Slope Failure

Appeal Brief

Summary Paragraph

The Applicant is appealing FEMA’s determination that the repair of the Morton Road slope (Slope) is inconsistent with FEMA’s slope stability policy.  In the first appeal, the Applicant asserted that the roadway and side slope were stable prior to the disaster.  According to the Applicant, the last time that the Slope needed stabilization was in 2007, as the result of DR 1710, after which FEMA wrote PW 94 to add sheet piling to the Slope.  The Grantee provided documentation from the NYSOEM Engineering staff in support of the Applicant’s claim.  The FEMA Region II Acting Regional Administrator denied the appeal, asserting that the slope was inspected by a FEMA Geo-technical Engineer who determined that the site was unstable before the incident and the Applicant must stabilize the site before Public Assistance funds are provided to repair it.  In the second appeal, the Applicant attached a copy of a report from Delaware Engineering, P.C., which reviewed the project and road history after the first appeal was denied.   The Applicant contends that this report supports its claim that the Slope did not have instability issues prior to the 2007 disaster.  

Authorities Discussed

• 44 C.F.R. § 206.223(a)(1)
• FEMA RP9524.2, Landslides and Slope Stability Related to Public Facilities, at 4-5.

Headnotes

• Pursuant to 44 C.F.R. § 206.223(a)(1), an item of work must be the result of an emergency or disaster in order to be eligible for PA funding.
  • Here, the Applicant submitted evidence to establish that the slope was not unstable prior to the disaster event.
• According to FEMA RP9524.2, Landslides and Slope Stability Related to Public Facilities, if a site has a history of instability, FEMA will not fund the repair of the site; in such cases, it is the responsibility of the Applicant to stabilize the site before Public Assistance funds are provided to repair the facility.
  • The Applicant submitted documentation to establish that the site did not have a history of instability and is eligible for Public Assistance.

Appeal Letter

Appeal Analysis

(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.[4]

Second Appeal

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.[5]

Discussion

Generally, work required as the result of a disaster is eligible.[6]  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.” [7]

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.[8]  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. [9]  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. 

Conclusion

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.