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Second Appeal Analysis
PA ID# 013-91048; Contra Costa Transportation Authority
DSR ID# 28472,28473,28474,28478; Landslide on State Route 4 (Willow Pass Project)
Several years ago (1992 or 1993) the Contra Costa Transportation Authority (CCTA) began work on the Willow Pass Project along State Route 4. The project consisted of lowering the roadway grade and widening the pass to accommodate the extension of the Bay Area Rail Transit (BART) system in the median of the highway and the addition of two new traffic lanes. A BART access road and park district bicycle trail were also being constructed on the hillside adjacent to the westbound lanes of the highway. The project was funded through a Contra Costa County retail and use tax initiative. On September 15, 1994, well into construction operations, a landslide occurred on the upslope of the westbound hillside. CCTA, their contractor, the California Department of Transportation (Caltrans), and various consultants held meetings to formulate a repair plan and cost estimate. Reconstruction and stabilization of the slope, including an underground drainage system, began in the months immediately following the slide.
Excessive ground moisture conditions associated with the winter storms of January 1995 (1044-DR-CA) caused further landslide activity on the westbound slope. One slide occurred in the area where stabilization activities were being conducted, severely damaging three trenches used to tie-in replacement material for that lost during the September 1994 slide with the remaining clay material. Two of these trenches had been completed and the associated drainage system installed. Two other slides occurred just west of the stabilization area, damaging the grade for the bicycle path. Debris was also deposited throughout the area, including on State Route 4 and in the drainage ditches along the highway.
The FEMA inspection team prepared four damage survey reports (DSRs) to cover the costs associated with emergency and permanent repair of the damage caused by the winter storms. Such repair included mud and debris removal from State Route 4, the BART access road, the bicycle path, and the highway drainage system; slope stabilization; rerouting of the BART access road; repair of the bicycle path; and replacement of various components of the hillside drainage system. During DSR preparation, FEMA determined that the work was not eligible for funding because all of the damage occurred in the right-of-way of State Route 4. This highway is on the Federal Aid System (FAS) and therefore under the specific authority of the Federal Highway Administration (FHWA). A detailed summary of work and an associated cost estimate for the repair of damage were not performed.
On March 20, 1996, the California Office of Emergency Services (State) submitted CCTA's first appeal of FEMA's decision not to fund repair of the damage caused by the winter storms. CCTA appealed the decision on the basis that the repair did not meet the eligibility criteria for FHWA funding and submitted a copy of FHWA's September 19, 1995, determination letter. FEMA denied the appeal in accordance with Section 312 of the Stafford Act and implementing regulation 44 CFR 206.226 which prohibits disaster assistance for work that falls within the jurisdiction of another Federal agency. FEMA noted that this restriction applies even if the agency does not provide assistance. In the June 4, 1996, denial letter, FEMA also outlined several other laws, regulations, and policies that prohibit funding of the CCTA repair. The issues involved included the emergency nature of debris removal, the pre-disaster condition of the hillside, and the responsibility of CCTA versus the contractor in making repairs. These issues were not the main focus of the FEMA denial, but were discussed in the June 1996 denial so as to caution CCTA about their existence.
The State transmitted CCTA's second appeal of the denial of funding on November 14, 1996. CCTA restated its contention that the repair was not under the jurisdiction of FHWA noting that FHWA did not participate in initial funding of the Willow Pass Project. CCTA submitted a copy of a portion of an August 3, 1988, Contra Costa Transportation Improvement and Growth Management Program plan, which includes a listing and description of the then proposed rail extension, highway widening, and bicycle trail, to support where funding for the project originated. CCTA also discussed the other issues cited in the FEMA denial of the first appeal, mentioning that since FHWA had no financial involvement in the project, debris removal should be eligible for reimbursement. As for the pre-disaster condition of the hillside, CCTA stated that the slides associated with the winter storms were not related to the causes of the September 1994 slide. Additionally, CCTA submitted a copy of a portion of contract standard specifications adopted by Caltrans to support its responsibility for the repair. A March 10, 1997, memorandum to the Executive Associate Director for the Response and Recovery Directorate from the Region IX Director forwarded the second appeal.
There are several issues surrounding the eligibility of CCTA's repair. The primary issue outlined in the initial denial of the DSRs and again in the denial of the first appeal is the specific authority of FHWA over State Route 4 and its right-of-way. Also discussed in the denial of the first appeal and CCTA's second appeal letter are debris clearance, the pre-disaster condition of the hillside, and the legal responsibility of CCTA to participate in the repair. All available documentation, including that submitted by CCTA in support of its second appeal, has been reviewed in detail.
FHWA raises two points in its September 19, 1995, determination. The first is that the Emergency Relief (ER) program may pay for highway projects located within the right-of-way of FAS roadways; however, it may not be used to pay for non-highway transportation projects. This means that repair of any damage to State Highway 4 and its appurtenances (such as the drainage ditches and embankments along the highway) caused by the January storms would be eligible for ER funding. Any repair associated with the rail transit, the bicycle path, the access road, or their associated drainage systems and embankments would not be eligible. The second point is that work under contract in the construction phase is not eligible because it is the responsibility of the contractor or the State agency sponsoring the project. The only exception to this restriction may come if FHWA is a financial sponsor of the project, but as stated in their September 1995 determination and supported by the Contra Costa Transportation Improvement and Growth Management Program plan, FHWA did not fund the Willow Pass Project.
As previously discussed, Section 312 of the Stafford Act and implementing regulation 44 CFR 206.226 prohibits disaster assistance for work that falls within the jurisdiction of another Federal agency. Because all FAS roadways fall under FHWA's authority, that portion of any project associated with an FAS roadway is not eligible for FEMA funding. Furthermore, one of the definitions of a "public facility" outlined in Section 102 of the Stafford Act is "any non-Federal aid street, road, or highway." Because repair and restoration costs are only eligible when associated with a public facility, FEMA is prohibited from granting assistance for damage sustained to State Route 4.
CCTA maintains that there should not be a question about eligibility for debris removal because FHWA had no financial involvement with the Willow Pass Project. However, because State Highway 4 is not an eligible public facility, debris removal is not eligible unless necessary to eliminate immediate threats to life, public health and safety; to eliminate immediate triensure economic recovery of the affected community. This limitation is outlined in Section 407 of the Stafford Act and implementing regulation 44 CFR 206.224(a)(1). The debris in question was in a non-operational lane of the roadway and therefore did not constitute an immediate threat as outlined above. Documentation has not been submitted to support that debris caused any kind of immediate threat or economic crisis. Therefore, debris removal is not eligible for FEMA assistance.
CCTA claims that the damage caused by the January storms was not associated with the causes surrounding the September 1994 slide, but rather was due to the saturation of the slope. CCTA hired at least two geotechnical consultants to evaluate the cause of the September 1994 landslide. The consultants attributed the cause to an unstable clay layer in the geologic structure of the bedrock that induced a natural slip plane. In the minutes of an October 3, 1994, meeting and an October 10, 1994, meeting, both held at the CCTA offices, one of the geotechnical consultants noted that the landslide could have been an event "waiting to happen" because conditions along the slip plane were such that in a very rainy year, it could have slid without any disturbance from the ongoing Willow Pass Project construction. The consultant also noted that the groundwater table in the area could not be allowed to get too high or the slope would again become unstable. This condition was taken into account by adding a drainage system into the landslide repair plan. The second geotechnical consultant was apparently hired by CCTA to review the landslide repair plan. The consultant summarized its findings in a November 11, 1994, letter to CCTA in which it stated that the slip plane movement was occurring at depths greater than the planned depth of the trench excavation. The letter also noted that the risk of triggering additional movement during excavation of the trench was high.
In addition to the existing natural geologic conditions, field notes and meeting minutes prepared by CCTA's construction liaison indicate on-site construction problems during January 1995. The January 8 notes state that several parallel cracks had formed in a construction area where protective plastic cover was blown off. The notes also indicate that the new dewatering system was not adequate for the wet-season water level readings. The January 11 notes mention that to save administrative costs, CCTA's geotechnical consultants were not present during early construction for field monitoring. The notes also indicate a potential case or claim against one of the geotechnical consultants on standard of care issues. The January 24 notes state that in another construction area where slippage was seen, no protection from water damage, such as berms, fabric, or plastic, existed. These problems indicate that CCTA may not have monitored and protected construction areas as best as possible.
Section 406 of the Stafford Act notes that public facilities are eligible for repair/reconstruction if damaged by a major disaster. The implementing regulation, 44 CFR 206.223(a)(1), specifically states an item of work must be required as the result of the disaster. Given the existing weakness in the geological formation and the lack of monitoring and protection on the construction site, the pre-disaster stability of the site is questionable. Furthermore, in accordance with the March 1984 Landslide Policy, an applicant is responsible for stabilizing slopes that are proven to be naturally unstable. This means that the slope repair is not eligible.
Responsibility of Repair
CCTA claims that pursuant to Section 7-1.165 of the Caltrans Standard Specifications, the responsibility of repair falls upon themselves. The Caltrans specification states that if damage is caused by a natural disaster for which the Governor proclaims a state of emergency, the contractor can request that the State pay or participate in the damage repair. The specifications further declares that in lieu of State participate in the damage repair they may, at their sole discretion, terminate the contract and relieve the contractor of the obligation to perform the work. CCTA contends that since the contractor did apply to Caltrans for funding after the September 1994 landslide and that the repairs were funded through a cooperative agreement between Caltrans and CCTA that the project automatically becomes the responsibility of the CCTA. After reviewing the documentation submitted, the legal responsibility of CCTA has not been established. Even though CCTA did participate in funding the repair, the responsibility appears to fall on Caltrans and the contractor. Section 406(e)(2) of the Stafford Act and implementing regulation 44 CFR 206.223(a)(3) require that work be the legal responsibility of an applicant to be funded. CCTA does not have legal responsibility for the repair work.
The Willow Pass Project is in the right-of-way of an FAS highway. In accordance with Sections 102, 312, and 407 of the Stafford Act and implementing regulations of 44 CFR 206.224(a)(1) and 206.226, permanent repair and non-emergency debris removal on the highway or its appurtenances are not eligible. The pre-existing geologic weakness and lack of monitoring and protection during construction suggest that the landslides occurring after the winter storms were not caused as a direct result of the disaster. Repair costs are ineligible in accordance with 406 of the Stafford Act, 44 CFR 206.223(a)(1), and the March 1984 Landslide Policy. Furthermore, the submitted documentation suggests that legal responsibility for the repair was with Caltrans and the contractor, not CCTA. Pursuant to Section 406(e)(2) of the Stafford Act and 44 CFR 206.223(a)(3) funding cannot be provided. The appeal is denied.