Hetch Hetchy Early Intake Switchyard

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1155-DR
ApplicantCity and County of San Francisco
Appeal TypeSecond
PA ID#075-00000
PW ID#65987
Date Signed2006-03-31T05:00:00

Citation:

FEMA-1155-DR-CA; City and County of San Francisco; Hetch Hetchy Early Intake Switchyard, DSR 65987
 

Cross-reference:

Eligible scope of work, environmental compliance, time requirements for submitting appeals
 

Summary:

High flows in the Tuolumne River eroded the adjacent slopes, affecting the support and stability of the upslope Hetch Hetchy Early Intake Switchyard facility. Based on a geotechnical study and contractor bids, the Applicant proposed a method of repair involving the installation of a soldier pile wall along a 500-foot length, estimated at $3,112,560. FEMA reviewed the information but concluded that, based on the overall site stability, a properly rebuilt, armored slope would be sufficient. On September 14, 1998, FEMA obligated Category D DSR 65987 to fund the restoration of a 200-foot length of the eroded slopes using placement of riprap in the amount of $164,016. The Applicant constructed the drilled soldier pile wall along the full length of the switchyard (500-foot length) between the period of June 2, 1997 and December 15, 1998, at a cost of $3,743,269. On March 4, 2002, almost 3½ years after the work was completed, the Applicant submitted a request for supplemental funding to cover the cost of the actual work completed. The Region conducted a technical and post-construction environmental review and determined that the eligible scope of work was not completed, and that it could not provide environmental clearance for the completed work. FEMA prepared DSR 92618 in the amount of $164,016 to deobligate funding provided in the original DSR. The Applicant submitted a first appeal requesting funding for the constructed scope. The Acting Regional Director denied the appeal, stating that the scope of work in DSR 65987 was sufficient and that the appeal was submitted five years after the regulatory deadline. The second appeal asserts that the original scope did not thoroughly document all damage and that the repair scheme was impractical, infeasible, and unsafe, and requests FEMA reconsider funding the actual cost of the completed scope of work in the amount of $3,793,805 based on the merits of the project rather than regulatory timeframes.
 

Issues:

(1) Is there sufficient justification to support reconsideration of funding work identified almost 3½ years after it was completed?
 

Findings:

(1) No, the Applicant has not provided additional information to support its appeal position beyond that which was provided in its first appeal, nor have it demonstrated extenuating circumstances to merit further extensive review of its appeal five years after the regulatory timeframe for appeal submissions.
 

Rationale:

44 CFR §206.202 (d), 44 CFR §206.206

Appeal Letter

March 31, 2006

Mr. Henry R. Renteria
Governor’s Office of Emergency Services
Public Assistance Section
3650 Schriever Avenue
Mather, CA 95741-95655

Re: Second Appeal – City and County of San Francisco, PA ID 075-00000
Hetch Hetchy Early Intake Switchyard, FEMA-1155-DR-CA, Damage Survey Report (DSR) 65987

Dear Mr. Renteria:

This letter is in response to the referenced second appeal transmitted by your letter dated February 14, 2005. In its appeal, the City and County of San Francisco (Applicant) requested that the Federal Emergency Management Agency reconsider funding the actual cost of the completed scope of work for the referenced project in the amount of $3,793,805 based on the merits of the project rather than the regulatory timeframes. The Applicant asserts that the original DSR does not thoroughly document all damage and that the funded repair scheme is impractical, infeasible, and unsafe.

As explained in the enclosed analysis, based on a review of the information provided in the Applicant’s second appeal, I have concluded that the Applicant has not provided additional information to support its appeal position beyond that which was provided in their first appeal. Review of the information provided found no basis to alter our earlier determination that the scope of work in DSR 65987 was sufficient. The Applicant’s appeal is denied.

Please inform the Applicant of my decision. My determination constitutes a final decision of this matter pursuant to 44 CFR §206.206.

Sincerely,
/S/
David Garratt
Acting Director of Recovery
Federal Emergency Management Agency

Enclosure

cc: Karen E. Armes
Acting Regional Director
FEMA, Region IX

Appeal Analysis

BACKGROUND

As a result of the severe storms and flooding in January 1997 (FEMA-1155-DR-CA), high flows in the Tuolumne River eroded the adjacent slopes, affecting the support and stability of the upslope Hetch Hetchy Early Intake Switchyard facility. The City and County of San Francisco (Applicant) requested funding for slope repair from the Federal Emergency Management Agency (FEMA).

On April 8, 1997, FEMA performed a site inspection with the California Governor’s Office of Emergency Services (OES) and the Applicant. The Applicant provided a geotechnical report dated February 27, 1997, prepared by Treadwell and Rollo, Inc., that addressed the disaster damages and provided design criteria for repair of the slope. The report recommended repair of a 450-foot length of the slope, including earth slopes and a portion below an existing cribwall. The Applicant informed FEMA that it had solicited bids from prospective contractors and proposed a method of repair involving the installation of a soldier pile wall along a 500-foot length, estimated at $3,112,560. FEMA reviewed the geotechnical report but concluded that, based on the overall site stability, a properly rebuilt, armored slope would be sufficient. FEMA prepared Category D Damage Survey Report (DSR) 65987 to fund the restoration of a 200-foot length of the eroded slopes using placement of riprap in the amount of $164,016. The Applicant submitted a non-concurrence of this scope on September 25, 1997. The DSR had been suspended pending further review and was obligated on September 21, 1998.

The Applicant initiated the construction of a drilled soldier pile wall along the full length of the switchyard (500 feet) on June 2, 1997. The project was completed on December 15, 1998, at a cost of $3,743,269.

On March 4, 2002, more than five years after the disaster, and almost 3½ years after the work was completed, the Applicant submitted a request for supplemental funding to cover the cost of the actual work completed. The Applicant asserted that the scope of work and cost estimate of the original DSR contained gross errors and omissions in that the damage was much more extensive than documented in the DSR. The Applicant cited erosion that occurred along 450 feet rather than 200 feet, stating that the flooding also eroded the embankment below the bin-wall and undercut the foundation of the bin-wall, and destroyed the access road that ran the length of the Switchyard. The Applicant stated that it performed an emergency repair plan to repair the slopes, using a simplified environmental approach and permitting procedures that were adopted by State and Federal agencies in response to the disaster damage in California and Nevada. OES conducted a technical analysis, described in a July 8, 2002 report, indicating that the work performed by the applicant “appears to be more elaborate than needed in some areas, but the majority of the work was completed using the best available solution. Since the work completed is more effective in the long run, it may be considered a cost-effective mitigation measure. However, the applicant has not provided a cost breakout that would substantiate such a benefit.”

In response to the Applicant’s request, FEMA conducted a post-construction site inspection and assessment of environmental compliance. In a July 25, 2003, memorandum, the FEMA Region IX Environmental Officer stated that substantial improvements were made without allowing the agency an opportunity to perform the required programmatic and environmental reviews. Consideration was given to applying the original statutory exclusion clearance, but both the larger than pre-disaster repair scope of work and the lack of clearance under all other substantive and applicable laws and statutes (National Historic Preservation Act [NHPA], Endangered Species Act [ESA]-Section 7, Executive Order [EO] 11988, etc.), precluded this possibility. The assessment included research to determine if the project obtained environmental clearance by another Federal agency through another comparable process. This attempt was unsuccessful, since the general permit under Section 404 of the Clean Water Act was not site-specific, did not address special considerations, was expired at the time of construction, and its applicability in terms of emergency in-kind repairs was questionable. The review concluded that FEMA could not provide any environmental clearance for DSR 65987, for both the improvements and the original scope of work (which was not performed).

On September 2, 2003, FEMA prepared and obligated DSR 92618 in the amount of $164,016 to deobligate funding provided in the original DSR. The deobligation DSR stated “Scope of work was not completed. Subgrantee elected to construct an improved project without allowing the opportunity for program or National Environmental Policy Act compliance review.”

First Appeal

On May 13, 2004, the Applicant submitted a first appeal letter, which was forwarded by OES to FEMA Region IX on July 12, 2004. The Applicant stated that the original DSR contained gross errors and omissions, and that although they did not do all environmental reviews, their method of repair was less detrimental than the method proposed in the DSR. The Applicant further stated that the project was not an Improved Project. OES concurred with the Applicant’s appeal.

The Acting Regional Director denied the appeal in a letter dated October 15, 2004, stating that FEMA had previously concluded that the scope of work provided in DSR 65987 was sufficient. The letter further indicated that the Applicant submitted its appeal five years after the regulatory deadline.

Second Appeal

The Applicant submitted a second appeal of FEMA’s determination to OES on December 16, 2004, transmitted by the State in a letter dated February 14, 2005. The Applicant again is requesting that FEMA fund the actual cost of the completed scope of work in the amount of $3,793,805. The Applicant asserts that the original DSR does not thoroughly document all damage and the funded repair scheme is impractical, infeasible, and unsafe.

DISCUSSION

The primary issue of the Applicant’s appeal is FEMA’s determination to not fund the soldier pile wall constructed to repair the eroded slopes adjacent to the upslope Hetch Hetchy Early Intake Switchyard facility. The Applicant asserts that FEMA based this determination on administrative deadlines rather than the merits of the project. Each of the Applicant’s positions is described below.

Administrative Deadlines versus Project Merit

The Applicant asserted that FEMA created a false perception of cooperation and misled OES and the Applicant, who have since expended considerable State and local resources to pursue supplemental funding. The Applicant references a November 26, 2001, meeting where the Applicant made it “absolutely clear” that if FEMA’s position was to deny supplemental funding because of administrative issues, the Applicant would not expend the resources necessary to pursue funding. The appeal letter states that FEMA provided assurances that its evaluation of supplemental requests would focus on the merits of the individual request, but that instead, FEMA’s sole basis for denial of the first appeal is that the Applicant failed to meet an administrative deadline.

FEMA Regional IX reviewed the project information, including both the technical and environmental compliance aspects of the project. The Acting Regional Director found no basis for overturning the previous determinations based on their merit, and further, found no extenuating circumstances to support the Applicant’s request for reconsideration more than five years after the deadline had passed.

Non-compliance with Environmental Requirements
orl review was not completed prior to construction. The Applicant references a section within a memorandum prepared by FEMA’s Technical Assistance Contractor that states “The appropriate agencies were not contacted with regard to the NHPA or the ESA. However, it appears that the project was completed without effect to cultural resources or federally listed species.” Therefore, the Applicant is of the opinion that the post-construction environmental review would support funding of the project.

It should be noted that this statement alone does not form the basis of the Region IX Environmental Officer’s determination. As stated earlier in this analysis, it was also found that the Applicant initiated work under a non-site-specific permit under Section 404 of the Clean Water Act, which did not address special considerations, was expired at the time of construction, and the applicability of which in terms of emergency in-kind repairs was questionable. While consideration was given to applying the original statutory exclusion clearance, the larger than pre-disaster repair scope of work, and the lack of clearance under all other substantive and applicable laws and statutes precluded this possibility. In review of the second appeal documentation, the Applicant has not provided any information or justification to alter this determination.

Improved Project

The Applicant does not concur with FEMA’s reference in DSR 92618 to the project being an Improved Project. It is noted that this reference to an Improved Project is based on the Applicant’s completion of work beyond that which was found eligible in DSR 65987, both in extent of work and method of repair. Other than the fact that the completed work significantly exceeded the scope of eligible work, the reference to the work being an “Improved Project” has no specific bearing on the determination of ineligibility.

Change in Scope of Work

The Applicant asserts that the scope of work originally funded in DSR 65987 did not address all damage and was not sufficient to adequately repair the damage. FEMA prepared the DSR based on damage observed at the site inspection and after review of the Applicant’s geotechnical report. The proposed (and completed) repair was found to be excessive for the observed damage both in extent (length) and in method.

Title 44 of the Code of Federal Regulations (44 CFR) Sections 206.202(d) and 206.206 require that additional damage not reported on the DSR be identified within 60 days of the site visit, and appeals of any determination be submitted within 60 days of receipt of a notice of action (such as the obligation of the DSR), respectively. These regulations are in place to provide the applicant the opportunity to ensure all damage is accurately documented and a reasonable method of repair is funded. The limiting timeframes are intended to allow the identification and resolution of issues in a timely manner, allowing work to proceed as needed. Notification of any change in the eligible scope of work is also required prior to beginning construction, to allow FEMA the opportunity to complete required environmental and historic preservation regulatory compliance reviews. FEMA will consider submissions after these timeframes if the Applicant can demonstrate that extenuating circumstances were present to prevent the Applicant from submitting within the regulatory timeframes.

FEMA has consistently informed the Applicant that the initial scope of work was found sufficient and that the proposed work was considered excessive and not eligible for funding. The Applicant proceeded with the construction, beginning the work on June 2, 1997. The Applicant did submit a non-concurrence of FEMA’s determination of the eligible work on September 25, 1997; however, it is noted that this was submitted almost 4 months after the work was initiated. The work was completed on December 15, 1998. It was not until March 4, 2002, almost 3½ years after the work was completed, that the Applicant submitted a formal request for supplemental funding to cover the cost of the actual work completed. FEMA conducted a technical and environmental review at that time, but concluded that the additional work was not eligible and did not comply with environmental regulations. The first appeal was then submitted more than two years after the request for the supplemental funding, over five years after the deadline for the appeal submittal.

As indicated above, FEMA may consider submission for additional funding after the timeframes if the Applicant can demonstrate that extenuating circumstances were present to prevent the Applicant from submitting within the regulatory timeframes. The requests made to date, including the March 2002 request for supplemental funding and the first and second appeal letters, have provided no discussion regarding circumstances that prevented submission of timely requests. As such, this review of the appeal documentation finds no basis to reconsider the determinations made.

Reference to September 27, 1997 letter

The Applicant’s appeal letter indicates that a September 27, 1997, letter was referenced in FEMA’s first appeal response and expressed concern that this letter could not be produced. The appeal letter did indicate “On September 27, 1997, the City submitted a letter requesting a change in the scope of work described in DSR 65978, stating that the work completed was the "Best Design" for prevention of future damage to the switchyard.” Review of the documentation concurs with the Applicant that this reference is inaccurate. It appears that the Regional Director was referring to the September 19, 1997, letter from Treadwell and Rollo that indicated that the work performed was best suited for the site, referencing the criteria provided in their engineering report dated February 27, 1997.
CONCLUSION

Based on a review of the information provided in the Applicant’s second appeal, the Applicant has not provided additional information to support its appeal position beyond that which was provided in its first appeal, nor has it demonstrated extenuating circumstances to merit further extensive review of the appeal five years after the regulatory timeframe for appeal submissions. Review of the information provided found no basis to alter our earlier determination of ineligibility. The Applicant’s appeal is denied.

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