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 114538
Date Signed	2021-11-10T17:00:00

Summary Paragraph

From February 5 - 13, 2019, severe storms and flooding impacted Monroe County, Ohio.  The Applicant reported embankment drop and requested Public Assistance for repairs to the sloped embankment on which Long Run Road is located.  FEMA conducted a site inspection, and sent a request for information (RFI).  The Site Inspection Report (SIR) and the photographs taken showed an undamaged open road with a gravel surface and a slope full of vegetation.  In a Determination Memorandum, FEMA determined the work was ineligible because the Applicant had not demonstrated the claimed damage was disaster related.  The Applicant appealed with documents including a cost estimate for the proposed repair work, pre and post disaster photographs and daily crew worksheets.  The Ohio Emergency Management Agency transmitted the appeal to FEMA, recommending the project be approved for $117,971.00.  FEMA issued a second RFI requesting information including site-specific technical assessments. In response, the Applicant provided a soil map and an engineering properties report and stated the information met the requirements of an initial site assessment but declined to provide geotechnical studies.  The FEMA Region V Acting Regional Administrator denied the appeal, finding that the Applicant did not provide sufficient documentation demonstrating that the embankment had been damaged by a landslide or slope failure triggered by the declared disaster.  The Applicant submitted a second appeal, requesting costs to conduct a geotechnical investigation. 

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

• 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.  Monroe County Engineer (Applicant) reported embankment damage and requested reimbursement under FEMA’s Public Assistance (PA) program for repairs to the sloped embankment on which Long Run Road is located.  FEMA prepared Grants Manager Project 114538 to document the claimed damages.  On September 24, 2019, FEMA conducted a site inspection and took photographs of the site.  The site inspection report (SIR) and associated photographs showed an open road with no damages and a slope full of vegetation the site inspector identified as the claimed damaged section.  

On April 17, 2020, FEMA issued a Request for Information (RFI) seeking documentation demonstrating the conditions of the embankment prior to the disaster period.  The Applicant responded on April 20, 2020, with aerial imagery from 2018 and maintenance records from 2000 to 2018.  FEMA issued a Determination Memorandum on September 14, 2020 finding the Applicant failed to demonstrate the sloped embankment sustained damage as a result of the declared incident.  Therefore, FEMA denied the Applicant’s request for PA funding.

First Appeal

The Applicant submitted a first appeal on October 26, 2020 requesting $117,971.00 to stabilize the embankment.  It provided two cost estimates for the proposed repair work, along with predisaster aerial photographs, post-disaster site photographs, a document explaining the method of repair, and daily crew worksheets.  The Applicant claimed the standard Monroe County right-of-way includes the embankment adjacent to the roadway, which is structurally integral in support of the road.  The Ohio Emergency Management Agency (Grantee) forwarded the Applicant’s first appeal on December 21, 2020 and recommended approval contending the photographs provided show a drop in the roadway, constituting visual evidence of a landslide.  The Grantee further stated the Applicant provided sufficient evidence to show that instability affected the integral ground of the roadway.

FEMA issued a second RFI on March 19, 2021, requesting documentation of predisaster conditions of the embankment, site-specific technical assessments demonstrating that the embankment was damaged as a result of the declared incident and for any additional relevant documentation or information that the Applicant believed FEMA should consider.  

On the same date, the Applicant responded to the RFI, providing aerial photography from 2018 and maintenance records, stating that the maintenance records are sufficient to demonstrate that the site was maintained and in good condition prior to the declared incident and to validate the predisaster condition of the site.  Although the Applicant stated that no specific studies were performed on the slope, it provided a link to the Natural Resources Conservation Service website and soil map as well as an engineering properties report for the general area showing that the soil in the area is slip prone.  The Applicant stated, “limited geotechnical information can be pulled from this source, as needed, and is sufficient to meet the requirements of an initial assessment of the site.”[1]  The Applicant argued that FEMA policy did not require extensive data and analysis 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 May 21, 2021.  FEMA explained the Applicant did not claim or report damages to the Long Run Road itself but only claimed damages to the road’s adjacent embankment and integral ground of the road and requested PA funding to stabilize the slope.  FEMA noted that the Applicant did not provide technical assessments demonstrating that the road was damaged and made unstable by the disaster, and that photographs did not show disaster-related damage or instability to the road or embankment.  FEMA also noted that the soil survey did not prove that disaster-caused slope failure had occurred.  Finally, FEMA pointed out that damage to an eligible facility is a baseline requirement for FEMA funding, and, in this case, no damages to the road were documented.

Second Appeal

On June 17, 2021, the Applicant submitted its second appeal request 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 of county roads under state law.  The opinion states the road is not limited to the roadway but includes drainage and integral ground adjacent to the road.  On August 12, 2021, the Grantee transmitted the second appeal, recommending the approval of the $130,971.00 and states the photographs accompanying the SIR make clear that the embankment is damaged and that FEMA misapplied policy by placing the burden on the Applicant to demonstrate predisaster stability of the slope.[2] 

 

Discussion

FEMA may provide PA funding to a local government for the repair of a public facility damaged by a major disaster.[3]  To be eligible, work must be required as the result of the declared incident.[4]  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.[5]  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.  Restoration of the integral ground that supports the facility may also be eligible.[6]  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.[7]  To be eligible, costs must be directly tied to the performance of eligible work, including work required as a result of the disaster.[8]

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.[9]  Here, site inspection observations and photographs showed no disaster-related damage to the road and FEMA was unable to validate claims that soil saturation from disaster-related flooding caused site instability or embankment settlement.  Additionally, the Applicant has not requested any funding related to damage to the road adjacent to the embankment.  Therefore, even if the slope constitutes integral ground that supports a facility, the work is ineligible because the slope is not tied to an eligible facility damaged as a result of the disaster.[10]

 

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, the appeal is denied.

 

[1] Email from Monroe County Engineer to Appeals Analyst, FEMA, at 1-2 (Mar. 19, 2021, 4:27 p.m. EST).

[2] The amount requested and denied in First Appeal was $117,971.00.  While the Applicant’s second appeal letter only requests $15,000.00, the Grantee recommends approval of the appeal in the amount of $130,917.00.  However, the Grantee did not justify why it requested a different amount on Second Appeal.  Letter from Executive Director, Ohio Department of Public Safety to Recovery Directorate, Federal Emergency Management Agency, at 2 (Aug. 12, 2021). 

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

[4] Title 44, Code of Federal Regulations § 206.223(a)(1) (2018); Public Assistance Program and Policy Guide, FP 104-009-2, at 19 (Apr. 2018) [hereinafter PAPPG].

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

[6] Id., at 128.

[7] Id.

[8] Id. at 19, 21.

[9] PAPPG at 19, 21.; 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).

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