Landslides and Slopes Stabilization, Change in Scope of Work, Improved Project

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4308
ApplicantHumboldt County
Appeal TypeSecond
PA ID#023-99023-00
PW ID#PW 1276
Date Signed2022-11-02T16:00:00

Summary Paragraph

Humboldt County (Applicant) claimed roadway surface and subsurface damage along with outbound shoulder embankment failure along 225 linear feet of Monument Road (Facility).  FEMA prepared Project Worksheet 1276 to capture the damages and repair the Facility including an installation of a Mechanically Stabilized Embankment (MSE) wall which totaled $467,473.00.  The Applicant submitted a SOW change request to the California Office of Emergency Services (Recipient) requesting a change from an MSE wall to soldier pile wall with costs totaling $3,111,717.00.  FEMA denied the SOW Change as the work goes beyond the approved SOW, and the site had preexisting issues of slope instability, and as such, the integral ground was the responsibility of the Applicant.  The Applicant filed a first appeal stating that the soldier pile wall does not change the predisaster condition of the Facility and similar SOW changes in past disasters were approved based on geotechnical report recommendations.  Additionally, the Applicant’s contractor confirmed that the site had no history of instability and that FEMA misidentified prior disaster damage as evidence of site instability.  FEMA Region IX Regional Administrator denied the appeal, finding that: (1) the site had a history of instability prior to the disaster, and as such the integral ground was the responsibility of the Applicant; and (2) the SOW change would be considered an Improved Project with costs capped at the MSE-estimate.  The Applicant filed a second appeal reiterating first appeal arguments with a new MSE wall estimate to support revised costs..

Authorities and Second Appeals

  • Stafford Act §406.
  • 44 C.F.R. §§206.203(d)(1), 206.203(d)(2)(v), 206.204(e), 206.223(a)(1).
  • PAPPG, at 19, 107, 109, 110, 128, 129, 133, 134, 137, 138.
  • York (Town of), FEMA-4367-DR-ME, at 3.

Headnotes

  • If an eligible facility is located on a slope and is damaged as a result of a landslide or slope instability triggered by the declared incident, FEMA determines the stability of the slope that supports the facility before it approves PA funding to restore the facility.  If the site is unstable and there is no evidence of predisaster instability after the facility was constructed, permanent restoration of the facility and its integral ground is eligible.
    • The Applicant demonstrated that the integral ground was stable prior to the incident but now unstable as a result of the disaster.  Therefore, work to repair the integral ground is eligible. 
  • FEMA will generally approve changes to the scope of work if the alternative repair method is more cost-effective than the original repair method, the original repair method is not feasible, there is an increase in previously approved quantities due to errors and omissions, or hidden disaster-related damage is discovered.  An improved project is a project that restores the predisaster function, and at least the same capacity, of the damaged facility and incorporates improvements or changes to its predisaster design not required by eligible codes or standards.
    • FEMA is not granting a change to the approved scope of work, but has also re-reviewed the cost of the MSE wall and finds that the accurate cost is $2,359,983.00. Here, the Applicant’s proposal to construct a soldier pile wall rather than install an MSE wall constitutes an Improved Project. Costs are capped at the amount approved for the MSE wall-related SOW.

Conclusion

FEMA finds that the Applicant has demonstrated that the work to repair the integral ground is eligibleFEMA is not approving a change in scope of work, but has has revised the MSE wall estimate and approves costs in the amount of $2,359,983.00.  If the Applicant intends to install a soldier pile wall, it can request an Improved Project with the costs capped at the MSE-approved SOW cost.  Therefore, this appeal is partially granted. 

 

Appeal Letter

Mark S. Ghilarducci

Director

California Governor’s Office of Emergency Services

3650 Schriever Avenue

Mather, California 95655-4203

           

Re:  Second Appeal – Humboldt County, PA ID: 023-99023-00, FEMA-4308-DR-CA, Project Worksheet (PW) 1276 – Landslides and Slopes Stabilization, Change in Scope of Work, Improved Project

 

Dear Mr. Ghilarducci:

This is in response to your letter dated May 31, 2022, which transmitted the referenced second appeal on behalf of Humboldt County (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s denial of funding in the amount of $3,111,717.00 for a scope of work change request from a Mechanically Stabilized Embankment (MSE) to a soldier pile wall on an embankment repair.  

As explained in the enclosed analysis, I have determined the Applicant has demonstrated that the work to repair the integral ground is eligibleFEMA is not approving a change in scope of work, but reviewed the costs associated with installing a MSE wall estimate and increased the approved amount of funding to $2,359,983.00.  If the Applicant intends to install a soldier pile wall, it can request an Improved Project with the costs capped at the MSE wall estimate.  Therefore, this appeal is partially granted.  By copy of this letter, I am requesting the Regional Administrator to take appropriate action to implement this determination.

Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.

 

                                                                         Sincerely,

                                                                               /S/

                                                                         Ana Montero

                                                                        Division Director

                                                                        Public Assistance Division

 

Enclosure

cc:  Robert J. Fenton  

Regional Administrator

FEMA Region IX

Appeal Analysis

Background

During the incident period, February 1-23, 2017, a severe winter storm caused heavy flooding and landslides throughout California.[1]  Humboldt County (Applicant) claimed damage to its roadway surface and subsurface as well as an outbound shoulder embankment failure along 225 linear feet of Monument Road (Facility).  FEMA prepared Project Worksheet (PW) 1276 to capture the damages and reimburse costs related to repairing the roadway and the installation of a Mechanically Stabilized Embankment (MSE) wall which totaled $467,473.00. 

The Applicant submitted a Scope of Work (SOW) change request in a letter dated March 3, 2021, to the California Office of Emergency Service (Recipient).  In the request, the Applicant cited its consultant’s geotechnical report which recommended a change from an MSE wall to a soldier pile wall.  The Applicant noted the reason for this change was that the solider pile wall would result in a smaller footprint, single lane closure, lower environmental impact, and limited Right-of-Way acquisition.  The cost for the new SOW, including contractor design costs, totaled $3,111,717.00.

In a letter dated August 10, 2021, FEMA denied the SOW change request, stating it included work that went beyond the damaged Facility’s predisaster design.  Furthermore, FEMA determined that the site had preexisting issues of slope instability, and as such, stabilizing the integral ground was the responsibility of the Applicant.   

First Appeal

The Applicant appealed, in letter dated September 10, 2021, claiming the amount at issue as $2,333,976.00.  The Applicant stated stating that the soldier pile wall does not change the predisaster design (size and capacity) of the Facility and FEMA had approved similar SOW changes in past disasters based on geotechnical report recommendations.  Furthermore, the Applicant, citing the geotechnical report prepared by its contractor, Crawford and Associates (Contractor), asserted that the site had no history of slope instability and that FEMA misidentified prior disaster damage as a history of site instability.[2]  The Recipient forwarded the appeal to FEMA, in a letter dated October 29, 2021, in support of the Applicant’s position.

FEMA’s Region IX Regional Administrator denied the Applicant’s first appeal in a letter dated February 4, 2022.[3]  FEMA determined that the site had a history of instability prior to the disaster, citing the geotechnical report which noted saturation and a failed wood pile wall.  Consequently, it stated the stabilization of the integral ground was the responsibility of the Applicant.  Additionally, as the SOW change request for a soldier pile wall went beyond the approved SOW, FEMA stated it would be considered an Improved Project.

Second Appeal

The Applicant filed a second appeal in a letter dated April 13, 2022, requesting $3,111,717.00 for the SOW change request to from an MSE to a soldier pile wall.  The Applicant states that FEMA misinterpreted statements in the geotechnical report and provided a letter from its Contractor clarifying that the report stated that the site instability was directly caused by the event.  Additionally, the Applicant provided an updated MSE wall estimate for review.  The Applicant states that the soldier pile repair method is the more suitable method of repair and reiterates that a similar SOW change request had been approved in prior disasters.[4]  The Recipient forwarded the Applicant’s second appeal in a letter dated May 31, 2022, in support of the Applicant’s position.  The Recipient clarified the amount in dispute is $1,869,503.00, the additional cost for the soldier pile wall not including the already approved $473,473.00.[5]  The Recipient also stated that the cost for the MSE wall equaled $2,359,983.00, whereas the cost for the soldier pile wall equaled $2,251,183.50.  Therefore, the difference between the two equaled $108,799.50 and the soldier pile wall was the more cost-effective option.[6]

 

Discussion

Landslide and Slopes Stabilization

FEMA may provide Public Assistance (PA) funding to a local government for the repair of a public facility damaged by a major disaster.[7]  To be eligible, work must be required as a direct result of the declared incident.[8]  If an eligible facility is located on a slope and is damaged as a result of a landslide or slope instability triggered by the declared incident, FEMA determines the stability of the slope that supports the facility before it approves PA funding to restore the facility.[9]  Restoration of the integral ground that supports the facility may also be eligible.[10]  If the site is unstable and there is no evidence of predisaster instability after the facility was constructed, permanent restoration of the facility and its integral ground is eligible, including measures to stabilize the integral ground.[11]  The applicant is responsible for providing documentation to support its claim as eligible and show that work is required to address damage caused by the disaster.[12]  

Here, the Applicant states that the site did not have any predisaster instability and that the current disaster created the instability.  The Applicant has provided a geotechnical report which defined the cause to be “inherent weakness of the fill and outer slope material, the high degree of saturation from seasonable stormwater infiltration, and subsurface water seepage through the fill slope.”[13]  The Applicant’s Contractor clarified with additional certified correspondence that, “the geotechnical report did not imply preexisting instability at this site...[the Contractor concluded that] the road failure was the direct result of high intensity storms in February 2017, which oversaturated and weakened the fill embankment of the road, causing slope failure.”[14]

The California Geologic survey data additionally did not find any preexisting instability within the integral ground at the Facility.  Furthermore, the wood pile walls cited on first appeal as failing were clarified by the Contractor, stating, “the wood piles were still near vertical and straight and showed no evidence of global instability.”[15]  In instances of previously identified evidence of instability on the roadway, the Applicant has provided documentation which substantiated that those cited instances were previous repairs from disasters. 

Based on documentation provided by the Applicant, it has substantiated that the integral ground was stable prior to the incident.  Therefore, work to repair the integral ground is eligible.

Change in Scope of Work/Improved Project

A change to the approved scope of eligible work requires a written request, including detailed justification and documentation to support the eligibility of the requested revision.[16]  FEMA engages subject matter experts for technical assistance when necessary to reach a determination of whether the requested change is eligible for PA funding.[17]  FEMA will generally approve changes to the scope of work if the alternative repair method is more cost-effective than the original repair method, the original repair method is not feasible, there is an increase in previously approved quantities due to errors and omissions, or hidden disaster-related damage is discovered.[18]  An improved project is a project that restores the predisaster function, and at least the same capacity, of the damaged facility and incorporates improvements or changes to its predisaster design not required by eligible codes or standards.[19]  Funding is limited to the federal share of the approved estimated cost to restore the damaged facility to its predisaster design and function; or the federal share of the actual costs of completing the Improved Project, whichever is less.[20] 

On second appeal, a FEMA Professional Engineer (P.E.) assessed the geotechnical report, cost estimates provided by the Applicant, and other project documentation.  Based on this assessment and information provided in the administrative record, FEMA finds that the Applicant’s preferred method of repair, a soldier pile wall, achieves the same site stability as an MSE wall and both methods of repair are technically feasible.  After reviewing the cost estimates provided by the Applicant, FEMA finds: 1) the soldier pile wall estimate provided by the Applicant was deficient as it did not include contingency factors which increase overall costs,[21] and 2) the MSE wall estimate of $2,359,983.00 is reasonable when compared to historical unit costs for the type of work.

Ultimately, both methods are reasonable for the type of repair considered.  However, the Applicant’s intended method of repair, a soldier pile wall, goes outside the approved SOW by replacing the material and method of repair.  Additionally, the MSE wall is the least cost option when compared to the soldier pile wall.  Therefore, FEMA approves the MSE wall estimate of $2,359,983.00 as the eligible estimated cost for repairing the Facility using the approved SOW.  If the Applicant intends to install a soldier pile wall, it may request an Improved Project with the costs capped at the adjusted MSE wall estimate.

 

Conclusion

The Applicant has demonstrated that the work to repair the integral ground is eligibleFEMA is not approving a change in scope of work, but reviewed the costs associated with installing a MSE wall estimate and increased the approved amount of funding to $2,359,983.00.  If the Applicant intends to install a soldier pile wall instead of the MSE wall, it may request an Improved Project with the costs capped at the repair amount associated with the MSE wall-related SOW.  Therefore, this appeal is partially granted.

 

[1] The President issued the major disaster declaration, FEMA-4308-DR-CA, on April 1, 2017. 

[2] The Applicant cites FEMA-1628-DR-CA as the cause of the instability found by FEMA in Google Earth Images; this damage was repaired in 2007.  See Letter from Deputy Pub. Works Dir., Humboldt Cty., to State Pub. Assistance Officer, Cal. Governor’s Off. of Emergency Serv. (Cal OES), at 2 (Sept. 10, 2021).

[3] FEMA clarified in the appeal response that the actual amount at issue is the difference of the Soldier Pile Wall and the approved MSE wall cost.  $2,333,976.00 - $467,473.00 = $1,869,503.00

[4] See Project Worksheet (PW) 1029, Humboldt County, Version 1 (May 16, 2019) and PW 297, Humboldt County, Version 1 (March 19, 2021).   Note: The Applicant and the Grantee assert that, in prior disasters, FEMA reimbursed similar costs.  On this matter, FEMA notes that each project is evaluated on a case-by-case basis.  Eligibility decisions under separate declarations, if made in error, have no impact on the eligibility of funding discussed in the present appeal.  See FEMA Second Appeal Analysis, York (Town of), FEMA-4367-DR-ME, at 3, n.12 (Aug. 18, 2020).

[5] The Applicant maintains the amount in dispute is $3,111,717.00, no clarification is provided explaining how this figure was determined.

[6] See Letter from Governor’s Authorized Representative, Cal OES, to Assistant Adm’r, FEMA, at 5 (May 31, 2022). 

[7] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 406(a)(1)(A), Title 42, United States Code § 5172(A)(1)(a) (2012).

[8] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.223(a)(1) (2016); FEMA Public Assistance Program and Policy Guide, FP 104-009-2, at 20 (Apr. 1, 2017) [hereinafter PAPPG]. 

[9] PAPPG, at 129. 

[10] Id.

[11] Id.

[12] Id. at 20, 134.

[13] Rayan Houghton, MONUMENT ROAD PM 0.00, Geotechnical Report, Crawford & Associates Inc., at 5 (Mar. 10, 2019). 

[14] Letter from Senior Eng’r and Senior Project Manager, Crawford & Associates, Inc., to Deputy Dir., Humboldt Cty., at 1 (Apr. 6, 2022) (bold in original text). 

[15] Id. at 2.

[16] 44 C.F.R. §206.204(e); PAPPG, at 138.

[17] PAPPG, at 138.

[18] Id

[19] 44 C.F.R. §206.203(d)(1); PAPPG, at 107.

[20] 44 C.F.R. §206.203(d)(1); PAPPG, at 110.

[21] The adjusted cost estimate for the requested soldier pile wall totaled $2,414,906.00.

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