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Second Appeal Letter
PA ID# 055-99055-00; Napa County
PW ID# 3223; Circle Oaks Drive Embankment
March 11, 2010
Governor’s Authorized Representative
Office of the Secretary
California Office of Emergency Services
3650 Schriever Avenue
Mather, California 95655
Re: Second Appeal–Napa County, PA ID 055-99055-00, Circle Oaks Drive Embankment,
FEMA-1628-DR-CA, Project Worksheet (PW) 3223
Dear Mr. McCarton:
This letter is in response to your letter dated December 16, 2008, which transmitted the referenced second appeal on behalf of Napa County (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of an additional $401,105 for embankment repairs on Circle Oak Drive.
On December 30, 2005, heavy rain saturated the soils of the west road embankment at 245 Circle Oaks Drive. As a result, a 90-foot section of the adjacent slope failed. The same slope failed in 1993 and the Applicant built a retaining wall to protect a residence. FEMA approved PW 3223 on July 17, 2006, for $341,403 to perform a limited geotechnical study; install a 16-foot tall steel tie-back retaining wall and drainage system; restore the integral ground immediately below the damaged portion of the road; and restore the road paving. The Grantee requested that FEMA close out the project in a letter dated October 9, 2007. The Applicant presented project costs of $742,408. During the review of project documentation, FEMA determined that the scope of work of the project that the Applicant constructed exceeded the approved scope of work contained in PW 3223. Therefore, FEMA denied the Applicant’s request for an additional $401,005 for the project on October 19, 2007.
In a letter dated January 14, 2008, the Applicant submitted its first appeal. The Applicant asserted that it did not exceed the approved scope of work; did not stabilize a landslide; and made no improvements at the project site. In a letter dated August 15, 2008, the Deputy Regional Administrator denied the first appeal.
In its second appeal dated October 23, 2008, the Applicant asserts that it limited its work to restoring the original natural integral ground supporting the road. It stated that it only performed work necessary to restore the pre-disaster road and drainage system. The Applicant stated it removed the damaged drainage system and replaced it to current materials necessitated by site conditions.
Response and Recovery Directorate Policy 9524.2, Landslide Policy Relating to Public Facilities, dated August 17, 1999, states that FEMA will not fund work to stabilize a natural slope or restore ground that is not integral to the support of an eligible facility. The Applicant excavated approximately 90 feet down to the base of the existing retaining wall and reconstructed the slope. The Applicant performed work beyond that which was necessary to stabilize the integral ground for the road, the eligible facility. Based on the review of the documentation that the Applicant provided, I have determined that the scope of the completed project exceeded the approved scope of work in PW 3223. In accordance 44 CFR § 206.203, Federal grant assistance, FEMA considers the project to be an improved project. FEMA assistance for improved projects is limited to the Federal share of the estimated cost approved in the PW. The Deputy Regional Administrator’s decision in the first appeal is consistent with Public Assistance regulations and policy. Accordingly, I am denying the second appeal.
Please inform the Applicant of my decision. This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals.
Elizabeth A. Zimmerman
cc: Nancy Ward
FEMA Region IX