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Second Appeal Analysis
PA ID# 037-99037-00; Los Angeles County
DSR ID# PW 3103; Newelll Road Repair
Winter storms in January 2005 caused a slope failure at Newell Road and Corral Canyon Road. In September 2005, FEMA prepared Project Worksheet (PW) 3103 for $854,835 to stabilize the slope and restore the unpaved shoulder. Los Angeles County (Applicant) appeals FEMA’s scope of work and funding determinations.
The outside shoulder of Newell Road sustained 350 feet of damage. But the paved road did not sustain any damage. Soil along the shoulder at the edge of the road appeared to have dropped 6 to 12 inches. Storm water draining off the road caused the soil to erode and that caused a portion of the slope below the road to wash out. A Landside Response Task Force Specialist prepared a memorandum describing the damage as relatively shallow extending an estimated 2 to 5 feet below the slope surface. Longitudinal cracks ranging in width from ¼ to 2 inches were observed along the unpaved shoulder and asphalt curb. The scope of work calls for a 360 foot long soldier pile wall, with piles 8 feet on-centers, and pre-cast reinforced concrete panels. The proposed repair was intended to provide support to the soil along the shoulder of the road, since there was no evidence that the failure affected anything more than the unpaved shoulder.
The PW file contains copies of e-mail communications between the Applicant and FEMA which indicate that FEMA had revised the scope of work before finalizing the PW because the Applicant disagreed with the PW. The total project cost increased from $558,195 to $854,835. In an e-mail from Eileen Hayes (FEMA) to Carol Kindler (Los Angeles County), dated September 8, 2005, regarding Newell Road, Hayes said, “We’ve reviewed your comments, and revised the PW to include piles driven to a greater depth ….”
The Applicant submitted the first appeal to the Office of Emergency Services (OES) on
March 29, 2006. OES forwarded the appeal to FEMA on March 29, 2006. The Applicant argued (p. 2), “… FEMA has ignored the standards of the applicant and ‘designed’ their own repair for the site which is inadequate, under funded, and obviously violates the intent of the Stafford Act.” The Applicant contended that FEMA needed to revise the scope of work to be consistent with the Applicant’s plans to repair the facility, and increase the project cost accordingly. The Applicant requested that FEMA revise the PW to include the following: (1) increase the wall length from 360 feet to 383 feet; (2) allow for an increased number of soldier piles with pile spacing varying from 6 to 10 feet on-centers; (3) allow for the pre-cast reinforced concrete panels to be replaced with a cast-in-place reinforced concrete wall with timber lagging; (4) add 70 anchored tiebacks for the 52 steel soldier piles; (5) increase the length of guardrail to 380 feet; (6) include 380 feet of cable railing; (7) increase the total quantity of excavation; (8) allow for substantially more asphalt pavement and base removal and replacement; and (9) provide 380 feet of 6-inch perforated PVC pipe and 140 feet of 6-inch non-perforated PVC pipe.
The Applicant provided the following information with the appeal: (1) a copy of a set of construction plans (reduced in size) prepared by the Los Angeles County Department of Public Works (LADPW) for Newell Road at Corral Canyon Road, Project RDC0014685, signed and sealed by a professional engineer in the state of California and dated February 23, 2006 (Title Sheet); (2) a copy of a report prepared by the Geotechnical and Materials Engineering Division of LADPW with retaining wall design recommendations for Newell Road at Corral Canyon Road dated March 29, 2006 (without attachments); (3) a line item estimate for the repair costs identified as Total Contract Estimate for Project RDC0014685 – Newell Road at Corral Canyon Road, Soldier Beam Retaining Wall w/ Tiebacks, prepared by LADPW and dated
March 16, 2006; and (4) a document (date, preparer, and agency all unidentified) with a rationale for the use a of cast-in-place concrete wall with soldier piles. The additional costs of materials and labor associated with the revised scope of work results in a total project cost of $3,176,714. The Applicant added (p. 3) “... the FEMA-placeholder funding of seven percent for design and three percent for project management.” brings the total project estimate to $3,494,385. The date on the title sheet of the construction plans is five months after the PW was prepared, with some of the other sheets dated a month later.
In the first appeal analysis, FEMA noted that the geotechnical report prepared by LADPW recommended a wall length of 375 feet, while the construction plans call for a wall length of 383 feet. FEMA also noted that the geotechnical report did not state tiebacks were necessary for construction of a wall to stabilize the site, but only that (p. 3) the retaining structure “… may be tied back with grouted ground anchors.” FEMA noted in the appeal analysis that constructing a cast-in-place wall instead of the recommended pre-cast wall would not constitute a significant change in the approved scope of work, provided wall dimensions remained the same.
The Acting Regional Director denied the appeal because the Applicant provided insufficient documentation to support its request for the additional work items outlined in the appeal. The Acting Regional Director further stated that a change in the scope of work beyond that defined in PW 3103 would require the Applicant to request an Improved Project with the Federal funding limited to the Federal share of the approved estimate of eligible costs.
The Applicant submitted the second appeal to OES on December 12, 2006. OES forwarded the appeal to FEMA on February 9, 2007. The Applicant reiterated its position regarding the need to revise the scope of work to comply with the design, along with the associated increase in the total project cost. Noting that the County’s engineer of record is responsible for the correct and appropriate repair scheme for the damaged site, the Applicant emphasized the Acting Regional Director’s response to the first appeal that “FEMA neither designs, nor is responsible for designing, methods of repair.”
In addition to copies of the PW and first appeal response, the Applicant included a complete copy of the geotechnical report prepared by the Geotechnical and Materials Engineering Division of LADPW, dated March 29, 2006, which included figures and boring logs. The estimated total project cost requested in the second appeal is $3,394,491, which decreased about three percent from the first appeal. In response to FEMA's conclusion that the Applicant provided insufficient evidence to justify revising the PW, the Applicant stated, “The report and its supporting documentation is the justification for the report’s recommendation.” The Applicant also referred to one statement in the report (p. 3) that, “The H-beams shall be adequately embedded into the competent bedrock and tied back.” The Applicant further states (p. 4), “…FEMA’s scope of work was predicated upon the assumption that competent material would be reached at 10 feet …” and “… as the geotechnical report demonstrates with the results of the site borings, competent material is not reached on the outboard slope any earlier than 30 feet.”
This appeal concerns the eligible scope of work necessary to repair the damage the Winter Storms caused and funding those repairs under the scope of work.
In the second appeal (p. 3) the Applicant states, “The County agrees with FEMA’s identification of a 350 foot slope failure. At issue, are the measures needed to adequately address the stabilization of the road.” FEMA proposed a scope of on but to also safeguard the road from a more deep seated potential failure caused by some possible future event. This conclusion is supported by e-mail communications from a representative of the Applicant.
In an e-mail from Carol Kindler (Los Angeles County) to Garrett Ingoglia (FEMA) dated August 29, 2005, regarding Newell Road, Kindler states,, “FEMA’s PW give[s] us $558,195.18 and is pretty much guaranteed to slide down the slope with the next good rains … if not this rainy season, probably with the next. We really don’t want to spend that kind of money to watch it glide down the hill with a good storm.” Ms. Kindler further states, “You will note that we have this location on our list of ‘problematic’ projects.” Then, in a subsequent e-mail communication from Carol Kindler (Los Angeles County) to Garrett Ingoglia (FEMA, dated September 6, 2005, regarding Newell Road, Ms. Kindler states, “This is a sensitive site with stabilization issues. That is why our proposed repair is what it is.”
The Applicant may implement measures that go beyond the scope of work defined in the PW; however, such measures constitute an Improved Project with the Federal funding limited to the Federal share of the approved estimate of eligible costs. In this case the Applicant argues that that its design is the only one that will work. The Applicant proposed that it is necessary to extend the soldier piles down into bedrock to arrive at a design capable of supporting the imposed loads. This may be correct to support the ground beneath the entire road, but the scope of work in the PW is to repair the damaged shoulder. The Applicant provides no evidence that its proposed project is necessary to restore the damaged shoulder. Furthermore, the Applicant provided no engineering design calculations to support its request for a mix of single and double tiebacks for the soldier pile wall, nor has the Applicant offered a technical explanation of why a wall length of 383 feet is necessary when it stated its agreement with the observed 350 feet of failed slope and its own geotechnical report only recommends a wall length of 375 feet. The Applicant has failed to demonstrate that the proposed design is reasonable and necessary.
Finally, the Applicant indicated in the second appeal (p. 4) that the design is controlled by the depth to competent material. The basis for this is probably the recommendation made in the geotechnical report (p. 4) that, “Only bedrock should be relied upon for passive resistance.” This is a conservative assumption, and the designer may assume there are definite cost implications. By their very nature, soldier piles derive the ability to carry lateral loads through their embedment in either soil or rock. While it may be desirable to embed soldier piles in rock, it is not absolutely necessary. The length and spacing of soldier piles defined in the PW scope of work should be adequate to support the mass of soil that makes up the shoulder of the road. The Applicant also wants to stabilize the ground supporting the entire road, which was not damaged by the declared event. The issue of eligibility was pointed out to the Applicant in an e-mail from Eileen Hayes (FEMA) to Carol Kindler (Los Angeles County) dated September 8, 2005, that referenced the estimated project cost in the PW, in which it was stated that, “The cost estimate is not based on the County’s proposal for anchor piles and tie backs; however, as this method exceeds the eligible scope of repair.”
FEMA prepared a scope of work to repair a shallow slope failure and restore the paved shoulder along a section of road. The Applicant proposed a scope of work that will not only restore the shoulder, but appears to protect the roadway from a deep seated potential failure caused by some possible future event. The scope of work proposed by the Applicant exceeds what is necessary to repair the disaster related damage. Consequently, the proposed work is ineligible for FEMA funding. Accordingly, the appeal is denied. Furthermore, if the Applicant completes its proposed scope of work, it will be considered an Improved Project and FEMA funding will be limited to the Federal share of the approved estimate of eligible costs in the PW.