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Second Appeal Letter
PA ID# 013-99013-00; Cascade County
PW ID# 1430; Armington Road Repair
February 19, 2013
Disaster and Emergency Services Division
Department of Military Affairs
PO Box 4789
Fort Harrison, MT 59636-4789
Re: Second Appeal-Cascade County, PA ID 013-99013-00, Armington Road Repair, FEMA-1996-DR-MT, Project Worksheet (PW) 1430
Dear Mr. Tinsley:
This letter is in response to a letter from your office dated July 5, 2012, which transmitted the second appeal on behalf of Cascade County (Applicant). The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) determination that the Armington Road site was unstable prior to the declared event. The appeal request is for funding of slope stabilization and repair.
High snowpack and severe spring storms resulted in major flooding in Montana from April 4, 2011, to July 22, 2011. The Applicant reported the failure of Armington Road south of its intersection with highway MT 200. FEMA conducted site visits on August 17, 2011 and September 22, 2011, and determined that the rainfall caused about 10-feet of the roadway’s integral ground to fail for a length of about 60 feet. Based on site visit observations and measurements and epic aerial photography, a Professional Geologist (P.G.) hired by FEMA, concluded that the site had experienced instability prior to the declared event. The findings from the site visit are documented in a September 29, 2011, memorandum.
In accordance with Recovery Policy 9524.2, Landslides and Slope Stability Related to Public Facilities dated October 14, 2010, and the September 29, 2011 letter, FEMA determined that repairs to the roadway would be eligible only after the site was stabilized by the Applicant. FEMA prepared PW 1430 to document the eligible road damage at an estimated cost of $10,138 for 6 inches of road sub-base, 3 inches of road base, 2 inches of asphalt and shoulder material for a 24-foot wide and 150-foot long section of roadway. In a letter dated September 6, 2011, the Applicant states that the site had been stable since it accepted responsibility for the roadway in 1967.
On January 6, 2012, the Applicant submitted its first appeal to the Montana Disaster and Emergency Services Division (MT DES) addressing the anticipated FEMA official determination that the site was unstable prior to the declared event. The Applicant argued that the damage was caused by the declared event. The Applicant hired Earl Griffith, P.G. of GEC, Inc., to perform a slump assessment of Armington Road. A copy of his report dated December 2011, “Armington Road Slump, FEMA Report Assessment” was included with the appeal. The report stated, “the subject area was stable from 1981 to 2011 when high stream flows caused undercutting of the slope toe resulting in the failure of the roadway prism.” The appeal also included two estimates for slide correction and repair, one from the Applicant in the amount of $3,287,574 and a quote from a contractor in the amount of $2,762,247.
In a letter dated May 8, 2012, the Regional Administrator denied the first appeal based on FEMA Recovery Policy RP9524.2, Landslides and Slope Stability Related to Public Facilities dated October 14, 2010, stating, “If it is determined that the site is not stable and there is evidence of historical instability, the cost to stabilize the site is the responsibility of the Applicant”. The Regional Administrator determined that since pre-existing instability had been confirmed, the costs to stabilize the site were ineligible for funding. FEMA further explained that there was evidence of prior site instability based on the depth of asphalt at the site which was consistent with attempts to re-level the roadway due to local slumping. FEMA concluded that movement had occurred over a long period of time and that the area was continually re-paved to maintain the road elevation.
The Applicant submitted its second appeal to the MT DES on December 28, 2011. In the second appeal, the Applicant argues that test cuts of the asphalt roadway sections in seven areas over a distance of more than a quarter mile (within and outside of the slide area), historical maintenance records of both Cascade County and the Montana Department of Transportation for this area, interviews of personnel working for the county during the ownership period of more than 30 years, and knowledge of common construction techniques used throughout the last 50 years, substantiate that the facility was stable prior to the flooding event of 2011.
Pursuant to the Public Assistance Guide, FEMA 322, dated June 2007, if the site was unstable before the disaster, the Applicant must pay to stabilize the site before Public Assistance funds are provided to repair the facility. When examining slope failures and landslides, FEMA looks at a number of indicators to assist with determining if a site has experienced previous movement (historic instability).
One possible indication of historic instability is the presence of excessively thick asphalt. Asphalt surfacing on secondary roads is generally about four inches thick, but in some instances a city or county will simply apply a layer of asphalt concrete to restore the elevation of the road rather than address the root cause of the slope movement. Over time, this results in substantially thicker sections of asphalt concrete than would normally be the case, which is revealed after the slope collapses. In the second appeal, the Applicant indicated that:
In reviewing the on-site cuts, there were no indications or evidence of uneven thickness or evidence that any type of an overlay occurred as a result of sliding, slumping, depressing, etc. The evidence of oxidation or color gradation found in several of the cuts was conclusive of normal construction technique in which even lifts have been applied throughout the more than quarter mile of roadway that was tested.
Furthermore, the Applicant argued that FEMA personnel was measuring the discolored gravel that stuck to the bottom of the asphalt layers and that resulted in an inaccurate measurement and the asphalt thickness variation that was reported was erroneous. However after a review of the photos provided, there is no visible evidence that an error was made.
Another common indicator of historical instability is evidence of previous repairs in immediate proximity to a slope. The Applicant reported that there were attempts to stabilize the failed road bed by applying rip rap which resulted in additional slumping of the rock surface. The FEMA geologist concluded that “a significant quantity of water continued moving through the road sub grade, eroding and causing a flow condition in the sediments comprising the integral land. With no road shoulder to provide lateral earth support, the road sub grade moved down slope driven by the runoff and soil water from the adjoining draw”. The conclusion being that the slope was unstable prior to the disaster event.
In addition, FEMA noted roadway surface cracking above an area where a recent slope failure was evidenced by fresh escarpment on the down slope face. The Applicant argues that this cracking occurs in several locations along the roadway not associated with the slide and determined it was the result of aging. However, development of tension cracks near or immediately behind the top of the slope generally indicates historical instability. These tension cracks were found at the Armington Road location. Additionally, the lateral cracking observed in the field appeared more extensive than the cracking visible in 2009 Google Maps photography, also indicating prior instability.
One of the most common indications of historical instability is leaning trees. Gradual, progressive slope movement (creep), as well as large rotational displacement of a slope, will cause trees on the slope to lean, and they may tilt in either the upslope or downslope direction depending on their location upon the slope and the nature of the movement. The Applicant states the trees on the failed slope showed no sign of bent trunks called “pistol butting” indicative of prior slope movement; however, the absence of “pistol butting” does not establish slope stability.
Generally, a slope that has experienced significant movement prior to a catastrophic collapse will exhibit many but not all of the indicators above. While the total collapse of the slope appears to be the result of the declared event, the slope failure cannot be attributed entirely to the declared event since there is evidence based on slope stability indicators exhibited at the site, that this section of road has experienced previous movement. Therefore, as there is evidence of historical instability, the cost of slope stabilization is the responsibility of the Applicant in accordance with Recovery Policy RP9524.2 Landslides and Slope Stability Related to Public Facilities dated October 14, 2010.
I have reviewed all of the information submitted with the appeal and determined that the Regional Administrator’s decision in the first appeal is consistent with Public Assistance regulations and policy. Accordingly, 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, Appeals.
cc: Robin Finegan
FEMA Region VIII