Result of the Declared Incident

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4424
Applicant	Monroe County Engineer
Appeal Type	Second
PA ID#	11-059CA-00
PW ID#	GMP 108375
Date Signed	2022-12-13T17:00:00

Summary Paragraph

The Applicant claimed embankment instability and displacement of a pipe-piling retaining wall.  FEMA prepared Grants Manager Project (GMP) 108375 to capture the damages and intended method of repair.  FEMA conducted two site inspections, which noted the roadway was identified as being open to travel and had no observable damage and noted, based on observations, that were no indications of site instability present.  FEMA sent two Requests for Information (RFIs) requesting documentation to substantiate maintenance of the pipe-piling retaining wall and the stability of the embankment prior to the incident.  The Applicant provided roadway maintenance records, and technical justifications for the method of repair for the pipe-piling retaining wall. The Applicant also stated that no maintenance has been conducted on the pipe-piling wall since installation in 2003.  FEMA denied the Applicant’s request for PA funding for GMP 108375 as the available information did not substantiate that the claimed damage to the retaining wall and embankment failure were caused by the disaster.  The Applicant filed a first appeal stating that the disaster damaged the retaining wall and embankment.  Additionally, the Applicant noted that the right of way makes the embankment integral ground and an eligible facility.  The Ohio Emergency Management Agency (Recipient) forwarded the appeal in support of the Applicant’s position.  FEMA Region V Regional Administrator denied first appeal, finding that the Applicant had not substantiated that work required was the result of the declared incident.  The Applicant filed a second appeal, reiterating first appeal arguments and additionally questioning the technical review, asserting that it relied on inaccurate photographs.  The Recipient forwarded the appeal in support of the Applicant’s position.

Authorities and Second Appeals

• Stafford Act § 406(a)(1)(A).
• 44. C.F.R. §§ 206.201(c), 206.223(a)(1).
• PAPPG, at 14-15, 19-20, 133
• Union Cnty., FEMA-4361-DR-KY, at 2-3, The Museum of Fine Arts Houston, FEMA-4332-DR-TX at 3.

Headnotes

• An item of work must be required as a direct result of the disaster to be eligible for PA funding.  It is the Applicant’s responsibility to demonstrate that the damage is disaster related.
  • Here, the Applicant has not substantiated its claim that the pipe-piling wall was maintained, or that the work required to repair it is the direct result of the declared incident.

Conclusion

FEMA finds that Applicant has not substantiated that the work was required as the direct result of the declared incident.

Appeal Letter

Appeal Analysis

Background

From February 5 – 13, 2019, severe storms and flooding impacted Monroe County, Ohio.[1]  Monroe County Engineer (Applicant) requested Public Assistance (PA) to stabilize a roadside embankment and replace a pipe-piling retaining wall with a drilled shaft retaining wall.[2]  FEMA prepared Grants Manager Project (GMP) 108375 to capture the damages and intended method of repair.  FEMA also conducted two site inspections.  The site inspector noted in the reports that the inspector did not observe any damage to the roadway (which was open to travel) and underlying culvert.  The site inspector noted the embankment showed no indications of site instability, but did observe erosion on the embankment, both in front and behind the retaining wall, leaning and rusted-out pipe-pilings, and separation of the guardrail cribbing, with vegetation growing between the cribbing. 

FEMA submitted two Requests for Information (RFIs), one on December 12, 2019, and the second on January 23, 2020, asking the Applicant to provide documentation: (1) substantiating the maintenance of the retaining wall, and (2) showing the disaster caused embankment instability and damage to the pipe-piling retaining wall.  The Applicant responded to the RFIs and included its technical justification of the intended method of repair, along with common repair methods for embankments and its inspection reports of the culvert.  The Applicant stated, in the second RFI response sent January 29, 2020, that the typical pipe-piling retaining wall does not require routine maintenance, therefore there would be no records.

FEMA, in a Determination Memorandum (DM), sent on January 15, 2021, denied the Applicant’s request for PA funding for GMP 108375.  FEMA determined the available information did not substantiate that the claimed damage to the retaining wall and embankment failure were caused by the disaster.       

First Appeal

The Applicant filed a first appeal, in a letter dated January 18, 2021, stating that due to pipe-piling movement from the disaster, the retaining wall’s cribbing had separated and embankment material was lost.  The Applicant provided, among other documentation, photographs of the roadway, predisaster maintenance records of the roadway, and documentation related to the installation of the retaining wall from 2003.  Additionally, the Applicant stated that the standard right-of-way for a Monroe County road makes the embankment that is adjacent to the roadway integral ground and an eligible facility.  On March 18, 2021, the Ohio Emergency Management Agency (Recipient) forwarded the Applicant’s first appeal supporting its position.  The Recipient asserted the retaining wall and embankment were part of a regular maintenance program and in good condition prior to the disaster.

The FEMA Region V Acting Regional Administrator denied the first appeal on May 20, 2022.  FEMA determined that the Applicant did not demonstrate that the pipe-piling retaining wall or embankment were damaged by the disaster.  FEMA noted that an independent technical review of the site found that backfill material of the pipe-piling retaining wall was lost prior to the declared disaster due to separations in the retaining wall.[3]  FEMA rejected the argument that the embankment was an eligible facility, as: (1) law, regulations, and FEMA policy determine what is an eligible facility for PA funding; and, (2) the Applicant had not substantiated that the embankment was an improved and maintained natural feature.  

Second Appeal

The Applicant filed a second appeal in a letter dated July 15, 2022, stating that had the pipe-piling retaining wall been showing signs of failure prior to the disaster it would have been reported as it was within proximity of other sites damaged in a prior disaster. The Applicant also states that documentation previously provided substantiates that the pipe-piling wall was maintained.  The Applicant notes that two FEMA site inspections identified erosion and instability in the pipe-piling retaining wall.  The Applicant asserts that the independent technical review cited in FEMA’s first appeal decision relied on outdated imagery and made assumptions without supporting data or a site inspection.  The Recipient, in a letter dated September 13, 2022, forwarded the Applicant’s appeal in support of its claim. The Recipient states that through documentation of inspections and road maintenance, the Applicant substantiated its claim that if maintenance were needed, it would have been done.   

 

Discussion

FEMA may provide PA funding to a local government for the repair of a public facility damaged by a major disaster.^[4]  To be eligible, work must be required as a direct result of the declared major disaster or emergency.^[5]  The applicant is responsible for providing documentation to support its claim as eligible and show that the work is required to address damage caused directly by the disaster.^[6]  FEMA does not provide PA funding for repair of damage caused by deterioration, deferred maintenance, or negligence.^[7]  A natural feature may itself be an eligible facility if it is improved and maintained on a regular schedule to ensure the improvement performs as designed.^[8]

Here, the Applicant is claiming the disaster caused erosion and embankment instability at the pipe-piling retaining wall.  FEMA’s site inspections, however, noted that the roadway was fully opened for public access and there was no embankment instability present.  Predisaster aerial imagery shows pre-existing pipe-piling wall damage, and post-disaster photographs from the site inspection show large gaps between cribbing along with damaged and rusted sections of pipes in the retaining wall.  While the site inspections noted erosion and instability at the retaining wall it was not attributed to the disaster.  FEMA’s independent technical review found that the loss of backfill material was caused by the inability of the pipe-pile retaining wall with guardrail lagging to retain the backfill, prior to the disaster.[9]  This loss of backfill was noted in 2018 images of the site included in the report.[10]  Accordingly, the Applicant has not demonstrated that the disaster was the cause of the erosion and loss of backfill material.[11] 

The Applicant acknowledges that no maintenance occurred at the pipe-piling retaining wall and embankment post-construction, as the Applicant claims it was not needed.[12]  Rather, it provided maintenance records and documentation to substantiate the state of the adjacent roadway, which was undamaged.  Therefore, the Applicant has not demonstrated it maintained the improvement (i.e., the pipe-piling retaining wall) on a regular schedule to ensure the improvement performed as designed.  Consequently, the embankment with the pipe-piling retaining wall is not an eligible facility.[13]      

 

Conclusion

The Applicant has not substantiated that the work was required as the direct result of the disaster.  This appeal is denied.

 

 

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

[2] The embankment and retaining wall are located at Mellott Ridge Road/County Road 31-mile marker 6.84.

[3] FEMA First Appeal Analysis, Monroe Cty. Eng’r., FEMA-4424-DR-OH, at 4 (May 20, 2022) (citing Letter from Owner, Ph.D., Stark Consultants, Inc., to Public Assistance Branch Chief, FEMA Region VI (Feb. 4, 2022) [hereinafter Stark Report]).

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

[5] 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].

[6] PAPPG, at 19, 133.

[7] Id. at 19-20.

[8] 44 C.F.R. §206.201(c); PAPPG at 14-15.    

[9] Stark Report at 10-11

[10] Id. at 4-5, 11.

[11] See id.

[12] Email from Cty. Eng’r, Monroe County, to Site Inspector Task Force Lead, FEMA, at 1 (Jan. 29, 2020, 08:50 EST)

[13] See FEMA Second Appeal Analysis, Union Cnty., FEMA-4361-DR-KY, at 2-3 (Dec. 17, 2021) (finding that the Applicant had not demonstrated that it has maintained the embankment on a schedule to ensure that the improvement performs as designed, when the Applicant provided only limited inspection records to substantiate maintenance and additionally alleged that little maintenance could be done on a grass/dirt embankment).  See also FEMA Second Appeal Analysis, The Museum of Fine Arts of Houston, FEMA-4332-DR-TX (Feb. 17, 2022) (finding that “as needed” maintenance of the rip rap on an embankment did not demonstrate it maintained the improved embankment on a schedule to ensure the improvement performs as designed.)