Landslides and Slope Stabilization

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4424
Applicant	Monroe Township (Adams)
Appeal Type	Second
PA ID#	001-51268-00
PW ID#	GMP 104083
Date Signed	2022-08-25T16:00:00

Summary Paragraph

From February 5-13, 2019, severe storms and flooding impacted Adams County, Ohio.  The Applicant claimed roadway damage and slope instability at the Brush Creek Road (Facility).  FEMA developed Grants Manager Project (GMP) 104083 for restoration of roadway, the upslope and downslope shoulders, and stabilization of the sloped embankment.  FEMA site inspectors documented tension cracks, washout and settlement of the Facility surface, as well as erosion, settlement of the shoulder and sloped embankment.  FEMA submitted a Request For Information for documentation demonstrating that the embankment at Brush Creek was in good condition prior to the disaster and that the damages were directly caused by the declared event.  FEMA partially approved GMP 104083 to repair the roadway surface, base and subbase of the Facility, on the condition that the site is first stabilized, and integral ground is restored as the instability was determined to not be caused by the declared incident.  The Applicant filed a first appeal stating that the current approved Scope Of Work was insufficient to repair the entire scale of damage to the Facility.  The FEMA Region V Acting Regional Administrator denied the first appeal finding that predisaster instability was present after the Facility was constructed and no documentation submitted by the Applicant demonstrated otherwise.  The Applicant filed a second appeal disputing FEMA’s determination of predisaster instability, and providing photographic documentation to support its claim.. 

Authorities and Second Appeals

• Stafford Act § 406
• 44 C.F.R. § 206.223(a)(1)
• PAPPG, at 19, 116, 128, 133

Headnotes

• If the site is unstable and there is evidence of pre-disaster instability after the facility was constructed, restoration of the facility’s integral ground is not eligible.  Restoration of the facility is eligible only upon the Applicant stabilizing the site and restoring the integral ground.
  • Photographs of the Facility from 2012 to 2017 show predisaster instability to the embankment.  The Applicant has not provided documentation attesting to the Facility’s predisaster condition, and thus it cannot be determined that the Facility was stable prior to the incident.  Therefore, the Facility is only eligible for surface repair upon the Applicant stabilizing the site and restoring the integral ground.

Conclusion

FEMA finds that the Applicant has not demonstrated that the Facility was stable prior to the incident, therefore slope stabilization is not eligible for PA funding.

Appeal Letter

Appeal Analysis

Background

From February 5-13, 2019, severe storms and flooding impacted Adams County, Ohio.[1]  Monroe Township (Applicant) claimed roadway damage and slope instability on Brush Creek Road (Facility), requesting FEMA Public Assistance (PA) to repair the surface, base, sub-base, upward and downward slopes and embankments.  FEMA developed Grants Manager Project 104083 to capture claimed damages and the intended method of repair.

On October 4, 2019, FEMA conducted a Site Inspection of the Facility where inspectors documented tension cracks, washout and settlement of the Facility surface, as well as claimed erosion, settlement of the shoulder and sloped embankment.[2]  Additionally, the site inspector noted that the Facility was open without any traffic controls.[3] 

FEMA transmitted a Request for Information (RFI) to the Applicant dated December 12, 2019.  FEMA stated that the Applicant had not demonstrated that the claimed embankment damages were the direct result of the event, and noted that aerial images taken from 2016 and 2017 show large patching at the same Facility, indicative of preexisting site instability.[4]  FEMA requested documentation demonstrating that the embankment was in good condition, and the damages were directly caused by the declared event.  The Applicant responded with photographs of the Facility post-disaster, 2015-2019 invoices for materials of the Facility and the payment listing from 2018 for maintenance.[5] 

FEMA issued a Determination Memorandum partially approving the Applicant’s request for PA funding.  FEMA approved funding to repair damages to the asphalt surface, base, subbase, and upslope shoulder.  However, FEMA found the Applicant did not demonstrate that the downslope shoulder and sloped embankment were stable at the time of the disaster.  FEMA noted that the Scope of Work (SOW) to repair the asphalt surface, base, and subbase of the Facility was contingent on the site first being stabilized, and integral ground restored.[6]

First Appeal

The Applicant filed a first appeal in a letter dated February 26, 2021, stating that the current approved SOW was insufficient to repair the entire scale of damage to the Facility, and after consulting its engineer, the cost to repair was estimated at the approved amount plus $175,000.00.  The Ohio Emergency Management Agency (Recipient) forwarded the first appeal to FEMA, in a letter dated April 23, 2021, in support of the Applicant’s position for $175,000.00.

The FEMA Region V Acting Regional Administrator denied the Applicant’s first appeal, in a letter dated January 27, 2022, finding that predisaster instability was present after the Facility was constructed and no documentation submitted by the Applicant stated otherwise.  Historical imagery from Google Earth, from 2012 to 2017, indicated that the Facility was experiencing tension cracking, settlement, erosion, and slope movement prior to the disaster.  Therefore, FEMA found work to stabilize the slope and integral ground is not eligible for PA funding. 

Second Appeal

The Applicant filed a second appeal in a letter dated March 28, 2022,[7] disputing FEMA’s determination that predisaster instability was present after the Facility was constructed.  The Applicant includes photographs that it claims show the Facility was stable prior to the event and states that the Site Inspection Report (SIR) photos do not indicate previous damage or repair.  Furthermore, the Applicant submitted photographs, taken May 19, 2022, that show continued deterioration of the embankment since the declared event. 

The Recipient forwarded the Applicant’s second appeal, in a letter dated May 25, 2022, supporting the Applicant’s position.  The Recipient states that FEMA improperly used photographic evidence of a routine maintenance program to establish predisaster instability at the Facility and deny PA funding. 

 

Discussion

FEMA may provide PA funding to a local government for the repair of a public facility damaged by a major disaster.^[8]  To be eligible, work must be required as a direct result of the declared incident.^[9]  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.^[10]  Restoration of the integral ground that supports the facility may also be eligible.^[11]  If the site is unstable and there is evidence of pre-disaster instability after the facility was constructed, restoration of the facility’s integral ground is not eligible.[12]  Restoration of the facility itself is eligible only after the Applicant stabilizes the site and restores the integral ground.[13]  The Applicant is responsible for providing documentation to support its claim as eligible and show that work is required to address damage caused by the disaster.^[14] 

Here, the photographs the Applicant provided show a roadway from 2008 to 2020, however the Applicant does not provide context for the images to verify this is the Facility at issue on appeal..  The photos do not include GPS coordinates matching the areas where erosion exists, nor provide details of the status of the roadway during those periods.  Furthermore, the Applicant does not provide documentation that would substantiate the Facility was stable prior to the event.  The SIR notes that final repair of the embankment will be based on a site analysis done by GEOTECH.  No such analysis has been included in the Administrative Record.  Additionally, the Google Earth aerial images from 2012 to 2017 displayed tensions cracks, settlement, and erosion along the embankments prior to the incident, most notably in the 2017 image. The Applicant has not submited any technical assessments, geotechnical studies, subsurface explorations or documentation attesting to or substantiating the Facility’s predisaster condition or site stability.  Rather, the documentation contained in the record indicates predisaster instability.  As such, the work to stabilize the embankment is not eligible for PA reimbursement.

 

Conclusion

FEMA finds that the Applicant has not demonstrated that the Facility was stable prior to the incident.  Therefore, slope stabilization is not eligible for PA funding and this appeal is denied. 

 

 

[1] The President issued a major disaster declaration on April 8, 2019. 

[2] FEMA Site Inspection Report, Work Order (WO) 45070, Damage Inventory (DI) 305132, at 6 (Oct. 4, 2019).  [hereafter SI Report]. See also FEMA Site Inspection Report Photo Page, WO 45070, DI 305132 at 1-4 (Oct. 4, 2019). 

[3] SI Report, at 6.

[4] See Email from Program Delivery Manager (PDMG), FEMA, to Monroe Township Trustee, Adams County, at 1 (Dec. 12, 2019).

[5] A second RFI was issued for Grants Manager Project (GMP) 104083 submitted on February 1, 2020, requesting documentation to support the claim that the Applicant has applied chip and seal to all new asphalt roadways.  The Administrative Record does not contain a response or documentation requested from the Applicant.

[6] See FEMA Public Assistance Program and Policy Guide, FP 104-009-2, at 128 (Apr. 2018) [hereinafter PAPPG]. 

[7] See Letter from Monroe Township Trustee, Adams County, to Dir., Disaster Recovery Branch, Ohio Emergency Mgmt. Agency (EMA) (Mar. 28, 2022).  Note: The Applicant subsequently submitted a letter dated May 20, 2022, that is intended to be in conjunction with its second appeal.  Both letters are considered part of the Applicant’s second appeal and will be referenced as such.

[8] Robert  T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act § 406(a)(1)(A), Title 42, United States Code (42 U.S.C.) § 5172(a)(1)(A) (2018).

[9] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.223(a)(1) (2018); PAPPG, at 19.

[10] PAPPG, at 128. 

[11] Id.

[12] Id.

[13] Id.

[14] Id, at 19, 116, 133.