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Legal Responsibility, Eligible Facility, Emergency Work

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-4020
ApplicantTown of Halcott
Appeal TypeSecond
PA ID#039-31379-00
PW ID#7961
Date Signed2015-12-31T00:00:00

Conclusion: The Applicant failed to provide documentation demonstrating: its legal responsibility for the slope that failed, that the slope represented integral ground beneath an eligible facility, or that the work could be considered an emergency protective measure.

Summary Paragraph

From August 26 to September 5, 2011, heavy rainfall from Hurricane Irene impacted the Town of Halcott, New York.  A slope along the southeast side of Elk Creek Road failed, exposing an escarpment approximately 50 feet wide by 40 feet high.  FEMA prepared Project Worksheet 7961, finding that work to stabilize the slope was not eligible for Public Assistance funding because integral ground was not damaged as a result of the declared event, the road conditions did not pose an immediate safety threat, and the Applicant did not have legal responsibility to repair the site.  On first appeal, the Applicant asserted that the site was not failing prior to the declared event and that the damage is new.  In addition, the Applicant stated that the erosion reached all the way back to the roadbed.  FEMA issued a Final Request for Information (RFI) to the Applicant requesting a report from an expert supporting the Applicant’s claim that the slope was integral ground beneath Elk Creek Road, proof of Applicant’s legal responsibility for the slope, and information on temporary repairs or work that the Applicant has conducted to ensure stability of the slope since the failure.  The Applicant did not respond to FEMA’s Final RFI.  The FEMA Region II Regional Administrator denied the appeal, concluding that the Applicant had not provided enough documentation to support its position that the disaster-related slope failure resulted in the instability of the integral ground supporting Elk Creek Road.  The Regional Administrator also stated that the Applicant had not provided any information to support its legal responsibility to stabilize the slope.  On second appeal, the Applicant asserts that the site was impacted by Hurricane Irene.  In addition, the New York State Division of Homeland Security and Emergency Services asserts that the work was incorrectly classified as permanent work and should have been classified as emergency work, where legal responsibility requirements would not apply. 

Authorities and Second Appeals

  • 44 C.F.R. § 206.223.
  • 44 C.F.R. § 206.225.
  • Stafford Act § 102, 42 U.S.C. § 5122.
  • FEMA Recovery Policy RP 9524.2.

Headnotes

  • Under Stafford Act § 102, public facilities include non-Federal-aid streets, roads, and highways.  FEMA RP 9524.2 specifies that for a slope adjacent to a road to be eligible, it must be integral ground.
    • The Applicant has failed to demonstrate that the slope is integral ground
  • Pursuant to 44 C.F.R. § 206.223(a) for work to be eligible for financial assistance, it must be the legal responsibility of the applicant.
    • The Applicant failed to sufficiently demonstrate it has legal responsibility to conduct the repair work.
  • Pursuant to 44 C.F.R. § 206.225, emergency protective measures eliminate or lessen immediate threats to life, public health or safety; or threats of significant additional damage to improved public or private property.
    •  The Applicant failed to provide documentation supporting either prong.

Appeal Letter

Mr. Andrew X. Feeney
Alternate Governor’s Authorized Representative
New York State Office of Emergency Management
1220 Washington Avenue, Building 7A, Suite 710
Albany, New York 12242

Re: Second Appeal – Town of Halcott, PA ID 039-31379-00, FEMA-4020-DR-NY, Project Worksheet (PW) 7961 – Legal Responsibility, Eligible Facility, Emergency Work

Dear Mr. Feeney:

This is in response to a letter from your office dated July 17, 2015, which transmitted the referenced second appeal on behalf of the Town of Halcott (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) determination that repairs to a slope failure along the southeast side of Elk Creek Road in the amount of $65,000.00 are ineligible for Public Assistance funding.

As explained in the enclosed analysis, I have determined that the Applicant has not provided sufficient documentation to support its claim that the slope failure has impacted integral ground of Elk Creek Road or that work could be considered an emergency protective measure.  Furthermore, the Applicant has not provided sufficient information to demonstrate that it has legal responsibility to conduct the work necessary to stabilize the slope in question on second appeal.  Accordingly, I am denying the appeal.

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/

William W. Roche
Director
Public Assistance Division                                                                 

                                                                       

Enclosure

cc: Jerome Hatfield
      Regional Administrator
      FEMA Region II

 

Appeal Analysis

Background

From August 26 to September 5, 2011, heavy rainfall from Hurricane Irene impacted the Town of Halcott, New York.  An estimated four (4) foot thick layer of the slope along the southeast side of Elk Creek Road in Halcott, NY failed, exposing an escarpment approximately 50 feet wide by 40 feet high.  In June 2012, FEMA conducted a geotechnical site visit and prepared a report detailing its findings.[1]  Subsequently, FEMA prepared Project Worksheet (PW) 7961 for zero dollars, finding that work to stabilize the slope was not eligible for Public Assistance (PA) funding.  This determination was based on the site visit report and the following: Elk Creek Road and its integral ground were not damaged as a result of the declared event; the road conditions did not pose an immediate safety threat; and while the town’s right-of-way partially extended into the damaged slope, the remainder of the slope was privately owned.  Additionally, FEMA found the site to be inherently unstable due to the soil type present.  On or about August 1, 2012, FEMA formally notified the New York State Division of Homeland Security and Emergency Services (Grantee) of this determination.[2]

First Appeal

The Town of Halcott (Applicant) appealed FEMA’s determination in a letter dated October 8, 2012.  The Applicant asserted that: (i) the slope was not failing prior to Irene and this failure is new damage; and (ii) the erosion of the slope reaches all the way back to the roadbed, citing a review by the Delaware County Soil and Water Stream Management Director.  The Applicant included proposed remediation work to stabilize the slope at the site.

By letter dated September 2, 2014, the Grantee transmitted the Applicant’s first appeal.  The Grantee concurred with the Applicant and recommended FEMA’s approval of the work outlined in PW 7961.

FEMA Region II sent a Final Request for Information (Final RFI) to the Grantee on December 18, 2014.[3]  FEMA requested the Applicant submit within 45 days the following: a report from an expert to support its position that the integral ground that supports the road was affected by Hurricane Irene; documentation demonstrating that the Applicant is legally responsible for the 50 foot wide right-of-way or an agreement with the property owner that would allow the Applicant to conduct work on the privately owned property; and information on temporary repairs or work that the Applicant has conducted on the slope to ensure stability since the failure.  FEMA informed the Applicant that the Administrative Record for the appeal would close upon issuance of the first appeal decision.  The Applicant did not respond to the Final RFI.

The FEMA Region II Regional Administrator (RA) denied the first appeal in a letter dated April 17, 2015 finding that: (i) the Applicant failed to provide sufficient information to support its position that Hurricane Irene affected the integral ground supporting Elk Creek Road; (ii) the Applicant had not provided any information to support its legal responsibility to stabilize the slope – the majority of which is located on private property; (iii) the Applicant’s right-of-way does not include the portion of the slope within which the failure occurred; and (iv) the Applicant had not established that the slope failure posed an immediate threat to life, public health and safety or to the stability of Elk Creek Road and thus could not be alternately considered as emergency work.

Second Appeal

The Applicant submitted a second appeal in a letter dated April 21, 2015.  The Applicant argues that the site was significantly undermined during Tropical Storm Irene and that this fact has been confirmed by the Delaware County Stream Management Director and re-affirmed by the Grantee’s engineers.

By letter dated July 17, 2015, the Grantee transmitted the second appeal to FEMA Region II.[4]  The Grantee argues that: (i) the Applicant consulted with licensed professionals regarding the site; (ii) the ownership of the area where the work is required has no bearing on legal responsibility because it is emergency work; (iii) FEMA’s policies support funding emergency protective actions on unstable areas; and (iv) this project qualifies as an emergency protective measure despite the fact that the Applicant has not performed work to stabilize the slope, and the Applicant’s inaction is a result of lack of resources to complete the project and should not disqualify it from receiving funding.  The Grantee also asserts that FEMA did not review all applicable engineering reports.

On August 25, 2015, FEMA sent an additional RFI to follow up with the Grantee’s assertion that FEMA did not review all applicable engineering reports related to this site.  This RFI requested the documentation specifically referenced by the Grantee on second appeal but not included in the transmission.  In response, the Grantee provided a memorandum from the Applicant’s engineer to the Grantee dated September 2, 2015 describing the site as it currently exists and recommended repairs per the Applicant’s engineer.[5]  The Grantee also provided an internal memorandum dated August 27, 2014 transmitting supporting documentation from the Applicant, including the Applicant’s assessment of the site and remediation recommendations.[6]  There were no attachments included with this memorandum, and it had already been included in the original documentation provided on second appeal and was part of the Administrative Record Index.

Discussion

Documentation Created after Closure of Administrative Record

In response to an RFI sent by FEMA on August 25, 2015, the Grantee provided a memorandum from the Applicant’s engineer to the Grantee dated September 2, 2015.  According to the Recovery Directorate Manual, Public Assistance Program Appeals Procedures, the Regional Administrator must issue a Final RFI to an applicant if it is considering denying or partially approving a first appeal.  The Final RFI must specify that the administrative record will close after issuance of the first appeal decision.[7]  In its issuance of the Final RFI,[8] FEMA Region II appropriately informed the Applicant that the Administrative Record would close upon issuance of the first appeal decision.  The memorandum that was provided by the Grantee was created in September 2015, nearly five months after FEMA Region II issued its first appeal decision, closing the Administrative Record.  Thus, the Grantee has provided a new document created after the closure of the Administrative Record; therefore, FEMA will not consider this document on second appeal.[9]

Eligibility of Facility

The slope, a natural feature, must be determined to be eligible before work to repair it can be evaluated.  According to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) § 406, “[t]he President may make contributions to a State or local government for the repair, restoration, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster and for associated expenses incurred by the government.”[10]  The Stafford Act includes non-Federal-aid streets, roads, and highways in its definition of public facilities.[11]  Where damage is to a slope, not the public facility, 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.”[12]  In this case, the damage occurred to a natural slope adjacent to Elk Creek Road rather than to the road itself.  The Applicant has failed to produce documentation demonstrating that the impacted area is integral to support the structural integrity of Elk Creek Road, and as a result it cannot be considered a public facility and thus is not eligible, under the Stafford Act, for financial assistance.  Even if the slope could be demonstrated to be integral ground supporting Elk Creek Road, the Applicant’s legal responsibility for the entire area where it proposes to conduct work must be established, which it has failed to do.[13]

Eligibility of Work: Emergency Work

Although the PW was prepared for Category C permanent work, the Grantee asserts that this project should have been considered as Category B emergency work.  FEMA may provide assistance essential to meeting immediate threats to life and property through a number of means, including conducting work on public or private lands or waters that is essential to protecting life and property.[14]  Such work is categorized as “emergency work,” which is defined as work which must be performed immediately to save lives and protect improved property and public health and safety, or to avert or lessen the threat of a major disaster.[15]  FEMA classifies two types of activities as emergency work: debris removal and emergency protective measures.[16]  Pursuant to 44 C.F.R. § 206.225(a), for emergency protective measures to be eligible, they “must (i) eliminate or lessen immediate threats to life, public health or safety; or (ii) eliminate or lessen immediate threats of significant additional damage to improved public or private property through measures which are cost effective.[17]  Immediate threat means the threat of additional damage or destruction from an event which can reasonably be expected to occur within five years.[18] 

The Grantee, on second appeal, asserts that while not initially classified as such, this project qualifies as an emergency protective measure despite the fact that the Applicant has not taken measures to stabilize the slope.  The Applicant, however, has failed to provide documentation supporting a conclusion that the unstable slope posed an immediate threat to life, public health or safety, or an immediate threat to improved public or private property.  No documents provided establish that the slope failure has in any way changed the threat of additional damage or destruction from an event which can reasonably be expected to occur within five years.  The Applicant’s failure to take any action, despite the Grantee’s assertion this should not preclude consideration of the action as emergency work, is both relevant and a strong indicator that an immediate threat does not exist.  Accordingly, the proposed work cannot be classified as an emergency protective measure.

Conclusion

The Applicant failed to sufficiently demonstrate the slope failure impacted the integral ground beneath Elk Creek Road, or, if the slope was shown to be integral ground, that it had legal responsibility to conduct the repair work on the entire slope area that failed.  Finally, the Grantee’s assertion that this project be considered emergency work was not supported by proof of an immediate threat to life, public health or safety.

 


[1] FEMA Engineer, Geotechnical Site Visit Embankment/Slope Failure Along Elk Creek Road (Adjacent to Elk Creek), Halcott, New York (June 6, 2012).

[2] FEMA, in its first appeal analysis, references an approximate date of “on or about August 1, 2012” for the date of eligibility determination and the Applicant references a letter on August 7, 2012 for the date of eligibility determination.  FEMA’s approximation is used here as neither date could be substantiated.

[3] Letter from Appeals Unit Lead, FEMA Region II, to Alt. Governor’s Authorized Representative, N.Y. State Div. of Homeland Sec. and Emergency Services (Dec. 18, 2014).

[4] Pursuant to Title 44 Code of Federal Regulations (44 C.F.R.) § 206.206 (c), the Grantee will review and forward appeals from an Applicant to the Regional Administrator within 60 days of receipt.  The Grantee received the Applicant’s second appeal on April 22, 2015, and transmitted the second appeal to FEMA Region II on July 17, 2015—86 days later.

[5] Memorandum from Eng’r, Delaware Cnty. Soil and Water Conservation Dist. Stream Program on Severely Eroded Bank Along Elk Creek in Halcott, NY, to Disaster Assistance Officer, N.Y. State Div. of Homeland Sec. and Emergency Services (Sept. 2, 2015).

[6] Memorandum from Disaster Assistance Representative, N.Y. State Div. of Homeland Sec. and Emergency Services on DR 4020 PW07961, to Disaster Assistance Officer, N.Y. State Div. of Homeland Sec. and Emergency Services (Aug. 27, 2014).

[7] Recovery Directorate Manual, Public Assistance Program Appeal Procedures, Version 3, at 13-14 (April 7, 2014).

[8] Letter from Appeals Unit Lead, FEMA Region II, to Alt. Governor’s Authorized Representative, N.Y. State Div. of Homeland Sec. and Emergency Services (Dec. 18, 2014) (Letter is marked received on Dec. 23, 2014).

[9] Even if FEMA were to consider this memorandum on second appeal, the document states that “It is expected that the bank will continue to fail… hydraulic erosion will continue to eat away at the base of the bank…[and] eventually the road will be endangered or even fail.”  The document also states, in regards to the overhanging banks, that “beam failure appears imminent.”  This document was prepared nearly four years after the disaster’s impact and the statements made are speculative as to the timeline (“eventually”; “appears imminent”) of the failure, and the impact of a potential failure (“endangered or even fail”).  This, combined with the lack of any action taken by the Applicant, does not support the claim that there is an immediate threat, which would allow FEMA to consider the work as emergency work.  This finding is consistent with the findings in San Diego County, 1952-DR-CA, at 3 (Mar. 29, 2013); Town of Boonton, 4021-DR-NJ, at 4 (Nov. 05, 2014).

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

[11] Id. § 5122.

[12] Recovery Policy RP9524.2, Landslides and Slope Stability Related to Public Facilities, at 2 (Oct. 8, 2010).

[13] Pursuant to 44 CFR § 206.223(a), for work to be eligible for financial assistance, it must be the legal responsibility of the applicant.  In determining whether an applicant has legal responsibility, “ownership is generally sufficient” to establish the responsibility for work to repair the facility.  The Applicant’s legal responsibility for the road is not in question, rather its ability to conduct the proposed work on adjacent private property is called into question by FEMA.  For that, despite a direct request from FEMA Region II in the Final RFI, the Applicant did not provide any documentation to support legal responsibility, either through proof of its right-of-way or easement agreements with the property owner of the adjacent land.  Thus, the Applicant has not provided sufficient documentation to support its legal responsibility for the entire slope area where repair work is proposed.

[14] 42 U.S.C. § 5170b.

[15] 44 C.F.R. § 206.201(b)

[16] PA Guide, at 29.

[17] 44 C.F.R. § 206.225(a) (emphasis added).

[18] Id. § 206.221(c).

Last updated May 28, 2020