Result of Declared Incident

Appeal Brief

Summary Paragraph

From February 27 to March 14, 2021, severe storms, flooding, landslides, and mudslides impacted areas throughout Kentucky. Boyd County (Applicant) requested $186,098.00 for work to stabilize the embankment underlying a section of Callahan Ridge Road. The Applicant claimed that flooding during the disaster damaged the road’s asphalt surface and caused the embankment to erode and fail. FEMA created Grants Manager Project 239937 to document work and costs for the Applicant’s claim, but denied funding for the project in a Determination Memorandum. FEMA found that the Applicant had not demonstrated that the damage to the road’s surface was caused by the disaster, and had not established the failure of the underlying embankment. The Applicant submitted a first appeal. It asserted that the damage at issue was not present prior to the disaster and that post-disaster photographs showed that the embankment had failed. In support, it provided predisaster maintenance records for Callahan Ridge Road. The Applicant clarified that it was not seeking reimbursement for costs to repair the asphalt surface or subsurface of the road. The FEMA Region 4 Regional Administrator denied the appeal. FEMA determined that the Applicant had not demonstrated that Callahan Ridge Road was damaged by the disaster or that it routinely inspected and maintained the underlying embankment. The Applicant submitted a second appeal reiterating its previous statements and providing budget information and additional predisaster maintenance records. It asserts that the predisaster records demonstrate a program of routine inspections and maintenance.

Authorities

• Stafford Act §§ 406(a)(1)(A), (e), 42 U.S.C. §§ 5172(a)(1)(A), (e).
• 44 C.F.R. §§ 206.223(a)(1), 206.226.
• PAPPG, at 51-52, 63-64, 140, 145, 169-170, 181.
• Cowlitz Cnty., FEMA-1671-DR-WA, at 3.
• City of Paintsville, FEMA-4595-DR-KY, 2-3.
• Vinton Cnty. Eng’r, FEMA-4424-DR-OH, at 3.

Headnotes

• It is the applicant’s responsibility to demonstrate that claimed damage was directly caused by the incident, and where pre-existing damage exists, to distinguish that damage from the disaster-related damage. 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 may approve PA funding to restore integral ground that supports the facility.
  • The Applicant has not provided any documentation (e.g., geotechnical reports or engineering assessments) that attributes the cause of the claimed damage to the disaster.
  • The records provided by the Applicant do not document the predisaster condition of the road, to distinguish pre-existing damage from damage caused by the disaster.
  • Thus, work to stabilize the embankment is not eligible as integral ground because the Applicant has not shown that the embankment supports a disaster-damaged facility.

Conclusion

The Applicant has not demonstrated the claimed damage to Callahan Ridge Road was directly caused by the disaster. Therefore, work to stabilize the embankment as integral ground for the road is ineligible. This appeal is denied.

Appeal Letter

Appeal Analysis

Background

From February 27 to March 14, 2021, severe storms, flooding, landslides, and mudslides impacted areas throughout Kentucky.[1] Boyd County (Applicant) requested Public Assistance (PA) funding for repairs to Callahan Ridge Road. The Applicant claimed that heavy rains and flooding during the disaster saturated the road’s base materials, damaging the asphalt surface and causing the road’s shoulder to erode and collapse. FEMA conducted a site inspection on July 29, 2021. The Site Inspector (SI) recorded damage to the asphalt surface, road base, and embankment along a 203-foot length of the road, attributing the damage to surface flooding. FEMA created Grants Manager Project (GMP) 239937 to document the Applicant’s claim.

The Applicant hired an engineering firm, Geostabilization International (GSI) to assess damage and propose repairs. In a repair proposal dated September 21, 2021, GSI stated that embankment scarp “ha[d] created a failure into the inboard lane of the road.”[2] In the scope of work, GSI recommended using soil nails and a concrete wall to stabilize the embankment. GSI’s proposal estimated $186,098.00 in total costs for the work. On January 27, 2022, FEMA conducted a second site inspection. The SI recorded damage to the road’s asphalt surface, base, and shoulder. In photographs included with the site inspection report, the SI noted fatigue and stress cracking in the asphalt, a 10-inch drop in one area of the road’s surface, and a lack of means to drain water from the roadway.

In a Determination Memorandum dated May 9, 2022, FEMA denied all requested funding for GMP 239937. FEMA noted the fatigue and stress cracking depicted in the site inspection photographs as well as the SI’s observations that the road lacked proper drainage. FEMA stated that the Applicant had not provided documentation demonstrating the road’s predisaster condition and thus had not established that damage to the road resulted from the disaster. Therefore, FEMA found that work to repair the asphalt surface, base, and shoulder was not eligible. Regarding the embankment, FEMA found that “the Applicant did not establish the existence of embankment failure that caused damages” to the road, nor that stabilization work was required to restore integral ground for the road.[3] Therefore, FEMA determined that embankment stabilization work was also not eligible for PA funding.

First Appeal

The Applicant submitted a first appeal dated July 8, 2022, requesting $186,098.00 for embankment stabilization at the site on Callahan Ridge Road. It asserted that embankment damage was not present prior to the disaster, and that “repairs [we]re necessary to restore the structural integrity of a road that ha[d] slid 10 inches down slope.”[4] The Applicant stated that it was not seeking reimbursement for repairs to the road’s asphalt surface or base.[5] It stated that photographs taken by the SI at the January 2022 site inspection depict damages to the road’s surface and shoulder that were “indicative of a landslide that ha[d] begun to pull a portion of the embankment downslope.”[6] As further support, it submitted a post-disaster photograph, which it asserted showed a “toe bulge” in the embankment slope.[7]

Additionally, the Applicant stated that its predisaster program of road inspections and maintenance were sufficient to establish that the damage was not pre-existing. In support, it provided maintenance work orders dated between 2018 and 2020, which it stated demonstrated the road’s predisaster condition. Finally, it provided a written statement dated July 7, 2022, in which it stated that it performed inspections of Callahan Ridge Road following previously declared incidents in 2018, 2019, and 2020, and that the damage at issue was not present in the embankment at those times.[8] In a transmittal dated July 8, 2022, Kentucky Emergency Management (Recipient) expressed support for the appeal.

On July 31, 2023, the FEMA Region 4 Regional Administrator denied the appeal. FEMA determined that the Applicant had not demonstrated that Callahan Ridge Road, including its supporting embankment, was damaged by the disaster. Specifically, FEMA found that the Applicant had not demonstrated the embankment failed during the event, and that because of insufficient drainage on the roadway, “it [wa]s likely that the road settled and cracked as the base material eroded over time.”[9] Further, FEMA determined that “the Applicant ha[d] not shown that it routinely inspect[ed] the embankment, nor that it made any predisaster efforts to maintain it,” thus the toe bulge the Applicant pointed to in its post-disaster photograph could not “be exclusively attributed to the disaster.”[10]

Second Appeal

The Applicant submitted a second appeal dated September 29, 2023, requesting $186,098.00 to stabilize the embankment at Callahan Ridge Road. The Applicant reiterates many of its previous statements, asserting that heavy rains during the disaster caused the embankment to fail. It provides a diagram depicting a generalized rotational landslide and asserts that each feature (e.g., head scarp, surface rupture, and toe bulge) is present at the damage site and has been documented in the administrative record.[11] It notes that both GSI and FEMA’s SIs observed and recorded embankment damage or failure of the site.

Regarding predisaster conditions, the Applicant asserts that “[u]nder FEMA policy, the absence of evidence of pre-disaster instability and the [Applicant’s] maintenance records are sufficient to verify the pre-disaster condition of the embankment.”[12] It provides additional predisaster maintenance records, which it states show predisaster repairs to drainage features and “road slip” at different sites on Callahan Ridge Road.[13] The Applicant asserts that these records demonstrate regular inspections and prompt, routine maintenance of the road, and thus that the damage at issue was not observed prior to the disaster. Finally, the Applicant provides its 2020-2021 budget information and states that it allotted 10.6 percent of available funding to its “Road Fund,” which it asserts further demonstrates routine road maintenance.[14] In a transmittal letter dated October 11, 2023, the Recipient expressed 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 based on its predisaster design and function, in conformity with applicable codes and standards.[15] 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 may approve PA funding to restore integral ground that supports the facility.[16] To be eligible for PA, work must be required as a result of the declared incident.[17] FEMA does not provide funding for repair of damage caused by deterioration or deferred maintenance.[18]

The incident may cause minor damage to roads that results in damage similar to that which may occur over time from other causes, such as the age of the road, traffic flow, and frequent rain.[19] It is the applicant’s responsibility to demonstrate that claimed damage was directly caused by the incident, and where pre-existing damage exists, to distinguish that damage from the disaster-related damage.[20] When necessary to validate damage, the applicant may be required to provide predisaster photographs of the impacted site or documentation supporting the predisaster condition of the facility (e.g., facility maintenance records or inspection/safety reports).[21] If the applicant does not provide documentation to support its claim as eligible, FEMA cannot provide PA funding for the work.[22]

The Applicant claims that flooding from heavy rains during the disaster caused the integral ground under Callahan Ridge Road to fail,[23] and, consequently, to damage the road’s asphalt surface in the area it refers to as an “arc-shaped break.”[24] The Applicant does not seek reimbursement for repairs to the road. It acknowledges that there may have been fatigue cracking in the asphalt prior to the disaster, but asserts that any pre-existing damage “clearly did not cause the embankment to fail.”[25] However, the Applicant has not provided documentation (e.g., geotechnical reports or engineering assessments) that supports these statements or that substantiates the disaster directly caused the claimed damage.[26]

Regarding the predisaster condition of the road, the Applicant’s maintenance records do not demonstrate predisaster maintenance of the claimed damage area. Similarly, the Applicant has not provided records (e.g., work orders or inspection reports) documenting any of the predisaster inspections that it states occurred, which might detail the specific locations inspected and the observations of the inspector.[27] Thus, the Applicant has not documented the predisaster condition of the section of the road that is at issue, including the underlying embankment, to distinguish pre-existing damage from damage caused by the disaster. Accordingly, it has not established that damage to Callahan Ridge Road occurred as a result of slope instability triggered by the incident. Consequently, work to stabilize the embankment is not eligible for PA funding as integral ground because the Applicant has not shown that the embankment supports a disaster-damaged facility.

Conclusion

The Applicant has not demonstrated the claimed damage to Callahan Ridge Road was directly caused by the disaster. Therefore, work to stabilize the embankment as integral ground for the road is ineligible. This appeal is denied.