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Second Appeal Analysis
PA ID# 025-16793-00; Town of Colchester
PW ID# 2245; Slope Failure
In 2011, Tropical Storm Lee caused flooding in the Town of Colchester (Applicant). During the incident period, a portion of the embankment along Morton Hill Road surrounding a sheet pile wall subsided along with the adjacent road shoulder. In May 2012, FEMA conducted a site visit and determined that the damage to the embankment and road shoulder was associated with pre-existing rotational wedge slippage. Based upon the conclusion that the embankment was unstable prior to the incident period, FEMA determined that the repair of damage was not eligible for Public Assistance (PA) funding pursuant to FEMA Recovery Policy (RP) 9524.2 Landslides and Slope Stability Related to Public Facilities and the Public Assistance Guide. Accordingly, FEMA prepared PW 2245 to document the damage, but did not approve funding for the repair.
On August 13, 2012, in a letter from the Applicant to the State of New York Office of Emergency Management (Grantee), the Applicant requested that FEMA reconsider its decision regarding the eligibility of the repair. In its appeal, the Applicant claimed that the disaster caused the slope instability. The Applicant contended that the last time there was an issue with the embankment was during the incident period of FEMA-1710-DR-NY, June 19, 2007, after which FEMA approved funding to install a sheet pile wall along Morton Hill Road. The Applicant included with its appeal a May 11, 2010 engineering report from Hawk Engineering, PC, documenting the results of a survey and geotechnical investigation of the section of Morton Hill Road impacted during FEMA-1710-DR-NY. Regarding the cause of damage documented in PW 2245, the Applicant asserted that the sheet pile wall was exposed after Tropical Storm Lee and was in danger of collapsing. Further, the Applicant claimed, on May 16, 2012, it had to declare a state of emergency for Morton Hill Road since the embankment was on verge of collapse and, as a result, hired an excavating company to temporarily repair the embankment at an estimated cost of $174,000. Finally, the Applicant contended that FEMA had written PWs for sites similar to the Morton Hill Road embankment failure.
On May 16, 2013, the Acting Regional Administrator (RA) issued a decision denying the Applicant’s first appeal because FEMA determined the embankment had pre-existing documented instability that must be stabilized, pursuant to RP9524.2, before PA funds could be provided for any repairs. The RA cited to FEMA’s Geotechnical Site Visit Report, listing six factors that FEMA’s Geotechnical Specialist described to show that the site was unstable prior to the disaster:
(1) the embankment has an established history of subsidence and failure (previous incident in same location); (2) his observance of at least two locations of previous sloughing activity along the natural slope; (3) the steep slope angle; (4) the unconsolidated nature of subsurface soils; (5) the presence of 2 or more rotational wedge slope scars located on the embankment south of the current failure zone; and (6) the fact that the brook flows against the slope toe.
In its second appeal, dated September 13, 2013, the Applicant requests assistance for emergency repair measures to stabilize the Morton Hill embankment. The Applicant provides a report from Delaware Engineering, PC (Consultant), which it contracted with after the first appeal denial to review the project and Morton Hill Road and embankment history. Through the Consultant’s site assessment and review of the area’s previous repairs, it concluded that the embankment was stable prior to being destabilized by the 2011 disaster. Further, the Consultant concluded that the embankment failure was not due to previous instability or progressive failure but rather “directly linked to the intensified and concentrated runoff generated during the storm event.” The Consultant’s report addresses the six factors that the RA considered in denying the first appeal, and provides a different opinion regarding each.
Generally, work required as the result of a disaster is eligible. According to FEMA RP 9524.2, “FEMA must determine the stability of the site where the damaged facility is located before it can approve funding to repair or restore an eligible facility and its integral ground…If a site is unstable and the instability is the direct result of the declared disaster, FEMA will fund the permanent repair or restoration of an eligible facility and its integral ground.” 
In reviewing the additional documentation submitted with the second appeal, Applicant has sufficiently demonstrated that the embankment failure was caused by the intensified and concentrated runoff generated by the storm event. As Delaware Engineers explains in its assessment addressing FEMA’s findings on first appeal, the only prior evidence of slope failure on Morton Hill Road occurred in 2007 as a result of severe storms and flooding. The road was repaired and no further instability occurred until Tropical Storm Lee in 2011. Further, slope instability was not established based on a history of erosion nor was it established by the fact that a slope is steep or that a brook, stream, or river flows at the toe of a slope. If enough erosion occurs during a declared event and as a result of that erosion damage to an eligible facility or the integral ground of an eligible facility occurs, cost effective measures to stabilize the site and the repair of the damage is eligible for funding. As a result of the new information provided on second appeal, the Applicant has shown that the failure occurred as an immediate result of Tropical Storm Lee and is therefore eligible as disaster-related damage.  Accordingly, permanent work required to restore the road and its integral ground is eligible for funding. Further, the emergency work to stabilize the embankment already performed is eligible for PA funding.
The Morton Hill Road site was not unstable prior to the event; rather, the damage was caused by the disaster. Thus, emergency work to stabilize the embankment and the permanent work to restore the road, retaining wall, and the integral ground are eligible for funding.
 See Public Assistance Guide, FEMA 322 at 81-82 (June 2007) [hereinafter PA Guide].
 Project Worksheet 94, Town of Colchester (2007).
 Applicant lists PWs 4795, 4138, and 3891 for slope failures related to DR-1650. Note: The incident period for this disaster was June 26, 2006 to July 10, 2006, when FEMA operated under different policy guidance in relation to slope stabilization than it does now and did at the time of the disaster in question. Nonetheless, the policy, as it relates to the facts and issues considered in this appeal, are consistent with the current policy.
 FEMA First Appeal Letter from the Acting Regional Administrator, to the New York State Alternate Governor’s Authorized Representative, (May 16, 2013) (filed with FEMA).
 See Letter from Delaware Engineering to Supervisor, Town of Colchester. (September 12, 2013) (filed with FEMA). The report responded to each factor as follows: (1) the embankment has an established history of subsidence and failure (previous incident in same location); the Consultant found that the prior repair to the Morton Hill Roadway does not appear to be in the same location as the current failure, as the prior repair does not appear to have been intended to stabilize the lower embankment area. Hawk Engineering’s report did not include any stabilization issues related to the lower embankment area, and the coordinates of the damage from these two incidents are in different locations. Further, the Applicant has maintained Morton Hill Road for more than 100 years and the only failure prior to the 2011 disaster was in 2007, to a part of the roadway above the current failure; (2) of at least two locations of previous sloughing activity along the natural slope; the Consultant indicated it “cannot accurately identify these locations without some type of mapped location;” (3) steep slope angle; the Consultant contends that the slope angle is steep but that the instability was likely caused by a concentrated flow of excess runoff due to the disaster. (4) the unconsolidated nature of subsurface soils; the Consultant noted that, as identified in Hawk’s Geotechnical Report, fill soils were “identified as loose to firm silt, sand and gravel. Below these fill materials; soils were identified as glacial till deposits in a density ranging from firm to very compact. Materials which likely compose the majority of the embankment are likely therefore firm to very compact and not unconsolidated.” (5) the presence of 2 or more rotational wedge slop scars located on the embankment south of the current failure zone; the Consultant explains that this area was also the area of highest runoff concentration and erosion. Further, according to the Consultants, “when the large concentrations of stormwater runoff eroded the embankment, it is likely that the large, well established, root structures pulled and destabilized a considerable amount of the adjacent embankment. These large root systems provide a great deal of embankment stabilization by forming an interlock within soils, when the soils are washed away, their connection is lost;” (6) and the fact that the brook flows against the slope toe; the Consultant commented that the Morton Hill Road and advancement embankment have been operational and historically stable, and Morton Hill Road is no different from many other roads throughout Delaware County, as the roads abut brooks, streams and rivers and are tightly constricted by adjacent hillsides
Letter from Delaware Engineering to Supervisor, Town of Colchester. (September 12, 2013) (filed with FEMA).
 44 C.F.R. § 206.223 (a)(1) (2010).
 Recovery Policy RP9524.2, Landslides and Slope Stability Related to Public Facilities at 4 (2010).
 See RP9524.2, Landslides and Slope Stability Related to Public Facilities at 4.
 See Email from Civil Engineer, P.E., FEMA to PA Lead Appeals Analyst, FEMA (Sep. 3, 2014, 18:48 pm)(filed with FEMA)