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Landslide Stabilization
Appeal Brief
Appeal Letter
Appeal Analysis
Citation: FEMA-1044-DR-CA; Oakland Unified School District; DSR 15107
Cross-Reference: Landslide, permanent restoration, immediate threat
Summary: DSR 15107 was prepared to fund an engineering study to evaluate the need for immediate slope stabilization of an unstable slope adjacent an elementary school. The DSR was determined to be ineligible since FEMA does not fund engineering/geotechnical studies for the permanent restoration of landslides. The subgrantee's first appeal stated that the slope is an eligible facility since it supports several improvements (drainage pipes, sewer main, and stairway) and that there was an immediate threat to students and staff due to anticipated precipitation that may cause another landslide. The Region responded that the slope is not a facility and that an immediate threat was not demonstrated. The second appeal stated that if slope stabilization measures were not constructed, additional movement of slide would likely have occurred in 1996 and that an immediate threat to buildings existed. Further, the subgrantee asserted that FEMA violated Section 316 of the Stafford Act by de-obligating funds and suspending the DSR and suggested that the Landslide Policy constitutes a regulatory change outside the rule making process.
Issues: Are the engineering study and work that was performed on the slope eligible?
Findings: No. Only an engineering study that identifies the potential for an immediate threat and temporary measures and the temporary measures to lessen or eliminate the immediate threat is eligible for landslides. Since an immediate threat was not established, the engineering study and the stabilization work, i.e., excavation of the toe of the slope and construction of an engineered-fill buttress, are not eligible. Further, slopes are considered natural features and not facilities. Therefore, slopes are not eligible for permanent restoration.
Rationale: Natural features are not eligible for permanent restoration assistance, since they are not facilities. Further, only studies to evaluate the presence of immediate threats and efforts to mitigate immediate threats are eligible, as emergency protective measures.
As a result of the winter storms of 1995, a landslide occurred on a hill above the Kaiser Elementary School, which is part of the Oakland Unified School District. The landslide was approximately 100 feet wide, 300 feet high, and 15 to 20 feet deep. The landslide approached to within 15 feet of the Multi-Purpose building. Damage survey report (DSR) 15107 was prepared for $60,800 to fund engineering and design studies for immediate slope stabilization due to the possible danger of an additional landslide. The engineering cost was based on the estimated costs of repairs to the hillside of $760,000. However, the DSR was determined to be ineligible in March 1995, because the Federal Emergency Management Agency (FEMA) will not fund studies for permanent restoration of landslides, as was described in the planned repairs. However, DSRs 29254 and 29255 funded the removal of a steep knob near the school ($34,348) and placement of a plastic sheet to stabilize the hill ($5,896), as Category B work, respectively. This work was performed independent of the engineering study.
First Appeal
On December 29, 1996, the State of California Governor's Office of Emergency Services (OES) transmitted and concurred with the subgrantee's June 20, 1995, first appeal letter. The subgrantee stated that the work to stabilize the hillside should be eligible as emergency work because the hillside was an improved natural feature with facilities that were damaged by the disaster event including: a sewer main, drainage structures, and a stairway. OES added that there was an immediate threat to the safety of the elementary school children and staff. In a September 23, 1996, letter, the Regional Director upheld the initial determination of ineligibility. The response indicated that the facilities identified by the subgrantee were related to the use of the hillside, but did not make the hillside a facility. Further, the Regional Director recommended that the subgrantee not proceed with any construction prior to coordinating the compliance with the National Historic Preservation Act (NHPA) and National Environmental Policy Act (NEPA) requirements with FEMA.
Second Appeal
With an April 2, 1997, letter, OES transmitted the subgrantee's December 18, 1996, second appeal. The subgrantee indicated that they had proceeded to stabilize the slope without coordinating the NHPA and NEPA compliance work with FEMA because of the immediate threat to the students, staff and the school building from a slide. The subgrantee also submitted a consultant's report that described: (1) improvements that existed on the slope at the time of the landslide, (2) the threat to life, safety, and improved property from another slide, and (3) stabilization of the slope (excavation at the toe of the slope and construction of an engineered-fill buttress). The subgrantee argued that changes to FEMA's Landslide Policy are not in-keeping with the regulatory process because it "constitutes a regulatory change put in place outside the official rulemaking process." Further, the subgrantee asserted that FEMA violated Section 316 of the Stafford Act by de-obligating funds and suspending projects and DSRs pending compliance with NEPA. This comment appeared to refer to DSR 15107 as well as DSRs not involved in this second appeal. The letter also stated that FEMA and OES failed to respond to a request for a re-inspection made in a September 14, 1995, letter to OES. Further, the subgrantee maintained that two engineering firms had advised that if the hillside had not been fixed prior to the 1995/1996 winter rains, "the hillside will fail, and will destroy major portions of our school." The subgrantee requested the preparation of a supplement to DSR 15107 for the actual cost of life safety measures already taken in winterization and remediation of the slide in the amount of $831,117. OES supported this request for reinstating the DSR in the amount of $831,117 in their transmittal letter.
The subgrantee submitted copies of photographs and an engineer's letter report on October 31, 1997, in response to a request for more information to substantiate an immediate threat.
DISCUSSION
The eligibility of the work performed on the hillside is affected by the issues of an immediate threat of a landslide and status of the hillside as a natural feature versus a facility. Several procedural issues are also addressed.
Immediate Threat
The FEMA Landslide Policy states that "emergency protective measures to stabilize slopes and hills that were damaged by a disaster may be eligible only if necessary to eliminate or lessen immediate threats." The policy further states: "Technical investigations may be eligible to determine appropriate engineering methods for reducing the immediate threats." In establishing that an immediate threat exists from a landslide, two criteria need to be met. First, there needs to be a significant potential for a landslide to occur. Second, if a landslide were to occur, there needs to be a significant potential of an immediate threat to life, health, or safety, or damage to improved property, per 44 CFR 206.225(a). A report by the subgrantee's geotechnical consultant stated that "in the winter and spring of 1995 the slide was definitely an `immediate threat' in accordance with 44 CFR 206.221(c) to the school multi-use and office buildings in that the then current condition of the slope posed an immediate threat to life, public health and safety, because it posed an immediate threat of significant damage to the improved public property, i.e., the two buildings." However, no technical information was submitted supporting the existence of an immediate threat.
When the slide occurred, it relieved loads on the upper portion of the slope, while the toe formed a natural buttress at the fence. Had the slope been unstable, it would not have been advisable to excavate material from the toe of the slope, because it would have removed some of the restraining quality of that area. Removal of the toe may have resulted in some movement on the lower portion of the slope, but the fact that the excavation did not trigger additional precipitous slides farther up the slope indicated a significant degree of slope stability. Finally, there was no information provided to show the potential for injury or damage to school property had another slide occurred.
Facility
A natural feature is only considered an eligible facility if it is improved and maintained, per 44 CFR 206.201(c). Further, 44 CFR 206.221(d) defines improved property as a structure, facility or item of equipment that was built, constructed or manufactured. For a natural feature, such as a slope, to be considered improved, engineered and constructed, stabilization systems such as retaining walls or other toe or head stabilization systems would be required to be in-place. Localized grading or other improvements related to the use of the hillside, not directly related to the stability of the slope, would not be considered an improvement.
Therefore, the types of structures identified by the subgrantee to have been constructed on the hillside (stairway, sewer, and drainage device) do not entitle the slope itself to be considered "improved" as defined above. However, as was indicated in DSR 15107, restoration of the man-made structures identified by the subgrantee may be eligible for FEMA assistance.
Procedural Issues
Three issues were raised by the subgrantee, basically maintaining that FEMA findings were not consistent with the Stafford Act and with FEMA administrative procedures. The first assertion was that the Landslide Policy constituted a regulatory change without official rulemaking. There appears to be some confusion between regulations and policies. Reguf f any agency, including FEMA, proposes new regulations, or proposes to make changes in existing regulations, that agency must comply with specific procedures for publishing the proposals and allowing time for comments.
While regulations may give considerable guidance on the eligibility of applicants and projects, they were not intended to address every issue that may arise during a disaster, and it is not uncommon for disasters to present situations that are not specifically covered in existing regulations. To ensure consistent interpretation, FEMA develops policy statements to address these new situations and issues. These policies are merely expansions, interpretations, or explanations of how an existing regulation applies to those situations. Since the policies are based on existing laws and regulations, there is no basis for requesting additional comments. The Landslide Policy was neither new nor retroactive. The original Landslide Policy was written in 1984, and the present policy is a written confirmation of previous FEMA determinations that the Stafford Act contained no provisions that would change that policy.
The second assertion was that FEMA violated Section 316 of the Stafford Act by de-obligating funds and suspending project and DSRs pending compliance with NEPA. In the review of the DSR, the scope of work was found to be ineligible; therefore, no funding was ever obligated for DSR 15107. Further, Section 316 states that" Any action which is taken. . .which has the effect of restoring a facility substantially to its condition prior to the disaster or emergency, shall not be deemed a major Federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969." As previously noted, the slope is not a facility as defined in 44 CFR 206.221(d), therefore, Section 316 does not apply.
The third assertion was that had FEMA responded to a request for a re-inspection of the slide area made in a September 14, 1995 letter to OES, the subgrantee could have demonstrated that an immediate threat existed. No information was presented to FEMA that demonstrated that such a threat existed. If such information was available, the applicant should have presented it to FEMA and OES, creating a basis for re-inspection.
CONCLUSION
Only studies to establish that an immediate threat existed and work to eliminate or lessen that immediate threat are eligible. An immediate threat has not been established through the information submitted by the subgrantee. Since the slope is a natural feature and not a facility, permanent restoration work to stabilize a slope is not eligible. The slope repair work that the applicant performed as permanent restoration of the slope and is not eligible. Therefore, the appeal is denied.
Appeal Brief
| Disaster | FEMA-1044-DR |
| Applicant | Oakland Unified School District |
| Appeal Type | Second |
| PA ID# | 001-91006 |
| PW ID# | 15107 |
| Date Signed | 1997-12-02T05:00:00 |
Cross-Reference: Landslide, permanent restoration, immediate threat
Summary: DSR 15107 was prepared to fund an engineering study to evaluate the need for immediate slope stabilization of an unstable slope adjacent an elementary school. The DSR was determined to be ineligible since FEMA does not fund engineering/geotechnical studies for the permanent restoration of landslides. The subgrantee's first appeal stated that the slope is an eligible facility since it supports several improvements (drainage pipes, sewer main, and stairway) and that there was an immediate threat to students and staff due to anticipated precipitation that may cause another landslide. The Region responded that the slope is not a facility and that an immediate threat was not demonstrated. The second appeal stated that if slope stabilization measures were not constructed, additional movement of slide would likely have occurred in 1996 and that an immediate threat to buildings existed. Further, the subgrantee asserted that FEMA violated Section 316 of the Stafford Act by de-obligating funds and suspending the DSR and suggested that the Landslide Policy constitutes a regulatory change outside the rule making process.
Issues: Are the engineering study and work that was performed on the slope eligible?
Findings: No. Only an engineering study that identifies the potential for an immediate threat and temporary measures and the temporary measures to lessen or eliminate the immediate threat is eligible for landslides. Since an immediate threat was not established, the engineering study and the stabilization work, i.e., excavation of the toe of the slope and construction of an engineered-fill buttress, are not eligible. Further, slopes are considered natural features and not facilities. Therefore, slopes are not eligible for permanent restoration.
Rationale: Natural features are not eligible for permanent restoration assistance, since they are not facilities. Further, only studies to evaluate the presence of immediate threats and efforts to mitigate immediate threats are eligible, as emergency protective measures.
Appeal Letter
December 2, 1997
Ms. Nancy Ward
Governor's Authorized Representative
Governor's Office of Emergency Services
Post Office Box 239013
Sacramento, California 95823
Dear Ms. Ward:
This is in response to your April 2, 1997, submittal of the Oakland Unified School District's second appeal of damage survey report (DSR) 15107 under FEMA-1044-DR-CA. The subgrantee requested funding for engineering support and the stabilization of a hillside above Kaiser Elementary School to protect against an alleged immediate threat to the children, staff, and school.
Though it is recognized that there was much concern about the stability of the hillside above the school, an immediate threat was never established. Since the hillside is a natural feature, and not a facility, it is not eligible for FEMA permanent restoration assistance. FEMA would only fund engineering studies to establish immediate threats and the identification and implementation of emergency protective measures, where immediate threats exist. The subgrantee did not establish the potential for such a landslide and, if one were to occur, that it would have created an immediate threat. Therefore, the appeal is denied. The basis for this determination is contained in the enclosure appeal analysis.
Please inform the subgrantee of my determination. The applicant may submit a third appeal to the Director of FEMA. The appeal must be submitted through your office and the Regional Director within 60 days of receipt of this determination.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Enclosure
cc: Raymond C. Williams
Acting Regional Director
FEMA Region IX
Ms. Nancy Ward
Governor's Authorized Representative
Governor's Office of Emergency Services
Post Office Box 239013
Sacramento, California 95823
Dear Ms. Ward:
This is in response to your April 2, 1997, submittal of the Oakland Unified School District's second appeal of damage survey report (DSR) 15107 under FEMA-1044-DR-CA. The subgrantee requested funding for engineering support and the stabilization of a hillside above Kaiser Elementary School to protect against an alleged immediate threat to the children, staff, and school.
Though it is recognized that there was much concern about the stability of the hillside above the school, an immediate threat was never established. Since the hillside is a natural feature, and not a facility, it is not eligible for FEMA permanent restoration assistance. FEMA would only fund engineering studies to establish immediate threats and the identification and implementation of emergency protective measures, where immediate threats exist. The subgrantee did not establish the potential for such a landslide and, if one were to occur, that it would have created an immediate threat. Therefore, the appeal is denied. The basis for this determination is contained in the enclosure appeal analysis.
Please inform the subgrantee of my determination. The applicant may submit a third appeal to the Director of FEMA. The appeal must be submitted through your office and the Regional Director within 60 days of receipt of this determination.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Enclosure
cc: Raymond C. Williams
Acting Regional Director
FEMA Region IX
Appeal Analysis
BACKGROUNDAs a result of the winter storms of 1995, a landslide occurred on a hill above the Kaiser Elementary School, which is part of the Oakland Unified School District. The landslide was approximately 100 feet wide, 300 feet high, and 15 to 20 feet deep. The landslide approached to within 15 feet of the Multi-Purpose building. Damage survey report (DSR) 15107 was prepared for $60,800 to fund engineering and design studies for immediate slope stabilization due to the possible danger of an additional landslide. The engineering cost was based on the estimated costs of repairs to the hillside of $760,000. However, the DSR was determined to be ineligible in March 1995, because the Federal Emergency Management Agency (FEMA) will not fund studies for permanent restoration of landslides, as was described in the planned repairs. However, DSRs 29254 and 29255 funded the removal of a steep knob near the school ($34,348) and placement of a plastic sheet to stabilize the hill ($5,896), as Category B work, respectively. This work was performed independent of the engineering study.
First Appeal
On December 29, 1996, the State of California Governor's Office of Emergency Services (OES) transmitted and concurred with the subgrantee's June 20, 1995, first appeal letter. The subgrantee stated that the work to stabilize the hillside should be eligible as emergency work because the hillside was an improved natural feature with facilities that were damaged by the disaster event including: a sewer main, drainage structures, and a stairway. OES added that there was an immediate threat to the safety of the elementary school children and staff. In a September 23, 1996, letter, the Regional Director upheld the initial determination of ineligibility. The response indicated that the facilities identified by the subgrantee were related to the use of the hillside, but did not make the hillside a facility. Further, the Regional Director recommended that the subgrantee not proceed with any construction prior to coordinating the compliance with the National Historic Preservation Act (NHPA) and National Environmental Policy Act (NEPA) requirements with FEMA.
Second Appeal
With an April 2, 1997, letter, OES transmitted the subgrantee's December 18, 1996, second appeal. The subgrantee indicated that they had proceeded to stabilize the slope without coordinating the NHPA and NEPA compliance work with FEMA because of the immediate threat to the students, staff and the school building from a slide. The subgrantee also submitted a consultant's report that described: (1) improvements that existed on the slope at the time of the landslide, (2) the threat to life, safety, and improved property from another slide, and (3) stabilization of the slope (excavation at the toe of the slope and construction of an engineered-fill buttress). The subgrantee argued that changes to FEMA's Landslide Policy are not in-keeping with the regulatory process because it "constitutes a regulatory change put in place outside the official rulemaking process." Further, the subgrantee asserted that FEMA violated Section 316 of the Stafford Act by de-obligating funds and suspending projects and DSRs pending compliance with NEPA. This comment appeared to refer to DSR 15107 as well as DSRs not involved in this second appeal. The letter also stated that FEMA and OES failed to respond to a request for a re-inspection made in a September 14, 1995, letter to OES. Further, the subgrantee maintained that two engineering firms had advised that if the hillside had not been fixed prior to the 1995/1996 winter rains, "the hillside will fail, and will destroy major portions of our school." The subgrantee requested the preparation of a supplement to DSR 15107 for the actual cost of life safety measures already taken in winterization and remediation of the slide in the amount of $831,117. OES supported this request for reinstating the DSR in the amount of $831,117 in their transmittal letter.
The subgrantee submitted copies of photographs and an engineer's letter report on October 31, 1997, in response to a request for more information to substantiate an immediate threat.
DISCUSSION
The eligibility of the work performed on the hillside is affected by the issues of an immediate threat of a landslide and status of the hillside as a natural feature versus a facility. Several procedural issues are also addressed.
Immediate Threat
The FEMA Landslide Policy states that "emergency protective measures to stabilize slopes and hills that were damaged by a disaster may be eligible only if necessary to eliminate or lessen immediate threats." The policy further states: "Technical investigations may be eligible to determine appropriate engineering methods for reducing the immediate threats." In establishing that an immediate threat exists from a landslide, two criteria need to be met. First, there needs to be a significant potential for a landslide to occur. Second, if a landslide were to occur, there needs to be a significant potential of an immediate threat to life, health, or safety, or damage to improved property, per 44 CFR 206.225(a). A report by the subgrantee's geotechnical consultant stated that "in the winter and spring of 1995 the slide was definitely an `immediate threat' in accordance with 44 CFR 206.221(c) to the school multi-use and office buildings in that the then current condition of the slope posed an immediate threat to life, public health and safety, because it posed an immediate threat of significant damage to the improved public property, i.e., the two buildings." However, no technical information was submitted supporting the existence of an immediate threat.
When the slide occurred, it relieved loads on the upper portion of the slope, while the toe formed a natural buttress at the fence. Had the slope been unstable, it would not have been advisable to excavate material from the toe of the slope, because it would have removed some of the restraining quality of that area. Removal of the toe may have resulted in some movement on the lower portion of the slope, but the fact that the excavation did not trigger additional precipitous slides farther up the slope indicated a significant degree of slope stability. Finally, there was no information provided to show the potential for injury or damage to school property had another slide occurred.
Facility
A natural feature is only considered an eligible facility if it is improved and maintained, per 44 CFR 206.201(c). Further, 44 CFR 206.221(d) defines improved property as a structure, facility or item of equipment that was built, constructed or manufactured. For a natural feature, such as a slope, to be considered improved, engineered and constructed, stabilization systems such as retaining walls or other toe or head stabilization systems would be required to be in-place. Localized grading or other improvements related to the use of the hillside, not directly related to the stability of the slope, would not be considered an improvement.
Therefore, the types of structures identified by the subgrantee to have been constructed on the hillside (stairway, sewer, and drainage device) do not entitle the slope itself to be considered "improved" as defined above. However, as was indicated in DSR 15107, restoration of the man-made structures identified by the subgrantee may be eligible for FEMA assistance.
Procedural Issues
Three issues were raised by the subgrantee, basically maintaining that FEMA findings were not consistent with the Stafford Act and with FEMA administrative procedures. The first assertion was that the Landslide Policy constituted a regulatory change without official rulemaking. There appears to be some confusion between regulations and policies. Reguf f any agency, including FEMA, proposes new regulations, or proposes to make changes in existing regulations, that agency must comply with specific procedures for publishing the proposals and allowing time for comments.
While regulations may give considerable guidance on the eligibility of applicants and projects, they were not intended to address every issue that may arise during a disaster, and it is not uncommon for disasters to present situations that are not specifically covered in existing regulations. To ensure consistent interpretation, FEMA develops policy statements to address these new situations and issues. These policies are merely expansions, interpretations, or explanations of how an existing regulation applies to those situations. Since the policies are based on existing laws and regulations, there is no basis for requesting additional comments. The Landslide Policy was neither new nor retroactive. The original Landslide Policy was written in 1984, and the present policy is a written confirmation of previous FEMA determinations that the Stafford Act contained no provisions that would change that policy.
The second assertion was that FEMA violated Section 316 of the Stafford Act by de-obligating funds and suspending project and DSRs pending compliance with NEPA. In the review of the DSR, the scope of work was found to be ineligible; therefore, no funding was ever obligated for DSR 15107. Further, Section 316 states that
The third assertion was that had FEMA responded to a request for a re-inspection of the slide area made in a September 14, 1995 letter to OES, the subgrantee could have demonstrated that an immediate threat existed. No information was presented to FEMA that demonstrated that such a threat existed. If such information was available, the applicant should have presented it to FEMA and OES, creating a basis for re-inspection.
CONCLUSION
Only studies to establish that an immediate threat existed and work to eliminate or lessen that immediate threat are eligible. An immediate threat has not been established through the information submitted by the subgrantee. Since the slope is a natural feature and not a facility, permanent restoration work to stabilize a slope is not eligible. The slope repair work that the applicant performed as permanent restoration of the slope and is not eligible. Therefore, the appeal is denied.