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Second Appeal Analysis
PA ID# 027-06610-00; Town of Boonton
PW ID# 1539; Slope Stabilization – Immediate Threat
In August 2011, rain and flooding resulting from Hurricane Irene caused a slope, located at Grace Lord Park, in the Town of Boonton (Applicant) to fail. As an emergency protective measure, the Applicant requested FEMA Public Assistance (PA) funding to install Shotroc Fill (large Rip Rap) along the base of the slope failure, approximately 600 feet long. A FEMA Geotechnical Specialist conducted a site visit on November 9, 2011 and reported that “support loss from the lower slope… will not need Emergency Work repairs to minimize the continued erosion of the slope…” In PW 1539, FEMA determined that emergency protective measures to stabilize the slope were ineligible because of the lack of immediate threat to improved property, as per Title 44 of the Federal Code of Regulations (44 C.F.R.) § 206.221(c) and FEMA Recovery Policy (RP) 9524.2, Landslides and Slope Stability Related to Public Facilities.
In a first appeal letter submitted January 27, 2012, the Applicant claims that the slope failure represents an immediate threat to improved property. The Applicant asserted that the slope failure was the result of erosion due to flood waters caused by Hurricane Irene. The Applicant asserted that, by hiring a geotechnical consultant and completing an extensive report authored by its engineer, it took quick action to investigate the cause of the slope failure. In addition, the Applicant asserted that, based on U.S. Geological Survey (USGS) records, additional erosion caused by future flooding could reasonably result in a threat to lives and improved property.
The FEMA Region II Acting Regional Administrator (RA) denied the first appeal on June 19, 2012 finding that “the 600 foot section of failed slope… is a Natural Ground Slope and is classified as an unimproved earthen material which has not been reworked, mechanically altered or improved.” In addition, the Acting RA agreed with the initial determination that the slope failure did not present an immediate threat to life or improved property.
The Applicant argues in a second appeal letter, dated January 7, 2013, that the slope failure does present an immediate threat to improved property. In support of this claim, the Applicant sites to a Geotechnical Investigation Report (hereinafter “October 2011 Report”) issued by SESI Consulting Engineers (consulting engineers) that states, it is our opinion that there is an adequate factor of safety against a global stability failure for the existing residents located above the slope failure area; however, unless emergency protective measures are implemented, the slope will continue to erode and the factor of safety will continue to be reduced to a point that an inadequate factor of safety will be present.
The October 2011 Report also states, “Besides the damage to the Town’s property, there are four homes that could be impacted should the slope continue to erode” and recommends that emergency measures—such as placing shotrock fill along the base of the slope, conducting soil borings, soil testing and stability analysis, and blocking off a minimum of 50 feet above the top of the slope to prevent unauthorized access—be performed. Along with the consulting engineers’ recommendation to implement emergency protective measures, the October 2011 Report also provides pictures of the damaged site and cost estimates to complete the emergency work.
Pursuant to 44 C.F.R. § 206.201(b), emergency work means work which must be done immediately to save lives and to protect improved property and public health and safety, or to avert or lessen the threat of a major disaster. FEMA classifies debris removal and emergency protective measures as “emergency work.”
Pursuant to 44 C.F.R. § 206.225(a), emergency protective measures to save lives, to protect public health and safety, and to protect improved property are eligible for PA funding. Emergency protective measures to protect lives or improved property include, but are not limited to: 1) temporary levees, berms, dikes and sandbagging, 2) buttressing, bracing, or shoring of a damaged structure to protect against further damage to the structure, and 3) emergency repairs to protective facilities (work is limited to that which would provide protection from a 5-year event or would restore the facility to its pre-disaster design, whichever is less).
In his determination, the Acting RA states, “it was determined that the 600 foot section of failed slope… is a Natural Ground Slope and is classified as an unimproved earthen material which has not been reworked, mechanically altered or improved…. Therefore, the appeal is denied, as the failed slope… is not eligible for funding under the Public Assistance program.” FEMA RP 9524.2 states, “permanent repair to stabilize natural ground that is not integral to an eligible facility’s function…” and “permanent repair or restoration of natural ground” are ineligible for funding. However, as correctly noted by the Applicant and the Grantee, PW 1539 was written as a Category B—Emergency Protective Measures—project, not permanent work. Emergency protective measures may be used on natural features that have not been improved and maintained. Accordingly, PA funding for this project is not denied based on the eligibility of the type of work designated in PW 1539 because emergency work may be eligible.
As previously stated, emergency protective measures to save lives, protect public health and safety, and protect improved property are eligible for PA funding. FEMA considers emergency protective measures to include activities undertaken by a community before, during, and following a disaster to eliminate or reduce an immediate threat to improved public or private property. Immediate threat means the threat of additional damage or destruction from an event that can reasonably be expected to occur within five years.
In PW 1539, FEMA determined that the project was ineligible due to lack of an immediate threat to improved property. FEMA’s determination in PW 1539 was supported by a FEMA Geotechnical Specialist’s Geotechnical Site Visit Report, which noted, “The collapse of the downslope soil… has not impacted the integral ground support of the residential properties…. The support loss from the lower slope at the riverbank will not need Emergency Work repairs to minimize the continued erosion of the slope from the flow of the Rockaway River.” The Specialist recommended permanent measures be implemented, including replacing rock drainage structures, installing a slope dewatering pipe system, and other mitigation measures to reduce sources of slope saturation. Finally, the Specialist concluded that a geotechnical and hydraulic evaluation was not suggested as emergency work for slope protection.
The Applicant asserts that the October 2011 Report issued by its consulting engineer refutes the conclusions made by the FEMA Geotechnical Specialist. The October 2011 Report states, “Besides the damage to the Town’s property, there are four homes that could be impacted should the slope continue to erode.” In addition, the Report states, “it is our opinion that there is an adequate factor of safety against a global stability failure for the existing residences above the slope failure area; however, unless emergency protective measures are implemented, the slope will continue to erode and the factor of safety will continue to be reduced…”
The Applicant asserts that the October 2011 Report sufficiently demonstrates that the slope failure presents an immediate threat to the residences located above the slope. However, the October 2011 Report explicitly notes that, following the disaster, there was an adequate level of support for the residences above the slope. Although the October 2011 Report states that the slope may continue to erode, and if such erosion occurred, the factor of safety would be reduced, it is speculative regarding whether such erosion would occur, whether the residences would be impacted, and if so, to what extent. FEMA regulations provide that an “immediate threat” is one that may reasonably be expected to occur within five years. The October 2011 Report also does not conclude that the impact to the residences can be expected to occur within five years of the disaster.
Arguably, reflective of an absence of an immediate threat, the Applicant stated that it has not taken any steps to stabilize the slope, vacated the residences located above the slope, or implemented other remedial measures to reduce the possibility of further damage caused by the slope failure. It should also be noted that the FEMA Geotechnical Specialist factored the residences into his assessment, noting that the homes are located approximately 200 to 300 feet horizontally (above) from the Rockaway River, but concluding that the slope failure had not impacted the integral ground support of the residences.
Project Performance Deadline
Typically, FEMA mandates that emergency work be completed within six months of the disaster, but the Grantee may extend the deadline by an additional six months, only if extenuating circumstances or unusual project requirements beyond the control of the Applicant exist. For emergency work, an extension beyond an additional six months requires FEMA approval, must be in writing, and must include a detailed justification for the delay and a projected completion date. Anticipation of a FEMA eligibility determination is not a justification for not completing emergency work.
In its second appeal, the Applicant asserts, “Due to FEMA’s lack of diligence on this project, no emergency measures have been commenced to stabilize the failing slope in Grace Lord Park.” However, the role of PA is not to fund projects upfront, but to reimburse state and local governments for the federal share of costs incurred due to a federally declared disaster. It is the responsibility of the Applicant to protect its citizens and improved property by taking prudent action to implement emergency protective measures immediately after a disaster regardless of whether federal funding is available. In a memorandum to FEMA, dated February 24, 2014, the Applicant stated it had not taken any measures to stabilize the slope since the disaster. In a subsequent letter to FEMA, dated April 7, 2014, the Applicant clarified its previous statement by stating, “we have received an engineering estimated cost of approximately $600,000 to remediate. The Town is about to engage the services of Boswell Engineering to assist in designing the appropriate remediation.” At that point, 32 months after the disaster event, the Applicant had not undertaken any of the emergency protective measures recommended by its consulting engineers to stabilize its slope. Accordingly, the Applicant failed to complete the work within the regulatory deadline. In addition, the Applicant did not submit documentation demonstrating that it requested, and received, an extension from FEMA to delay the deadline for completion of the work.
The Applicant failed to demonstrate that an immediate threat to life or improved property exists as a result of the slope failure. Therefore, emergency protective measures to stabilize the slope are ineligible for PA funding. In addition, the Applicant failed to complete the emergency work necessary to stabilize its slope within the FEMA regulatory deadline or request a time extension.
 Memorandum from Geotechnical Specialist, FEMA, to PA Crew Leader (PAC), FEMA, at 2 (Nov. 15, 2011) (on file with FEMA).
 Recovery Policy RP9524.2, Landslides and Slope Stability Related to Public Facilities (Oct. 8, 2010).
 See SESI Consulting Engineers, Summary of Findings for Emergency Protective Measures Rockaway River Slope Failure (Oct. 24, 2011).
 Public Assistance Guide, FEMA 322 at 29 (June 2007) [hereinafter PA Guide].
 RP 9524.2, Landslides and Slope Stability Related to Public Facilities, at 5.
 44 C.F.R. § 206.221(c).
 The Applicant submitted a Stafford Act § 404 Hazard Mitigation Proposal, dated October 5, 2011, to the Grantee, which requested FEMA funding to place large rip-rap along the base of the failure, flatten the existing slope by extending the toe of the slope to the east closer to its original position, soil nailing of the face of the slope, construct an access road, and partially divert the Rockaway river to all construction to occur in the dry, if necessary. Pursuant to Stafford Act § 404, 42 U.S.C. § 5171(c), hazard mitigation is action taken to reduce or eliminate long-term risk to people and property from natural hazards and their effects. “404 Mitigation”, as it is known, is allocated from a different funding source than PA assistance, and if, awarded for the same project, constitutes a duplication of benefits. PA Guide, at 41. The mitigation measures requested in the “404 Mitigation” proposal and the recommendations by the FEMA Geotechnical Specialist are very similar. If the Applicant was awarded “404 Mitigation” funding, it cannot also receive PA funding to implement the proposed mitigation measures. PA Guide, at 41.
 See Letter from Legal Counsel for the Town of Boonton, to PA Program Specialist, FEMA (Apr. 7, 2014) (stating “The homes have not yet been vacated, but within the next five years, engineers believe that these homes will be severely compromised or jeopardized.”) (on file with FEMA).
 44 C.F.R. § 206.204(c)(1), (2).
 Id. at § 206.204(d).
 See PA Guide, at 2 (stating that “While the request is being processed, local and State government officials should not delay in taking the necessary response and recovery actions. Such actions should not be dependent upon whether there will be Federal assistance.”).
 Second Appeal Letter, Town of Boonton, FEMA-4021-DR-NJ, at 6 (Jan. 7, 2013).
 See 44 C.F.R. §.206.205(b)(2) (stating “the Regional Administrator shall review the accounting to determine the eligible amount of reimbursement for each large project and approve eligible costs.) (emphasis added).
 See PA Guide, at 1 (providing that “communities are responsible for the protection of their residents…. The intent of the Stafford Act is that Federal assistance be supplemental to local, State and private relief organizations.); see also FEMA Second Appeal Analysis, Lincoln County, FEMA-1672-DR-OR, PW 172 (Apr. 21, 2009) (approving the second appeal because FEMA determined that the Applicant took prudent actions to establish safe ingress and egress for the property owners and businesses located above the damaged section of its road.) (emphasis added).