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#	GMP 100391
Date Signed	2022-02-10T17:00:00

Summary Paragraph

From February 5 to 13, 2019, severe storms, flooding, and landslides impacted Monroe County, Ohio.  FEMA prepared Grants Manager Project 100391 to capture Monroe County Engineer’s (Applicant) claimed damages to Six Point Road (CR9A-0.52), culvert and a section of sloped embankment.  FEMA reviewed a site inspection report with photographs and the Applicant’s response to a request for information and determined the work was ineligible.  FEMA found the Applicant did not demonstrate the claimed damages were directly caused by the disaster.  The Applicant appealed and provided pre- and post-disaster aerial photographs, cost estimates, and maintenance records.  FEMA issued a request for information for site-specific technical assessments.  The Applicant provided a soil map and engineering properties report and stated the information in it met the requirements for an initial site assessment, but the Applicant did not provide geotechnical studies or other technical assessments.  FEMA denied the 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, and an independent technical review found no slope failure and that road damage was not the result of slope failure or heavy rainfall during the disaster.  The Applicant’s second appeal requests an additional $15,000.00 for a limited geotechnical study to determine site stability.    

Authorities and Second Appeals

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

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.
• 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.  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.
  • Here, the Applicant has not provided documentation to demonstrate that the work to repair the road, culvert and embankment occurred as a result of the disaster.  Accordingly, the costs requested to conduct a geotechnical assessment of the slope stability supporting the road are not eligible for funding.

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 Monroe County, Ohio.  FEMA prepared Grants Manager Project 100391 to capture the Monroe County Engineer’s (Applicant) claimed damages to a road, culvert, and section of sloped embankment located on Six Point Road (CR9A-0.52).  FEMA’s site inspection showed road surface cracking and settlement, but no observable culvert misalignment and did not validate the Applicant’s claim that the sloped embankment was unstable.  FEMA issued a request for information (RFI) for documentation showing the predisaster condition of the road, culvert, and the embankment.  The Applicant responded with an aerial photograph from 2018 and maintenance records from 2010 to 2018.  FEMA issued a Determination Memorandum on October 15, 2020, denying funding for work to repair the road and culvert or to stabilize the sloped embankment.[1]  FEMA determined there was insufficient documentation to substantiate that the declared event directly caused the claimed damage to the road and culvert or that the sloped embankment became unstable as a result of the disaster. 

First Appeal

The Applicant submitted a first appeal on October 22, 2020, along with a cost estimate for repairs, photographs said to show damages from the heavy rain, the Applicant’s road and bridge maintenance policy, a repair method proposal, and daily crew worksheets.  The Ohio Emergency Management Agency (Grantee) forwarded the Applicant’s first appeal on December 21, 2020, and recommended approval in the amount of $430,270.00, referencing State codes, and contending the site inspection report and photographs demonstrate both road and slope instability.[2] 

FEMA issued a second RFI on March 11, 2021, for specific cost estimate information, photographs of culvert damage, technical assessments demonstrating the Facility was damaged by a landslide or slope failure triggered by the declared disaster, and as-built drawings or predisaster design documentation.  The Applicant responded on March 12, 2021 with a photograph and cost estimate information, and explained there were no design or as-built plans for the road.  The Applicant provided a link to the Natural Resources Conservation Service website and the Soil Map and Engineering Properties report for the general area showing the county-wide soil classification.  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 analysis items to determine slope stability prior to the disaster, that it was not County policy to perform such analyses, and that it had provided sufficient detail to support its claim.  The Applicant also noted that, per FEMA policy, a more limited geotechnical assessment is eligible for funding and suggested that if the soil survey it included was insufficient, FEMA should identify the additional specific data needed and the Applicant would have the limited assessment work done.

The FEMA Region V Acting Regional Administrator denied the first appeal on September 3, 2021.  FEMA determined the Applicant did not provide sufficient documentation or evidence demonstrating that the road was damaged or made unstable by a landslide or slope failure triggered by the declared disaster, or that the claimed road, culvert, and embankment damages were a direct result of the declared disaster.  FEMA noted that an independent technical review of the site found no slope failure and concluded that surface damage was not the result of slope failure or heavy rainfall during the disaster.[4]  FEMA also noted that: 1) the Applicant declined to provide technical assessments demonstrating that the disaster damaged the road or made it unstable; 2) the road remained open without any temporary repairs or stabilization measures; 3) post-disaster photographs the Applicant provided continue to show the road and embankment with no disaster-related damage or instability; and 4) the soil survey did not establish that disaster-caused slope failure had occurred. 

Second Appeal

In its September 14, 2021 second appeal, the Applicant requests an estimated $15,000.00 for a limited geotechnical study to determine site stability and to provide an opinion as to the cause of any instability.  The Applicant asserts that the independent technical review cited in FEMA’s first appeal determination relied on outdated imagery and made assumptions without supporting data and a site inspection.  The Applicant also provides a legal opinion regarding the width determination of county roads under state law, to clarify the road is not limited to the road itself but includes drainage and integral ground adjacent to the road.  The Grantee’s November 12, 2021 transmittal supports the Applicant’s appeal.  The Grantee also asserts that FEMA erred in other second appeal responses to this Applicant in citing to the Public Assistance Program and Policy Guide regarding the ineligibility of surveys to assess or locate damage, and in citing a previous second appeal decision dealing with stabilization of an uphill slope, because the Applicant has already located claimed damages and its funding request pertains to a downhill slope.[5]

 

Discussion

Result of Declared Incident

FEMA may provide Public Assistance (PA) funding to a local government for the repair of a public facility damaged by a major disaster.[6]  To be eligible, work must be required as a direct result of the declared major disaster or emergency.[7]  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.[8]  When evaluating eligibility of reported road damage, FEMA may review invoices and maintenance records to establish that the applicant has a routine maintenance program.[9]  Such documentation may be helpful to establish the predisaster condition of a facility and demonstrate that the damage was directly caused by the incident.[10]  FEMA does not provide PA funding for repair of damage caused by deterioration, deferred maintenance, or negligence.[11] 

FEMA found that the road showed fatigue cracking and settlement consistent with normal wear and tear from traffic during its site inspection.  FEMA’s site inspection and photos also noted that the road was open, and the culvert was clear with no observable misalignment.  Predisaster aerial imagery shows pre-existing road damage, and post-disaster photographs of the road and natural embankment show no verifiable disaster-related damage or instability.  FEMA’s independent technical review concluded that surface damage was not the result of slope failure or heavy rainfall during the disaster.[12]  Finally, the soil survey submitted is not an inspection, or assessment of the damages or site conditions at issue, and it does not provide information to distinguish predisaster condition from claimed disaster-related damages.  Accordingly, the Applicant has not demonstrated that the road, culvert, and embankment were directly damaged by the disaster, or that claimed road and culvert damages resulted from disaster-caused instability in the sloped embankment.

Landslides and Slope Stabilization

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.[13]  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.[14]  To be eligible, costs must be directly tied to the performance of eligible work, including work required as a result of the disaster.[15]

On second appeal, the Applicant requests $15,000.00 for a limited geotechnical study to determine site stability and to provide an opinion as to the cause of any instability.  However, such costs are only eligible if an eligible facility is located on a slope that 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.[16]  While the Grantee notes that the Applicant has presented the location of claimed damages during project formulation,[17] the Applicant has not submitted documentation that shows damage to the road as a result of a landslide or slope instability triggered by the incident.  As such, the requested geotechnical costs are not directly tied to the performance of eligible work. 

In addition, FEMA did not report any slope instability during its site inspection,[18] and FEMA’s independent technical review found that the road was not damaged as the direct result of the incident.[19]  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 declared incident.[20]

 

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] See FEMA Eligibility Determination Memorandum, Monroe County Engineer – CR9A – 0.52 Six Point Road Project 100391, FEMA-4424-DR-OH, at 3–4 (Oct. 15, 2020).

[2] Letter from Exec. Dir., Ohio Emergency Mgmt. Agency, to Acting Reg’l Adm’r, FEMA Region V, at 2 (Dec. 21, 2020).

[3] See Email from Monroe Cnty. Eng’r, to Appeals Analyst, FEMA Region V, at 2 (Mar. 12, 2021, 7:00:56 AM).

[4] Timothy D. Stark, Ph.D., P.E., DR-4424-OH Landslides and Slope Stabilization, Expert Review, at 1, 7 (May 26, 2021) [hereinafter Stark Report].

[5] Letter from Exec. Dir., Ohio Emergency Mgmt. Agency, to Acting Reg’l Adm’r, FEMA Region V, at 3 (Nov. 12, 2021) [hereinafter Grantee’s Second Appeal Letter] (citing FEMA Second Appeal Analysis, Mill Valley, FEMA-4308-DR-CA (June 18, 2020)).

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

[7] 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].

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

[9] Id. at 116 (also stating that work to repair potholes or fatigue cracking is generally ineligible as this type of damage is rarely caused directly by one incident).

[10] Id.

[11] Id. at 19-20.

[12] Stark Report, at 7.

[13] PAPPG, at 128. 

[14] Id.

[15] Id. at 19, 21.

[16] 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).

[17] Grantee’s Second Appeal Letter, at 3 (noting FEMA’s recent second appeal decisions for GMPs: 100447, 100450, 114538, 108413, 108363, 122019, 100455 and 100445).

[18] FEMA Site Inspection Photo Pages, Monroe County Engineer, WO 43692, DI 293588, at 2-3 (Aug. 20, 2019).

[19] Stark Report, at 7.

[20] See Mill Valley, FEMA-4308-DR-CA, at 4.  The Grantee disputes FEMA’s citation to Mill Valley because it pertains to an uphill slope, which is less likely to affect integral ground. See Grantee’s Second Appeal Letter, at 3.  However, the second appeal decision is analogous in that FEMA determined that regardless of whether the slope was integral ground, the slope stabilization work was ineligible as permanent work because it was not tied to eligible facilities (i.e., the roadways) damaged as a result of the disaster, as is the case here.