San Gabriel Mountain Water Pipeline Repair
Appeal Brief
Appeal Letter
Appeal Analysis
Citation: FEMA-1008-DR-CA; Rubio Cañon Land and Water Association; DSRs 01470, 01176, 32961
Cross-reference: Hazard mitigation, NEPA compliance
Summary: The 1994 Northridge Earthquake damaged a section of the Rubio Cañon Land and Water Association's (RCLWA's) steel water main that runs through the San Gabriel Mountains. FEMA approved Damage Survey Report (DSR) 01176 for $31,766 and DSR 32961 for $240,443 for the replacement of 200 feet of 4" pipe and construction of a 200-foot 2'X2' bench. The contractor replaced 350 feet of pipe and constructed a 200-foot bench that ranged from 2 to 8 feet wide. During construction, the contractor deposited thousands of cubic yards of rock spoils in the base of the canyon, impacting waterfalls, hiking trails and areas that are on the National Register of Historic Places. FEMA denied the applicant's request for an additional $198,800 in project costs, because the completed project exceeded the scope of work in the approved DSR and because the project caused an adverse impact on the environment. RCLWA claimed, in its October 13, 1999 appeal letter, that the constructed project did not exceed the approved scope of work described in the DSR, as the additional work was required to create a safe work environment. FEMA denied the first appeal in a letter dated March 10, 2000 for the same reasons it denied RCLWA's initial request. FEMA deobligated all funding for the project because the completed project exceeded the approved scope of work and was completed in violation of NEPA. RCLWA submitted a second appeal by letter dated May 22, 2000. It requested $198,800 in supplemental funds, reinstatement of $277,382 previously approved and subsequently de-obligated (first appeal), $62,400 for an environmental study and a time extension to complete the project and any remediation related to the rock spoils in the canyon.
Issues: Did the work completed by the contractor exceed the approved scope of work on DSR 32961?
Findings: Yes, the contractor significantly exceeded the approved scope of work. Furthermore, the resulting debris discarded in the canyon resulted in a NEPA violation.
Rationale: 44 CFR §10 and 44 CFR §206.226
The Northridge earthquake damaged a section of the Rubio Cañon Land and Water Association's (RCLWA's) water conveyance system through the San Gabriel Mountains in the Angeles National Forest. FEMA funded an engineering study to determine the extent of damage and a cost-effective repair, which was used to write the scope of work to repair the damaged section of pipe. On February 4, 1997, FEMA approved Damage Survey Report (DSR) 01176 for $31,766 to repair 200 linear feet of 4-inch pipe and 80 feet of hillside benching as a mitigation measure. Supplemental DSR 32961 was approved for $240,443 on December 5, 1997, to reflect the low bid for the job. The approved scope of work was the replacement of 200 feet of 4" pipe and construction of a 200-foot 2'X2' bench. The contractor replaced 350 feet of pipe and constructed a 200-foot bench that ranged from 2 to 8 feet wide. The contractor began construction on April 15, 1998, and completed the project on December 3, 1998.
During construction, the contractor deposited thousands of cubic yards of rock spoil in the base of the canyon, impacting waterfalls, hiking trails and areas that are on the National Register of Historic Places. FEMA subsequently denied the applicant's request for an additional $198,800 in project costs, because FEMA determined that the completed project exceeded the scope of work in the approved DSR; FEMA did not have an opportunity to perform an environmental review of the modified scope of work pursuant to the National Environmental Policy Act (NEPA); and the project caused an adverse impact on the environment. FEMA also denied the applicant's request for $62,400 to conduct an environmental assessment of the project, including the rock spoils in the canyon.
By letter dated October 13, 1999, RCLWA appealed FEMA's denial of funding for the pipeline project and the mitigation study. It claimed that the constructed project did not exceed the approved scope of work described in the DSR, as extremely hazardous conditions at the site dictated the amount of rock removed, and blasting was used because conventional methods failed to complete the work. RCLWA also stated that 547 working days elapsed between March 12, 1996, when the engineering report was completed and April 15, 1998, when construction began. It reasoned that FEMA had sufficient time to conduct its NEPA review. FEMA denied the first appeal in a letter dated March 10, 2000, for the same reasons it denied RCLWA's initial request. FEMA also informed RCLWA that funding for the project was in jeopardy because the completed project exceeded the approved scope of work and was completed in violation of NEPA. FEMA subsequently deobligated all funding for the project.
RCLWA submitted a second appeal by letter dated May 22, 2000. It requested $198,800 in supplemental funds, reinstatement of $277,382 previously approved and subsequently de-obligated (first appeal), $62,400 for an environmental study and a time extension to complete the project and any remediation related to the rock spoils in the canyon. It asserted that FEMA's determination that the project exceeded the scope of work because the bench was 2 to 8 feet wide was unfounded. Further, RCLWA insisted it sought funding to replace a certain length of pipeline, not a certain width of bench. RCLWA affirmed that the pipeline was replaced and the bench width, construction method and rock spoils are ancillary to that fact. RCLWA stated that FEMA, not RCLWA, was responsible for NEPA compliance. Therefore, FEMA should restore funding for the project. In addition, it maintained that FEMA should fund the environmental assessment because FEMA will be asked to remove the rock spoils if the court does not force the contractor to remove it or the contractor declares bankruptcy. Lastly, it asserted that FEMA should grant the time extensions because its initial request was submitted within the regulatory timeframe and the work has since been completed. It also requested a time extension to complete activities related to the rock spoil.
California's Office of Emergency Services (OES) supported RCLWA's appeal in a letter dated July 17, 2000. OES also stated that FEMA should fund the project pursuant to 44 CFR §206.223 (e), which allows FEMA to provide assistance for damages caused by third party negligence. RCLWA stated that the contractor is liable for the rock spoils because it violated the terms of its contract, which expressly precluded the contractor from depositing debris on other properties.
DISCUSSION
Perliter & Ingalsbe's engineering report dated January 5, 1996, recommended the following actions to repair and protect the damaged water line: (1) removing overhanging loose rock and other potentially unstable material within the rockslide area by blasting (approximately 5,000 square-foot area); (2) placing a wire mesh over a 10,000 square-foot area for slope protection; and (3) constructing a level bench to protect the pipe from future slides. FEMA used this report to prepare DSR 01176 for $31,766, which approved the benching but denied assistance for blasting and wire mesh. The DSR writer reasoned that blasting the loose rock and placing a wire mesh over the slide area achieved the same objective as benching. Since the latter was more cost effective and had the least environmental impact, the former activities were considered ineligible. Regarding blasting, the engineering report states in part, "This should create a safer environment for the work along the alignment and for the pipe itself." It appears that removal of a certain amount of loose overhanging rock needed to be accomplished for safety reasons, regardless of how the water line was repaired. The report does not estimate the quantities of rock to be removed for safety reasons associated with the 5,000 square-foot-area or the 10,000 square-foot area. It appears that the DSR writer considered removal of overhanging rock and constructing the bench as mutual exclusive options.
44 CFR Part 10, Environmental Considerations, requires FEMA to act with care in carrying out its responsibilities to assure that all practical means and measures are used to protect, restore, and enhance the quality of the environment and to avoid or minimize adverse environmental consequences. A note on DSR 01176 (February 4, 1997) stated that the applicant is required to provide evidence of compliance to complete the NEPA review and should not begin work before FEMA notifies it that the NEPA review was completed. A note on DSR 32961 (December 5, 1997), which approved an additional $240,443 for the project, states that the hillside alteration and site construction activities shall be in compliance with U.S. Department of Forestry and NEPA regulations. The approved scope of work received a NEPA review and FEMA considered the project to be categorically excluded from NEPA. The U.S. Forest Service, which owns the parkland, stated in a letter dated February 28, 1996, to Rubio Canon that the work qualified as an "emergency action" and was, therefore, excluded from further NEPA documentation.
In the first appeal response, FEMA acknowledged that the increase in pipe length did not constitute an increased scope of work. However, it concluded that grading associated with building a wider bench did constitute a change in scope of work. It also concluded that the removal of overhanging and unstable rock and the blasting and cutting into the hillside some 200 feet above the bench were in excess of what was provided for in the applicable DSRs. Since RCLWA exceeded the approved scope of work without allowing FEMA the opportunity to conduct a NEPA review, the Regional Director de-obligated all funding for the project.
FEMA prepared DSR 32961 based on the low bid the RCLWA received. The bid schedule included a lump sue um for each 50-foot section of pipe replaced over 150 feet. The contract did not specify how much rock the contractor was to remove or how the contractor planned to construct the bench, or how the contractor was to provide for the safety of its workers. The contract did recognize that there would be rock spoils. Therefore, the contract contained a provision that the contractor should not place any spoil material on privately or publicly owned property without first obtaining the owner's permission. The engineering report, upon which the DSR was based, did not contain an estimate of the amount of rock to be removed from the project area. Notwithstanding the above, we can conclude that FEMA did not anticipate that thousands of cubic yards of debris would be deposited in the canyon as a result of the project.
There is no dispute that thousands of cubic yards of rock debris were deposited in the canyon. Also, there is no dispute that historic waterfalls and a stream were adversely impacted by the debris. Depositing debris in a waterway may be a violation of the Clean Water Act. In addition, the debris poses a safety threat to users of the canyon. This project was completed in a manner that was not consistent with FEMA's policy on environmental compliance as articulated in 44 CFR §10.4. When a project is not in compliance with FEMA's environmental policy, FEMA can withdraw funding for that project.
OES stated that the contractor violated the terms of its contract when it deposited rock debris in the canyon. Therefore, the "damage" was caused by a third party. It also stated that the applicant would cooperate with FEMA in conducting an environmental assessment of the debris pile. Accordingly, OES requested that FEMA fund the project in accordance with 44 CFR §206.223 (e). This provision of the regulations allows FEMA to provide assistance to applicants to repair damage caused by third-party negligence, provided the applicant assists FEMA in recovering the repair costs. This provision does not apply in this case for two reasons. First, the applicant hired the contractor. For purposes of this provision, the applicant and contractor are considered the same entity. Therefore, the contractor is not considered a third party. Second, the provision contemplated damage to an eligible facility. A violation of environmental policy is not considered "damage" to an eligible facility.
CONCLUSION
As the work performed in accomplishing this project exceeded the approved scope of work, and ultimately resulted in a violation of NEPA, I support the Regional Director's decision to deobligate funding for the repair of the waterline, and to deny the applicant's request for a time extension to complete the project. Furthermore, the applicant requested $62,400 to fund an environmental assessment of the rock debris pile. Since the rock debris violates FEMA's environmental policy, it is the applicant's responsibility to mitigate the adverse effect. This cost is not eligible for FEMA reimbursement. This appeal is denied.
Appeal Brief
| Disaster | FEMA-1008-DR |
| Applicant | Rubio Cañon Land and Water Association |
| Appeal Type | Second |
| PA ID# | 037-90106 |
| PW ID# | 01470, 01176, 32961 |
| Date Signed | 2001-05-17T04:00:00 |
Appeal Letter
May 17, 2001
Mr. D. A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
PO Box 419023
Rancho Cordova, California 95741-9023
Re: Second Appeal - Rubio Cañon Land and Water Association, PA-ID # 037-90106, FEMA-1008-DR-CA, San Gabriel Mountain Water Pipeline Repair, DSRs 01470, 01176, 32961
Dear Mr. Christian:
This is in response to your July 22, 2000, letter forwarding the referenced appeal. The Rubio Cañon Land and Water Association (RCLWA) is appealing the Regional Director's determination that the work performed on the pipeline repair project exceeded the approved scope of work on Damage Survey Report (DSR) 32961, resulting in a violation of the National Environmental Policy Act (NEPA). Accordingly, FEMA de-obligated all federal disaster recovery funds associated with the project. In the appeal letters, RCLWA requests re-obligation of $277,382, a time extension to complete work, $198,000 for a cost overrun, and $62,400 for a remediation study associated with debris accumulation in Rubio Cañon.
Based on a review of all information submitted with this appeal, as explained in the enclosed analysis, I have determined that I have no basis for overturning the Regional Director's decision on the first appeal. Therefore, I deny the second appeal.
Please inform the applicant of this determination. My decision constitutes the final decision on this matter as set forth in 44 CFR §206.206.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Enclosure
cc: Karen Armes
Acting Regional Director
FEMA Region IX
Mr. D. A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
PO Box 419023
Rancho Cordova, California 95741-9023
Re: Second Appeal - Rubio Cañon Land and Water Association, PA-ID # 037-90106, FEMA-1008-DR-CA, San Gabriel Mountain Water Pipeline Repair, DSRs 01470, 01176, 32961
Dear Mr. Christian:
This is in response to your July 22, 2000, letter forwarding the referenced appeal. The Rubio Cañon Land and Water Association (RCLWA) is appealing the Regional Director's determination that the work performed on the pipeline repair project exceeded the approved scope of work on Damage Survey Report (DSR) 32961, resulting in a violation of the National Environmental Policy Act (NEPA). Accordingly, FEMA de-obligated all federal disaster recovery funds associated with the project. In the appeal letters, RCLWA requests re-obligation of $277,382, a time extension to complete work, $198,000 for a cost overrun, and $62,400 for a remediation study associated with debris accumulation in Rubio Cañon.
Based on a review of all information submitted with this appeal, as explained in the enclosed analysis, I have determined that I have no basis for overturning the Regional Director's decision on the first appeal. Therefore, I deny the second appeal.
Please inform the applicant of this determination. My decision constitutes the final decision on this matter as set forth in 44 CFR §206.206.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Enclosure
cc: Karen Armes
Acting Regional Director
FEMA Region IX
Appeal Analysis
BACKGROUNDThe Northridge earthquake damaged a section of the Rubio Cañon Land and Water Association's (RCLWA's) water conveyance system through the San Gabriel Mountains in the Angeles National Forest. FEMA funded an engineering study to determine the extent of damage and a cost-effective repair, which was used to write the scope of work to repair the damaged section of pipe. On February 4, 1997, FEMA approved Damage Survey Report (DSR) 01176 for $31,766 to repair 200 linear feet of 4-inch pipe and 80 feet of hillside benching as a mitigation measure. Supplemental DSR 32961 was approved for $240,443 on December 5, 1997, to reflect the low bid for the job. The approved scope of work was the replacement of 200 feet of 4" pipe and construction of a 200-foot 2'X2' bench. The contractor replaced 350 feet of pipe and constructed a 200-foot bench that ranged from 2 to 8 feet wide. The contractor began construction on April 15, 1998, and completed the project on December 3, 1998.
During construction, the contractor deposited thousands of cubic yards of rock spoil in the base of the canyon, impacting waterfalls, hiking trails and areas that are on the National Register of Historic Places. FEMA subsequently denied the applicant's request for an additional $198,800 in project costs, because FEMA determined that the completed project exceeded the scope of work in the approved DSR; FEMA did not have an opportunity to perform an environmental review of the modified scope of work pursuant to the National Environmental Policy Act (NEPA); and the project caused an adverse impact on the environment. FEMA also denied the applicant's request for $62,400 to conduct an environmental assessment of the project, including the rock spoils in the canyon.
By letter dated October 13, 1999, RCLWA appealed FEMA's denial of funding for the pipeline project and the mitigation study. It claimed that the constructed project did not exceed the approved scope of work described in the DSR, as extremely hazardous conditions at the site dictated the amount of rock removed, and blasting was used because conventional methods failed to complete the work. RCLWA also stated that 547 working days elapsed between March 12, 1996, when the engineering report was completed and April 15, 1998, when construction began. It reasoned that FEMA had sufficient time to conduct its NEPA review. FEMA denied the first appeal in a letter dated March 10, 2000, for the same reasons it denied RCLWA's initial request. FEMA also informed RCLWA that funding for the project was in jeopardy because the completed project exceeded the approved scope of work and was completed in violation of NEPA. FEMA subsequently deobligated all funding for the project.
RCLWA submitted a second appeal by letter dated May 22, 2000. It requested $198,800 in supplemental funds, reinstatement of $277,382 previously approved and subsequently de-obligated (first appeal), $62,400 for an environmental study and a time extension to complete the project and any remediation related to the rock spoils in the canyon. It asserted that FEMA's determination that the project exceeded the scope of work because the bench was 2 to 8 feet wide was unfounded. Further, RCLWA insisted it sought funding to replace a certain length of pipeline, not a certain width of bench. RCLWA affirmed that the pipeline was replaced and the bench width, construction method and rock spoils are ancillary to that fact. RCLWA stated that FEMA, not RCLWA, was responsible for NEPA compliance. Therefore, FEMA should restore funding for the project. In addition, it maintained that FEMA should fund the environmental assessment because FEMA will be asked to remove the rock spoils if the court does not force the contractor to remove it or the contractor declares bankruptcy. Lastly, it asserted that FEMA should grant the time extensions because its initial request was submitted within the regulatory timeframe and the work has since been completed. It also requested a time extension to complete activities related to the rock spoil.
California's Office of Emergency Services (OES) supported RCLWA's appeal in a letter dated July 17, 2000. OES also stated that FEMA should fund the project pursuant to 44 CFR §206.223 (e), which allows FEMA to provide assistance for damages caused by third party negligence. RCLWA stated that the contractor is liable for the rock spoils because it violated the terms of its contract, which expressly precluded the contractor from depositing debris on other properties.
DISCUSSION
Perliter & Ingalsbe's engineering report dated January 5, 1996, recommended the following actions to repair and protect the damaged water line: (1) removing overhanging loose rock and other potentially unstable material within the rockslide area by blasting (approximately 5,000 square-foot area); (2) placing a wire mesh over a 10,000 square-foot area for slope protection; and (3) constructing a level bench to protect the pipe from future slides. FEMA used this report to prepare DSR 01176 for $31,766, which approved the benching but denied assistance for blasting and wire mesh. The DSR writer reasoned that blasting the loose rock and placing a wire mesh over the slide area achieved the same objective as benching. Since the latter was more cost effective and had the least environmental impact, the former activities were considered ineligible. Regarding blasting, the engineering report states in part, "This should create a safer environment for the work along the alignment and for the pipe itself." It appears that removal of a certain amount of loose overhanging rock needed to be accomplished for safety reasons, regardless of how the water line was repaired. The report does not estimate the quantities of rock to be removed for safety reasons associated with the 5,000 square-foot-area or the 10,000 square-foot area. It appears that the DSR writer considered removal of overhanging rock and constructing the bench as mutual exclusive options.
44 CFR Part 10, Environmental Considerations, requires FEMA to act with care in carrying out its responsibilities to assure that all practical means and measures are used to protect, restore, and enhance the quality of the environment and to avoid or minimize adverse environmental consequences. A note on DSR 01176 (February 4, 1997) stated that the applicant is required to provide evidence of compliance to complete the NEPA review and should not begin work before FEMA notifies it that the NEPA review was completed. A note on DSR 32961 (December 5, 1997), which approved an additional $240,443 for the project, states that the hillside alteration and site construction activities shall be in compliance with U.S. Department of Forestry and NEPA regulations. The approved scope of work received a NEPA review and FEMA considered the project to be categorically excluded from NEPA. The U.S. Forest Service, which owns the parkland, stated in a letter dated February 28, 1996, to Rubio Canon that the work qualified as an "emergency action" and was, therefore, excluded from further NEPA documentation.
In the first appeal response, FEMA acknowledged that the increase in pipe length did not constitute an increased scope of work. However, it concluded that grading associated with building a wider bench did constitute a change in scope of work. It also concluded that the removal of overhanging and unstable rock and the blasting and cutting into the hillside some 200 feet above the bench were in excess of what was provided for in the applicable DSRs. Since RCLWA exceeded the approved scope of work without allowing FEMA the opportunity to conduct a NEPA review, the Regional Director de-obligated all funding for the project.
FEMA prepared DSR 32961 based on the low bid the RCLWA received. The bid schedule included a lump sue um for each 50-foot section of pipe replaced over 150 feet. The contract did not specify how much rock the contractor was to remove or how the contractor planned to construct the bench, or how the contractor was to provide for the safety of its workers. The contract did recognize that there would be rock spoils. Therefore, the contract contained a provision that the contractor should not place any spoil material on privately or publicly owned property without first obtaining the owner's permission. The engineering report, upon which the DSR was based, did not contain an estimate of the amount of rock to be removed from the project area. Notwithstanding the above, we can conclude that FEMA did not anticipate that thousands of cubic yards of debris would be deposited in the canyon as a result of the project.
There is no dispute that thousands of cubic yards of rock debris were deposited in the canyon. Also, there is no dispute that historic waterfalls and a stream were adversely impacted by the debris. Depositing debris in a waterway may be a violation of the Clean Water Act. In addition, the debris poses a safety threat to users of the canyon. This project was completed in a manner that was not consistent with FEMA's policy on environmental compliance as articulated in 44 CFR §10.4. When a project is not in compliance with FEMA's environmental policy, FEMA can withdraw funding for that project.
OES stated that the contractor violated the terms of its contract when it deposited rock debris in the canyon. Therefore, the "damage" was caused by a third party. It also stated that the applicant would cooperate with FEMA in conducting an environmental assessment of the debris pile. Accordingly, OES requested that FEMA fund the project in accordance with 44 CFR §206.223 (e). This provision of the regulations allows FEMA to provide assistance to applicants to repair damage caused by third-party negligence, provided the applicant assists FEMA in recovering the repair costs. This provision does not apply in this case for two reasons. First, the applicant hired the contractor. For purposes of this provision, the applicant and contractor are considered the same entity. Therefore, the contractor is not considered a third party. Second, the provision contemplated damage to an eligible facility. A violation of environmental policy is not considered "damage" to an eligible facility.
CONCLUSION
As the work performed in accomplishing this project exceeded the approved scope of work, and ultimately resulted in a violation of NEPA, I support the Regional Director's decision to deobligate funding for the repair of the waterline, and to deny the applicant's request for a time extension to complete the project. Furthermore, the applicant requested $62,400 to fund an environmental assessment of the rock debris pile. Since the rock debris violates FEMA's environmental policy, it is the applicant's responsibility to mitigate the adverse effect. This cost is not eligible for FEMA reimbursement. This appeal is denied.
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