Result of Declared Incident, Landslides and Slope Stabilization

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4424
Applicant	Monroe County Engineer
Appeal Type	Second
PA ID#	111-059CA-00
PW ID#	GMP 100447
Date Signed	2021-11-10T17:00:00

Summary Paragraph

From February 5 – 13, 2019, severe storms, flooding, and landslides impacted Monroe County, Ohio.  The Applicant reported road and embankment damage and requested PA funding for road repairs and slope stabilization for Pleasant Ridge Road/County Road 73-1.85.  FEMA conducted a site inspection that indicated the claimed damage to the road surface was consistent with deterioration and noted no slope 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, attaching photographs it claimed showed damages from the heavy rain, the Applicant’s road and bridge maintenance policy, a repair method proposal, and daily crew worksheets.  The Ohio Emergency Management Agency transmitted the appeal to FEMA, recommending the project be approved for $134,582.55.  FEMA sent another RFI for additional information including site-specific technical assessments.  The Applicant responded with a soil map and engineering properties report and stated limited geotechnical information could be pulled that would meet the requirements of an initial site assessment but declined to provide geotechnical studies.  The FEMA Acting Regional Administrator denied the first appeal, as the Applicant did not provide sufficient documentation or evidence demonstrating that the road was damaged or made unstable by a landslide or slope failure triggered by the declared disaster, or that the claimed damages were a direct result of the disaster.  The Applicant submits a second appeal, requesting 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, at 19, 116, 128, and 133.

Headnotes

• Per 44 C.F.R. § 206.223(a)(1), to be eligible for financial assistance, an item of work must be required as the result of the major disaster.  The PAPPG, at 19 and 133, provides that an 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.  FEMA does not provide PA funding for normal maintenance or the repair of damage caused by deterioration.
• Per the PAPPG, at 128, 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.  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.
  • Here, the Applicant has not provided documentation to demonstrate that work to repair the claimed damage to the road and embankment occurred as a result of the disaster and not due to preexisting deterioration.  Accordingly, the costs requested to conduct a geotechnical assessment of the slope stability supporting the road are not eligible for funding.

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

From February 5 – 13, 2019, severe storms, flooding, and landslides impacted Monroe County, Ohio.  Monroe County Engineer (Applicant) reported damage to a section of Pleasant Ridge Road/County Road 73-1.85 and an embankment and requested Public Assistance (PA) for road repairs and stabilization of the sloped road shoulder.  FEMA prepared Grants Manager Project 100447 to document the claimed damage.  On September 24, 2019, FEMA conducted a site inspection and the report and photos recorded surface cracking and road settlement but did not validate sloped embankment instability due to heavy vegetation. 

On April 22, 2020, FEMA sent a Request for Information (RFI) to the Applicant, stating there was concern about the eligibility of this site, that it had not been demonstrated that the claimed embankment, road surface and road base were a direct result of the February disaster.  FEMA requested that the Applicant provide documentation demonstrating that the road was regularly maintained and that the surface was in good condition prior to the disaster.  The Applicant responded on April 22, 2020 with an aerial photograph from 2018, a 2009 repaving contract and maintenance records from 2010 to 2018; the aerial photograph showed pre-existing road damage in the claimed area.

On September 22, 2020, FEMA issued a Determination Memorandum (DM) finding that because the Applicant had not demonstrated that disaster caused damage to the road or adjacent slope, the work was not eligible for reimbursement.  

First appeal

On October 14, 2020, the Applicant submitted a first appeal and attached a cost estimate to repair, photographs to show damages from the heavy rain, the Applicant’s road and bridge maintenance policy, the repaving contract, a repair method proposal, and daily crew worksheets.  The Applicant claimed the standard Monroe County right-of-way includes the embankment adjacent to the roadway, which is structurally integral in support of the Facility.  The Ohio Emergency Management Agency (Grantee) transmitted the first appeal to FEMA and recommended that the project be approved for $134,582.55, stating that the site inspection report and photographs demonstrate both road and slope instability. 

On February 23, 2021, FEMA issued an RFI to the Applicant, requesting: (1) specific cost estimate information; (2) as-built drawings, engineering and design documentation, and construction records that demonstrate adequate and functioning drainage predisaster; 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.  

The Applicant responded on February 26, 2021 with the cost estimate information and noted there were no design or as-built plans for the road.  The Applicant provided a link to the Natural Resources Conservation Service website and the soil map and engineering properties report for the general area showing that the soil in the area is slip prone.  The Applicant stated, “Limited geotechnical information can be pulled from this source, as needed, and is sufficient to meet the requirements of an initial assessment of the site.”[1]  The Applicant contended that FEMA policy did not require extensive data and analysis to determine slope stability prior to the disaster, that it was not County policy to perform such analyses, and that it had provided sufficient detail to support its claim.  The Applicant also noted that, per FEMA policy, a more limited geotechnical assessment is eligible for funding, and, if the web soil survey it included was insufficient, FEMA should identify the additional specific data needed and the Applicant would have the limited assessment work done.

On March 21, 2021, the FEMA Region V Acting Regional Administrator denied the first appeal, finding that the Applicant had not provided documentation to establish that the road was damaged or made unstable by a landslide or slope failure triggered by the declared disaster, or that the claimed surface and embankment damages were a direct result of the declared disaster.  FEMA explained that it was unable to validate the Applicant’s damage claim during the site inspection, and site inspection photographs indicated preexisting deterioration such as surface cracking and road settlement.  Further, predisaster aerial imagery showed the road was in a similar, deteriorated state prior to the disaster.  Moreover, during this period, the road remained fully open to traffic and was functioning as designed.  Regarding the Applicant’s claim of landslide damages or instability, FEMA found that the Applicant did not provide any evidence or documentation to demonstrate that the road had been damaged by a landslide or slope failure triggered 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 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.  The Grantee adds that FEMA misapplied policy by placing the burden on the Applicant to demonstrate predisaster stability of the slope.

 

Discussion

Result of Declared Incident

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 the result of the declared incident.[3]  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.[4]  When evaluating eligibility of reported road damage, FEMA may review invoices and maintenance records to establish 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 normal maintenance or the repair of damage caused by deterioration.[7]

The Applicant claims that damage to the road and shoulder was a result of the disaster; however, the available information indicates preexisting damage consistent with road deterioration over time.  According to the repaving contract, the road was last resurfaced nearly ten years earlier and shows fatigue cracking and settlement consistent with normal wear and tear.  Site pictures showed similar damages.  Predisaster aerial imagery shows pre-existing road damage, and post disaster photographs of the road and natural embankment show no verifiable disaster-related damage or instability.  Finally, the soil survey does not establish the road or embankment was damaged by a landslide or slope failure triggered by the disaster, it is not an inspection or assessment of the damage site conditions at issue, and it does not enable FEMA to distinguish predisaster condition from claimed, disaster-related damages.  The Applicant has not demonstrated that the requested work to repair the road was required as a result of the disaster.

Landslides and Slope Stabilization

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.  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 has requested additional funding for a geotechnical assessment to assess the stability of the slope.  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]  The Applicant has not submitted documentation that shows damage to the road as a result of a landslide or slope instability triggered by the incident.  In addition, FEMA did not report any embankment damage or slope instability during its site inspection.[12]  Therefore, even if the slope constitutes integral ground that supports the Facility, the additional work is nonetheless ineligible because the slope is not tied to an eligible facility damaged as a result of the disaster.[13]

 

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.

 

                                                                                                                

 

[1] Email from Monroe County Engineer to Appeals Analyst, FEMA re: Request for Information for pending first

appeal FEMA DR-4424-OH Monroe County Engineer Project 100447, at 1 (Feb. 26, 2021, 9:56 a.m.).

[2] 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).

[3] 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, 116, 133.

[5] Id. at 116.

[6] Id.

[7] Id. at 19, 116.

[8] PAPPG, at 128.

[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 Site Inspection Report, (July 22, 2019), at 3.

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