Debris Removal from Basin E at Marina Del Ray
Appeal Brief
Appeal Letter
Citation: Appeal Analysis; Second Appeal; LA County DPW; California; FEMA-1044-DR-CA, PA 037-91012
Cross-Reference: Northridge Earthquake; DSR 20271; Debris Removal; Sediment Contamination; 133 cubic yards (CY)
Facts: Following the winter storms of 1995, FEMA prepared DSR 20271 for $52,974 for removal of 133 CY of debris that accumulated in Basin E at Marina Del Rey. Upon review, FEMA determined that the facility was within the authority of the U.S. Army Corps of Engineers (USACE), and reduced DSR 20271 to $0. The State transmitted the first appeal on June 24, 1996, requesting reinstatement of full funding under DSR 20271 based on section 403 of the Stafford Act, and submitted supporting documentation to demonstrate that the facility is not under the jurisdiction of USACE. The Regional Director acknowledged that the subgrantee was legally responsible for maintenance of the facility. However, she denied the appeal pursuant to 44 CFR 206.224(a)(1)&(2) and determined that the debris removal was not in the public interest. On July 28, 1997, the State forwarded the second appeal, contending that the debris removal is an eligible expense because it is in the public interest and an aid to the economic recovery of the public and private sectors pursuant to 44 CFR 206.224(a)(2)&(3). FEMA's current policy on marina permits funding for removal of disaster-related debris deposition if the subgrantee can demonstrate that the facility is maintained and if pre- and post-disaster levels of sedimentation can be determined.
Issue:
Appeal Brief
| Disaster | FEMA-1044-DR |
| Applicant | Los Angeles County, Department of Public Works |
| Appeal Type | Second |
| PA ID# | 037-91012 |
| PW ID# | 20271 |
| Date Signed | 1998-02-23T05:00:00 |
Cross-Reference: Northridge Earthquake; DSR 20271; Debris Removal; Sediment Contamination; 133 cubic yards (CY)
Facts: Following the winter storms of 1995, FEMA prepared DSR 20271 for $52,974 for removal of 133 CY of debris that accumulated in Basin E at Marina Del Rey. Upon review, FEMA determined that the facility was within the authority of the U.S. Army Corps of Engineers (USACE), and reduced DSR 20271 to $0. The State transmitted the first appeal on June 24, 1996, requesting reinstatement of full funding under DSR 20271 based on section 403 of the Stafford Act, and submitted supporting documentation to demonstrate that the facility is not under the jurisdiction of USACE. The Regional Director acknowledged that the subgrantee was legally responsible for maintenance of the facility. However, she denied the appeal pursuant to 44 CFR 206.224(a)(1)&(2) and determined that the debris removal was not in the public interest. On July 28, 1997, the State forwarded the second appeal, contending that the debris removal is an eligible expense because it is in the public interest and an aid to the economic recovery of the public and private sectors pursuant to 44 CFR 206.224(a)(2)&(3). FEMA's current policy on marina permits funding for removal of disaster-related debris deposition if the subgrantee can demonstrate that the facility is maintained and if pre- and post-disaster levels of sedimentation can be determined.
Issue:
- Did the subgrantee demonstrate that the facility was maintained?
- Were pre- and post-disaster levels of sedimentation determined?
- Yes. The 1994 survey and the bid proposal to clean out the sediments confirm maintenance of the facility prior to the disaster.
- Yes. A first survey in April 1994 indicated that 303 CY of debris had accumulated prior to the disaster, and a second survey in June 1995 revealed that a total of 436 CY of debris was deposited. Therefore, the disaster-related debris is 133 CY.
Appeal Letter
February 23, 1998
Mr. Gilbert Najera
Governor's Office of Emergency Services
Disaster Assistance Program Branch
74 North Pasadena Avenue, West Annex, Second Floor
Pasadena, California 91103-3678
Dear Mr. Najera:
This is in response to your letter dated July 28, 1997, to the Federal Emergency Management Agency (FEMA). With that letter, you forwarded a second appeal of damage survey report (DSR) 20271 under FEMA-1044-DR-CA on behalf of the Los Angeles County Department of Public Works (DPW). DPW is requesting reinstatement of $52,974 under DSR 20271 for removal of 133 cubic yards (CY) of debris that accumulated in Basin E at Marina Del Rey.
Following the winter storms of 1995, FEMA prepared DSR 20271 for $52,974 for removal of 133 CY of debris that accumulated in the marina basin. Upon review, FEMA determined that the removal of the debris was related to a flood control work facility that was under the jurisdiction of the U.S. Army Corps of Engineers (USACE) and reduced the DSR to $0. The State transmitted the subgrantee's first appeal on June 24, 1996. The subgrantee included supporting documentation to demonstrate that the facility did not fall under the jurisdiction of USACE. The applicant also requested reinstatement of DSR 20271 for $52,974 based on section 403 of the Stafford Act, which authorizes FEMA to provide federal assistance to eligible subgrantees for the purpose of performing emergency protective measures, including debris removal. The Regional Director acknowledged that the marina basin was not within the authority of USACE and the subgrantee was legally responsible for maintenance of the basin. However, she denied the first appeal on September 23, 1996, pursuant to Title 44 of the Code of Federal Regulations (CFR) section 206.224(a)(1)&(2). The Regional Director determined that the debris removal was not in the public interest because the subgrantee did not demonstrate immediate threats to life, public health and safety or of significant damage to improved public or private property.
On July 28, 1997, the State forwarded the second appeal on behalf of the subgrantee. The applicant contends that the blockage of the storm drain outlets in Basin E is clearly a threat to public safety and therefore, an eligible expense in accordance with 44 CFR 206.224(a)(2). The subgrantee claims that if this debris were allowed to further accumulate, the outlets of the storm drains could be obstructed and the surrounding areas would be flooded during subsequent storms. Therefore, blockage of the storm drain outlets constitutes a threat to public safety. The subgrantee also asserts that removal of the sediments is an eligible expense, according to 44 CFR 206.224(a)(3), because it is an aid to the economic recovery of the public and private sectors.
FEMA's current policy on marinas permits funding for removal of disaster-related debris deposition if the subgrantee can demonstrate that the facility is maintained and if pre- and post-disaster levels of sedimentation can be determined. According to the documentation submitted by the subgrantee, it appears that the pre- and post-disaster levels of sedimentation have been surveyed. A survey of the shoal at the outlet of the storm drain was performed in April of 1994, and indicates that 303 CY of debris had accumulated in Basin E prior to the winter storms of 1995. In June of 1995, a second survey of the shoal was performed and revealed that a total of 436 CY of debris were deposited in Basin E. The difference between the two surveys indicates that 133 CY of debris was deposited by the winter storms of 1995. In the later months of 1994, a set of shoal excavation plans was developed by the subgrantee and issued for bids. A bidder was selected and the contract was awarded for removal of the 303 CY of debris. Just prior to the contractor's execution of the contract, the winter storms of 1995 occurred, preventing the commencement of work.
Based on the above, maintenance of the facility is confirmed by the 1994 survey and bid proposal to clean out the sediments in the basin prior to the disaster, and the subgrantee has demonstrated that the pre- and post-disaster levels of sedimentation have been surveyed. Therefore, debris removal is eligible for FEMA assistance. However, the unit costs listed in DSR 20271 for debris removal totaling $398.30 per CY are unusually high. These unit costs were obtained from the contractor's price for the original debris removal work and provided for special handling, treatment, transportation and disposal of contaminated sediments because hazardous wastes were found at concentrations higher than allowed. We have reviewed the information submitted with the second appeal and have determined that the contamination is disaster-related and therefore, the special handling, treatment, transportation and disposal of the disaster sediments are eligible expenses. Having made that determination, there is a concern regarding the contractor's costs. According to the guidelines of the Office of Management and Budget (OMB), FEMA can reimburse reasonable costs. One of the criteria used in determining reasonable costs is whether or not a contract was awarded on a competitively bid basis as required by 44 CFR 13.36(c). The applicant did not provide any information indicating that the original contract for debris removal was awarded on a competitively bid basis. Further, the unit costs charged by the contractor (especially dredging and transportation) significantly exceed what might be considered reasonable when compared to average published costs.
According to the 1997 Means Building Construction Cost Data, the cost for dredging using a barge mounted clamshell including mobilization and demobilization is $76.00 per CY. The contractor's estimated cost of $33.62 per CY for debris special handling and treatment is allowed based on the method that will be used to neutralize the high salt concentration in the sediments. Per the 1997 Means Building Construction Cost Data, hazardous waste transportation cost for a 25 CY truckload is $4.35 per mile. The applicant indicated that the dumpsite is located approximately 150 miles from the Marina Del Rey. Therefore, it would require six truckloads to transport 133 CY of debris, and the total transportation cost would then be $3,915.00 (6 x $4.35 x 150 miles) or $29.43 per CY. The landfill fees of $113.69 per CY are also allowed. Accordingly, I am approving the appeal at the rate of $252.74 per CY for debris special handling, treatment, transportation and disposal of 133 CY, totaling $33,614.42. By copy of this letter, I am requesting the Regional Director to prepare a DSR for $33,614.42.
Please inform the applicant of my determination. The applicant may submit a third appeal to the Director of FEMA. The appeal must be submitted through your office and the Regional Director within 60 days of receipt of this determination.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
cc: Acting Regional Director
FEMA Region IX
Mr. Gilbert Najera
Governor's Office of Emergency Services
Disaster Assistance Program Branch
74 North Pasadena Avenue, West Annex, Second Floor
Pasadena, California 91103-3678
Dear Mr. Najera:
This is in response to your letter dated July 28, 1997, to the Federal Emergency Management Agency (FEMA). With that letter, you forwarded a second appeal of damage survey report (DSR) 20271 under FEMA-1044-DR-CA on behalf of the Los Angeles County Department of Public Works (DPW). DPW is requesting reinstatement of $52,974 under DSR 20271 for removal of 133 cubic yards (CY) of debris that accumulated in Basin E at Marina Del Rey.
Following the winter storms of 1995, FEMA prepared DSR 20271 for $52,974 for removal of 133 CY of debris that accumulated in the marina basin. Upon review, FEMA determined that the removal of the debris was related to a flood control work facility that was under the jurisdiction of the U.S. Army Corps of Engineers (USACE) and reduced the DSR to $0. The State transmitted the subgrantee's first appeal on June 24, 1996. The subgrantee included supporting documentation to demonstrate that the facility did not fall under the jurisdiction of USACE. The applicant also requested reinstatement of DSR 20271 for $52,974 based on section 403 of the Stafford Act, which authorizes FEMA to provide federal assistance to eligible subgrantees for the purpose of performing emergency protective measures, including debris removal. The Regional Director acknowledged that the marina basin was not within the authority of USACE and the subgrantee was legally responsible for maintenance of the basin. However, she denied the first appeal on September 23, 1996, pursuant to Title 44 of the Code of Federal Regulations (CFR) section 206.224(a)(1)&(2). The Regional Director determined that the debris removal was not in the public interest because the subgrantee did not demonstrate immediate threats to life, public health and safety or of significant damage to improved public or private property.
On July 28, 1997, the State forwarded the second appeal on behalf of the subgrantee. The applicant contends that the blockage of the storm drain outlets in Basin E is clearly a threat to public safety and therefore, an eligible expense in accordance with 44 CFR 206.224(a)(2). The subgrantee claims that if this debris were allowed to further accumulate, the outlets of the storm drains could be obstructed and the surrounding areas would be flooded during subsequent storms. Therefore, blockage of the storm drain outlets constitutes a threat to public safety. The subgrantee also asserts that removal of the sediments is an eligible expense, according to 44 CFR 206.224(a)(3), because it is an aid to the economic recovery of the public and private sectors.
FEMA's current policy on marinas permits funding for removal of disaster-related debris deposition if the subgrantee can demonstrate that the facility is maintained and if pre- and post-disaster levels of sedimentation can be determined. According to the documentation submitted by the subgrantee, it appears that the pre- and post-disaster levels of sedimentation have been surveyed. A survey of the shoal at the outlet of the storm drain was performed in April of 1994, and indicates that 303 CY of debris had accumulated in Basin E prior to the winter storms of 1995. In June of 1995, a second survey of the shoal was performed and revealed that a total of 436 CY of debris were deposited in Basin E. The difference between the two surveys indicates that 133 CY of debris was deposited by the winter storms of 1995. In the later months of 1994, a set of shoal excavation plans was developed by the subgrantee and issued for bids. A bidder was selected and the contract was awarded for removal of the 303 CY of debris. Just prior to the contractor's execution of the contract, the winter storms of 1995 occurred, preventing the commencement of work.
Based on the above, maintenance of the facility is confirmed by the 1994 survey and bid proposal to clean out the sediments in the basin prior to the disaster, and the subgrantee has demonstrated that the pre- and post-disaster levels of sedimentation have been surveyed. Therefore, debris removal is eligible for FEMA assistance. However, the unit costs listed in DSR 20271 for debris removal totaling $398.30 per CY are unusually high. These unit costs were obtained from the contractor's price for the original debris removal work and provided for special handling, treatment, transportation and disposal of contaminated sediments because hazardous wastes were found at concentrations higher than allowed. We have reviewed the information submitted with the second appeal and have determined that the contamination is disaster-related and therefore, the special handling, treatment, transportation and disposal of the disaster sediments are eligible expenses. Having made that determination, there is a concern regarding the contractor's costs. According to the guidelines of the Office of Management and Budget (OMB), FEMA can reimburse reasonable costs. One of the criteria used in determining reasonable costs is whether or not a contract was awarded on a competitively bid basis as required by 44 CFR 13.36(c). The applicant did not provide any information indicating that the original contract for debris removal was awarded on a competitively bid basis. Further, the unit costs charged by the contractor (especially dredging and transportation) significantly exceed what might be considered reasonable when compared to average published costs.
According to the 1997 Means Building Construction Cost Data, the cost for dredging using a barge mounted clamshell including mobilization and demobilization is $76.00 per CY. The contractor's estimated cost of $33.62 per CY for debris special handling and treatment is allowed based on the method that will be used to neutralize the high salt concentration in the sediments. Per the 1997 Means Building Construction Cost Data, hazardous waste transportation cost for a 25 CY truckload is $4.35 per mile. The applicant indicated that the dumpsite is located approximately 150 miles from the Marina Del Rey. Therefore, it would require six truckloads to transport 133 CY of debris, and the total transportation cost would then be $3,915.00 (6 x $4.35 x 150 miles) or $29.43 per CY. The landfill fees of $113.69 per CY are also allowed. Accordingly, I am approving the appeal at the rate of $252.74 per CY for debris special handling, treatment, transportation and disposal of 133 CY, totaling $33,614.42. By copy of this letter, I am requesting the Regional Director to prepare a DSR for $33,614.42.
Please inform the applicant of my determination. The applicant may submit a third appeal to the Director of FEMA. The appeal must be submitted through your office and the Regional Director within 60 days of receipt of this determination.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
cc: Acting Regional Director
FEMA Region IX
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