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Second Appeal Letter
PA ID# 000-UH96N-00; East Bay Regional Park District
PW ID# 3444; Great House Portal
January 24, 2011
Governor's Authorized Representative
California Emergency Management Agency
Response and Recovery Division
3650 Schriever Avenue
Mather, CA 95655
Re: Second Appeal–East Bay Regional Park District, PA ID 000-UH96N-00,
Great House Portal, FEMA-1628-DR-CA, Project Worksheet (PW) 3444
Dear Mr. Maruyama:
This letter is in response to your letters dated March 26, 2010 and April 28, 2010, which transmitted the referenced second appeal on behalf of the East Bay Regional Park District (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of a scope of work change for PW 3444.
Severe storms from December 17, 2005, through January 3, 2006, saturated the soil above the Great House Portal of the Black Diamond Mine which resulted in a cave in. The storms damaged the front of the portal, 75 timber support sets along 100 feet of the tunnel, and a portion of a 12 foot wide retaining wall. Pursuant to California Code of Regulations, Title 8, Article 14 §8445 (b) Fire Prevention and Control, noncombustible material must be used in all shafts and tunnel openings used for public access. Subsequently, the tunnel’s damaged support structures cannot be repaired with timber. On April 24, 2006, FEMA prepared PW 3444 for $195,906 to repair the damaged portal using shotcrete and steel sets with 12 feet wide spiles. FEMA also included repairs to the damaged 12 foot retaining wall. On January 22, 2008, the Applicant requested a change in the PW’s scope of work. The Applicant proposed to install a new retaining wall 112 feet wide and 14 feet high, new stairs, and repair 104 feet of utilities that were not damaged by the storm. FEMA denied the Applicant’s request on June 16, 2008, and advised the Applicant that its request constituted an improved project.
In its first appeal, submitted August 14, 2008, the Applicant restated its proposal to change the scope of work. The Applicant argued that it is necessary to construct a new 112 feet wide retaining wall to secure the soil and prevent future erosion. In addition, the Applicant proposed constructing a new portal structure 16 feet south of the existing portal. According to the Applicant, these changes are required in order to comply with state fire resistance standards. The Deputy Regional Administrator determined that the proposed scope of work constituted an improved project and denied the Applicant’s appeal on August 14, 2009.
The Applicant submitted its second appeal on November 4, 2009. The Applicant maintained that it is necessary to change the scope of work in order to restore the portal to its pre-disaster condition and comply with applicable codes and standards. To support its claim, the Applicant submitted copies of State codes and standards. The Applicant also claimed that FEMA ignored damage to the portal when preparing the PW’s scope of work. However, FEMA included all disaster damages when it prepared PW 3444. The Applicant has acknowledged that the utilities and stairs were not damaged by the storm. Moreover, the retaining wall was only 12 feet wide prior to the storm. Creating a new portal, installing stairs, and constructing a new retaining wall 112 feet wide goes beyond the work necessary to restore the facility to its pre-disaster condition. FEMA has allowed for compliance with applicable State codes and standards by determining that replacing the damaged timber sets with shotcrete and steel spiles is eligible. The Applicant indicates that its engineering consultant, Jacob’s Associates, has stated that constructing a new retaining wall with stairs and repairing 104 linear feet of tunnel including utilities is the most practical method to restore the portal entrance. However, it should be noted that the Applicant contracted with Jacob’s Associates prior to the declared storm to develop a conceptual design to rehabilitate the portal. The items that the Applicant has requested in its proposed scope of work change were first identified in the report that Jacob’ Associates prepared prior to the storm. Finally, the Applicant referenced the Office of Inspector General’s (OIG) informal recommendation that a new portal be constructed instead of repairing the existing structure. OIG’s recommendation does not contradict the Deputy Regional Administrator’s determination that the proposed scope of work constitutes an improved project. In order to be eligible for PA funding the work must be necessary to restore the damaged facility to its pre-disaster design, function, and capacity.
I have reviewed the documentation submitted with this appeal and determined that the Deputy Regional Administrator’s denial of the Applicant’s request for a change in the scope of work is consistent with PA regulations and policy. Accordingly, I am denying the second appeal.
Please inform the Applicant of my decision. This determination constitutes the final decision on this matter as set forth in Title 44 Code of Federal Regulations §206.206, Appeals.
Acting Assistant Administrator
cc: Nancy Ward
FEMA Region IX