Landslide on Natural Hillside
Appeal Brief
Appeal Letter
Appeal Analysis
Citation: FEMA-1046-DR-CA, City of Diamond Bar, DSR 95495
Cross-Reference: Landslide, Immediate Threat, Emergency Protective Measures
Summary: As the result of heavy rains in February and March 1995, a landslide occurred on an undeveloped hillside in April 1995. The landslide is located partially within the City of Diamond Bar and partially within Los Angeles County. The Walnut Valley Unified School District took the lead in stabilizing the slide. The city used engineering consultants to advise them of the progress of landslide remediation. Category G DSR 95495 was prepared to address the eligibility of the consultants' activities, and to document their costs. The FEMA inspector observed that no facilities within the city were affected by the landslide, and concluded that the costs being claimed by the city as emergency protective measures were ineligible. The city appealed because "even though no developed facilities within the City were affected by the slide the entire area of the slide was within the City's jurisdictional authority, and in fact approximately 600 feet of City owned right-of-way was disturbed by the geological movement." The city says that it has a statutory responsibility to assure that life and property are protected, and that consultants were used to carry out this responsibility. Region IX denied the appeal because the city did not directly participate in emergency protective measures to mitigate the threat posed by the landslide. The city made a second appeal requesting reimbursement of $16,805 for engineering services saying that these services constitute emergency protective measures. The appeal is denied because the city did not demonstrate that the landslide posed an immediate threat to facilities within the city limits.
Issues:
As the result of heavy rains in February and March 1995, a landslide occurred on a natural hillside in April 1995. The slide occurred on undeveloped land within the City of Diamond Bar. The slide extended across the city line into an unincorporated portion of Los Angeles County where it had an impact on developed facilities. Within the city's limits, the property on which the slide occurred is owned by the Walnut Valley Unified School District who took the lead in stabilizing the slide. The Sasak Corporation owns the land affected by the slide in Los Angeles County. FEMA wrote DSR 95496 to address eligible costs incurred by the School District which included geotechnical services.
The city's role in responding to the landslide was to coordinate the efforts of Los Angeles County, the School District, and State and federal representatives, and to provide technical oversight of the slide stabilization activities. The work was done by the city's geotechnical and civil engineering contractors, and a law firm. Category G DSR 95495 was prepared to address the eligibility of these contractor activities, and to document their costs. The FEMA inspector observed that no city facilities or private properties within the city were affected by the landslide, and concluded that the costs being claimed by the city as emergency protective measures were ineligible. A FEMA reviewer commented that "this DSR is addressed under statutory administrative costs."
First Appeal
On October 19, 1995, the city sent a letter to OES appealing FEMA's determination on DSR 95495. The letter states that "even though no developed facilities within the City were affected by the slide the entire area of the slide was within the City's jurisdictional authority, and in fact approximately 600 feet of City owned right-of-way was disturbed by the geological movement." The city says that it has a statutory responsibility to assure life and property are protected, and that consultants were used to carry out this responsibility. The consultants "provided the City with an independent assessment of the problem; and how best to eliminate or lessen this threat."
Region IX received the city's appeal from OES on March 7, 1996, and issued its response on August 1, 1996. The appeal was denied because the city did not directly participate in emergency protective measures to mitigate the threat posed by the landslide. This work was done by the School District. The response also states that "although communities may have jurisdictional and other responsibilities to provide various levels of response to disaster-related conditions, not all costs incurred by local governments are reimbursable by the FEMA Public Assistance program. Only those costs directly related to actually performing work required to save lives and protect property are eligible for FEMA funding as emergency work."
Second Appeal
On October 25, 1996, the city issued a second appeal to FEMA's denial of DSR 95495. The request for reimbursement had been limited to $8,943 for geotechnical services and $7,862 for civil engineering services which were "over and above the statutory administrative expense" the city provided during the declared emergency. The City of Diamond Bar is a "contract" city with no in-house full-time City Engineer or Geologist. The city maintains that those services provided by the city's contract civil engineer and the city's geotechnical consultants, constitute emergency protective measures under 44 CFR 206.225. They state "the earth movement could have increased in respect to Diamond Bar property and more substantial damage could have occurred." The city also claims that the contract costs are eligible for funding pursuant to the essential assistance subsection of FEMA's Policy No. 4511.300 (landslide policy) which states that "technical investigations may be eligible to determine appropriate engineering methods for reducing the immediate threat." On March 3, 1997, the Regional Director forwarded the city's second appeal to the Executive Associate Director for resolution.
DISCUSSION
The Regional Director's response to the first appeal was appropriate considering the information available at that time-DSR 95945 and the city's letter appealing this DSR. The city was not directly involved in stabilizing the landslide. Landslide stabilization to lessen the immediate threat to facilities above the landslide, all of which were in Los Angeles County, was being done by the School District. Instead, the city was carrying out its jurisdictional responsibility which was to determine that public and private facilities within the city were not currently being threatened by the landslide, to stay technically abreast of the stabilization efforts, and to assure that a threat to facilities was not created by the remedial construction itself. The Regional Director determined that such activities were not eligible for funding under the Stafford Act.
In order to justify modification or reversal of the Regional Director's response to the first appeal, the city's second appeal needed to demonstrate that the landslide posed an immediate threat to facilities within the city, and that their engineering consultants directly participated in the evaluation and/or mitigation of that threat. Information that might have been useful in this regard includes topographic maps, cross sections, geologic reports, stability analyses, photographs, etc. However, there is no such information in the second (or first) appeal that demonstrates an immediate threat to facilities within the city. Declaring a State of Emergency does not constitute an immediate threat in the context of the Stafford Act without the demonstration described above. Therefore, there is no basis for modifying or reversing the Regional Director's response to the first appeal.
CONCLUSION
The second appeal of DSR 95945 is denied because the city has not demonstrated that the landslide posed an immediate threat to any public or private facilities within the city. Therefore, the activities of the city's engineering consultants do not qualify as emergency protective measures, and are not eligible for funding under the Stafford Act.
Appeal Brief
| Disaster | FEMA-1046-DR |
| Applicant | City of Diamond Bar |
| Appeal Type | Second |
| PA ID# | 037-19192 |
| PW ID# | 95495 |
| Date Signed | 1997-08-29T04:00:00 |
Cross-Reference: Landslide, Immediate Threat, Emergency Protective Measures
Summary: As the result of heavy rains in February and March 1995, a landslide occurred on an undeveloped hillside in April 1995. The landslide is located partially within the City of Diamond Bar and partially within Los Angeles County. The Walnut Valley Unified School District took the lead in stabilizing the slide. The city used engineering consultants to advise them of the progress of landslide remediation. Category G DSR 95495 was prepared to address the eligibility of the consultants' activities, and to document their costs. The FEMA inspector observed that no facilities within the city were affected by the landslide, and concluded that the costs being claimed by the city as emergency protective measures were ineligible. The city appealed because "even though no developed facilities within the City were affected by the slide the entire area of the slide was within the City's jurisdictional authority, and in fact approximately 600 feet of City owned right-of-way was disturbed by the geological movement." The city says that it has a statutory responsibility to assure that life and property are protected, and that consultants were used to carry out this responsibility. Region IX denied the appeal because the city did not directly participate in emergency protective measures to mitigate the threat posed by the landslide. The city made a second appeal requesting reimbursement of $16,805 for engineering services saying that these services constitute emergency protective measures. The appeal is denied because the city did not demonstrate that the landslide posed an immediate threat to facilities within the city limits.
Issues:
- Did the city demonstrate that the landslide posed an immediate threat to public or private facilities?
- Did the consultants who advised the city on the progress of landslide remediation by the School District incur eligible fees?
- No. The city was concerned that the landslide might threaten facilities, but they did not demonstrate that it was threatening any facilities.
- No. They were not directly involved in landslide remediation.
Appeal Letter
August 29, 1997
Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
State of California
74 North Pasadena Avenue, West Annex, Third Floor
Pasadena, CA 91103-3678
Dear Mr. Najera:
This letter is in response to your December 30, 1996, transmittal of the City of Diamond Bar's second appeal of DSR 95495 under FEMA-1046-DR-CA. The applicant is requesting reimbursement for engineering costs associated with the evaluation and restoration of a landslide on undeveloped property.
Based on a review of the documentation submitted, I have denied this appeal for the reasons explained in the enclosed appeal analysis. Briefly, the city has not demonstrated that the landslide posed an immediate threat to any public or private facilities within the city. Therefore, the activities of the city's engineering consultants do not qualify as emergency protective measures, and are not eligible for funding under the Stafford Act.
Please inform the applicant of this determination and their right to submit a third appeal pursuant to 44 CFR 206.206(e).
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
State of California
74 North Pasadena Avenue, West Annex, Third Floor
Pasadena, CA 91103-3678
Dear Mr. Najera:
This letter is in response to your December 30, 1996, transmittal of the City of Diamond Bar's second appeal of DSR 95495 under FEMA-1046-DR-CA. The applicant is requesting reimbursement for engineering costs associated with the evaluation and restoration of a landslide on undeveloped property.
Based on a review of the documentation submitted, I have denied this appeal for the reasons explained in the enclosed appeal analysis. Briefly, the city has not demonstrated that the landslide posed an immediate threat to any public or private facilities within the city. Therefore, the activities of the city's engineering consultants do not qualify as emergency protective measures, and are not eligible for funding under the Stafford Act.
Please inform the applicant of this determination and their right to submit a third appeal pursuant to 44 CFR 206.206(e).
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Appeal Analysis
BACKGROUNDAs the result of heavy rains in February and March 1995, a landslide occurred on a natural hillside in April 1995. The slide occurred on undeveloped land within the City of Diamond Bar. The slide extended across the city line into an unincorporated portion of Los Angeles County where it had an impact on developed facilities. Within the city's limits, the property on which the slide occurred is owned by the Walnut Valley Unified School District who took the lead in stabilizing the slide. The Sasak Corporation owns the land affected by the slide in Los Angeles County. FEMA wrote DSR 95496 to address eligible costs incurred by the School District which included geotechnical services.
The city's role in responding to the landslide was to coordinate the efforts of Los Angeles County, the School District, and State and federal representatives, and to provide technical oversight of the slide stabilization activities. The work was done by the city's geotechnical and civil engineering contractors, and a law firm. Category G DSR 95495 was prepared to address the eligibility of these contractor activities, and to document their costs. The FEMA inspector observed that no city facilities or private properties within the city were affected by the landslide, and concluded that the costs being claimed by the city as emergency protective measures were ineligible. A FEMA reviewer commented that "this DSR is addressed under statutory administrative costs."
First Appeal
On October 19, 1995, the city sent a letter to OES appealing FEMA's determination on DSR 95495. The letter states that "even though no developed facilities within the City were affected by the slide the entire area of the slide was within the City's jurisdictional authority, and in fact approximately 600 feet of City owned right-of-way was disturbed by the geological movement." The city says that it has a statutory responsibility to assure life and property are protected, and that consultants were used to carry out this responsibility. The consultants "provided the City with an independent assessment of the problem; and how best to eliminate or lessen this threat."
Region IX received the city's appeal from OES on March 7, 1996, and issued its response on August 1, 1996. The appeal was denied because the city did not directly participate in emergency protective measures to mitigate the threat posed by the landslide. This work was done by the School District. The response also states that "although communities may have jurisdictional and other responsibilities to provide various levels of response to disaster-related conditions, not all costs incurred by local governments are reimbursable by the FEMA Public Assistance program. Only those costs directly related to actually performing work required to save lives and protect property are eligible for FEMA funding as emergency work."
Second Appeal
On October 25, 1996, the city issued a second appeal to FEMA's denial of DSR 95495. The request for reimbursement had been limited to $8,943 for geotechnical services and $7,862 for civil engineering services which were "over and above the statutory administrative expense" the city provided during the declared emergency. The City of Diamond Bar is a "contract" city with no in-house full-time City Engineer or Geologist. The city maintains that those services provided by the city's contract civil engineer and the city's geotechnical consultants, constitute emergency protective measures under 44 CFR 206.225. They state "the earth movement could have increased in respect to Diamond Bar property and more substantial damage could have occurred." The city also claims that the contract costs are eligible for funding pursuant to the essential assistance subsection of FEMA's Policy No. 4511.300 (landslide policy) which states that "technical investigations may be eligible to determine appropriate engineering methods for reducing the immediate threat." On March 3, 1997, the Regional Director forwarded the city's second appeal to the Executive Associate Director for resolution.
DISCUSSION
The Regional Director's response to the first appeal was appropriate considering the information available at that time-DSR 95945 and the city's letter appealing this DSR. The city was not directly involved in stabilizing the landslide. Landslide stabilization to lessen the immediate threat to facilities above the landslide, all of which were in Los Angeles County, was being done by the School District. Instead, the city was carrying out its jurisdictional responsibility which was to determine that public and private facilities within the city were not currently being threatened by the landslide, to stay technically abreast of the stabilization efforts, and to assure that a threat to facilities was not created by the remedial construction itself. The Regional Director determined that such activities were not eligible for funding under the Stafford Act.
In order to justify modification or reversal of the Regional Director's response to the first appeal, the city's second appeal needed to demonstrate that the landslide posed an immediate threat to facilities within the city, and that their engineering consultants directly participated in the evaluation and/or mitigation of that threat. Information that might have been useful in this regard includes topographic maps, cross sections, geologic reports, stability analyses, photographs, etc. However, there is no such information in the second (or first) appeal that demonstrates an immediate threat to facilities within the city. Declaring a State of Emergency does not constitute an immediate threat in the context of the Stafford Act without the demonstration described above. Therefore, there is no basis for modifying or reversing the Regional Director's response to the first appeal.
CONCLUSION
The second appeal of DSR 95945 is denied because the city has not demonstrated that the landslide posed an immediate threat to any public or private facilities within the city. Therefore, the activities of the city's engineering consultants do not qualify as emergency protective measures, and are not eligible for funding under the Stafford Act.
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