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Second Appeal Analysis
PA ID# 013-21796; City of El Cerrito
DSR ID# 95376; Wildcat Drive
As a result of the 1997 winter storms (FEMA-1155), a landslide occurred in the downslope hillside adjacent to Wildcat Drive, resulting in loss of one lane of roadway along a 100 ft. length section of the road, and the supporting embankment. The City of El Cerrito (subgrantee) requested disaster assistance from the Federal Emergency Management Agency (FEMA) for repair of the roadway and embankment. On February 10, 1997, an inspection team consisting of representatives from FEMA, the California Governor's Office of Emergency Services (OES), and the subgrantee visited the site to observe the disaster-related damages.
The FEMA inspector prepared Category B Damage Survey Report (DSR) 95374 in the amount of $80,620 to provide slope stabilization (sheet pile wall) for the remaining one lane of roadway in order to maintain emergency access to the adjacent residences. To restore the full width of roadway, the FEMA inspector prepared Category C DSR 95376 in the amount of $337,300. The scope of work for this DSR included construction of a permanent retaining wall to support the roadway, reconstruction of the roadway surface, curb, and gutter, and associated engineering fees. In addition to repair of the damaged site, the subgrantee requested a hazard mitigation proposal to continue the hillside stabilization effort an additional 250 linear feet along Wildcat Drive. No specific disaster related damages were reported along this additional length of roadway, rather, this length of hillside was reported as having been slipping for years. The FEMA reviewer reduced the scope of eligible work to include only repair of the disaster-damaged pavement, 2 ft. of subgrade, curb, and gutter. The basis for this reduction was as follows:
- Based on information provided by the subgrantee's geotechnical consultant, the FEMA reviewer noted that this site was underlain by an ancient landslide, such that stabilization of the slope would be the responsibility of the subgrantee. Work associated with slope stabilization, including engineering design and inspection fees, was deducted from the eligible work.
- It was found that this site had suffered similar damage during the 1995 Winter Storms (FEMA-1046). During this previous event, some minor movement of the embankment had occurred, resulting in 4 to 6 inches of subsidence of the downslope lane of the roadway. DSR 28135 was prepared under FEMA-1046 in the amount of $4,504 to repair the pavement, curb, and gutter. Although funding for this scope of work was approved on August 29, 1995, the eligible work had not been completed at the onset of the 1997 winter storms (December 28, 1996). The approved funding from DSR 28135 was deducted from the total eligible cost of DSR 95376.
- The HMP was found ineligible because it did not relate to damage caused by the 1155 disaster event. Additionally, it was noted that this same scope of work had been requested after the 1046 event, but that it was found to not be cost effective.
The total eligible cost for DSR 95376 was estimated at $15,046 (eligible repair cost of $19,550 less $4,504 for DSR 28135). The DSR was suspended pending completion of the hillside stabilization efforts by the subgrantee.
The subgrantee submitted a first appeal of FEMA's reduction of eligible work, transmitted by OES in a letter dated September 23, 1997. The subgrantee asserted that the requested scope of work is consistent with FEMA's Landslide Policy in that it is necessary to physically support the roadway, and is integral to the roadway repair. Further, the subgrantee stated that the proposed stabilization work necessary to restore the second lane of roadway should be eligible as an emergency protective measure. According to the subgrantee, the 10-foot wide temporary repair could preclude the fire department's ability to reach some of the adjacent homes should an emergency occur.
The Regional Director responded to the first appeal in a letter dated August 12, 1998. The letter stated that documentation submitted by the subgrantee had indicated that the active landslide condition had been known by the subgrantee since the 1960's, predating the development of the hillside. Although the Regional Director acknowledged that the subgrantee had not been aware of the total scope and magnitude of the problem, they were aware that movement of the area had been occurring over the past 20 years. Pursuant to the FEMA Landslide Policy, if the disaster slide occurred due to a pre-existing unstable condition, stabilization of the hillside is the responsibility of the applicant. FEMA may only provide assistance to restore the roadway section after the site has been stabilized. Further, it was found that the completed emergency measure funded under DSR 95374, restoring one lane of roadway, was sufficient to reduce a potential threat from further flooding. The single lane of roadway would provide suitable access of fire equipment until the subgrantee completed the full scope of the permanent repairs. The requested scope of work to stabilize the full width of roadway was concluded to not be eligible as an emergency protective measure. The subgrantee's appeal was denied.
The subgrantee submitted a second appeal, transmitted and supported by OES in a letter dated December 2, 1998. The subgrantee's appeal asserts that FEMA's denial of funding for the site stabilization efforts is inconsistent with the Landslide Policy. They contend that their scope of work is consistent with the "integral ground" definition per the Policy, and is the most cost effective method for restoring the site to its pre-disaster condition. The subgrantee continues to assert that the present condition of the roadway, reduced to one travel lane, poses an immediate threat. In their opinion, the roadway is subject to failure at any time and further compromises the City's ability to have public safety access to the area and homes. The subgrantee submitted a second letter to the Regional Director, dated March 17, 1999, in which they reaffirm their position of appeal.
The primary issue of this appeal is regarding the eligibility of slope stabilization efforts of the roadway embankment. The subgrantee asserts that the work is necessary to restore the function of the roadway, and that a two-lane (20 ft. wide) roadway is required to provide necessary fire equipment access. Consideration for funding this scope of work as either permanent restoration or as an emergency protective measure is provided below.
The subgrantee asserts that the denial of funding for the site stabilization efforts is inconsistent with FEMA's Landslide Policy in that the work is necessary to physically support the roadway, and is integral to the roadway repair. However, it should be understood that FEMA's denial of funding was not based on the scope of the restoration efforts, but rather on the determination that a previously existing unstable condition contributed to the disaster slide and resulting damage. Based on the information provided by the subgrantee and their geotechnical consultant, it is understood that although some fill material had been placed within the slope to facilitate construction of the roadway, the failure plane is located within the natural ground, at the interface between weathered and firm rock.
To provide guidance on determining eligible work for facilities where supporting natural ground has been damaged due to a disaster related landslide, FEMA issued the Response and Recovery Directorate Policy No. 4511.300 A - Landslide Policy Relating to Public Facilities (Landslide Policy), dated November 30, 1995. This document was the result of a revs The Landslide Policy states that, based on Section 406 of the Stafford Act, only damaged or destroyed public facilities and the related integral ground mass are eligible for restoration. This section of the policy suggests that some portion of the adjacent ground mass may be eligible for restoration, if necessary to restore the function of the facility. However, eligibility for such funding is subject to the circumstances that led to the failure, as discussed below.
According to the Landslide Policy, when the post-disaster condition of the site is unstable, then permanent restoration of the facility is eligible only after the site has been stabilized. The responsibility for stabilizing the site depends upon the cause of the post-disaster instability. If the post-disaster instability is exclusively being caused by a condition created by the disaster, then the Regional Director may provide funding to restore the function of the facility, including providing stable ground. However, if the post-disaster instability is caused, either in part or exclusively, by a condition or geologic feature that existed prior to the disaster, then the applicant is responsible for ensuring the site is stable before and after any Federal assistance is provided for permanent restoration of the facility and integral ground.
Based on the information provided by the subgrantee and their geotechnical consultant, it is understood that the hillside has been experiencing movement over the past 20 years and that the subgrantee has been making subsequent repairs to associated damage. This is supported by a detail of the recent slide, prepared by Hallenbeck & Associates, that identifies a slide that occurred in 1983, and other references to previous movement in their 1996 geotechnical report. While the subgrantee may not have been aware of the magnitude of the problem, they clearly were aware of the potential for additional slope instabilities. Note that in response to the 1046 disaster event, the subgrantee made their first request of the hazard mitigation proposal to extend a retaining wall along this length of Wildcat Drive, demonstrating their understanding that this slope was unstable. Accordingly, as the site is found to have pre-existing unstable conditions which contributed to the disaster damages, it is concluded that stabilization of the failed slope is the responsibility of the subgrantee. The eligible work is limited to restoration of the roadway section, curb, and gutter. Further discussion of the eligible scope of work is provided later in this analysis.
The subgrantee asserts that the present condition of the roadway, currently reduced to one travel lane, poses an immediate threat. In their opinion, the roadway is subject to failure at any time and further compromises the City's ability to have public safety access to the area and homes. The subgrantee stresses their obligation to protect public health and safety. On this basis, they are requesting that FEMA restore the second lane of roadway, including the slope restoration efforts, as an emergency protective measure.
Pursuant to 44 CFR 206.225(a), to be eligible for assistance, emergency protective measures must be necessary to eliminate or lessen immediate threats to life, public health or safety, or must eliminate or lessen significant damage to improved public or private property. Immediate threat is defined in 44 CFR 206.221(c) as a threat of additional damage or destruction from an event that can reasonably be expected to occur within five years. This is normally attributed to a threat which would occur due to a magnitude of flooding representative of a five year flood event. In response to the 1155 disaster event, FEMA prepared DSR 95374 to stabilize the remaining one lane of roadway in order to maintain emergency access to the adjacent residences. This level of effort is consistent with FEMA's intent for providing emergency protective measures. Although the subgrantee asserts that the "roadway is subject to failure at any time," they have provided no basis for this opinion. There is no evidence to support that the existing stabilization system is not suitably supporting the existing road section.
Secondly, the subgrantee states that the Fire Department requires a 20-ft. width roadway to ensure sufficient access of fire equipment in the event of an emergency. A February 9, 1997, letter from the El Cerrito Fire Department describes in great detail the risks for fire in this area of El Cerrito and the importance of providing suitable access to fire equipment. However, the intent of emergency protective measures is to provide temporary measures until permanent restoration is completed. Emergency measures funded to date have provided for one lane of access into the surrounding neighborhood. This temporary level of access is consistent with this intent, and has also been considered acceptable by the fire department. Additional widening of the roadway is not considered eligible as emergency work.
It is noted that the primary issue of concern in the letter from the fire department was that the temporary measure would become permanent, in that the subgrantee would not complete full restoration of the roadway. Please understand that FEMA is not suggesting that the subgrantee not restore the roadway. FEMA agrees that restoration of the full width of the roadway is necessary, and is eligible for assistance to the extent described herein.
Eligible Scope of Work
The eligible scope of work for this project is concluded to be limited to restoration of the damaged facility, not including efforts for stabilization of the slope. It is understood that the subgrantee proposes to construct a retaining structure at the road's edge to provide suitable stabilization of the roadway. For this site, the eligible facility includes the pavement, subbase, curb and gutter, and replacement of engineered fill material to the extent necessary to reconstruct the roadway inside the retaining structure. The eligible scope of work provided for in DSR 95376 includes pavement demolition, placement of 2 ft. of subgrade material beneath the pavement, and replacement of the pavement, curb, and gutter. However, because some engineered fill had been placed by the subgrantee in construction of the roadway, it is found that replacement of the lost supporting ground inside the retaining structure is eligible for funding. The subgrantee had estimated the quantity of engineered fill to be 900 cy, for a replacement cost of $18,000 ($20/cy). This quantity and cost is found to be reasonable and, therefore, eligible.
Based on a review of the documentation provided by the subgrantee, it is concluded that the stabilization of the hillside is not eligible for assistance as the slope failure was caused in part by a pre-existing unstable condition. Further, these stabilization efforts are not eligible as emergency protective measures. Eligible emergency work and permanent restoration efforts have been adequately provided for in DSRs 95374 and 95376. However, replacement of engineered fill beneath the roadway is found to be eligible. The Regional Director will prepare a supplemental DSR to provide funding for this additional scope of work (900 cy fill; eligible cost $18,000). The subgrantee's appeal is partially granted.