Result of Declared Incident, Landslides and Slope Stabilization

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4424
Applicant	Monroe County Engineer
Appeal Type	Second
PA ID#	111-059CA-00
PW ID#	100437
Date Signed	2021-12-12T17:00:00

Summary Paragraph

From February 5 – 13, 2019, severe storms and flooding impacted Monroe County, Ohio.  The Monroe County Engineer (Applicant) reported embankment damage and requested Public Assistance (PA) funding for slope stabilization for Moose Ridge Road, CR45 - 4.47.  FEMA conducted a site inspection finding no indications of site instability.  FEMA reviewed the site inspection report with photographs and the Applicant’s response to a Request for Information (RFI).  FEMA then issued a Determination Memorandum finding the work was ineligible because the Applicant had not demonstrated that the claimed damage was disaster related.  The Applicant appealed with documents including a cost estimate for the proposed repair work, a 2018 aerial image, photographs that it claimed showed damages, and predisaster maintenance records.  The Ohio Emergency Management Agency transmitted the appeal to FEMA, recommending the project be approved for $92,945.00.  FEMA issued a second RFI for additional information including site-specific technical assessments.  The Applicant responded and provided documentation.  The FEMA Region V Acting Regional Administrator denied the first appeal, stating the Applicant did not demonstrate that the road was damaged or made unstable by a landslide or slope failure triggered by the declared disaster.  The Applicant’s second appeal requests additional funding for a geotechnical assessment of the slope stability.

Authorities and Second Appeals

• Stafford Act § 406(a)(1)(A)
• 44 C.F.R. § 206.223(a)(1)
• PAPPG (v 3.1) at 19, 21, 39, 116, 128, 133
• Mill Valley, FEMA-4308-DR-CA, at 4

Headnotes

• Section 406 of the Stafford Act authorizes FEMA to provide assistance for the repair, restoration, reconstruction or replacement of facilities damaged by a major disaster.  Such work must be required as a direct result of the declared major disaster or emergency.  It is the Applicant’s responsibility to substantiate its claim. 
• 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.  Site inspections and limited geotechnical assessments to determine site stability and to obtain a technical opinion of the cause of the slope failure may also be eligible.
  • The Applicant has not provided documentation showing that the road was damaged by a landslide or slope failure triggered by the declared disaster.  Accordingly, the costs requested to conduct a geotechnical assessment of the slope stability supporting the road is not eligible for funding.

Conclusion

FEMA finds the Applicant has not demonstrated that the embankment or adjacent road were damaged by the declared incident.  Accordingly, work to repair the embankment is ineligible for funding.  Therefore, this appeal is denied.

 

Appeal Letter

Appeal Analysis

Background

From February 5 – 13, 2019, severe storms and flooding impacted Monroe County, Ohio.[1]   Monroe County Engineer (Applicant) reported damage to the sloped embankment adjacent to Moose Ridge Road, CR45 - 4.47 (road).  The Applicant requested Public Assistance (PA) to stabilize the sloped embankment.  FEMA prepared Grants Manager Project 100437 to document the claimed damage.  On September 18, 2019, FEMA conducted a site inspection, in which the site inspector noted no signs of site instability.[2]  

On April 22, 2020, FEMA issued a Request for Information (RFI), indicating concern that the Applicant had not demonstrated the claimed embankment damages were a direct result of the disaster.  Consequently, FEMA requested documentation that demonstrated the embankment was in good and stable condition prior to the disaster.  The Applicant responded by providing a 2018 aerial image of the area and predisaster maintenance records. 

FEMA issued a Determination Memorandum on October 1, 2020, denying funding as the Applicant did not demonstrate that any claimed damage to the embankment was a direct result of the disaster. 

 

First Appeal   

On October 26, 2020, the Applicant submitted a first appeal for $92,945.00, providing documents including a cost estimate for the proposed repair work; an aerial image from 2018; photographs that it asserted showed damages; and predisaster maintenance records.  The Applicant stated that this predisaster aerial imagery and other documentation demonstrated that the site was stable, maintained and without damage prior to the disaster.  Further, the Applicant claimed the standard right-of-way under Ohio state law includes the embankment adjacent to the roadway, which the Applicant stated was structurally integral in the support of the road.  On December 21, 2020, the Ohio Emergency Management Agency (Grantee) transmitted the Applicant’s first appeal to FEMA, and recommended approval for $92,945.00.  The Grantee argued that the evidence the Applicant provided showed instability impacting the integral ground of the roadway and that the embankment is a facility that the Applicant is legally responsible to maintain.

FEMA issued a second RFI on March 11, 2021, requesting a cost estimate for damages recorded; geotechnical studies; slope stability analyses; or other site-specific technical assessments demonstrating that an eligible facility was damaged by a landslide or slope failure triggered by the declared disaster.  FEMA also requested as-built drawings or predisaster design documentation.

The Applicant responded on March 12, 2021, with a cost estimate for the embankment repair; a link to the Natural Resources Conservation Service website; a soil map; and an engineering properties report for the general area.  The Applicant stated, “[l]imited geotechnical information can be pulled from this source, as needed, and is sufficient to meet the requirements of an initial assessment of the site.”[3]  The Applicant contended that FEMA policy did not require extensive data and analyses to determine slope stability prior to the disaster; that it was not the County’s policy to perform such analyses; and that it had provided sufficient detail to support its claim.  The Applicant noted that, per FEMA policy, a more limited geotechnical assessment is eligible for funding and if the web soil survey it included was insufficient, FEMA should identify the additional specific data needed and the Applicant would have the limited assessment work done.

On July 6, 2021, the Acting Regional Administrator for FEMA Region V denied the first appeal.  FEMA noted that neither FEMA’s inspection nor site photographs validated any damages or instability to the road or embankment.  FEMA pointed out that damage to an eligible facility is a baseline requirement for FEMA funding and, in this case, the Applicant did not demonstrate that the road was damaged or made unstable by a landslide or slope failure.  Consequently, FEMA found the Applicant had not demonstrated the requested work was required as a result of the disaster.

Second Appeal

On July 12, 2021, the Applicant submitted its second appeal to the Grantee.  The Applicant contends FEMA policy allows FEMA to fund: (1) the cost of limited site inspections and geotechnical assessments to determine site stability, and (2) the cost to obtain a technical opinion of the cause of the slope failure.  Therefore, the Applicant requests an estimated $15,000.00 for a geotechnical assessment.  The Applicant also provided a legal opinion regarding the width determination of county roads under state law, to clarify the eligible facility is not limited to the road but includes drainage and integral ground adjacent to the road.  The Grantee supports the second appeal in a September 9, 2021 letter, and recommends that FEMA approve $15,000.00 for limited geotechnical explorations.

 

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 the result of the declared incident.[5]  The applicant is responsible for providing documentation to support its claim as eligible and for showing that the claimed work is required to address damage caused by the disaster.[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 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]  Site inspections and limited geotechnical assessments to determine site stability and to obtain a technical opinion of the cause of the slope failure are eligible.[9]  To be eligible, costs must be directly tied to the performance of eligible work, including work required as a result of the disaster.[10]

The Applicant claims that damage to the embankment was a result of the disaster and requests funding for a limited geotechnical study of the sloped embankment adjacent to the road.  However, such costs are only eligible if an eligible facility located on a slope is damaged as a result of a landslide or slope instability triggered by the incident, and the costs are directly tied to the performance of eligible work required as a result.[11]  Here, the site inspection and photographs showed no disaster-related damage to the road and FEMA was unable to validate claims that soil saturation or claimed slope failure from disaster-related flooding caused site instability or embankment settlement.[12]  Therefore, even if the slope constitutes integral ground that supports the road, the additional work is nonetheless ineligible because the slope is not tied to an eligible facility damaged as a result of the disaster.[13]

 

Conclusion

FEMA finds the Applicant has not demonstrated that the embankment or adjacent road were damaged by the declared incident.  Accordingly, work to repair the embankment is ineligible for funding.  Therefore, this appeal is denied.

 

[1] The President issued major disaster declaration FEMA-4424-DR-OH on April 8, 2019.

[2] FEMA, Site Inspection Report (Sept. 18, 2019); Damage Descriptions and Dimensions (undated), FEMA Grants Manager Project Report for Monroe County Engineer (Monroe), Grants Manager Project 100437, at 1 (downloaded Oct. 25, 2021, at 10:05 a.m.). 

[3] Email from Monroe County Engineer to FEMA Region V, re: Request for Information: DR-4424-OH Monroe County Engineer Project 100437 Moose Ridge Rd, at 2 (Mar. 12, 2021, 6:38 a.m.).

[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 § 206.223(a)(1) (2018); Public Assistance Program and Policy Guide, FP 104-009-2, at 19 (Apr. 1, 2018) [hereinafter PAPPG].

[6] PAPPG, at 19, 116, 133.

[7] Id. at 128.

[8] Id.

[9] Id.

[10] Id. at 19, 21.

[11] Id.; see also id. at 39 (stating that costs related to assessing overall impacts of an incident, locating damage impacts, and conducting preliminary damage assessments are not eligible as project costs, but that if the Applicant identifies incident-related damage to a facility, costs for detailed inspections to determine the extent of damage and method of repair, including professional evaluations, are eligible as part of the work to restore the facility).

[12] Therefore, the Applicant’s assertion that the embankment is part of the eligible facility due to the 60-foot right of way, is moot.

[13] FEMA Second Appeal Analysis, Mill Valley, FEMA-4308-DR-CA, at 4 (June 18, 2020).