adjacent to the road.  The Grantee supports the second appeal in an August 12, 2021 letter.[3]

 

Discussion

FEMA may provide PA funding to a local government for the repair of a public facility damaged by a major disaster.[4]  To be eligible, work must be required as the result of the declared incident.[5]  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.[6]  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.[7]  Restoration of the integral ground that supports the facility may also be eligible.[8]  Site inspections and limited geotechnical assessments to determine site stability and to obtain a technical opinion of the cause of the slope failure are eligible.[9]  To be eligible, costs must be directly tied to the performance of eligible work, including work required as a result of the disaster.[10]

The Applicant claims that damage to the embankment was a result of the disaster and requests funding for a limited geotechnical study of the sloped embankment adjacent to the road.  However, such costs are only eligible if an eligible facility located on a slope is damaged as a result of a landslide or slope instability triggered by the incident, and the costs are directly tied to the performance of eligible work required as a result.[11]  Here, site inspection and photographs showed no disaster-related damage to the road and FEMA was unable to validate claims that soil saturation or claimed drops from disaster-related flooding caused site instability or embankment settlement.  Therefore, even if the slope constitutes integral ground that supports the road, the additional work is nonetheless ineligible because the slope is not tied to an eligible facility damaged as a result of the disaster.[12]  

 

Conclusion

FEMA finds the Applicant has not demonstrated that the embankment or adjacent road were damaged by the declared incident.  Accordingly, work to repair the embankment is ineligible for funding.  Therefore, the appeal is denied.

 

 

[1] The President issued a major disaster declaration on April 8, 2019.

[2] FEMA, Site Inspection Report, at 2 (Sept. 20, 2019) [hereinafter SIR] (including a notation that the “[s]ite inspector did not observe claimed embankment instability”).

[3] In its second appeal transmittal letter, the Grantee recommends approval of $15,000.00 for limited geotechnical explorations.

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

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

[6] PAPPG, at 19, 116, 133.

[7] Id. at 128.

[8] Id.

[9] Id.

[10] Id. at 19, 21.

[11] Id.; see also id. at 39 (stating that costs related to assessing overall impacts of an incident, locating damage impacts, and conducting preliminary damage assessments are not eligible as project costs, but that if the Applicant identifies incident-related damage to a facility, costs for detailed inspections to determine the extent of damage and method of repair, including professional evaluations, are eligible as part of the work to restore the facility).

[12] FEMA Second Appeal Analysis, Mill Valley, FEMA-4308-DR-CA, at 4 (June 18, 2020).

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