Appeal Brief | Appeal Letter | Appeal Analysis | Back
Second Appeal Brief
PA ID# 039-31379-00; Town of Halcott
PW ID# 7961; Legal Responsibility, Eligible Facility, Emergency Work
Conclusion: The Applicant failed to provide documentation demonstrating: its legal responsibility for the slope that failed, that the slope represented integral ground beneath an eligible facility, or that the work could be considered an emergency protective measure.
From August 26 to September 5, 2011, heavy rainfall from Hurricane Irene impacted the Town of Halcott, New York. A slope along the southeast side of Elk Creek Road failed, exposing an escarpment approximately 50 feet wide by 40 feet high. FEMA prepared Project Worksheet 7961, finding that work to stabilize the slope was not eligible for Public Assistance funding because integral ground was not damaged as a result of the declared event, the road conditions did not pose an immediate safety threat, and the Applicant did not have legal responsibility to repair the site. On first appeal, the Applicant asserted that the site was not failing prior to the declared event and that the damage is new. In addition, the Applicant stated that the erosion reached all the way back to the roadbed. FEMA issued a Final Request for Information (RFI) to the Applicant requesting a report from an expert supporting the Applicant’s claim that the slope was integral ground beneath Elk Creek Road, proof of Applicant’s legal responsibility for the slope, and information on temporary repairs or work that the Applicant has conducted to ensure stability of the slope since the failure. The Applicant did not respond to FEMA’s Final RFI. The FEMA Region II Regional Administrator denied the appeal, concluding that the Applicant had not provided enough documentation to support its position that the disaster-related slope failure resulted in the instability of the integral ground supporting Elk Creek Road. The Regional Administrator also stated that the Applicant had not provided any information to support its legal responsibility to stabilize the slope. On second appeal, the Applicant asserts that the site was impacted by Hurricane Irene. In addition, the New York State Division of Homeland Security and Emergency Services asserts that the work was incorrectly classified as permanent work and should have been classified as emergency work, where legal responsibility requirements would not apply.
Authorities and Second Appeals
- 44 C.F.R. § 206.223.
- 44 C.F.R. § 206.225.
- Stafford Act § 102, 42 U.S.C. § 5122.
- FEMA Recovery Policy RP 9524.2.
- Under Stafford Act § 102, public facilities include non-Federal-aid streets, roads, and highways. FEMA RP 9524.2 specifies that for a slope adjacent to a road to be eligible, it must be integral ground.
- The Applicant has failed to demonstrate that the slope is integral ground
- Pursuant to 44 C.F.R. § 206.223(a) for work to be eligible for financial assistance, it must be the legal responsibility of the applicant.
- The Applicant failed to sufficiently demonstrate it has legal responsibility to conduct the repair work.
- Pursuant to 44 C.F.R. § 206.225, emergency protective measures eliminate or lessen immediate threats to life, public health or safety; or threats of significant additional damage to improved public or private property.
- The Applicant failed to provide documentation supporting either prong.