Change in Scope of Work, Result of Declared Incident

Appeal Brief

Summary Paragraph

During the incident period of February 5 through 13, 2019, severe storms, flooding, and landslides impacted Ohio. FEMA conducted a site inspection of the Township of Pultney’s (Applicant) road in July 2019, which documented damage to a road’s culvert, catch basin, guardrail, and shoulder. FEMA prepared Grants Manager Project 99287 awarding $40,467.67 to repair the guardrail and posts, replace shoulder material, remove, replace the culvert with a Hydrologic and Hydraulic study to upsize it, and clear the catch basin. On June 16, 2021, the Ohio Emergency Management Agency forwarded a scope of work (SOW) change request on the Applicant’s behalf to address claimed slope instability. Specifically, the Applicant requested funding for work to stabilize the slope with a drilled shaft soldier pile retaining wall and associated engineering and design services, based on a 2021 geotechnical engineering report. FEMA denied the SOW change request. FEMA found it noted no slope instability at the time of its inspection or project obligation. The Applicant appealed. The FEMA Region 5 Regional Administrator denied the Applicant’s first appeal, finding that the Applicant had not demonstrated that the slope instability was the result of the disaster as the geotechnical engineering report listed multiple factors for the current claimed slope instability. The Applicant filed a second appeal reiterating first appeal arguments. 

Authorities

• Stafford Act §§ 406(a)(1)(A), (e)(1). 
• 44 C.F.R. §§ 206.206(a), 206.223(a)(1), 206.226.
• PAPPG, at 19, 84, 87, 133, 137.
• Paintsville Utilities, FEMA-4595-DR-KY, at 3.

Headnotes

• To be eligible, work must be required as a result of the declared incident, and the applicant must demonstrate that damage was caused directly by the declared incident.
  • Here, FEMA did not find the presence of slope instability at the time of its inspection or project obligation. While the Applicant’s geotechnical engineering investigation, conducted two years after the disaster, found the presence of slope instability, it attributed it to multiple factors. Therefore, the Applicant has not demonstrated the requested slope stabilization work is required as the result of the disaster. As such, the requested change in SOW for the associated work is denied.

Conclusion

FEMA finds that the Applicant has not demonstrated that the requested slope stabilization work is required as the result of the declared incident. Therefore, the requested change in SOW is denied. This appeal is denied.

Appeal Letter

Appeal Analysis

Background

During the incident period of February 5 through 13, 2019, severe storms, flooding, and landslides impacted Ohio. The Township of Pultney (Applicant) claimed that flooding and soil saturation damage occurred along 46^th Street/Bellview Road, also referred to as Township Road 1036 Mile Marker 0.07, (Facility), a two-lane, 22-foot-wide asphalt road. Specifically, the Applicant sought Public Assistance (PA) funding to restore the Facility’s guardrail and posts, shoulder, corrugated metal culvert, catch basin, and to brace a retaining wall located about five feet from the guardrail. The claimed damages to the culvert and catch basin are located on the upslope of the Facility, while the guardrail, shoulder, and stone retaining wall are on the downslope.

FEMA conducted a site inspection of the Facility on July 17, 2019, and noted damage to the guardrail, shoulder, culvert and catch basin in a site inspection report (SIR). FEMA also noted the presence of a stone retaining wall, but stated there was no damage. On March 9, 2020, FEMA obligated Project Worksheet (PW) 276, awarding $40,467.67 to repair the guardrail and posts, replace shoulder material, remove and replace the culvert, and to clear the catch basin.[1] The award also included hazard mitigation measures to upsize the culvert and change materials, add rip rap, and conduct a Hydrologic and Hydraulic (H&H) study for the upsized culvert. In the PW, FEMA noted that, “based on the observations made and information gathered during the site inspection, there [we]re no indications of site instability present.”[2]

In a letter dated June 16, 2021, the Ohio Emergency Management Agency (Recipient) recommended that FEMA amend the project to include installation of a drilled shaft soldier pile retaining wall to stabilize the eastern embankment (i.e., downslope) and associated engineering and design (A&E) services. In support, the Recipient transmitted a 2021 geotechnical engineering report prepared on behalf of the Applicant, which stated that the slope failed and was only quasi-stable, likely to exhibit continued downward movement that could result in further undermining of the roadway.[3] The geotechnical engineering consultant concluded that the “slope ha[d] failed due to several factors that include[d] the steepness of the slope, lack of adequate subgrade preparation such as a rock toe, bonding benches and underdrains, the seasonal rising and falling of the water table and excess surface runoff water,” and stated that installing a retaining wall was the most effective practical option to address the slope failure.[4] 

On June 24, 2022, FEMA issued a Determination Memorandum, finding the requested slope stabilization work was ineligible because the Applicant had not substantiated that the slope instability was the result of the declared incident. FEMA denied the request to change the scope of work (SOW) and associated costs of $154,042.33.

First Appeal 

On November 18, 2022, the Applicant appealed the denial, asserting the claimed slope instability was the result of the disaster and was discovered during the course of performing the eligible geotechnical engineering inspection. The Applicant also stated that the predisaster stone wall had failed, which it discovered after FEMA’s site inspection. The Applicant categorized the failure as a hidden damage because the downslope where the wall was located was covered in heavy vegetation. The Recipient forwarded the first appeal with a transmittal letter dated January 13, 2023, supporting the Applicant’s position. The Recipient clarified the amount at issue for the SOW change request was $189,804.71, inclusive of $154,042.33 for construction of the requested retaining wall and $35,762.38 for the associated A&E services.

The FEMA Region 5 Regional Administrator, in a letter dated September 29, 2023, denied the Applicant’s first appeal. FEMA found that the Applicant had not demonstrated that the claimed slope instability was the result of the disaster. FEMA noted that the SIR showed no indication of shoulder damage or slope instability, and that the 2021 geotechnical engineering report listed several causes for the slope failure.

Second Appeal

In a letter dated November 27, 2023, the Applicant filed a second appeal asserting that FEMA is limiting evidence of slope instability to certain factors that could not have been fully observed during FEMA’s site inspection due to vegetation at the site. Additionally, the Applicant asserts it notified FEMA of the slope instability in May 2020. 

Through a letter dated January 23, 2024, the Recipient forwarded the Applicant’s appeal in support of the Applicant’s position. The Recipient notes that FEMA’s SIR identified a leaning guardrail and loss of shoulder fill material, which the Recipient states are indications of slope instability. The Recipient asserts the Applicant discovered the predisaster stone retaining wall had collapsed when it visited the site in April 2020, three weeks after FEMA approved the project. The Recipient states the Applicant emailed a photograph to FEMA in May 2020 that showed the slope had further destabilized, collapsing the wall. The Recipient states that the wall was approximately 3-to-4 feet from the guardrail, was completely covered in vegetation, and FEMA provided no evidence supporting its statement in the SIR that the wall was undamaged. Lastly, the Recipient states that FEMA is required by policy to provide empirical evidence that there was no slope instability as a result of the disaster.

Discussion

FEMA may provide PA funding to an eligible applicant for the repair, restoration, reconstruction, or replacement of an eligible facility damaged or destroyed by a major disaster based on predisaster design and function and in conformity with current applicable codes, specifications, and standards.[5] To be eligible, work must be required as a result of the declared incident, and the applicant must demonstrate that damage was caused directly by the declared incident.[6] A change to the approved scope of eligible work requires detailed justification and documentation to support the eligibility of the requested revision.[7] It is the applicant’s responsibility to provide documentation to substantiate its claim as eligible and to clearly explain how those records support the appeal.[8]

Here, the Applicant asserts that the claimed slope failure was the result of the disaster, but the documentation in the record does not substantiate this assertion. First, FEMA did not note slope instability in its July 2019 SIR and affirmatively stated in the PW there were no indications of site instability present at the time of the project’s obligation. Second, the 2021 geotechnical report that documented instability two years after the disaster did not tie the instability directly to the disaster and instead, provided multiple other factors that caused the slope to fail. These factors included the steepness of the slope, lack of adequate subgrade preparation such as a rock toe, bonding benches and underdrains, the seasonal rising and falling of the water table and excess surface runoff water.[9] The Applicant asserts that a photograph of the retaining wall, submitted with correspondence around May 2020, supports its claim that there was slope instability as a result of the disaster. However, the photograph shows an out of focus image of a rock wall along an embankment and lacks context and detail to substantiate that slope instability purportedly resulting from the disaster caused damage. Additionally, the Applicant requests PA approve funding to install a drilled shaft soldier pile retaining wall, which goes beyond the predisaster design and function of the original stone retaining wall present on the slope.[10] Because the Applicant has not demonstrated the requested slope stabilization work is required as the result of the declared incident, the requested change in SOW is consequently denied.

Conclusion

The Applicant has not demonstrated that the requested slope stabilization work is required as the result of the declared incident. Therefore, the requested change in SOW is denied. This appeal is denied.