Anthony Chabot Park Embankment Failure

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1044-DR
ApplicantEast Bay Regional Parks District
Appeal TypeSecond
PA ID#001-91010
PW ID#17820
Date Signed1999-02-08T05:00:00
Citation: Appeal Brief; Second Appeal; East Bay Regional Parks District; FEMA-1044-DR-CA; PA #001-91010

Cross Reference: DSR 17820; Improved Project; Embankment Erosion; Landslide

Summary: Following heavy rains in January 1995, runoff eroded a slope and damaged a 30" culvert near the Skyline Stables, just above Redwood Road in Anthony Chabot Park. FEMA prepared DSR 15127 for $57,521 for stabilization of the slope, construction of a drainage system, and replacement of the culvert. Upon review the DSR was found ineligible and the project was referred to the FHWA because the damage site was adjacent to Redwood Road. FHWA denied funding because the road did not sustain damage. FEMA prepared DSR 70840 for $11,939, with a reduced scope of work, eliminating the slope stabilization and drainage system. The applicant claimed that the stabilization and drainage system were not improvements over pre-disaster condition. FEMA prepared supplemental DSR 17820 for $35,781 to regrade the hillside, replace the damaged culvert and hydroseed the slope for erosion control. The supplemental DSR increased the amount obligated to $47,720. After awarding a low bid construction contract of $43,621, the applicant issued a change order increasing the contract total to $71,033. The applicant claims total expenditures of $86,313 and requests FEMA prepare a supplemental DSR. To date, the applicant has not provided sufficient information describing the pre-disaster condition of the drainage system or a detailed description of the work completed.

Issues:Should the stabilization of the hillside and construction of a new drainage system at this site be eligible for additional FEMA funding?

Findings:No. The applicant has not provided sufficient information to justify an 80% overrun in total cost. Federal funding for improved projects is limited to restoration of the eligible facility to pre-disaster condition.

Rationale:44 CFR 206.226 and 44 CFR 206.203 (d)(1) and 44 CFR 206.206

Appeal Letter

February 8, 1999

Mr. D. A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
Disaster Assistance Branch
P.O. Box 419023
Rancho Cordova, CA 95741

Dear Mr. Christian:

This is in response to your February 10, 1998, letter forwarding the second appeal of Damage Survey Report (DSR) 17820 under FEMA-1044-DR-CA on behalf of the East Bay Regional Park District (subgrantee). The Federal Emergency Management Agency (FEMA) prepared this DSR for the restoration of an eroded hillside adjacent to the Skyline Stables in Anthony Chabot Park and the replacement of a 30" drainage culvert imbedded in the hillside. The subgrantee is requesting that FEMA prepare a supplemental DSR for $38,593.

The applicant awarded a contract at a low bid of $43,621, issued a change order to that contract for $27,412 and claims to have expended a total of $86,313 to restore the failed slope. FEMA obligated $47,720 for the scope of work described on DSRs 70840 and 17820. The subgrantee asserts that the increased cost of the completed project represents a cost overrun rather than an improved project. However, the applicant has provided neither sufficient justification explaining why actual costs substantially exceeded estimated cost, nor information detailing the extent of work completed. Any work performed to stabilize the slope or construct a drainage system that did not exist before the disaster is beyond the eligible scope of work and is not eligible for reimbursement. Consequently, I am denying this appeal. The basis for my determination is contained in the enclosed appeal analysis.

Please inform the applicant of my determination. In accordance with the appeal procedure governing appeal decisions made on or after May 8, 1998, my decision constitutes the final decision on this matter. The current appeal procedure was published as a final rule in the Federal Register on April 8, 1998. It amends 44 CFR 206.206.

Sincerely,

/S/

Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate

Enclosure

cc: Martha Z. Whetstone
Regional Director
Region IX

Appeal Analysis

Background

Extensive runoff, resulting from heavy rains in January 1995, saturated and eroded a hillside near the Anthony Chabot Skyline Stables. As the saturated slope slid, it formed a substantial gully and damaged a 30-inch storm drain culvert imbedded in the hillside. On February 25, 1995, representatives from the Federal Emergency Management Agency (FEMA), the California Office of Emergency Services (OES), and the East Bay Regional Park District (subgrantee) inspected the eroded hillside. The inspectors prepared category G Damage Survey Report (DSR) 15127 for $57,521 to construct a storm drainage system, replace 200 feet of the damaged culvert, and repair and stabilize the slope. Upon review, the DSR was found ineligible because repairs to the damage site, which was a hillside adjacent to Redwood Road -a road functionally classified as a major collector roadway- could potentially fall under the jurisdiction of the Federal Highway Administration (FHWA). The subgrantee requested funding from FHWA, but was denied assistance because the road sustained no damage from the landslide.

On August 3, 1995, the inspection team re-inspected the damage site and prepared category D DSR 70840 for $29,371 to replace DSR 15127 with a reduced scope of work. The FEMA inspector determined that slope stabilization as described in the original DSR represented an improvement over pre-disaster condition, thereby reducing the scope of work to include a contract for construction of a drainage system, grading of the hillside, transportation of drainage rock, and associated engineering costs. During eligibility review, DSR 70840 was decreased to $11,939 because the construction of a drainage system constituted an improved project. As a result, the scope of work was further reduced to include only the replacement of 105 feet of the damaged 30-inch CMP culvert and regrading of the hillside above the slide to drain runoff away from the eroded slope. The material procured in the process of regrading was to be used to fill the gully.

The applicant requested a supplement to DSR 70840 on the grounds that the construction of a new drainage system did not represent an improvement over pre-disaster condition. FEMA re-inspected the site on February 2, 1996, and prepared category G DSR 17820 in the amount $35,781, to supplement DSR 70840. This supplemental DSR brought the total amount obligated for this project to $47,720. The revised scope of work covered excavation of the eroded hillside, replacement of lost fill, replacement of 165 feet of the damaged 30-inch CMP and hydroseed of the area to control erosion. Excluded from the scope of work was the requested subdrainage costs, which would include extensive slope stabilization, excavation, and engineering services, because the proposed drainage system would be an improvement over the pre-disaster condition. The applicant was informed that improved projects are subject to the funding limitation outlined in 44 CFR 206.203 (d)(1).

The subgrantee accepted a low bid of $43,621 from Niles Freeman Excavating on March 19, 1996, for repair of the eroded hillside and damaged culvert. Two months later, on May 20, 1996, the applicant issued a change order in the amount $27,412, increasing the contract total to $71,033. The subgrantee requested FEMA prepare a DSR to supplement DSR 17820. FEMA denied the request on the basis that the increase in costs included the construction of a subdrainage system that did not exist prior to the slope failure.

First Appeal

The State supported and forwarded the applicant's December 6, 1996, letter appealing DSR 17820 on March 17, 1997. In the letter, the subgrantee claimed that the completed project did not represent an improvement over pre-existing condition. Included with the appeal was a spreadsheet enumerating a total project cost of $86,313; this amount was divided into four categories: 1) Import/ Fill/ Earthwork/ Excavation/ Clear & Grub/ CMP 30" Removal and Replacement, 2) Rockfill/ Local Material/ Haul, 3) Design/ Engineering/ Maintenance, and 4) Erosion Control/ Hydro-Seeding. The subgrantee stated that there was no change to the scope of work specified in DSR 17820 rather the increased total expenditures reflected a cost overrun.

In a September 22, 1997, response, the Regional Director denied the appeal on the grounds that information, which FEMA had repeatedly requested, detailing the extent of work completed had not been provided by the subgrantee. The letter stated that the items identified on the spreadsheet are not specific enough to show what time, materials, and equipment were needed to complete the scope of work on DSR 17820. Similarly, the plans submitted to FEMA were not detailed enough to show either the pre-disaster or post-repair length, diameter, or position of the damaged drainage culvert. Although the subgrantee claimed that the increase in expenditures represented a cost overrun, the applicant did not provide justification explaining why actual repair cost substantially exceeded estimated costs. The Regional Director concluded that the project represented an improvement over the approved scope of work and was, therefore, not eligible for additional funding.

Second Appeal

In a second appeal letter submitted to the Office of Emergency Services (OES) on December 12, 1997, the subgrantee stated that each category identified in the first appeal for the slope repair project, completed on September 24, 1996, corresponds to the eligible work described in the DSR. OES forwarded the appeal to FEMA on February 10, 1998, with a letter supporting the applicant's assertion that the subgrantee has provided the requested information substantiating the claim that the completed repairs did not constitute an improvement over the pre-existing function of the drain system.

On February 11, 1998, the applicant submitted additional information consisting of three reasons they believed justified the replacement of the original 30" CMP drainage culvert with a 36" diameter HDPE pipe. Although the replacement with a larger pipe increased the total project cost by approximately $1,000, the applicant believed the improvement was justified as a cost effective measure because the 36" pipe has a 60% greater flow capacity. Second, USDA-SCS charts recommend a 36" culvert for drainage areas of 50 acres; however, the drainage area for this project is roughly 35 acres of steep terrain. The third reason provided was the convenience of installation on account of the outer diameter of the existing 30" culvert matched the inner diameter of the 36" culvert.


Discussion

Pursuant to 44 CFR 206.206, the applicant's appeal shall contain documented justification supporting the subgrantee's position. The increase in the diameter of the culvert represents an improved project and is subject to the funding limitations of 206.203 (d)(1). However, this relatively negligible increase to the overall project cost does not address the specific information FEMA has repeatedly requested regarding expenditures made in the repair of the facility. The information that the applicant has submitted does not explain why actual costs exceeded projected costs by more than 80%. FEMA has requested documentation describing the scope of work completed, including a breakdown of the costs listed in the payment requests. Neither the change orders nor the spreadsheet submitted with the first appeal contains enough detail to adequately describe changes to the approved scope of work or the extent of work performed.

The scope of work described on DSR 17820 defines the extent of permanent work eligible for reimbursement. Permanent work is that restorative work that must be performed through repairs or replacement, to restore an eligible facility cod scope of work, which exceed the eligible cost estimate, must be documented to justify the preparation of a supplemental DSR. Any work performed that exceeds the repairs described by the eligible scope of work represent an improved project and Federal funding for the project is limited to the Federal share of the approved estimate of eligible costs.

Conclusion

East Bay Regional Parks District has not provided sufficient information justifying the increase in project costs. The documentation submitted does not adequately describe the scope of work completed and whether the additional costs were essential to restoring the facility to pre-disaster design. The subgrantee's second appeal is denied.
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