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Second Appeal Analysis
PA ID# 035-75360-00; City of Taylorsville
PW ID# 295; Road Repair and Slope Stabilization
During the flooding event that occurred between April 18 and July 16, 2011, specifically on June 19, 2011, the City of Taylorsville (Applicant) became aware of pavement damage along a 213-foot long section of Canal Street, including a 10 foot long section of pavement displacement along the shoulder. While inspecting the road damage, the Applicant determined that the slope supporting the roadway was showing signs of movement. The Applicant closed the road and performed emergency protective measures (crack sealing and placement of sandbags) to prevent further infiltration through the cracked pavement and to reduce the run off impacting the supporting slope.
FEMA prepared PW 295 to document the road damage, but based on the site conditions, determined that the instability of the slope supporting the road was a pre-existing condition, not caused by the declared event. FEMA determined the PW to be ineligible stating that after restoring and stabilizing the slope, the Applicant could request approval for funding for the repair of the roadway through the Utah Division of Emergency Management.
On December 29, 2011, the Applicant submitted a first appeal requesting $1.2 million to restore the site. The Applicant stated that there had been no significant movement since the event indicating that the movement was, in fact, caused by the event. The Applicant requested funding for the installation of a box culvert in the canal at the bottom of the slope to allow for re-grading to stabilize the slope and repair the roadway. According to the Applicant, this option would be the most cost-effective alternative for restoring the site.
FEMA requested additional documentation from the Applicant on May 25, 2012, including a copy of a geotechnical report referenced in the first appeal and specific information addressing the “indicators of instability cited in the FEMA PW, including undermining and a slide below the shoulder; pre-existing or alligator cracking which appear to have been previously sealed; mature vegetation growing on the slope; and evidence of an earlier effort to prevent sliding, including improvised sheet piles, stakes and other items…”
On June 14, 2012, the Applicant responded to FEMA’s request for additional information. Along with the geotechnical report, the Applicant submitted striping records and cost estimates for repair alternatives and addressed “each indicator of instability cited in the FEMA PW.” The Applicant’s cost estimate for the box culvert and grading option included with the additional information was $1,054,323; however, the Applicant reduced the amount of funding it requested to $650,000. The Applicant provided no explanation for the reduced funding request.
On July 13, 2012, the FEMA Regional Administrator denied the appeal stating that while the declared event may have triggered additional slope failure, the Applicant did not provide any compelling information to substantiate that the site was not previously unstable. The additional information provided by the Applicant included explanations for some of the site conditions indicating instability documented in the PW; however, the Applicant also concurred that the improvised sheet piles indicate past instability. The Applicant stated that these piles were installed prior to city’s incorporation in 1995 and are nearly vertical with no evidence of movement since installation. In response to the Applicant’s appeal, the FEMA Regional Administrator cited FEMA Recovery Policy 9524.2, Landslides and Slope Stability Related to Public Facilities stating that if the site is not stable and there is evidence of historic instability, the cost to stabilize the site is the responsibility of the Applicant. The FEMA Regional Administrator concluded by stating that the cost estimate for the road repair in PW 295 ($29,863) is adequate and that the Applicant may request funding for the road repair after stabilizing the site.
The Applicant submitted a second appeal of PW 295 on September 20, 2012, requesting $650,000 for the repair of Canal Street. The Applicant asserts that the roadway damage was not caused by movement of the slope, but by “an unusually high amount of water saturation and inability of the soil type to absorb it without causing the asphalt to shift and separate.” The Applicant states that “lengthening the slope” was necessary to provide support for the equipment required for the road repair and to eliminate the potential for instability. The Applicant had to consider the safety of the workers who would repair the road and the “critical infrastructure” (utility lines) below the road in determining the best approach for the road repair. The Applicant asserts that lengthening or reinforcing the slope is eligible for funding as an emergency protective measure due to the immediate threat to life, safety, and significant additional damage to improved property. Lastly, the Applicant states that the conclusions made by FEMA in PW 295 regarding the pre-existing condition of the site are not consistent with photographic evidence and the additional information it provided with the first appeal.
According to Title 44 of the Code of Federal Regulations (44 CFR) §206.225(a)(3) Emergency Work, to be eligible, emergency protective measures must eliminate or lessen immediate threats to life, public health or safety, or significant additional damage to improved property. As defined in 44 CFR §206.221(c) Definitions, an immediate threat is the threat of additional damage or destruction from an event which can reasonably be expected to occur within five years. The Applicant states that the weight of the construction equipment required to repair Canal Street had the potential to cause slope instability. However, there is no discussion in
PW 295, the geotechnical report, or any other information provided by the Applicant about an immediate threat existing at the site without considering the potential threat due to the weight of the construction equipment. The construction equipment is necessary for the road repair; therefore, the work required to lengthen or reinforce the slope is required to provide support for the road, not to eliminate an immediate threat of additional damage from an event expected to occur within five years. The work required to stabilize or reinforce the slope is part of the permanent work project to repair Canal Road, and FEMA must evaluate the eligibility of that work based on law, regulation, and policy pertaining to permanent work, not emergency work.
In the second appeal, the Applicant states that the road damage documented in PW 295 was not caused by slope movement but by saturation of the subgrade. However, all correspondence and supporting documentation submitted by the Applicant, including the Applicant’s first appeal letter and the geotechnical report, reference slope movement as the cause of the damage. Regardless of what actually caused the road damage, according to FEMA Recovery Policy 9524.2, Landslides and Slope Stability Related to Public Facilities, FEMA must determine the stability of the site where a damaged facility is located before it can approve funding to repair or restore an eligible facility and its integral ground. If the site is unstable and the instability is the direct result of the declared disaster (i.e., there is no evidence of instability after the facility was constructed and before the disaster), FEMA will fund the permanent repair or restoration of an eligible facility and its integral ground. Restoration of a facility’s integral ground is ineligible if the site instability was not caused by the disaster (i.e., there is evidence of instability after the facility was constructed and before the disaster). The eligibility of the road repair is not at issue in this case; at issue is the eligibility of the restoration of the integral ground, defined in the policy as the ground upon which an eligible facility is located and which is essential to support the structural integrity and utility of the facility.
The FEMA Project Specialist documented site conditions in PW 295 that indicate a history of slope instability at the site. While the most telling indication is the non-engineered stabilization effort (“improvised sheet piles”), the PW also documents undermining and a slide below the shoulder; pre-existing or alligator cracking which appear to have been previously sealed; layers of crack sealant and asphalt patch along the barriers indicating long term settlement; tilted concrete barriers on the shoulder; and, mature vegetation growing on the slope. In the appeal, the Applicant addresses a number of comments from the PW regarding the site conditions stating:
- FEMA conducted its site visit in September 2011. The Applicant sealed the cracks on the roadway in July 2011 as an emergency protective measure;
- While some piles were installed 17 years prior to the event, the piles are vertical, showing no sign of movement over the years;
- The concrete barriers have been tilted since 2008 and have not tilted more since then;
- The settlement shown by the layers of crack sealant and asphalt patch is expected and constitutes ordinary wear and tear;
- The mature vegetation shown in the photos included in PW 295 does not support the position that the slope movement is not recent.
The Applicant’s points addressing the site conditions documented in the PW do not negate the evidence of pre-disaster instability at the site. While the piles do not indicate movement, the fact that they were installed in the first place indicates pre-disaster instability. A statement from the geotechnical report, “It appears that materials (soil, asphalt, metal stakes, and wood) have been placed on the slope in an attempt to support the hillside,” supports the conclusion drawn by FEMA regarding the non-engineered attempt at stabilization. Further, the Applicant states that Jersey Barriers have been titled since 2008; however, it is reasonable to assume that the barriers were installed correctly and some time prior to 2008 slope movement caused the barriers to tilt. These indicators alone support the position that the slope was unstable prior to the event. Accordingly, work associated with stabilizing the slope, including re-grading the slope, is not eligible for funding.
The slope stabilization work performed by the Applicant does not represent eligible emergency work because the Applicant did not demonstrate that an immediate threat existed as the result of the event. Further, the slope stabilization is not eligible as permanent work because the slope instability was not caused by the declared event. Therefore, only the repair to the road surface as described in PW 295 may be eligible for funding only if the Applicant provides sufficient documentation supporting that the site stabilization measures were effective.