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Second Appeal Letter
PA ID# 041-99041-00; Lincoln County
DSR ID# Project Worksheet 172; Immonen Road
April 21, 2009
State Coordinating Officer
Financial and Recovery Services Section
State of Oregon Office of Emergency Management
P.O. Box 14370
Salem, Oregon 97309-5062
Re: Second Appeal–Lincoln County, PA ID 041-99041-00, Immonen Road,
FEMA-1672-DR-OR, Project Worksheet (PW) 172
Dear Ms. Kershaw:
This is in response to your letter dated February 29, 2008, which transmitted the referenced second appeal on behalf of Lincoln County (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) decision to deny additional federal funding for repairs to Immonen Road.
From November 5, 2006, through November 8, 2006, severe rainfall and overland flooding triggered the failure of a slope supporting Immonen Road and damaged the road. FEMA wrote three PWs to repair Immonen Road. FEMA wrote PWs 171 and 173 for emergency protective measures. PW 171 covered the costs of work on the original road grade in an effort to keep the road open. PW 173 included costs to move the road into the slope of the hill and provide a temporary grade. FEMA wrote PW 172 as an emergency protective measure to relocate a portion of the road further upslope of the existing road and taper the new roadway into existing pavement at both ends. However, FEMA did not approve funding for PW 172 because FEMA determined that the proposed scope of work consisted of the permanent construction of the road even though the Applicant had not stabilized the site.
The Applicant submitted its first appeal on June 22, 2007. The Applicant asserted that the repairs to Immonen Road were emergency protective measures. The Applicant maintained that it needed to pave the road in order to provide road access for heavy trucks and for approximately 50 homes. The Applicant also stated that it had no record of the slope’s instability prior to the incident. The Applicant included several letters from residents, business owners, and the owner of the quarry stating that they did not see any evidence of a slope failure prior to the incident. The Applicant also argued that paving the road was the least costly option available to alleviate the immediate threat to public safety and should be funded pursuant to FEMA Recovery Policy 9524.2, Landslides and Slope Failures.
Two geotechnical studies, one performed by FEMA and one by the Applicant, established that the site was unstable prior to the disaster. The Regional Administrator denied the appeal for several reasons. First, the repairs completed on PWs 171 and 173 effectively restored emergency access to the properties beyond the slide zone and eliminated the immediate threat to public safety. Second, the site is a known area of instability that predates the disaster event. Lastly, the Applicant did not demonstrate that the site had been stabilized. Therefore, the Regional Administrator concluded that PW 172 was not eligible for funding.
The Applicant submitted a second appeal on January 4, 2008. The Applicant disagreed with the first appeal analysis and reiterated the arguments from the first appeal. The Applicant provided the county engineer’s opinion that that side area was stable prior to the disaster and did not agree that the two geotechnical reports supported FEMA’s determination that the slide was in an active pre-existing slide.
The issue in this appeal is whether the scope of work described in PW 172 is emergency work or permanent work. FEMA policy requires applicants to stabilize pre-existing landslides before FEMA will fund the permanent restoration of damaged facilities. The scope of work for PW 173 included excavating the hillside to realign the road and placing three inches of cover rock on the road surface. Because the slide area continued to move, the Applicant removed some soil from above the site to reduce the possibility of further movement of the slope in accordance with FEMA Recovery Policy 9524.2, Landslides and Slope Failures. In addition, the Applicant moved the road further into the hillside and away from the slide area. The scope of work of PW 172 included additional excavation of the hillside to improve sight distance safety, placement of geotextile fabric, additional aggregate top course and two inches of asphalt wearing course along the realigned road. The Applicant stated that the additional work was necessary to ensure the safety of motorist because the slope of the affected section of road was about 16 percent.
I have reviewed all information submitted with the appeal, including photographs of the realigned road, and have determined that the Applicant took prudent actions to establish safe ingress and egress for the property owners and business located above the damaged section of the Immonen Road. While the scope of work described in PW 172 appears to be permanent construction, it is reasonable given the specific conditions at the site and is consistent with Recovery Policy 9524.2. Therefore, I am approving the second appeal. By copy of this letter, I am requesting that the Regional Administrator take appropriate action to implement my decision.
Please inform the Applicant of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR §206.206.
James A. Walke
Acting Assistant Administrator
Disaster Assistance Directorate
cc: Dennis Hunsinger
Acting Regional Administrator
FEMA Region X