Result of the 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 96922
Date Signed	2023-01-09T17:00:00

Summary Paragraph

Monroe County Engineer (Applicant) claimed disaster related damage to surface of its County Road 92 at mile marker .89 (Facility) and base, an adjacent embankment, and rip rap.  FEMA prepared Grants Manager Project 96922 to capture the damages and intended method of repair.  FEMA conducted two site inspections, which noted erosion and scarp on the sloped embankment.  FEMA sent two requests for information (RFIs), 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 FEMA Region V 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, asserting that the review was based on inconclusive photographs.  The Recipient forwarded the appeal in support of the Applicant’s position.  The Applicant has not demonstrated that the requested rip rap and embankment repairs are required due to the disaster. 

Authorities and Second Appeals

• Stafford Act § 406(a)(1)(A).
• 44 C.F.R. § 206.206(a), 206.223(a)(1).
• PAPPG, at 19-20, 128, 133.
• Grand Strand Water & Sewer, FEMA-4286-DR-SC, at 3.

Headnotes

• 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.
• An item of work must be required as a direct result of the disaster to be eligible for Public Assistance (PA) funding.  It is the Applicant’s responsibility to demonstrate that the damage is disaster-related.
  • Here, the Applicant has not substantiated its claim that the adjacent embankment and rip rap repair work is required as the direct result of the declared incident.

Conclusion

The Applicant has neither demonstrated that a landslide or slope instability triggered by the incident caused the damage to the Facility, nor that the requested adjacent embankment and rip rap repairs are required due to the disaster.  Accordingly, work to restore the embankment and rip rap is ineligible for PA funding.  Therefore, this appeal is denied.

 

Appeal Letter

Appeal Analysis

Background

From February 5-13, 2019, severe storms and flooding impacted Monroe County, Ohio.   The Monroe County Engineer (Applicant) claimed that soil saturation with slope instability caused damages to the surface of its County Road (CR) 92 at mile marker .89 (Facility) and base, an adjacent embankment, and rip rap.  The Applicant requested Public Assistance (PA) funding to repair the surface of the Facility and its base, as well as to replace rip rap and stabilize the adjacent embankment with a retaining wall.  FEMA prepared Grants Manager Project 96922 to capture the claimed damages and requested repair work.  FEMA also conducted two site inspections.  The site inspector noted erosion and a scarp on the embankment.

FEMA sent the Applicant a request for information (RFI) dated December 16, 2019, requesting technical assessments/studies, soil explorations, maintenance records, photographs, or other justification demonstrating that: (1) the requested stabilization work was required to address disaster-related damages, required to return the site to predisaster design and function, and reasonable based on the type and extent of restoration and consistent with the Applicant’s general construction practices; (2) the Facility and ground essential to support the structural integrity and utility of the road was made unstable by the declared disaster; and (3) the site was regularly maintained and in good condition prior to the declared disaster. 

The Applicant responded on December 17, 2019, providing maintenance records for CR 92 from 2017 to 2019, a technical justification letter for the proposed method of repair, and photographs from during and immediately following the disaster.  The Applicant proposed that the Facility could not be returned to predisaster function, as the sliding slope mass movement led to slope failures directly affecting the integral ground of the surface road.  In addition, the Applicant stated it had previously submitted a Monroe County standard methods of repair document, which outlined its standard practices for repairing slips and erosion damages.    

FEMA sent the Applicant a second RFI dated February 29, 2020, requesting additional information regarding when the rip rap was placed at the site prior to the disaster, as well as any documentation demonstrating the rock stabilization was properly engineered and stabilized the site prior to the disaster.  The Applicant responded on March 3, 2020, explaining that it placed the rip rap in May 2017, and attaching records documenting placement of unclassified fill at the location.  The Applicant explained that it placed the rip rap per its standard method of “keying in” a stable toe to start the rip rap and placing it along the embankment to stabilize the roadside.[1]  On April 3, 2020, FEMA requested photographs from when the rip rap was placed and/or other photographs demonstrating the rip rap was in good condition prior to the disaster.  On April 6, 2019, the Applicant responded that there are no photographs of this nature.

In a Determination Memorandum sent on December 21, 2020, FEMA partially denied the Applicant’s request for PA funding.  FEMA found that the Applicant had demonstrated disaster damages to the surface and base of the Facility.  However, it also determined the Applicant had not demonstrated the site was stable prior to the disaster, and therefore denied the request for reimbursement to stabilize the sloped embankment and replace the rip rap.  Due to evidence of predisaster instability, FEMA determined that the repair of the Facility’s road surface and base was eligible only upon the Applicant stabilizing the slope and restoring the integral ground.

First Appeal

The Applicant filed a first appeal in a letter dated December 23, 2020.  In addition to previously submitted documentation, the Applicant provided a cost estimate totaling $188,700.00 for work to stabilize the embankment and additional post-disaster photographs of the Facility and embankment that the Applicant stated detailed embankment loss, drops, and instability.  The Applicant stated the disaster caused a loss of the Facility’s surface and base material, a drop and movement of the embankment, and a loss of the previously installed rip rap along the embankment.  On February 12, 2021, the Ohio Emergency Management Agency (Recipient) forwarded the Applicant’s first appeal, with its support.  

FEMA requested an independent technical evaluation of the claimed damage.  The consultant (Consultant) reviewed historical imagery of the site, rainfall and soil temperature data, etc., and found that: (1) although the Applicant states it placed the rip rap at issue in May 2017, by March 2018, the rip rap was no longer present; (2) the rainfall from this disaster did not cause erosion of the rip rap; (3) the embankment had undergone erosion previously due to a preexisting drainage channel; and (4) a slope failure had not occurred.[2]  In sum, the report concluded that the loss of embankment material was caused by erosion, not a slope failure resulting from the disaster, and rainfall and flooding from the disaster did not cause the claimed erosion.[3]  Based on examination of imagery from 2018, the report concluded the rip rap eroded prior to the disaster.[4]  The report also noted the erosion had been occurring since 1996 and looked at historical rainfall data which showed that the rain the area experienced during the disaster was not unprecedented.[5]

On May 31, 2022, the FEMA Region V Regional Administrator denied the request for slope embankment repair and rip rap loss replacement work.  FEMA found that the Applicant did not demonstrate that the slope was stable prior to the disaster and that the rip rap loss was triggered by the declared disaster.  FEMA also found that work to repair the Facility’s surface and base damaged by the disaster are only eligible upon the Applicant first stabilizing the slope and restoring the integral ground. 

Second Appeal

The Applicant filed a second appeal in a letter dated July 18, 2022.  The Applicant includes documents with photographs prepared by the Applicant’s consultant, Stahl Sheaffer Engineers (Stahl), after its site visit on September 27, 2019, seven months after the disaster.  The Applicant asserts that the photographs show the rip rap has dropped downstream and states that Stahl notes, “slope failure appears to have resulted from the over steepened slope and erosion.”[6]  The Applicant includes a report of a 2018 culvert inspection, which the Applicant states shows the culvert in good condition.  The Applicant argues that FEMA’s findings and, specifically, the Consultant’s findings of whether the rip rap was in place prior to the disaster should be disregarded as there is substantial documentation that shows that the rip rap was installed in 2017 and photographs from after the disaster in 2019 show rip rap was in place along the slope but had dropped further downstream. 

The Recipient forwarded the Applicant’s appeal, with its support, on September 13, 2022.  The Recipient states that because the Applicant placed rip rap at the site in 2017, this constitutes an eligible facility as the natural feature has been improved and maintained.  The Recipient states that the Applicant provided maintenance records that demonstrate almost monthly inspections/maintenance on CR 92, which the Recipient asserts reasonably establishes that if maintenance were warranted, the Applicant would have performed that work.  Additionally, the Recipient disputes FEMA’s conclusion that the rip rap was not present at the time of the disaster, arguing that the images examined would not have allowed FEMA to draw these conclusions, as they had a significant amount of shadowing and vegetation present.  

 

Discussion

FEMA may provide PA funding to a local government for the repair of a public facility damaged by a major disaster.^[7]  To be eligible for PA funding generally, work must be required as a direct result of the declared major disaster or emergency.^[8]  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.[9]  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.^[10]  FEMA does not provide PA funding for repair of damage caused by deterioration, deferred maintenance, or negligence.^[11]  The burden to substantiate appeals with documented justification falls exclusively to the applicant and hinges upon the applicant’s ability to not only produce its own records, but to clearly explain how those records support the appeal.[12]

The record demonstrates that flooding damaged the Facility’s surface and base; however, the Applicant has not demonstrated that the Facility was damaged as a result of a landslide or slope instability triggered by the incident, nor that the disaster directly caused adjacent embankment or rip rap damage.  The Applicant notes in its second appeal letter that slope failure resulted from an over-steepened slope and erosion, without providing documentation substantiating this was due to the disaster.  The Consultant agrees that the vertical drop found at the site is due to erosion on the embankment rather than being a scarp due to slope movement as originally thought in FEMA’s site inspection.[13]  The Consultant explains that no slide mass was visible and the trees downslope of the area remained vertical.[14]  However, the Consultant does not tie the embankment erosion to this disaster, but instead, states the embankment had been eroding since 1996.[15]  Similarly, the Consultant states the rip rap placed at the site in 2017 was not present prior to the disaster.[16]  The Applicant argues the evidence relied on in the Consultant’s report is inconclusive, but does not offer any documentation after 2017 substantiating the predisaster condition or existence of rip rap prior to the disaster.  Based on the above, the Applicant has not provided documentation demonstrating that the requested work is required as a result of the declared incident; rather, the available documentation demonstrates that the damage existed prior to the disaster.

 

Conclusion

The Applicant has neither demonstrated that a landslide or slope instability triggered by the incident caused the damage to the Facility, nor that the requested adjacent embankment and rip rap repairs are required due to the disaster.  Therefore, work to restore the embankment and rip rap is ineligible for PA funding. 

 

 

[1] Email from Monroe Cty. Eng’r, to Program Delivery Manager, FEMA (May 3, 2020, 1030 EST).

[2] Letter from Stark Consultants, Inc., to Public Assistance Branch Chief, FEMA Region V, at 1, 9 (Jan. 29, 2022) [hereinafter Consultant’s Report].

[3] Consultant’s Report, at 1, 3-4, and 9.

[4] Id. at 9.

[5] Id. at 1, 9.

[6] Letter from Monroe Cty. Eng’r., to Exec. Dir., OEMA, at 1 (July 18, 2022) (quoting Notes, author unknown (undated)).

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

[8] 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].

[9] See PAPPG, at 128.

[10] Id. at 19, 133.

[11] Id. at 19-20.

[12] 44 C.F.R. § 206.206(a); FEMA Second Appeal Analysis, Grand Strand Water & Sewer, FEMA-4286-DR-SC, at 3 (Oct. 19, 2020).

[13] Consultant’s Report, at 3.

[14] Id.

[15] Id. 

[16] Id. at 4.