Landslides and Slope Stabilization – Result of Declared Incident – Project Documentation and Closeout

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4020
Applicant	Ossining (Town of)
Appeal Type	Second
PA ID#	119-55541-00
PW ID#	PW 8940
Date Signed	2021-01-28T17:00:00

Summary Paragraph:

Between August 26 and September 5, 2011, Hurricane Irene impacted the Applicant, damaging 10 sections of Old Albany Post Road (Facility).  FEMA prepared Project Worksheet (PW) 8940 for the repair of damage along the 10 sections of the Facility.  During project review FEMA conducted two inspections of Site #7, concluding that the downhill slope was unstable before the disaster and thus ineligible for Public Assistance (PA) funding.  FEMA did fund repairs to Site #7, but the SOW was limited to the restoration of asphalt road, shoulder, sub-base and guide rails, and conditioned funding upon the Applicant first completing the slope stabilization work.  The Applicant constructed a retaining wall encasing the downhill support cribbing; submitted a SOW change request (SOW(1)) for associated administrative, engineering and boring costs; and drew down its last progress payment from the original obligated funding.  FEMA, partially approved SOW(1) for $83,639.00.  Thereafter, the Applicant filed a second SOW change request (SOW(2)) for further retaining wall modification costs.  FEMA denied SOW(2), finding that the Applicant did not show that the claimed damages directly resulted from the disaster or that a SOW change request was submitted or received by FEMA for approval prior to completion of the new changes.  FEMA also advised it would deobligate funding for SOW(1) if it was not prohibited under Section 705(c) of the Stafford Act.  The Applicant appealed, arguing the claimed damages were identified in PW 8940 but not included in the SOW, and SOW(1) was received and approved by FEMA prior to completion of the work.  The FEMA Region II Regional Administrator (RA) denied the appeal, determining the Applicant did not provide documentation to show disaster-related damage to the cribbing or predisaster slope stability, thus the associated stabilization work was ineligible, and reiterated that FEMA would deobligate funding if not prohibited by Section 705(c).  The Applicant submitted a second appeal, reasserting arguments from its first appeal.

Authorities and Second Appeals

• Stafford Act §§ 406, 705(c)
• 44 C.F.R. § 206.223.
• RP 9524.2 at 2, 4-5; RP FP-205-081-2, at 4-7; PA Guide, at 29-30, 33, 79-82, 100.
• Village of Waterford, FEMA-4020-DR-NY, at 4; Broward Cty. Sch. Bd. of Fla., FEMA-1609-DR-FL, at 3.

Headnotes

• The Stafford Act § 406 allows funding for the repair of public roads damaged by a major disaster.  The item of work must be required as a direct result of the major disaster and FEMA must determine the stability of the site where the damaged facility is located before it can approve funding to repair the facility and its integral ground.  
  • The Applicant did not provide documentation to show that either the slope instability or the retaining wall construction was directly tied to the performance of eligible disaster-related work or disaster-caused damage. 
• Section 705(c) of the Stafford Act bars FEMA from recovering obligated funds to a state or local government if: (1) the payment was authorized by an approved agreement specifying the costs; (2) the costs were reasonable; and (3) the purpose of the grant was accomplished. 
  • FEMA is not prohibited from deobligating funds for ineligible work because the Applicant did not draw down all obligated funds and therefore a payment was not authorized by an approved agreement.

Conclusion

The Applicant did not demonstrate that the slope instability was caused directly by the disaster event.  As such, associated slope stabilization work, including construction of the retaining wall, is not eligible for PA funding.  Further, FEMA is not barred by Stafford Act Section 705(c) from recovering funding.  Therefore, the second appeal is denied, and the Region II RA is directed to deobligate $83,639.00 associated with ineligible work.

 

Appeal Letter

Appeal Analysis

Background

From August 26 through September 5, 2011, Hurricane Irene impacted the Town of Ossining (Applicant), damaging sections of Old Albany Post Road (Facility).  The Applicant requested Public Assistance (PA) funding through the New York State Division of Homeland Security and Emergency Services (Grantee) for repairs to the Facility.  FEMA prepared Project Worksheet (PW) 8940 and identified damage to 10 sections of the Facility, including shoulders, asphalt road surface, guide rails, and exposed downhill slope support cribbing at Site #7.  The Site #7 inspection revealed the road was cut into very steep hillside underlain by shallow bedrock and indicators of pre-existing long-term soil creep, including: alligator cracking and displacement of asphalt; successive patched shoulder and roadway; angled guide support posts and power poles; and undisturbed downslope vegetation.  A second site inspection identified a slip plane with additional exposed downhill slope support cribbing.  FEMA’s site inspector concluded the exposed cribbing may be indicative of progressive shoulder and embankment scour from roadway runoff due to the road’s small drainage capacity.  FEMA’s geotechnical specialist’s report[1] noted the slope support cribbing at Site #7 was unstable predisaster and there was no disaster-related damage.  The report also referenced a letter from Dolph Rotfeld Engineering, P.C. (Dolph), the Applicant’s engineer, recommending construction of a soldier pile retaining wall with concrete panels and tie back anchors around the cribbing framework and backfill.  The Applicant advised FEMA that the cribbing may have been a 50-year-old slope stabilization method and that it would complete comprehensive road repairs, separating slope stabilization work from storm-damaged repairs.[2] 

The PW’s approved scope of work (SOW) included the restoration of asphalt road, shoulder, and sub-base, and replacement of guide rails at Site #7 after the Applicant completed its slope stabilization work to correct predisaster site instability.  The PW noted the slope stabilization work was ineligible for Public Assistance (PA) funding and rejected funding for a proposed retaining wall.

The Applicant submitted its first SOW change request (SOW(1)) on December 16, 2013, to increase the project scope to include a retaining wall and drainage system at all 10 sites and costs  associated with engineering design, construction and management by $749,330.00 based on Dolph’s recommendation and proposal.[3]  The Grantee forwarded SOW(1) to FEMA and recommended a smaller cost increase following identification of ineligible work in SOW(1).[4]  On December 2, 2014, the Applicant sent the Grantee its second SOW change request (SOW(2)) due to a change order for further retaining wall and pile modifications upon Dolph’s recommendation.[5]  On March 30, 2015, FEMA partially approved SOW(1) and obligated additional funding on September 23, 2015 for $83,639.00.  

Between August 15, 2015 and August 29, 2018, FEMA received and granted approvals for time extensions, with the final deadline extended to August 31, 2018.  On October 27, 2018, after the final deadline had passed, FEMA sent a Request For Information (RFI), seeking: (1) clarification of Site #7’s complete and incomplete work status; (2) a copy of SOW(2) or a firm expectation date; (3) an explanation for the Grantee’s delay in forwarding SOW(2) to FEMA, including extenuating circumstances or unusual project requirements beyond the Applicant’s control; and (4) an itemized cost estimate or final cost with a description of the work requested in SOW(2).  In its response dated December 19, 2018, the Applicant stated the work was completed on September 24, 2015, and it was awaiting FEMA’s response to SOW(1) but it expected to submit SOW(2) to FEMA in December 2018 or January 2019.  The Applicant further explained that confusion resulted from its SOW(2) submission to the Grantee prior to receiving FEMA’s SOW(1) response and that personnel changes as well as increased costs due to pile modifications and road realignment delayed submission of SOW(2) to FEMA.

On December 19, 2018, four years after the Applicant made the SOW(2) change request, the Grantee forwarded SOW(2) to FEMA requesting $653,277.12, stating that the slope stabilization work was not included in SOW(1), the retaining wall was the best solution for repair of disaster damage.  On August 21, 2019, FEMA denied SOW(2) determining the Applicant did not demonstrate that the claimed damages were a result of the disaster, nor did the Applicant submit a request to change the SOW or receive FEMA’s approval for the changes the Applicant had already completed.

 

First Appeal

On October 17, 2019, the Applicant appealed FEMA’s denial of SOW(2).  The Applicant argued that PW 8940’s original SOW identified disaster-related damages, including the embankment erosion, but not disaster-related hillside erosion.  The Applicant also argued that the retaining wall restoration work included in SOW(2) was the most cost-effective repair to provide a stable shoulder for guide rail installation.  As an alternative argument, the Applicant contended that, if the retaining wall was determined to be ineligible, PW 8940 should be modified to include the cost to restore and stabilize the embankment slope to support the shoulder for guide rail installation.  The Grantee forwarded the appeal with its approval and support to FEMA.  

On March 12, 2020, FEMA Region II Regional Administrator denied the appeal, determining that, while there was disaster related damage to Site #7’s road, shoulder, and sub-base, the Applicant did not provide documentation to support disaster-related damages to the cribbing or cribbing cover restoration costs or show predisaster site stability.  Therefore, FEMA found that, although the Applicant met its obligation to stabilize Site #7 by constructing the retaining wall, the work to correct the instability was ineligible for reimbursement.  Further, FEMA acknowledged it had approved SOW(1) and obligated funds before it determined the increased costs were associated with the ineligible retaining wall (and drainage system installation) and stated that, if it was not barred by section 705(c) of the Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act, it would deobligate $83,639.00 awarded for SOW(1).

 

Second Appeal

On May 18, 2020, the Applicant submitted a second appeal, reiterating claims it made on first appeal and requesting $653,277.12.  The Applicant states that neither SOW(2) nor SOW(1) addressed increased construction costs.  The Grantee transmitted the second appeal to FEMA and states that FEMA’s interpretation of its observations during its site inspections and of FEMA policy caused confusion.  The Grantee argues there was evidence of disaster-related damage at Site #7 and the retaining wall should be found eligible. 

 

Discussion

Result of Declared Incident - Landslides and Slope Stabilization

The Stafford Act allows funding for the repair, restoration, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster.[6]  The item of work must be required as a result of the major disaster event to be eligible for PA funding.[7]  Damage that results from a cause other than the disaster, such as a predisaster damaging event, post-disaster damaging event, work to correct inadequacies that existed prior to the disaster, or normal maintenance items that existed prior to the disaster, are ineligible.[8]  It is an applicant’s responsibility to show that the damage is disaster-related and, where preexisting damage exists, to distinguish that damage from the disaster-related damage.[9] 

Where damage is to a slope, not the public roadway, the slope must be integral ground; natural or improved ground upon which an eligible facility is located and which is essential to support the structural integrity and utility of a facility.[10]  Natural slopes and hillsides do not meet the definition of eligible facilities and are not eligible for permanent work assistance.[11]  FEMA must determine the stability of the site where the damaged facility is located before it can approve funding to repair or restore an eligible facility and its integral ground.[12]  If the site is unstable and the instability of the site is a direct result of the declared disaster, FEMA will fund the permanent repair or restoration of an eligible facility and its integral ground.[13]  If, however, the site was unstable before the disaster, an applicant must pay to stabilize the site and FEMA funding may be contingent upon the repairs of predisaster damage.[14]   

Following site inspections, FEMA’s geotechnical specialist and its site inspector observed, photographed and reported slope failure and instability at Site #7 that predated the disaster and thus, was not directly caused by the disaster.  They noted the pre-existing subsurface slip plane in the underlying natural ground, angled guide rail support posts and power poles, and road itself, were indicators of prior slope failure or a history of instability.[15]  Though the Applicant argues otherwise, PW 8940 did not overlook the instability of the integral ground at Site #7, but instead specified that the Applicant was responsible for the slope stabilization work as a condition for FEMA funding eligible work at Site #7.[16]  

Photographs show that the wooden cribbing framework supporting the road and shoulders, although exposed, was intact and repairable after the disaster event.  The Dolph documentation does not address past slope movement, the condition of the slope, or the integral ground but does reflect that subsurface investigations identified geologic conditions, unrelated to disaster-caused damages, that required modifications to the retaining wall system and associated increased design, construction, and management costs.

Consequently, the Applicant has not demonstrated that the slope instability was caused directly by the disaster or that the retaining wall construction was directly tied to the performance of eligible work stemming from disaster-related damage.  Therefore, FEMA’s denials of SOW(1) and SOW(2) were appropriate as the work and associated costs of $83,639.00 is ineligible for PA funding.

 

Project Documentation and Closeout

Section 705 (c) of the Stafford Act prevents FEMA from recovering funds from a local or state government for any payment made under the Stafford Act when an applicant has met three criteria: 1) the payment was authorized by an approved agreement specifying the costs; 2) the costs were reasonable; and 3) the purpose of the grant was accomplished.[17]  If all of the criteria are met, FEMA is prohibited from recouping grant funds, even if it later determines that it made an error in determining eligibility.[18] 

Regarding the first criterion, while FEMA’s obligation of $83,639.00 associated with SOW(1) is an approved agreement, a payment only occurs when the grantee or recipient draws down funds.[19]  Here, however, the $83,639.00 was not drawn down.  Therefore, FEMA is not prohibited from deobligating the $83,639.00 in funding awarded for SOW(1).

 

Conclusion

The Applicant did not demonstrate that the slope instability was caused directly by the disaster event.  As such, associated slope stabilization work, including construction of the retaining wall, is not eligible for PA funding.  Further, FEMA is not barred by Stafford Act section 705(c) from recovering funding.  Therefore, the second appeal is denied, and the Region II RA is directed to deobligate $83,639.00 associated with ineligible work.

 

[1] Report from Geotechnical Specialist to FEMA, Geotechnical Site Visit, Old Albany Post Road, Ossining, New York (June 26, 2012).

[2] Project Worksheet (PW) 8940, Ossining (Town of), Version 0 (Oct.16, 2012).

[3] See, Letter from Engineer, Dolph Rotfeld Engineering, PC., to Village Engineer, Town of Ossining (Dec. 13, 2013)

[4] Letter from Alternate Governor’s Authorized Rep., NYS OEM, to Regional Administrator (RA), FEMA, Region II (Apr. 14, 2014).  The Grantee recommended an increase of $83,639.00 which included $33,330.00 for construction, $33,145.00 for design engineering, and $17,164.00 for construction management costs.

[5] Letter from Engineer, Dolph Rotfeld Engineering, PC. to Village Engineer, Town of Ossining (Nov. 26, 2014).  The letter stated Site #7 contained an eligible existing retaining wall, i.e., cribbing, which was severely storm damaged and included in the original PW.  The Applicant requested an additional $474,967.97 in PA funding.

 

[6] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act of 1988, Pub. L. No. 93-288, § 406, 42 U.S.C.§ 5172 (2007).

[7] Title 44 Code of Federal Regulations (44 C.F.R.) §206.223(a) (2010). See also, Public Assistance Guide, FEMA 322, at 29 (June 2007) [hereinafter PA Guide].

[8] PA Guide, at 29, 33.

[9] Id, at 33, 100.  See also Second Appeal Analysis, Village of Waterford, FEMA-4020-DR-NY, at 4 (Sept. 4, 2014).

[10] Recovery Policy (RP) 9524.2, Landslides and Slope Stability Related to Public Facilities, at 2, 4 (Oct. 8, 2010) [hereinafter RP 9524.2]; PA Guide., at 81.

[11] RP 9524.2, at 5;  PA Guide, at 82.

[12] RP 9524.2, at 4-5; PA Guide, at 81-82.

[13] RP 9524.2, at 4-5; PA Guide, at 81-82.

[14] PA Guide, at 33, 81-82.

[15] Id., at 100.  Widespread “alligator cracking” of roads generally is not eligible for repair as it indicates damage that was present before the disaster.

[16] PW 8940(0) provided stabilization at Site #7 was the responsibility of the Applicant and must be completed as a condition for receipt of the obligated funding.

[17] Stafford Act § 705(c).

[18] FEMA, Second Appeal Analysis, Broward Cty. Sch. Bd. of Fla., FEMA-1609-DR-FL, at 3 (Aug. 22, 2016).

[19] See, FEMA Recovery Policy FP-205-081-2, Stafford Act, Section 705, Disaster Grant Closeout Procedures, at 4-7 (Mar. 31, 2016) (interpreting 705(c) requirements as follows: (1) payment occurs when the recipient draws down funds obligated through SmartLink, regardless of whether the recipient has disbursed funds to the subrecipient, (2) the purpose of the grant was accomplished when the scope of work is completed and the applicant has demonstrated compliance with post-award terms, and (3) costs are reasonable if, in their nature and amount, they do not exceed that which would be incurred by a prudent person under similar circumstances.).