Result of the Declared Incident

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4360
Applicant	Cross Creek (Township of)
Appeal Type	Second
PA ID#	081-19484-00
PW ID#	GMP 48125/DI 126545
Date Signed	2022-09-29T16:00:00

Summary Paragraph

During the incident period, February 14 through 25, 2018, severe storms and flooding impacted Cross Creek Township (Applicant) which claimed embankment washouts on Township Road 116 (Facility).  FEMA developed Grants Manager Project (GMP) 48125 and obligated costs for engineering and design to determine feasible repair methods.  A project version request identified Damage Inventory Line Item 126545, an embankment washout, has expanded significantly.  Multiple Requests for Information were sent, and the Ohio Emergency Management Agency (Recipient) submitted documentation stating that the slip was 432 feet long, not the original 59 feet identified in the original site inspection.  FEMA issued a Determination Memorandum partially granting the Applicant’s request for PA funding.  FEMA, acknowledging the original site inspection length of 59 feet slope was in error, approved costs for stabilizing 132 linear feet of embankment with a soil nail wall.  FEMA denied costs for the remaining 280 feet as the damage to that portion was caused by Applicant’s failure to repair the site.  The Applicant filed a first appeal requesting that the work to the slip be deemed eligible.  The Recipient forwarded the Applicant’s appeal to FEMA, stating that the Applicant had provided sufficient documentation to support that the additional 280 feet of damage was caused by the incident.  The Recipient also stated that technical experts’ opinions should be followed in determining the cause of the slip expansion.  FEMA Region V Regional Administrator denied the appeal finding that the Applicant did not demonstrate that the additional work to stabilize 280 feet of sloped embankment is required as a direct result of the incident.  The Applicant filed a second appeal, stating that its engineers cited the disaster as causing the slip expansion.

Authorities and Second Appeals

• Stafford Act § 406(a)(1)(A).
• 44 C.F.R. § 206.223(a)(1).
• PAPPG, at 19-20, 116, 133.

Headnotes

• FEMA does not provide funding for repair of damage caused by deterioration, deferred maintenance, the applicant’s failure to protect a facility from further damage, or negligence.
  • The Applicant has not substantiated that the work to repair the additional 280 feet of sloped embankment is required as a direct result of the declared incident and not the Applicant’s failure to mitigate further damage at the site.

Conclusion

FEMA finds that the Applicant has not demonstrated that the work to repair the additional 280 feet of sloped embankment is required as a direct result of the declared incident.

Appeal Letter

Appeal Analysis

Background

During the incident period, February 14 - 25, 2018, severe storms and flooding impacted the State of Ohio.  Cross Creek Township (Applicant) claimed embankment washouts on three areas of Township Road 116 (Facility).  FEMA prepared Grants Manager Project (GMP) 48125 to document the claimed damages at three sites and requested repair work.  On August 9, 2018, FEMA conducted a Site Inspection for one of the three sites (Site 1), a two lane 16-foot-wide chip and seal road with an upslope on one side and a downslope on the other side (embankment).[1]  The Site Inspection Report (SIR) for Site 1 documented a 59-foot-long slope failure on the embankment.  FEMA obligated GMP 48125 on November 1, 2018, for $233,463.00 in engineering and design (A&E) services costs to determine the method of repair for all three sites. 

On October 9, 2019, the Ohio Emergency Management Agency (Recipient) forwarded a request to FEMA on behalf of the Applicant to approve a Scope of Work (SOW) for repairs to all three sites based on the A&E assessment FEMA funded, including the installation of a 157-foot-long soil nail wall, along the damaged embankment associated with Site 1.  Included with the request was a geotechnical report from Professional Service Industries, Inc. (PSI) dated January 21, 2019, which indicated the slip length measured 138 feet, instead of the 59 feet documented in the SIR. 

From November 15, 2019 to May 13, 2020, FEMA issued multiple Requests for Information (RFIs) asking the Applicant to provide documentation to substantiate the increased slip length.[2]  In addition, after noting that the PSI report included with the Applicant’s amendment request referenced prior repairs to the embankments, FEMA also requested clarifying information about the nature and timing of the repairs.  The Applicant, in multiple responses, provided the requested documentation and also clarified that there was stone aggregate added to the downslope embankment for Site 1, which PSI believed was intended to delay additional slope failure or allow continued public use of the road.

On September 24, 2020, the Recipient forwarded FEMA a memorandum from the Applicant’s contractor dated September 22, 2020, which stated that it conducted a site inspection (for Site 1) on July 31, 2020.  In the July 31, 2020 inspection report included with the memorandum, the contractor observed the slip length had expanded to 432 feet.[3]  The memorandum included a technical analysis of the cause of the damage which increased the length of the landslide, field notes, updated drawings and geotechnical slope stability calculations.  The memorandum provided a site history starting from the time of the declared incident and concluding that, “[t]he recent expansion of the movement at the site is a widening of the original slip and is attributed to the slide not being repaired.  The delay of the repair [of] the slip has facilitated further degradation as more and more of the slope providing resisting forces were eroded.”[4]

FEMA issued a Determination Memorandum on February 22, 2021, partially granting the Applicant’s request for PA funding in Site 1.  FEMA acknowledged that its site inspection had underestimated the length of the original slip, and therefore approved costs for stabilizing 132 (rather than 59) linear feet of embankment with a soil nail wall.  However, FEMA denied costs for the remaining 280 linear feet of expanded embankment slip, citing the Applicant’s Contractor’s September 2020 memorandum, which attributed the widening of the slip from 2018 to 2020 to the embankment not being repaired in that period.  Therefore, FEMA determined the work requested was an improved project and capped funding at $154,411.00 for Site 1.  FEMA obligated the additional funds to stabilize the sloped embankment with a soil nail wall on March 18, 2021.

First Appeal

The Applicant submitted a first appeal in a letter dated March 23, 2021, requesting that the additional work for Site 1, which was denied in the DM, be approved as eligible.  The Recipient forwarded the Applicant’s appeal to FEMA in a letter dated May 19, 2021, in support of the Applicant’s position.  The Recipient stated that the Applicant provided sufficient documentation to support that the additional 280 feet of damage was caused by the incident and recommended approval of $258,465.27 in costs.  The Recipient asserted that there is no dispute the disaster caused the original slip, which subsequently expanded because the Applicant was unable to repair it, and that FEMA even acknowledged the slip was progressively expanding in the project’s Damage Inventory description.  The Recipient stated that the Applicant lacked the resources to repair the slip, despite taking all necessary actions within its control to obtain them.  Citing the conditions of the grant, including requirements to wait for FEMA’s prior approval for SOW changes and allow FEMA an opportunity to conduct National Environmental Policy Act (NEPA) and other environmental and historic preservation reviews, the Recipient states that the Applicant also had no choice but to wait for FEMA assistance prior to starting repairs.[5] 

The FEMA Region V Regional Administrator, in a letter dated April 22, 2022, denied the appeal, finding that the Applicant did not provide sufficient documentation demonstrating that the additional work to stabilize 280 feet of sloped embankment is required as a direct result of the incident.  Specifically, FEMA found that the Applicant was aware that the slip was expanding but took no action to prevent it, other than initially placing rocks, safety signage, and a cold mix patch across several sites at the start of the incident period.  FEMA also stated that resource shortfalls and the absence of FEMA’s prior approval did not explain the Applicant’s failure to prevent further damage through temporary repairs, since emergency protective measures to prevent further damage are excluded from NEPA review, the Applicant and Recipient never requested a SOW change for temporary slope stabilization, and any funding issues could have been addressed during project development.

Second Appeal

The Applicant submitted a second appeal, in a letter dated May 12, 2022, reiterating previous arguments and stating that temporary repairs are not always adequate to stop the movement of slope failures.  The Applicant included an email chain between the Applicant’s engineer and the Recipient reiterating that no temporary repairs could be done short of repairing the landslide.[6]

The Recipient forwarded the Applicant’s second appeal, in a letter dated July 11, 2022, in support and asserts that FEMA did not timely respond to an amendment request addressing the increase in the length of the instability which was due to the original slip not being repaired.  Additionally, the Recipient states that the September 2020 geotechnical report states that the slope had expanded due to not being repaired and that the disaster caused two of the three variables which make a slope unstable.[7]  Finally, the Recipient noted that the Applicant has made the approved permanent repairs to the site. 

 

Discussion

FEMA provides PA funding to eligible applicants for the repair, restoration, reconstruction, or replacement of facilities damaged or destroyed by disasters.^[8]  To be eligible for PA funding, an item of work must be required as a result of the declared incident.^[9]  FEMA does not provide funding for repair of damage caused by deterioration, deferred maintenance, the applicant’s failure to protect a facility from further damage, or negligence.^[10]

The Applicant claims 280 feet of damage to its embankment, in addition to the 132 feet of damage for which FEMA has already funded repairs.  The Applicant seeks to demonstrate that the 280 feet of damage is a result of the disaster.  However, the documentation provided with its appeal shows this damage is due to the Applicant’s failure to prevent further damage from occurring at the site between 2018 and 2020.  The Applicant’s engineer consultant noted that the expansion of the slip is the result of it not being repaired, stating that, “[t]he recent expansion of the movement at the site is a widening of the original slip and is attributed to the slide not being repaired[.] The delay of repair [of] the slip has facilitated further degradation as more and more of the slope providing resisting forces were eroded.”[11]  Although the Applicant claims it could not perform work to prevent additional damage until FEMA approved funding for repairs, the Applicant did not notify FEMA of the additional damage until more than two years after the disaster, and it did not identify or seek funding to address any imminent threat of significant additional damage prior to that time.  Accordingly, the Applicant has not demonstrated that the additional length of the embankment failure was the result of the incident, and not due to the failure to protect the embankment from further damage.

 

Conclusion

The Applicant has not substantiated that the work to repair the additional 280 feet of sloped embankment is required as a direct result of the declared incident.  Therefore, this appeal is denied.

 

 

[1] The Site 1 damage is captured in Damage Inventory (DI) Line Item 126545.  DI 126545 is the only item on appeal for this project.

[2] Email from Closeout Specialist, FEMA, to Disaster Recovery Branch Chief, Ohio Emergency Management Agency (OEMA), at 5 (Nov. 15, 2019, at 1229 EST); Email from Closeout Specialist, FEMA, to Disaster Recovery Branch Chief, OEMA, at 1-3 (Dec. 9, 2019, at 1447 EST); Email from Closeout Specialist, FEMA, to Disaster Recovery Branch Chief, OEMA, at 4-5 (Mar. 4, 2020, at 1822 EST); Email from Closeout Specialist, FEMA, to Disaster Recovery Branch Chief, OEMA, at 1 (May.  13, 2020 at 1218 EST).

[3] Memorandum Attachment from Gannett Fleming Eng’rs and Architects, P.C. (Jul. 31, 2020). 

[4] Memorandum from Project Manager, Gannett Fleming Eng’rs and Architects, P.C., to Tr., Cross Creek Twp. Bd. of Trs. at 2 (Sept. 22, 2020) [hereinafter Eng’r Sept. Memo].  

[5] The Recipient’s submission included: 1) a project timeline; 2) GMP Report; 3) correspondence on the eligibility issue of concern; 4) a previously submitted PSI proposal from 2018 and a 2019 PSI engineering report; and 5) a YouTube link, from May 13, 2021, showing surveying of the claimed 432-foot-long damages.

[6] Email from Gannett Fleming Consultant to Disaster Recovery Branch Chief/State Public Assistance Officer, OEMA (July 5, 2022, 1631 EST).  Note: The responder to the Recipient does not have a signature but it is presumed to be the Applicant’s contracted Engineer responding. 

[7] Specifically, either the soil shear strength is reduced, the geometry became adverse, or driving forces or slope loading has increased.

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

[9] Title 44, Code of Federal Regulations (44 C.F.R.) § 206.223(a)(1) (2017); Public Assistance Program and Policy Guide, FP-104-009-2, at 19 (Apr. 1, 2018) [hereinafter PAPPG].

[10] PAPPG, at 19-20.

[11] See Eng’r Sept. Memo, at 2.