Landslides and Slope Stabilization, Result of Declared Incident

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4424
Applicant	Jefferson County Engineer
Appeal Type	Second
PA ID#	081-09C35-00
PW ID#	GMP 114937
Date Signed	2022-10-03T16:00:00

Summary Paragraph

From February 5 to 13, 2019, severe storms, flooding, and landslides impacted Jefferson County, Ohio.  Jefferson County Engineer (Applicant) reported damage to County Road 36 caused by surface flooding and ground saturation and requested Public Assistance (PA) for repairs to the road and the sloped embankment.  FEMA prepared Grants Manager Project (GMP) 114937 to capture the Applicant’s requested repair work.  After completing two site inspections and reviewing the Applicant’s response to a request for information, FEMA denied $87,259.00 to repair the road and stabilize the embankment as the Applicant did not demonstrate that the road was in good condition prior to the event and that road damages were disaster related, or that damage to the road resulted from a landslide or slope instability triggered by the disaster and the embankment was made unstable as a direct result of the disaster.  The Applicant appealed, stating the damages were a result of the disaster, County Road 36 was regularly maintained and in good condition prior to the disaster, and damages were not pre-existing.  FEMA denied the appeal, determining that the evidence did not demonstrate that the road was damaged or made unstable by a landslide or slope failure triggered by the disaster, or that the claimed surface and embankment damages were a result of the disaster.  The Applicant’s second appeal requests $87,259.00 to cover the cost to repair the embankment failure.    

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

• Per 44 C.F.R. § 206.223(a)(1), to be eligible for financial assistance, an item of work must be required as the result of the major disaster.  The PAPPG, at 19 and 133, provides that an 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 does not provide PA funding for normal maintenance, or the repair of damage caused by deterioration.
  • The Applicant has not provided documentation to demonstrate that the work to repair the road and embankment was required as a result of the disaster.
• Per the PAPPG, at 128, 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 provided pre-disaster documentation or a technical assessment demonstrating the sloped embankment was stable, in good condition, and became unstable as a direct result of the disaster.

Conclusion

FEMA finds that the Applicant has not demonstrated that the claimed work was required as a result of the declared incident.  Therefore, this appeal is denied

Appeal Letter

Appeal Analysis

Background

From February 5-13, 2019, severe storms and flooding impacted Jefferson County, Ohio.  Jefferson County Engineer (Applicant) reported damage to County Road 36 caused by surface flooding and ground saturation and requested Public Assistance (PA) for repairs to the road and the sloped embankment.  FEMA prepared Grants Manager Project (GMP) 114937 to capture the Applicant’s requested repair work.  FEMA performed two site inspections.  In August 2019, FEMA Site Inspectors (SI) observed the road was fully open with no temporary repairs conducted, along with fatigue cracking and tension cracks, loss of shoulder material, depression of the road surface, and embankment scarp.  In February 2020, SIs again noted the road was fully open with no temporary repairs conducted and found similar damage, along with potholes, road settlement, and eroded shoulder and embankment material. 

FEMA contacted the Applicant in May 2020 and stated its site inspections showed no indication of site instability and noted that a review of Google Earth indicated the embankment showed erosion and washout, and a 2015 Google Earth photograph showed alligator and fatigue cracking as shown in site inspection photos.  In order to support eligibility of the road repairs, FEMA requested documentation or other information demonstrating that the road and the embankment were in good condition prior to the disaster, including invoices for laying asphalt, technical studies showing that it was essential to repair the embankment to its predisaster condition, and geotechnical studies/analyses, soil explorations, or other technical assessments demonstrating that the road site was unstable, and that the proposed scope of work was essential to support the structural integrity and utility of the road. 

The Applicant provided reports, summaries of work performed from January 2016 through February 5, 2019, and Inventory and Need Analysis Reports from 2010 and 2015, and noted chip seal had been placed on the entire road in 2009, 2013, and 2016.  The Applicant did not provide documentation or a technical assessment demonstrating the embankment’s predisaster condition. 

On October 15, 2020, FEMA denied $87,259.00 to repair the road and stabilize the embankment.  FEMA determined the Applicant did not demonstrate that the road was in good condition prior to the event and that road damages were disaster related, or that damage to the road resulted from a landslide or slope instability triggered by the disaster and the embankment was made unstable as a direct result of the disaster.  

First Appeal

The Applicant’s December 11, 2020, first appeal stated the damages were a result of the disaster and were not preexisting and the road was maintained regularly and in good condition prior to the disaster.  The Applicant noted FEMA’s site inspection reports recorded scarp, sunken pavement, an unstable embankment and displaced guardrail, and evidence of slope instability.  The Applicant stated soil types at this location were not favorable for supporting roads and traffic, and that poor performance could be expected.  The Ohio Emergency Management Agency’s (Recipient) February 9, 2021 transmittal supported the appeal.

On February 28, 2022, the FEMA Region V Acting Regional Administrator denied the first appeal.  FEMA noted the claimed road damages such as fatigue cracking, pothole and settlement were likely due to regular or heavy use, age of the pavement, traffic flow, rain events, and seasonal freeze/thaw and are rarely caused by one incident.  FEMA could not validate disaster-related site instability during site inspections, noting the road was open to traffic and functioning, and the Applicant did not perform temporary stabilization measures to address claimed instability.  The Applicant did not provide a slope stability analysis on the embankment that could have demonstrated that the road was damaged and unstable due to the disaster.  In addition, FEMA determined from observations and photos taken during site inspections that the integral ground was stable.  FEMA found the evidence did not demonstrate that the road was damaged or made unstable by the disaster, or that claimed surface and embankment damages were a result of the disaster. 

Second Appeal

The Applicant’s May 4, 2022 second appeal requests $87,259.00 to repair the embankment failure.  The Applicant cites Ohio Department of Transportation Geotechnical Bulletin Number 7, which lists typical landslide features, and notes FEMA found many of these same features including scarp, toe bulge, tension cracks and dropped or uneven sections of pavement during site inspections.  The Applicant argues the first site inspection report shows a sketch of the site and displaced guardrail both drawn and labeled, and that photographs dated August 2019 show guardrail displacement, which ODOT considers an indication of a landslide.  The Recipient’s July 5, 2022 transmittal supports the second appeal. 

 

Discussion

FEMA may provide Public Assistance (PA) funding to a local government for the repair of a public facility damaged by a major disaster.[1]  To be eligible, work must be required as the result of the declared incident.[2]  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.^[3]  When evaluating eligibility of reported road damage, FEMA may review invoices and maintenance records to establish that the applicant has a routine maintenance program.[4]  Such documentation may be helpful to establish the predisaster condition of a facility and demonstrate that the damage was directly caused by the incident.[5]  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.[6]  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.^[7]  Restoration of the integral ground that supports the facility may also be eligible.^[8] 

Although the Applicant claimed disaster-related damage to the road, FEMA SIs observed a stable road surface and a road open to traffic with no temporary repairs or stabilization measures conducted following the disaster.  The SIs also observed fatigue cracking, settlement and potholes, which are commonly associated with age, traffic flow, rain events, and seasonal freeze/thaw and which are rarely caused by one incident.  A Google Earth photograph from 2015 also showed similar alligator and fatigue cracking.  In order to distinguish any disaster-related damage, FEMA requested predisaster documentation to show the condition of the road.  The Applicant replied that crews applied chip seal in 2016, three years before the disaster occurred in February 2019 and near the end of the application’s service life.[9]  FEMA is unable to distinguish any disaster-related damage from the road’s predisaster condition based on this information.  

The Applicant did not provide documentation or a technical assessment demonstrating the embankment was stable and in good condition prior to the disaster, or that it became unstable as a result of the disaster.  Similar to their observations for the road, the SIs did not observe any road closure due to the condition of the embankment nor did the site inspections note any instability.  In response to FEMA’s requests for information, the Applicant did not provide any documentation demonstrating slope instability, such as a comprehensive geotechnical slope failure review.  In addition, a review of Google Earth, including photographs from 2015, indicates that the embankment, for which the Applicant is requesting funding to repair, experienced erosion and washout in the years leading up to the disaster.  Accordingly, the Applicant has not demonstrated that the road was damaged as a result of the storms and associated flooding, or landslide or slope instability caused by the event, nor that the embankment became unstable as a result of the disaster.

 

Conclusion
FEMA finds that the Applicant has not demonstrated that the claimed work was required as a result of the declared incident.  Therefore, this appeal is denied.

 

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

[2] 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. 2018) [hereinafter PAPPG].

[3] PAPPG, at 19, 116, 133

[4] Id. at 116.

[5] Id.; FEMA Second Appeal Analysis, Monroe Cty. Eng’r, FEMA-4424-DR-OH, at 2 (Nov. 10, 2021).

[6] PAPPG. at 19-20.

[7] Id. at 128. 

[8] Id.

[9] According to the 2015 Needs Analysis, Chipseal is a “thin layer of asphalt emulsion and ½ inch of stone” with a service life of three to four years.  See Jefferson Cty. Eng’r, 2015 Inventory and Needs Analysis, at 5 (Nov. 10, 2015).