Immediate Threat, Improved Property/Natural Features, Landslides and Slope Stabilization

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4595
ApplicantBoyd County
Appeal TypeSecond
PA ID#019-99019-00
PW ID#185960/PW 98
Date Signed2024-02-12T17:00:00

Summary Paragraph

From February 27 to March 14, 2021, severe storms, flooding, landslides, and mudslides impacted areas throughout Kentucky. Boyd County (Applicant) requested $103,838.50 for work to stabilize the uphill slope on a section of Kirkwood Drive. The Applicant claimed that heavy rainfall saturated the uphill slope, causing a landslide onto the roadway. FEMA created Grants Manager Project 185960 to document work and costs for the Applicant’s claim but denied funding for the project in a Determination Memorandum. FEMA found that the uphill slope was not integral ground for Kirkwood Drive, and its stabilization was unrelated to restoring the structural integrity of the road. The Applicant submitted a first appeal. It asserted that the uphill slope was integral ground for a drainage ditch adjacent to Kirkwood Drive, which failed during the disaster, affecting the road’s utility. The Applicant asserted that stabilization work is also eligible as emergency work since the uphill slope presents an immediate threat of further collapse. The FEMA Region 4 Regional Administrator denied the appeal. FEMA determined that the Applicant had not demonstrated the uphill slope was integral ground to an eligible facility, and work to stabilize the slope was ineligible. The Applicant submitted a second appeal reiterating its previous statements.

Authorities

  • Stafford Act §§ 403, 406(a)(1)(A), (e), 42 U.S.C. §§ 5170, 5172(a)(1)(A), (e).
  • 44 C.F.R. §§ 206.201(c), 206.221(h), 206.223(a)(1), 206.225(a)(1), (a)(3)(i), 206.226.
  • PAPPG, at 51-52, 55-56, 136, 140, 145, 168, 181.
  • Mill Valley, FEMA-4308-DR-CA, at 3-4.

Headnotes

  • If an eligible facility is located on a slope and is damaged as a result of a landslide or slope instability triggered by the declared incident, FEMA determines the stability of the slope that supports the facility before it approves PA funding to restore the facility.Restoration of the integral ground that supports the facility may also be eligible.
    • The Applicant has not demonstrated damage to the eligible facility (Kirkwood Drive) adjacent to the uphill slope. Even if the slope constitutes integral ground for the road, the work at issue is not eligible, as it is not tied to an eligible facility damaged by the disaster.
  • Unimproved natural features, such as a hillside or slope, are not eligible facilities.
    • The uphill slope at Kirkwood Drive is an unimproved natural feature and is not considered an eligible facility.
  • If a landslide or other slope instability is triggered by the incident and poses an immediate threat, emergency protective measures to stabilize the slope may be eligible.
    • The Applicant has not provided information demonstrating an immediate threat from slope instability at Kirkwood Drive.

Conclusion

Work to stabilize the uphill slope at Kirkwood Drive is not eligible as permanent work because the Applicant has not demonstrated that the slope: (1) is integral ground that supports an eligible facility damaged by the disaster; or (2) is itself an eligible facility. The work is also not eligible as emergency work, as the Applicant has not demonstrated an immediate threat to lives, public health and safety, or improved property. Therefore, this appeal is denied.

Appeal Letter

SENT VIA EMAIL

Dustin S. Heiser

Acting Director

Kentucky Emergency Management

100 Minuteman Parkway

Building 100

Frankfort, KY 40601-6168

 

Jason Queen

Special Project Coordinator

Boyd County

2800 Louisa Road

P.O. Box 423

Catlettsburg, KY 41129


 

Re: Second Appeal – Boyd County, PA ID: 019-99019-00, FEMA-4595-DR-KY, Grants Manager Project (GMP) 185960/ Project Worksheet(s) (PW) 98, Immediate Threat, Improved Property/Natural Features, Landslides and Slope Stabilization

 

Dear Dustin S. Heiser and Jason Queen:

This is in response to Kentucky Emergency Management’s (Recipient) letter dated November 15, 2023, which transmitted the referenced second appeal on behalf of Boyd County (Applicant). The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding in the amount of $103,838.50 for work to stabilize the uphill slope at Kirkwood Drive.

As explained in the enclosed analysis, I have determined that work to stabilize the uphill slope at Kirkwood Drive is not eligible as permanent work because the Applicant has not demonstrated that the slope: (1) is integral ground that supports an eligible facility damaged by the disaster; or (2) is itself an eligible facility. The work is also not eligible as emergency work, as the Applicant has not demonstrated an immediate threat to lives, public health and safety, or improved property. Therefore, this appeal is denied.

This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.

 

                                                                                                  Sincerely,

                                                                                                        /S/

                                                                                                 Robert Pesapane

                                                                                                 Division Director

                                                                                                  Public Assistance Division

 

Enclosure

cc:  Robert D. Samaan

      Regional Administrator

      FEMA Region 4

Appeal Analysis

Background

From February 27 to March 14, 2021, severe storms, flooding, landslides, and mudslides impacted areas throughout Kentucky.[1] Boyd County (Applicant) requested Public Assistance (PA) funding for repairs to sections of four roads, including Kirkwood Drive.[2] The Applicant claimed that heavy rainfall saturated an uphill slope adjacent to Kirkwood Drive, causing a landslide onto the roadway. The Applicant hired engineering firms, Anderson Professional Services (APS) and Geostabilization International (GSI), to assess any damage resulting from the landslide and propose repairs. In a geotechnical analysis dated May 9, 2021, APS stated that the landslide resulted from flooding during the disaster.[3] APS stated that the slope continued to exhibit signs of instability.[4] APS provided a scope of work (SOW) to stabilize the slope with estimated costs totaling $262,660.00. In a separate proposal dated May 28, 2021, GSI provided a SOW to stabilize the slope using a concrete wall and soil nails[5] with estimated costs totaling $103,838.50.

On June 25, 2021, FEMA conducted a site inspection of Kirkwood Drive. FEMA’s site inspector (SI) measured the claimed damage to the uphill slope, estimating that 19,555.55 cubic yards of unclassified fill material was involved in the landslide. FEMA created Grants Manager Project 185960 to document work and costs for the Applicant’s claim. The project reflected the SOW prepared by GSI. However, in a Determination Memorandum dated May 17, 2022, FEMA denied $103,838.50 for the repairs associated with Kirkwood Drive.[6] FEMA noted that neither APS nor the SI observed disaster-related damage to the roadway or its subsurface. FEMA found that the uphill slope did not “constitute part of the integral ground of [Kirkwood Drive]” and that its stabilization was ineligible for PA funding as it was unrelated to restoring the structural integrity of the road. FEMA also stated that there was no indication the uphill slope presented a threat to the road.

First Appeal

The Applicant submitted a first appeal dated July 15, 2022, requesting $103,838.50 to stabilize the uphill slope at Kirkwood Drive. The Applicant stated that the landslide damaged Kirkwood Drive by burying a drainage ditch adjacent to the roadway. It referred to the drainage ditch as a “vital ancillary facility” and stated that its loss caused damage to the roadway, as “water and sediment … now flow[ed] directly onto the road thereby degrading the surface, leaving behind slick muck deposits, and resulting in dangerous washout conditions.”[7] The Applicant further stated that this damage demonstrated that the uphill slope was “integral to the utility of the road” and was integral ground for the drainage ditch, “albeit to the side rather than underneath.”[8] Therefore, the Applicant asserted that the stabilization of the uphill slope was eligible for funding as permanent work. Conversely, the Applicant stated that the slope’s stabilization was also eligible as emergency work. It stated that the uphill slope “present[ed] a real, present, and immediate threat of further collapsing onto the adjacent roadway and any vehicles that may be traveling upon it,” in addition to “dangerous washout conditions” arising from the loss of the drainage ditch.[9] In a transmittal dated July 19, 2022, Kentucky Emergency Management (Recipient) expressed support for the appeal.

On September 7, 2023, the FEMA Region 4 Regional Administrator denied the appeal. FEMA noted that information in the APS analysis of the landslide appeared to show that the damage to the uphill slope “occurred at least 10 feet away from the drainage ditch and roadway.”[10] FEMA also found that neither the APS nor the GSI assessments indicated that the uphill slope physically supported the road or its components. Therefore, FEMA determined that the Applicant had not demonstrated the uphill slope was integral ground to an eligible facility. Consequently, work to stabilize the slope was not eligible for PA funding.

Second Appeal

The Applicant submitted a second appeal dated November 6, 2023, requesting $103,838.50 to stabilize the uphill slope at Kirkwood Drive. The Applicant disputes FEMA’s determination that damage to the uphill slope occurred 10 feet from the drainage ditch and roadway, noting that the landslide deposited material in the ditch and onto the road. It asserts that the drainage ditch is considered an eligible ancillary support facility under FEMA policy.[11] Thus, the Applicant again asserts that the uphill slope at Kirkwood Drive is integral ground, as “[w]ithout a stable uphill slope, the drainage ditch cannot function, and without the drainage ditch, the road’s function is greatly diminished.”[12] The Applicant also reiterates its contention that instability in the uphill slope presents an immediate threat to the roadway and passing motorists. Therefore, it asserts that stabilization of the slope is eligible for PA funding as either permanent or emergency work. In a transmittal letter dated November 15, 2023, the Recipient expresses support for the appeal.

 

Discussion

Landslides and Slope Stabilization – Improved Property/Natural Features

FEMA may provide PA funding to a local government for the restoration of a public facility damaged by a major disaster based on its predisaster design and function, in conformity with applicable codes and standards.[13] An eligible facility includes any non-Federal aid road, including road components (e.g., ditch); and improved and maintained natural features.[14] A natural feature is improved and maintained if, among other requirements, it has a designed and constructed improvement to its natural characteristics, such as a terraced slope or realigned channel.[15] Unimproved properties, such as a hillside or slope, are not eligible facilities.[16]To be eligible for PA, work must be required as a result of the declared incident and the applicant must demonstrate that the damage was directly caused by the incident.[17] If an eligible facility is located on a slope and is damaged as a result of a landslide or slope instability triggered by the declared incident, FEMA may approve PA funding to restore the integral ground that supports the facility.[18] 

APS inspected the landslide on Kirkwood Drive on March 19, 2021, which was five days after the end of the incident period. APS attributed the landslide to the failure of a ditch on the uphill side of Kirkwood Drive to drain flood waters during the disaster.[19] However, APS did not explain how the ditch failed to drain prior to the landslide, and did not record any damage to the road’s asphalt surface or subsurface. GSI did not discuss damage to the road in its proposal, noting only that material from the slope had been deposited onto the roadway.[20] Likewise, FEMA’s SI recorded the dimensions of the landslide, but did not record any damage to the road. Finally, damage to the asphalt surface of the roadway is not apparent in post-disaster photographs provided with the APS, GSI, and FEMA reports.[21]

The physical presence of debris deposited onto a facility during a declared incident does not by itself demonstrate that the facility has sustained damage from the debris. Here, while the available documentation demonstrates the depositing of material from the landslide onto Kirkwood Drive during the disaster, it does not substantiate any damage to the road, including the road’s ditch, as a result. Furthermore, other than its statements on appeal, the Applicant has not provided any information substantiating the assertion that water runoff due to the landslide is causing ongoing damage. Thus, though the Applicant has demonstrated disaster-caused damage to the uphill slope, it has not demonstrated damage to the eligible facility (Kirkwood Drive) or its components adjacent to the slope. Even if the uphill slope constituted integral ground that supports the road, as the Applicant asserts, the work at issue is not eligible as permanent work because it is not tied to an eligible facility damaged as a result of the disaster.[22]

Additionally, FEMA notes that the uphill slope on Kirkwood Drive is a natural feature of the surrounding terrain. The Applicant has not demonstrated that the slope had designed and constructed improvements to its natural characteristics prior to the declared incident. Therefore, the uphill slope is an unimproved natural feature, and does not constitute an eligible facility.

Immediate Threat

FEMA is authorized to provide assistance for emergency protective measures to save lives, to protect public health and safety, and to protect improved property.[23] For emergency protective measures to be eligible, the applicant is responsible for showing the work is required due to an immediate threat resulting from the incident.[24] If a landslide or other slope instability is triggered by the incident and poses an immediate threat to life, public health, or improved property, emergency protective measures to stabilize the slope may be eligible.[25]

The Applicant asserts that work to stabilize the uphill slope is alternatively eligible as an emergency protective measure, as “the current failed state of the [slope] poses an immediate threat to the road and the people who travel it.”[26] In support, it references FEMA’s second appeal decision from Mill Valley to demonstrate FEMA’s flexibility to recategorize slope stabilization work as emergency work due to the presence of an immediate threat. However, Mill Valley provided engineering analyses, including a supplemental engineering report provided for the first time on second appeal, which assessed a specific “immediate threat to life and property” from slope instability.[27] FEMA based its decision to recategorize slope stabilization work as emergency work on Mill Valley’s engineering analyses. 

In contrast, here, while APS found that “the embankment slope is currently showing signs of moderately deep rotational instability,” it did not assess a threat to the road or to the public in its report.[28] GSI did not discuss damage to the slope or any slope instability in its proposal. The Applicant has not provided information demonstrating an immediate threat from slope instability to Kirkwood Drive or to public health and safety. Therefore, work to stabilize the uphill slope is not eligible as an emergency protective measure.

 

Conclusion

Work to stabilize the uphill slope at Kirkwood Drive is not eligible as permanent work because the Applicant has not demonstrated that the slope: (1) is integral ground that supports an eligible facility damaged by the disaster; or (2) is itself an eligible facility. The work is also not eligible as emergency work, as the Applicant has not demonstrated an immediate threat to lives, public health and safety, or improved property. Therefore, this appeal is denied.


 

[1] The President issued a major disaster declaration on April 23, 2021.

[2] The Applicant also claimed disaster-related damage to sections of Hickory Hills Road, Booth Quillen Road, and Almond Road. However, Kirkwood Drive is the subject of the present appeal and is the only road discussed above.

[3] Anderson Pro. Servs. (APS), Preliminary Engineering Analysis and Landslide Mitigation Recommendations-17084 Kirkwood Drive, Boyd County, KY, at 2-3 (May 9, 2021) [hereinafter APS Report].

[4] Id. at 8.

[5] Geostabilization Int’l (GSI), Proposal for Slope Stabilization on 17084 Kirkwood Dr. in Boyd County, KY, at 2 (May 28, 2021) [hereinafter GSI Proposal]. “Soil nails” are reinforced bars drilled or otherwise driven into the soil of a slope for stabilization. See GSI, Soil Nailing, https://www.geostabilization.com/technology/soil-nailing/ (last visited Jan. 3, 2024).

[6] FEMA separately approved PA funding totaling $510,922.75 for repairs to Hickory Hills Road, Booth Quillen Road, and Almond Road. See Project Worksheet 98, Boyd (Cnty.), Version 0 (June 22, 2022).

[7] Letter from Judge Exec., Boyd Cnty. Fiscal Ct., to Reg’l Adm’r, FEMA Region 4, at 2 (July 15, 2022).

[8] Id. at 8-9.

[9] Id. at 2, 11. The Applicant cited to a second appeal decision in which FEMA recategorized work to construct retaining walls as an eligible emergency protective measure rather than permanent work as originally proposed, because of the immediate threat presented by nearby slope instability. See FEMA Second Appeal Analysis, Mill Valley, FEMA-4308-DR-CA, at 3 (June 18, 2020).

[10] FEMA First Appeal Analysis, Boyd Cnty., FEMA-4595-DR-KY, at 2 (Sept. 7, 2023).

[11] Letter from Judge Exec., Boyd Cnty. Gov’t, to Assistant Adm’r, Off. of Response and Recovery, FEMA, at 10 (Nov. 6, 2023) [hereinafter Applicant Second Appeal] (quoting and citing Public Assistance Program and Policy Guide, FP 104-009-2, at 62-63 (June 1, 2020) [hereinafter PAPPG]).

[12] Applicant Second Appeal, at 11.

[13] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act §§ 406(a)(1)(A), (e), Title 42, United States Code (U.S.C.) §§ 5172(a)(1)(A), (e) (2018); Title 44 of the Code of Federal Regulations (C.F.R.) § 206.226 (2020); PAPPG, at 140, 145.

[14] 44 C.F.R. §§ 206.201(c), 206.221(h); PAPPG, at 55-56, 168. 

[15] PAPPG, at 55.

[16] Id.

[17] 44 C.F.R. § 206.223(a)(1); PAPPG, at 51-52.

[18] PAPPG, at 181.

[19] APS Report, at 3 (“[t]he noted upslope soil movement appears to be the result of failed inboard roadway ditch drainage which likely caused softening of the upslope soils above the roadway platform”).

[20] GSI Proposal, at 1.

[21] SeeAPS Report, at 3; GSI Proposal, at 1; FEMA, Site Inspection Report, Damage No. 460291, at 3 (June 25, 2021).

[22] Mill Valley, FEMA-4308-DR-CA, at 4.

[23] Stafford Act § 403, 42 U.S.C. § 5170; 44 C.F.R. § 206.225(a)(1).

[24] 44 C.F.R. § 206.223(a)(1), 206.225(a)(3)(i); PAPPG, at 51.

[25] PAPPG, 136.

[26] Applicant Second Appeal, at 2.

[27] Mill Valley, FEMA-4308-DR-CA, at 3.

[28] APS Report, at 8.

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