Result of Declared Incident

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Desastre	4424
Applicant	Monroe County Engineer (Monroe)
Appeal Type	Second
PA ID#	111-059CA-00
PW ID#	GMP 146024
Date Signed	2022-12-14T17:00:00

Summary Paragraph

From February 5-13, 2019, severe storms and flooding impacted areas in southern Ohio.  The Monroe County Engineer (Applicant) requested Public Assistance, claiming that the disaster destabilized the embankment under Altitude Miller Hill Road/County Road 6 (CR-6).  To support its claim, it provided post-disaster site photographs showing exposed soil in the embankment, predisaster maintenance records, and a sketch of the damage.  FEMA created Grants Manager Project 146024 to document work to restore the embankment but denied funding for the project.  FEMA found that the CR-6 roadway was not damaged by the disaster and determined that the photographs and maintenance records the Applicant submitted did not demonstrate instability at the site, or that the claimed damage was the result of the disaster.  The Applicant submitted a first appeal, asserting that the documentation provided showed that the site was stable prior to the disaster.  It also stated that the embankment was integral ground supporting the road.  The FEMA Region V Regional Administrator denied the appeal.  FEMA found that the Applicant had not demonstrated that damage depicted in the post-disaster photographs was caused by the disaster.  The Applicant submitted a second appeal asserting that its predisaster maintenance records demonstrate that the embankment was stable prior to the disaster.  It again states that the embankment is part of the integral ground supporting the road.

Authorities and Second Appeals

• Stafford Act § 406(a)(1)(A).
• PAPPG, at 19, 116, 128, 133.
• Ohio Township (Monroe), FEMA-4424-DR-OH, at 3.
• Monroe Cty. Eng’r, FEMA-4424-DR-OH, at 3.

Headnotes

• FEMA may provide funding for the repair of a public facility damaged by a major disaster.  FEMA may also provide funding to restore the integral ground that supports a facility if the eligible facility is damaged as a result of the incident.
  • The Applicant’s maintenance records do not demonstrate the predisaster condition of the embankment adjacent to CR-6, at the specific site in question.
  • More importantly, the Applicant has not demonstrated disaster-related damage to CR-6 itself.  Thus, even if the embankment constitutes integral ground that supports CR-6, the claimed work is nonetheless ineligible because the embankment is not tied to an eligible facility damaged as a result of the disaster.

Conclusion

The Applicant has not demonstrated that CR-6 was damaged by the declared incident.  Accordingly, work to repair the adjacent embankment is ineligible for funding.

Appeal Letter

Appeal Analysis

Background

From February 5-13, 2019, severe storms, flooding, and landslides impacted areas in southern Ohio.[1]  The Monroe County Engineer (Applicant) requested Public Assistance (PA), claiming disaster-related damage to its road network.  Among other damages, the Applicant claimed that water saturated and damaged the embankment under Altitude Miller Hill Road/County Road 6 (CR-6).  The Applicant later stated that the road was closed;[2] it withdrew its claim for the embankment and discussed pursuing an alternate project with FEMA.  In order to determine eligible costs, FEMA requested photographs of the damage site, damage dimensions, and predisaster maintenance records.[3]  In response, the Applicant provided post-disaster site photographs showing exposed soil in the embankment, a sketch of the damage, and a scope of work for the construction of a retaining wall, with estimated costs of $481,490.00.[4]

The Applicant subsequently informed FEMA that its earlier statement was in error and the damaged site was on a portion of CR-6 that was still open.[5]  It requested that FEMA proceed with developing the original project.  FEMA created Grants Manager Project 146024 to document work and costs to restore the embankment.  FEMA issued a Request for Information (RFI), expressing concern that the Applicant had not shown that the damage claimed was a direct result of the disaster.  It requested documentation demonstrating the predisaster condition of the embankment.  In response, the Applicant provided predisaster aerial imagery of the road and predisaster road maintenance records.  It stated that there was no indication of slope movement or damage in the images provided and that its maintenance program involved mowing, grading, and “ditching” to maintain the road’s shoulders and embankment.[6]

In a Determination Memorandum signed on November 18, 2020, FEMA denied funding for the project.  FEMA noted that the road itself was not damaged by the disaster; rather, the Applicant was requesting PA funding to stabilize the embankment on which the road was located.  However, FEMA determined that the imagery and maintenance records the Applicant submitted did not demonstrate “that the claimed damage area is impacting the integral ground of [CR-6], that the structural integrity of the site is threatened, or [that] the damage being claimed is a direct result of the disaster.”[7]

First Appeal

The Applicant submitted a first appeal on December 8, 2020.  It requested funding for estimated costs of $481,490.00 for work to restore the embankment.  The Applicant attached the predisaster aerial imagery and maintenance records it submitted previously, asserting that the documentation showed that “the condition of the site was stable, maintained and without damage prior to the declared event.”[8]  The Applicant stated that the “[s]tandard Monroe County road right-of-way is 60 feet wide” and that “[t]his includes the embankment adjacent to the roadway, as it is structurally integral in the support of the public road.”[9]  It attached the sketch of the damage and post-disaster photographs with notations depicting the claimed damages.  In a transmittal letter dated February 8, 2021, the Ohio Emergency Management Agency (Recipient) expressed support for the appeal.  The Recipient cited state law that it stated supports the Applicant’s assertions regarding the 60-foot width of the roadway, concluding that the shoulder area of the road is part of CR-6 and was damaged during the disaster.

FEMA issued an RFI requesting additional documentation related to the Applicant’s claim.  Specifically, FEMA requested site-specific geotechnical studies and/or similar slope stability analyses demonstrating that the road was damaged as a result of the disaster.  It also requested analyses demonstrating that the requested method of repair “is both reasonable and necessary to address [the] disaster-related damages.”[10]

In response, the Applicant stated that there were no site-specific analyses of the type FEMA requested.  Instead, it pointed to a national soil survey performed by the U.S. Department of Agriculture (USDA), which it claimed showed that soils in the area were susceptible to slippage.  Further, the Applicant stated that FEMA policy does not require the types of analyses requested in order to determine predisaster slope stability.  Rather, the Applicant noted that under FEMA policy, limited geotechnical studies are eligible for funding.  It stated that if the data from the USDA soil survey was insufficient, it would have such an assessment completed.  Finally, the Applicant stated that its proposed method of repair was to construct an “H-piling/drilled shaft with concrete/timber lagging” retaining wall, which it claimed was “standard practice … and proven to be effective in stabilizing/repairing similar damages.”[11]

Separately, in an engineering assessment (Consultant’s Report) prepared at FEMA’s request, a third-party technical expert examined predisaster aerial imagery of CR-6 and historical rainfall data for the area.  The technical expert found that the scarp damage the Applicant had noted in the post-disaster photographs of CR-6 was evident in the predisaster imagery and thus occurred prior to the incident period.  Further, the technical expert determined that rainfall at the site during the incident period was “not an unprecedented amount,” and that the “amount of soil saturation also was probably small because the ground was frozen.”[12]

On January 10, 2022, the FEMA Region V Regional Administrator denied the appeal.  FEMA found that the Applicant had not provided documentation establishing that CR-6 sustained damage resulting from the disaster.  It noted that the road remained open with no sign of damage or instability.  Thus, FEMA stated that work to stabilize the embankment was “not tied to an eligible facility damaged by the declared disaster.”[13]  Further, FEMA stated that the available documentation did not demonstrate that damage depicted in the Applicant’s post-disaster photographs was caused by the disaster.  FEMA pointed to the conclusion in the Consultant’s Report that scarping in the embankment predated the disaster, and noted that the Applicant had not provided slope stability analyses for the site.  Finally, FEMA explained that federal law, regulation, and policy define eligible facilities under the PA grant program.  Thus, FEMA found that even if the embankment fell within the road’s right of way under State law, the Applicant had not provided information demonstrating that the embankment was an improved and maintained natural feature in accordance with FEMA policy.  Alternately, FEMA stated that even if it were to assume the embankment was integral ground essential to supporting the road, the Applicant had not demonstrated that the claimed damage resulted from the disaster.

Second Appeal

The Applicant submitted a second appeal via letter dated July 18, 2022.[14]  The Applicant asserts that the road and embankment were stable prior to the disaster.  It points to its maintenance records as proof of a routine predisaster inspection and maintenance program, including the construction of a retaining wall at a site nearby.  The Applicant faults the analysis in the Consultant’s Report, stating that “aerial photography cannot be the sole determining factor in [evaluating the] pre-existing condition of a location.”[15]  It presents its own interpretation of the aerial imagery, concluding that the section of CR-6 at issue narrowed following the disaster due to the claimed damage.  The Applicant states that CR-6 was constructed using the “cut-and-fill” method, which involves using excavated material to extend the width of a road.  It compares a diagram from FEMA policy with the post-disaster sketch of CR-6 and asserts that the damage at issue “falls within the integral ground of the roadway.”[16]  In a transmittal letter dated September 26, 2022, the Recipient expresses support for the appeal.

 

Discussion

FEMA may provide funding to a local government for the repair of a public facility damaged by a major disaster.[17]  FEMA may also provide assistance to restore the integral ground that supports an eligible facility if the eligible facility is located on a slope and is damaged as a result of a landslide or slope instability triggered by the incident.[18]  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.[19]

The Applicant has not demonstrated disaster-related damage to the road (CR-6 itself).  Indeed, it does not dispute the fact that the section of CR-6 at issue was undamaged and remained open to traffic following the disaster.[20]  The Applicant claims that the embankment is integral ground supporting the road, however, funding for the restoration of integral ground is only available if an eligible facility located on a slope is damaged as a result of a landslide or slope instability triggered by the incident.  Thus, even if the embankment constitutes integral ground that supports CR-6, the claimed work is nonetheless ineligible because the embankment is not tied to an eligible facility damaged as a result of the disaster.[21]

 

Conclusion

The Applicant has not demonstrated that CR-6 was damaged by the declared incident.  Accordingly, work to repair the adjacent embankment is ineligible for funding.  Therefore, this appeal is denied.

 

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

[2] Email from Monroe Cty. Eng’r, to Pub. Assistance, FEMA Region V, at 1 (Jan. 10, 2020, 0938 EST).

[3] Email from Program Delivery Manager, FEMA, to Monroe Cty. Eng’r, at 1 (Apr. 23, 2020, 1553 EDT).

[4] Email from Monroe Cty. Eng’r, to Program Delivery Manager, FEMA, at 1 (Apr. 28, 2020, 0639 EDT).

[5] Email from Monroe Cty. Eng’r, to Program Delivery Manager, FEMA, at 1 (July 20, 2020, 0849 EDT) [hereinafter Applicant Email of July 20, 2020].

[6] Email from Monroe Cty. Eng’r, to Program Delivery Manager, FEMA Region V, at 1 (July 27, 2020, 1434 EDT).

[7] FEMA, Eligibility Determination Memorandum, Monroe County Engineer (Monroe), Project No. 146024, at 3 (Nov. 18, 2020).

[8] Letter from Monroe Cty. Eng’r, to Exec. Dir., Ohio Emergency Mgmt. Agency, at 1 (Dec. 8, 2020).

[9] Id.

[10] Email from Appeals Analyst, FEMA Region V, to Monroe Cty. Eng’r, at 1 (May 11, 2021, 1151 EDT).

[11] Email from Monroe Cty. Eng’r, to Appeals Analyst, FEMA Region V, at 2 (May 13, 2021, 1536 EDT).

[12] Letter from Owner, Ph.D., Stark Consultants, Inc., to Pub. Assistance Branch Chief, FEMA Region V, at 1 (July 18, 2021).

[13] FEMA First Appeal Analysis, Monroe Cty. Eng’r, FEMA-4424-DR-OH, at 5 (June 10, 2022) [hereinafter First Appeal Determination].

[14] The Applicant does not re-raise its first appeal argument that due to the standard 60-foot right of way for county roads, the embankment is part of the road.  It also does not assert that the embankment is an eligible facility separate and apart from the road.  Therefore, neither of these issues are addressed in this decision.

[15] Letter from Monroe Cty. Eng’r, to Exec. Dir., Ohio Emergency Mgmt. Agency, at 4 (July 18, 2022) [hereinafter Applicant Second Appeal].

[16] Id. at 2-3, 6. The Applicant included a diagram from Recovery Policy 9524.2, Landslides and Slope Failures (May 23, 2006).

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

[18] Public Assistance Program and Policy Guide, FP 104-009-2, at 128 (Apr. 1, 2018) [hereinafter PAPPG]; FEMA Second Appeal Analysis, Ohio Township (Monroe), FEMA-4424-DR-OH, at 3 (Sep. 21, 2022).

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

[20] See Applicant Email of July 20, 2020, at 1 (“[t]he section that the damage is on is open and has not been closed at all”); First Appeal Determination, at 4-5 (“[t]he road remains open, with no traffic controls or signs of damage or instability in the gravel surface”).

[21] See FEMA Second Appeal Analysis, Monroe Cty. Eng’r, FEMA-4424-DR-OH, at 3 (Dec. 1, 2021).  As the disaster did not damage CR-6, the Applicant’s arguments concerning the predisaster condition of the adjacent embankment (i.e., purported integral ground) versus claimed disaster-related damages of the embankment are moot.