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Second Appeal Analysis
PA ID# 073-99073-00; San Diego County
PW ID# 1098; Mussey Grade Road
Severe winter storms and flooding between December 17, 2010, and January 4, 2011, eroded the slope above Mussey Grade Road at five distinct sites, causing debris, including boulders and large rocks, to block the road. Mussey Grade Road is owned and maintained by San Diego County (Applicant) and was constructed approximately 60 years ago based on a cut-and-fill design. FEMA conducted a site visit on March 29, 2011, and prepared PW 1098 in response to the Applicant’s request for funding for slope stabilization measures to include removing loose rock and placing rock fall fencing or mesh on the slopes. FEMA determined that the slope stabilization measures were not eligible as permanent work pursuant to Recovery Policy (RP) 9524.2 Landslides and Slope Stability Related to Public Facilities published on October 8, 2010, because the slopes were not integral to the road’s support and were not integral to an eligible facility uphill. FEMA also determined that any proposed emergency protective measures at the five sites were not eligible due to the fact that at the time of the inspection, no debris was in the roadway, and no warning signs or barricades were in place that would signify a safety hazard. The Applicant submitted a cost estimate of $1.2 million for the proposed slope stabilization measures at all five sites; however, FEMA determined PW 1098 was ineligible in its entirety. FEMA obligated funding for debris removal at the five sites under a separate PW.
On January 27, 2012, the Applicant submitted a first appeal requesting $856,653 for emergency protective measures to address the immediate threat of additional damage at each of the five sites. The Applicant included a report summarizing a geotechnical investigation performed by Southern California Soil & Testing, Inc. (SCS&T) dated November 22, 2011, in support of the appeal. The report recommended a method to reduce the potential for future failures at each site. The Applicant’s proposed scopes of work submitted with the first appeal varied in both dimensions (at all five sites) and method (at three of the five sites) from the original PW. In particular, the Applicant proposed re-grading the slopes at Sites 3 and 4 and constructing geogrid-reinforced slopes at Site 5. California Emergency Management Agency (Cal EMA) forwarded the appeal to FEMA on March 26, 2012, supporting the Applicant’s appeal and stating that the work is eligible permanent work and is necessary to restore the Applicant’s right-of-way.
The FEMA Region IX Deputy Regional Administrator denied the first appeal on May 21, 2012. FEMA determined that the emergency work proposed was not eligible, citing the requirement in Title 44 of the Code of Federal Regulations (44 CFR) §206.204(c)(1), Project Performance, Deadlines, that emergency protective measures be completed within six months of the disaster declaration date unless the Applicant requests and receives a time extension from the State. No time extension request was made or approved by Cal EMA for the Mussey Grade Road project. Further, FEMA determined that the scopes of work proposed by the Applicant constitute permanent work, not emergency protective measures.
The Applicant submitted a second appeal on July 26, 2012, which requests funding in the amount of $856,653 for the restoration of five sites along Mussey Grade Road to pre-disaster condition. The Applicant states that the damage occurred to designed, improved, and maintained slopes located within its right-of-way for Mussey Grade Road. In response to FEMA’s denial of its first appeal, the Applicant states that it did not start the work due to FEMA’s requirement for environmental review prior to starting work; however, it did perform emergency protective measures at the damage sites. The Applicant installed permanent warning signs (W38 – SLIDE AREA) and monitors the road on a weekly basis during dry weather and multiple times daily during inclement weather. While the Applicant requested in its first appeal that FEMA consider the proposed scopes of work under PW 1098 as emergency protective measures, in its second appeal, the Applicant states that the work to repair the damage upslope of Mussey Grade Road is eligible as permanent work, because the cut slopes are designed, improved, and maintained.
PW 1098 describes the damage sites as cut slopes that have loose rock and rocky soil that slipped onto the road during the disaster. FEMA reimbursed the Applicant for the removal of the debris under another PW. The Applicant installed barricades and temporary warning signs until the road was cleared and then reopened the road. The Applicant subsequently installed permanent warning signs to protect the public. The work that the Applicant is proposing under PW 1098 includes slope stabilization measures at Sites 1 through 4 (re-grading slopes, removing boulders, and placing rock fall fencing or mesh on the slopes) and slope restoration work at Site 5 (constructing geogrid-reinforced embankments).
Because the Applicant is requesting funding for work generally considered emergency protective measures (re-grading and installing rock fall protection) and for slope restoration (construction of reinforced embankments), work generally considered permanent repair, the eligibility of the work with respect to each category is discussed below.
In accordance with RP 9524.2 Landslides and Slope Stability Related to Public Facilities (October 8, 2010), FEMA will fund the permanent repair or restoration of an eligible facility and its integral ground if a site is stable. The eligible facility in this case is Mussey Grade Road, which was not damaged during the declared event. All damage documented with PW 1048 is located upslope of the road in the natural ground adjacent to the road. Despite the fact that the road was designed using a cut-and-fill method, the cut slopes are not eligible facilities nor are they integral ground, because they do not provide support to the road or to any other facility. The Applicant states that the slopes are improved and maintained, but according to the PW, the Applicant has provided neither documentation demonstrating improvements to the slopes nor maintenance records for the slopes. Permanent repairs are not eligible for funding at any of the five sites, because there is no damage to an eligible facility.
While the Applicant’s second appeal no longer recognizes the proposed work as emergency protective measures, the work proposed at Sites 1-4 includes removing boulders and re-grading the slope or installing a rock fall fencing or mesh to prevent future rock falls from impacting the roadway. This work is appropriately categorized as emergency work, because its purpose is to reduce an immediate threat and not to restore the slopes.
In accordance with 44 CFR §206.225, Emergency Work and RP 9524.2 Landslides and Slope Stability Related to Public Facilities (October 8, 2010), emergency protective measures to stabilize slopes may be eligible provided the work is the least costly option and completed within six months of the declaration. To be eligible, emergency protective measures must eliminate or lessen immediate threats to life, safety, or additional damage to improved property. PW 1098 does not identify an immediate threat to life, public health, and safety, or improved public or private property. Furthermore, while the SCS&T geotechnical report recommends rock removal, the report does not clearly identify the exposed rock outcrops and boulders as an immediate danger, only that they “may be potentially unstable.” The Applicant installed warning signs along Mussey Grade Road, and while the Applicant states that it monitors the sites multiple times daily during inclement weather, it has not completed any additional emergency protective measures in the year following the event. The recommendation to reduce the potential for rock falls, while valid from the Applicant’s perspective, does not meet the criteria for emergency protective measures and is not eligible for funding.
The requested slope stabilization and restoration measures do not represent eligible emergency work because the Applicant has not demonstrated that an immediate threat exists at the sites. The work is also not eligible permanent work because the eroded slopes neither qualify as eligible facilities, nor serve as integral support of eligible facilities. Therefore, the scopes of work proposed by the Applicant at the five sites upslope of Mussey Grade County Road are not eligible for Public Assistance funding.