Landslides and Slope Stabilization, Result of Declared Incident
Appeal Brief
Disaster | 4424 |
Applicant | Jefferson County Engineer (Jefferson) |
Appeal Type | Second |
PA ID# | 081-09C35-00 |
PW ID# | GMP 113010 |
Date Signed | 2022-03-30T16:00:00 |
Summary Paragraph
From February 5-13, 2019, severe storms and flooding impacted southern Ohio. Storm water saturated a 164-foot section of the Jefferson County Engineer’s (Applicant’s) County Road 16/Hopewell Road. FEMA created Grants Manager Project 113010 to document work and costs to restore the road and underlying embankment but denied Public Assistance (PA) funding for the project. FEMA determined that the Applicant had not demonstrated damage to the road, or the embankment was a result of the disaster. The Applicant submitted a first appeal, asserting that the available documentation demonstrated the road was in good condition prior to the disaster. It also argued that FEMA’s site inspection report recorded instability in the road and embankment. FEMA issued a request for information for, among other items, a geotechnical or similar study demonstrating that the road and embankment were damaged by slope failure during the disaster. In response, the Applicant stated that a geotechnical study of the road had not been completed. The FEMA Region V Acting Regional Administrator denied the appeal. FEMA found that the Applicant had not provided documentation demonstrating the predisaster condition of the road and had not demonstrated instability in the embankment. The Applicant submitted a second appeal requesting $139,360.70 in PA funding to repair the road and embankment. It reiterates prior arguments and provides boring logs and a soils analysis.
Authorities and Second Appeals
- Stafford Act § 406(a)(1)(A).
- 44 C.F.R. § 206.223(a)(1).
- PAPPG, at 19-20, 116, 128, 133.
- Monroe Cty. Eng’r, FEMA-4424-DR-OH, at 2.
Headnotes
- To be eligible, work must be required as a result of the declared incident. 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.
- FEMA’s Site Inspectors did not observe instability in the embankment during the site inspection, and the Applicant’s boring logs and soils analysis do not demonstrate instability in the embankment resulting from the disaster.
- The Applicant has not demonstrated damage to the road’s asphalt surface resulting from the disaster. The available documentation indicates that the road, including the damaged section on appeal, was at or near the end of its service life at the time of the disaster.
Conclusion
The Applicant has not demonstrated that items of work to repair damage to its road and embankment are necessary as a result of the disaster. Such work is ineligible for PA funding. Therefore, this appeal is denied.
Appeal Letter
Sima S. Merick
Executive Director
Ohio Emergency Management Agency
2855 W. Dublin-Granville Road
Columbus, OH 43235-2206
Re: Second Appeal – Jefferson County Engineer (Jefferson), PA ID: 081-09C35-00, FEMA-4424-DR-OH, Grants Manager Project 113010 Landslides and Slope Stabilization, Result of Declared Incident
Dear Ms. Merick:
This is in response to your letter dated January 4, 2022, which transmitted the referenced second appeal on behalf of the Jefferson County Engineer (Applicant). The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s denial of funding in the amount of $139,360.70 for road and embankment repairs.
As explained in the enclosed analysis, I have determined that the Applicant has not demonstrated that items of work to repair damage to its road and embankment are necessary as a result of the disaster. Such work is ineligible for PA funding. Therefore, this appeal is denied.
Please inform the Applicant of my decision. This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.
Sincerely,
/S/
Ana Montero
Division Director
Public Assistance Division
Enclosure
cc: Moises Dugan
Acting Regional Administrator
FEMA Region V
Appeal Analysis
Background
From February 5-13, 2019, severe storms and flooding impacted areas in southern Ohio, including Jefferson County.[1] The Jefferson County Engineer (Applicant) claimed that rainfall from the disaster saturated a 164-foot section of County Road 16, leading to road displacement and slope failure in the underlying embankment. FEMA conducted a site inspection of County Road 16 on August 9, 2019. The Site Inspectors (SIs) recorded a longitudinal tension crack in the road’s asphalt that resulted in a surface drop of approximately one inch and noted that the road’s surface was stable and open to traffic. Regarding the road’s subsurface, the SIs recorded “no observable embankment slope instability,” but wrote that “pavement damage and deflection are indicative of complex slope failure.”[2]
FEMA subsequently issued two Requests for Information (RFIs) expressing concern that the available information did not demonstrate that the damage to the road was a direct result of the disaster. FEMA requested predisaster documentation, such as maintenance records and geotechnical or soil studies demonstrating that County Road 16 was maintained and stable prior to the disaster. It also requested post-disaster documentation demonstrating that the claimed damages resulted from the disaster, and that the road was now unstable. In response, the Applicant stated that the drop in the road’s surface indicated an unstable embankment; however, it did not have “geotechnical studies, soil studies or any other documentation to prove that the road was stable prior to the event.”[3] The Applicant provided maintenance documents, year-end road reports, and other predisaster documentation with its response.
In a Determination Memorandum signed on September 1, 2020, FEMA denied Public Assistance (PA) funding for estimated costs totaling $180,000.00 to repair County Road 16 and the underlying embankment. FEMA determined that the Applicant’s year-end reports demonstrated pre-existing pavement distress and slip damage to the road; therefore, the Applicant had not demonstrated that the damage observed during the site inspection resulted from the disaster. Regarding the embankment, FEMA stated that the SIs “were unable to validate disaster-related embankment damages and observed no indications of site instability.”[4] Because there was no demonstrated disaster-caused damage to the road, FEMA found that work to stabilize the embankment was also ineligible.
First Appeal
The Applicant submitted its first appeal via letter dated October 27, 2020, requesting FEMA grant PA funding for estimated costs totaling $97,500.00 to repair the embankment. The Applicant stated that its predisaster documentation shows that County Road 16 was maintained and in good condition prior to the disaster. It asserted that information recorded by FEMA’s SIs indicated that the road and embankment were unstable following the disaster. The Applicant stated that a U.S. Department of Agriculture soil report, provided with the appeal, assessed that the soil underlying County Road 16 was unfavorable for the purpose of supporting roads and traffic. In this light, the Applicant explained that “poor performing soils and heavy rains … were the primary factors leading to the embankment failure” during the disaster.[5] In a transmittal letter dated December 23, 2020, the Ohio Emergency Management Agency (Grantee) expressed support for the appeal.
In an RFI, among other items, FEMA requested road maintenance plans and other predisaster documentation, as well as geotechnical studies or similar analyses demonstrating that County Road 16 was damaged by slope failure resulting from the disaster. In response, the Applicant provided an explanation of its road and embankment maintenance activities. It stated that County Road 16 was resurfaced in 2007 and had an expected service life of 15 years; further, the road’s overall condition indicated that the damages in the location at issue were likely the result of the disaster. The Applicant stated that a geotechnical study of the road had not been completed. It provided additional documentation, including a 2015 Needs Analysis and photographs from a 2013 inspection, among other items.
The FEMA Region V Acting Regional Administrator denied the appeal. FEMA found that the Applicant had not provided documentation demonstrating the predisaster condition of the road, or documentation that would enable FEMA to distinguish between pre-existing and disaster-related damages. Instead, FEMA determined that predisaster documentation indicated the Applicant planned to resurface the road, potentially due to pre-existing deterioration.[6] FEMA found that the Applicant had not demonstrated that the drop in the road’s surface resulted from slope instability caused by the disaster rather than long term settlement.
Second Appeal
The Applicant submitted a second appeal via letter dated November 4, 2021, requesting FEMA grant PA funding totaling $139,360.70[7] to repair County Road 16 and the underlying embankment. The Applicant states that FEMA based the first appeal determination on selected comments drawn from the site inspection report (SIR); however, it asserts that the SIs also recorded contradicting assessments that support disaster-related damage to the road and embankment. It states that “[a] review of the entire length of [County Road] 16 would have shown that the road was in good condition at the time of the event,” and that the damages at issue are limited to a specific location affected by the disaster.[8] The Applicant attaches additional predisaster photographs, as well as soil boring logs and a post-disaster engineer’s assessment, which it asserts “indicate instability in the embankment.”[9] In a transmittal letter dated January 4, 2022, the Grantee expresses support for the appeal.
Discussion
FEMA may provide PA funding to a local government for the repair of a public facility damaged by a major disaster.[10] To be eligible, work must be required as a result of the declared incident.[11] 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.[12] When evaluating the eligibility of reported road damage, FEMA may review maintenance records or documentation establishing that the applicant has a routine maintenance program.[13] Such documentation may assist with assessing the predisaster condition of a facility and demonstrate that damages were caused by the disaster.[14] FEMA does not provide PA funding for repair of damage caused by deterioration, deferred maintenance, negligence, or an applicant’s failure to take measures to protect a facility from further damage.[15] Restoration of the integral ground that supports a facility may also be eligible.[16]
The Applicant points to information in the SIR to support its claim of instability in the embankment. The Applicant notes that FEMA’s SIs recorded “soil saturation [with] slope instability” in the description of the damage components,[17] among other similar items in the SIR. However, these remarks were intended to capture the reported cause of the damage, for the purpose of developing the damage description and dimensions section of the project report. Indeed, in the project report FEMA clarified that “[t]he embankment is unstable based on applicant statement [sic],” ultimately concluding that “[b]ased on the observations made and information gathered during the site inspection, there are no indications of site instability present.”[18]
The Applicant also submits soil boring logs and an accompanying engineer’s statement (soils analysis) based on testing it completed in September 2021. In the soils analysis, the Applicant stated that a Soil Penetration Test (SPT) provided with the boring logs indicated “weak/unstable soils supporting the roadway and shoulder” and that the soils immediately underlying the road had a higher moisture content.[19] The Applicant assessed the slope of the embankment and the drop in the damaged asphalt and concluded that “[t]he evidence found during multiple site visits is consistent with a failing embankment.”[20]
On second appeal, a professional engineer (P.E.) assessed the boring logs, soils analysis, and other project documentation. The P.E. found that the Applicant used values from the SPT that were uncorrected for differences in testing conditions and that the corrected values,[21] which were also provided with the boring logs, do not demonstrate that the embankment is unusually unstable. Moreover, the P.E. found that without predisaster monitoring, soil moisture content was an unreliable indicator of instability. In this light, the P.E. opined that the Applicant’s boring logs were of limited utility, and more value should be placed on the conditions observed during the site inspection in determining the stability of the embankment. Because the SIs did not record significant displacement or scarping,[22] the P.E. determined that the available documentation did not demonstrate disaster-caused instability in the embankment.
Finally, the Applicant submitted documentation (including the predisaster photographs) that demonstrates a comprehensive predisaster maintenance program that included regular inspections, resurfacing, and other repairs. However, the Applicant stated that County Road 16 was last resurfaced in 2007.[23] The Applicant’s Needs Analysis, prepared in November 2015, indicates that the road had a remaining service life of less than 4 years, and was therefore at or near the end of its service life when the disaster began in February 2019. The Needs Analysis also demonstrates that the road had some level of pavement distress, and that the Applicant planned to repave it.[24]
Conclusion
The Applicant has not demonstrated that items of work to repair damage to its road and embankment are necessary as a result of the disaster. Such work is ineligible for PA funding. Therefore, this appeal is denied.
[1] The President issued a major disaster declaration on April 8, 2019.
[2] FEMA Region V, Site Inspection Report, Damage No. 301765, at 4, 8 (Aug. 8, 2019) [hereinafter Site Inspection Report].
[3] Email from Chief Dep. Eng’r, Jefferson Cty. Eng’r, to Emergency Mgmt. Specialist, FEMA Region V, at 1 (Jan. 10, 2020, 1558 CST).
[4] FEMA Region V, Eligibility Determination Memorandum, GMP 113010, at 3 (Sept. 1, 2020).
[5] Letter from Chief Dep. Eng’r, Jefferson Cty. Eng’r, to Exec. Dir., Emergency Mgmt. Agency, Ohio Dep’t of Pub. Safety, at 2 (Oct. 27, 2020).
[6] FEMA First Appeal Analysis, Jefferson County Engineer (Jefferson), FEMA-4244-DR-OH, at 6 (Aug. 27, 2021). FEMA cited the 2015 Needs Analysis, in which the Applicant assessed that County Road 16 had less than four years’ service life remaining, gave it a “Distress Rating” of 46.00 (compared to an average of 45.93 for all asphalt roads), and included it on a paving schedule for 2021; see Jefferson Cty. Eng’r, 2015 Inventory and Needs Analysis, at 4, 7-8 (Nov. 10, 2015).
[7] The Applicant attached a scope of work to the appeal reflecting force account labor and materials, and associated estimated costs, for repairs to County Road 16 and the embankment. However, it does not clarify or explain why this estimate differs from the dollar amounts in dispute in the initial eligibility determination or on first appeal.
[8] Letter from Chief Dep. Eng’r, Jefferson Cty. Eng’r, to Exec. Dir., Emergency Mgmt. Agency, Ohio Dep’t of Pub. Safety, at 2 (Nov. 4, 2021).
[9] Id. at 1.
[10] 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).
[11] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.223(a)(1) (2018); Public Assistance Program and Policy Guide, FP 104-009-2, at 19 (Apr. 1, 2018) [hereinafter PAPPG].
[12] PAPPG, at 19, 116, 133.
[13] Id. at 116.
[14] Id.; FEMA Second Appeal Analysis, Monroe Cty. Eng’r, FEMA-4424-DR-OH, at 2 (Nov. 10, 2021).
[15] PAPPG, at 19-20.
[16] Id. at 128 (also stating, for damage resulting from landslides or slope instability, that if a site is unstable and there is no evidence of predisaster instability after the facility was constructed, permanent restoration of the facility and its integral ground is eligible, including measures to stabilize the integral ground).
[17] Site Inspection Report, at 2.
[18] FEMA Region V, Project Report, GMP 113010, at 2 (Undated).
[19] Jefferson Cty. Eng’r, Cty. Road 16-1.0, Embankment Failure, Engr’s Statement, at 1 (Oct. 28, 2021).
[20] Id.
[21] E.g., CTL Eng’g of W. Va., Inc., Contract Drilling and Laboratory Testing Services, Slip Repair-CR16-1.00, at 2 (Oct. 13, 2021). Values for the corrected blow count are reported as N60 in the boring logs.
[22] Site Inspection Report, at 4 (“no observable embankment slope instability”); FEMA Region V, Site Inspection Photo Page, Damage Inventory No. 301765, at 1, 4 (Aug. 8, 2019) (“[n]o observable scarp or separation on embankment just some areas of slight erosion [sic]”).
[23] Letter from Chief Dep. Eng’r, Jefferson Cty. Eng’r, to FEMA Region V, at 2 (Apr. 22, 2021).
[24] Supra note 6.