Appeal Brief | Appeal Letter | Back
Second Appeal Letter
PA ID# 007-17046-00; Town of Colesville
PW ID# Project Worksheet 1155; Slope Erosion and Failure on Hartz Road
June 24, 2008
John A. Agostino
Governors Authorized Representative
New York State Emergency Management Office
1220 Washington Avenue
Building 22, Suite 101
Albany, New York 12226
Re: Second AppealTown of Colesville, PA ID 007-17046-00, Slope Erosion and Failure on Hartz Road
, FEMA-1670-DR-NY, Project Worksheet (PW) 1155
Dear Mr. Agostino:
This letter is in response to the referenced second appeal dated October 18, 2007, and forwarded by your office on February 20, 2008. The Town of Colesville (Applicant) is appealing the Department of Homeland Securitys Federal Emergency Management Agencys (FEMA) denial of its first appeal dated May 2, 2006. The Applicant is requesting funding to stabilize slope erosion and failure on Hertz Road.
Following severe storms and flooding during November 2006 (FEMA-1670-DR-NY), FEMA prepared PW 1155 to repair slope erosion along a portion of Marsh Creek that threatened Hartz Road. FEMAs inspection and geotechnical site assessment determined that a portion of the creek slope was eroded, but that the erosion was due to pre-existing conditions. The inspection also determined that Hartz Road did not sustain damage in the disaster. Based on the inspection and geotechnical site assessment report, FEMA determined PW 1155 was not eligible for funding.
The Applicant appealed on May 2, 2007, claiming that the slope erosion was a direct result of flooding that occurred during an earlier declared event in June 26-July 10, 2006, (FEMA-1650-DR-NY) and that the work now was required because the unstable slope posed an immediate threat to the Hartz Road. Support documents included a letter from the Broome County Soil and Water Conservation District, letters from Hartz Road homeowners, a copy of FEMAs geotechnical site assessment report, photographs of the slope area, and a copy of a topographic survey of the Hartz Road slope area and a project costs estimate provided by Hawk Engineering, an independent engineering company retained by the Applicant. The Hawk Engineering survey concluded that the slope erosion was due to the earlier event (FEMA-1650-DR-NY). FEMAs Regional Administrator denied the first appeal stating that the Applicant did not provide sufficient documentation to support its claim for damages related to FEMA-1670-DR-NY.
In a letter dated January 3, 2008, and in response to FEMAs denial of the Applicants first appeal, New York State Emergency Management Office (SEMO) asked FEMA to review the circumstances
surrounding this project and to set aside the initial ineligible decision based on procedural and technical errors. The Regional Administrator responded to SEMO in a letter dated January 25, 2008, explaining that the disaster site, which was damaged in June-July 2006 (FEMA-1650-DR-NY) and again during the November 2006 disaster (FEMA-1670-DR-NY), was eligible for debris removal in the first event and ineligible for permanent work in the second event because damages were not disaster related.
On October 18, 2007, the Applicant submitted a second appeal for permanent repairs to the slope (PW 1155), reiterating its request for funding because the slope erosion was a direct result of the earlier disaster (FEMA-1650-DR-NY). Support documents included a follow-up topographic survey report from Charles Gaynor, president of Hawk Engineering, and a copy of Mr. Gaynors curriculum vitae. The Applicant clearly maintains that the damage to the slope occurred in the June-July 2006 disaster (FEMA-1650-DR-NY). However, the Applicant did not identify damage to the slope within 60 days from its first substantive meeting with FEMA, as required by regulation. Since the Applicant did not identify the damages within the allowed time, they are not eligible for consideration for FEMA assistance under the June-July 2006 disaster (FEMA-1650-DR-NY).
The damage to the slope also is not eligible for FEMA assistance under the November 2006 disaster (FEMA-1670-DR-NY) as either emergency work or permanent work. To be eligible for assistance under FEMA-1670-DR-NY, the damage must have been the result of that disaster. As noted above, the Applicant maintains that the damage was the result of June-July 2006 disaster (FEMA-1650-DR-NY), not the November 2006 disaster (FEMA-1670-DR-NY). Further, due to its urgent nature, emergency work is required to be accomplished within 6 months of the declared disaster; postponement of repairs weakens any argument of urgency. Permanent work eligibility is dependent on damages to an eligible facility by the declared event. Natural slopes are not eligible facilities and the record does not show that Hartz Road was damaged by the declared event.
I have reviewed all information submitted with the second appeal and have determined that the stabilization of the slope is not eligible for assistance FEMA-1670-DR-NY. Therefore, I am denying the second appeal.
Please inform the Applicant of my decision. This determination constitutes the final decision on this matter pursuant to 44 CFR §206.206.
Carlos J. Castillo
Disaster Assistance Directorate
cc: Stephen Kempf, Jr.
FEMA Region II