Retaining Wall Repair
SECOND APPEAL BRIEF
Napa County; PA ID 055-99055-00
Retaining Wall Repair, PW 2738-2
March 29, 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,
Retaining Wall Repair, FEMA-1628-DR-CA, Project Worksheet (PW) 2738-2
Dear Mr. McCarton:
This letter is in response to your letter dated April 7, 2009, which transmitted the referenced second appeal for Napa County (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) Decision regarding funding for repairs to a retaining wall damaged in the declared event. The amount in dispute is $311,365.
As explained in the enclosed analysis, I have determined that the Applicant submitted sufficient information to support an additional $41,014 to repair 40 feet of damage that was not addressed in prior versions. Therefore, I partially approve the appeal for $41,014. By copy of this letter, I request that the Regional Administrator 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 CFR §206.206, Appeals.
Elizabeth A. Zimmerman
Disaster Assistance Directorate
cc: Nancy Ward
FEMA Region IX
SECOND APPEAL ANALYSIS
Napa County; PA ID 055-99055-00
Retaining Wall Repair, PW 2738-2
The severe storms of December 17, 2005, through January 3, 2006, resulted in flooding, along with mud and debris flows that caused damage to roads and bridges throughout Napa County. Many of the roads and bridges served as the only access routes to remote communities and critical facilities. To provide access for emergency vehicles and restore access to the public, Napa County (Applicant) acted quickly to mobilize its staff and private contractors to remove debris and perform emergency repairs, with the majority of the work executed before the disaster declaration was issued in February 2006.
Project Worksheet (PW) 2738 was written as Category C, permanent repairs, in May 2006 to address damages at five locations along White Sulphur Springs Road caused by flooding of the adjacent creek. The initial PW was written in the amount of $43,381 for contract costs, project supervision, debris removal, and landfill tipping fees; however, FEMA had concerns over the Applicant’s use of a time and materials contract to perform the work; therefore, the PW was obligated for $1,013 to cover debris removal and tipping fees pending review of the County’s time and materials contract. The initial PW did not provide a scope of work or cost estimate for repairs to all of the damaged sites. Of specific interest in the appeals is Site 5, which is described as a section of rock and mortar retaining wall at milepost 0.71. The PW describes the washout of a section of wall 40 feet long and 6 feet high, with damage to an area behind the wall 40 feet long, 9 feet high and 6 to 12 feet wide supporting the base of White Sulphur Springs Road with attendant damage to a 4 feet long section of 18-inch reinforced concrete pipe (RCP) culvert.
The Applicant’s first appeal was essentially submitted in two parts, along with a request for a version to the PW, because of the issues involved and the way the PW had been prepared. The Applicant sent the first part of the first appeal to the Governor’s Office of Emergency Services (OES) in a letter dated October 31, 2006, and OES forwarded the appeal to FEMA in a letter dated December 22, 2006, in support of the Applicant’s appeal. The Applicant appealed FEMA’s denial of funding on the basis of contracting issues and the exclusion of costs for work to be completed in the PW. The Applicant also requested that FEMA reimburse the County for the costs for project supervision.
FEMA responded to the Applicant’s appeal in a letter to OES, dated May 14, 2007. Upon review of documentation provided by the Applicant and after discussions with OES and the County, FEMA concluded that the Applicant demonstrated substantial compliance with the contract requirements specified in 44 CFR §13.36; therefore, FEMA approved the portion of the Applicant’s appeal regarding the contracting issues. Upon review of the backup documentation for PW 2738, FEMA found that a clerical error led to the omission of the work to be completed and associated costs in the PW. Consequently, FEMA prepared a version to the PW to address the contracting issues and correct the omission of work to be completed. The Applicant did not provide any documentation in support of force account labor and permanent work supervisory costs so no provisions for these costs were made in the PW version. FEMA prepared PW 2738-1 in May 2007 for $46,632, bringing the total project cost to $47,645.
Subsequent to FEMA’s response to the Applicant’s first appeal, the Applicant submitted a request for a revision to the scope of work and cost estimate in the PW, in a letter dated August 27, 2007. In that letter the Applicant stated that the wall supporting the road sustained damage at “intermittent intervals,” and that good engineering practice and CalTrans (California Department of Transportation) standards preclude repairing only the damaged portions. The Applicant indicated its intent to replace the entire 386 feet of the wall rather than attempt to tie-in repairs to the existing wall. The Applicant proposed removing the existing wall and replacing it with a new wall consisting of interlocking blocks and geosynthetic reinforced earth, and estimated the cost of the new wall at $467,651, using historic cost data for this type of construction. The Applicant included a proposed version to the PW in which the damaged facility was described as a concrete retaining wall. OES forwarded the Applicant’s letter to FEMA in a letter dated February 11, 2008, in support of the Applicant’s request. It is relevant to note here that this type of soil retention structure, referred to as a mechanically stabilized earth (MSE) wall, is quite commonly used throughout the country and has been shown to be a technically viable and cost effective retaining wall option.
FEMA responded to the Applicant’s request for a version to address reconstruction of a new MSE wall in a letter dated February 28, 2008. In that letter FEMA stated that replacement of the entire 386 feet of wall is the prerogative of the Applicant; however, anything beyond repairs to predisaster condition of the observed 40-foot-long damaged section would constitute an Improved Project, and costs for repairs at Site 5 would be capped at the amount in PW 2738-1. The letter indicated that FEMA would prepare a second version to the PW, which would be entered into NEMIS as an Improved Project. The letter further stated that work items in the original scope of work called for placement of structural backfill and riprap, but did not include replacement of the damaged section of wall. FEMA prepared the second version of the PW in February 2008, and it contained the line items and unit costs that the Applicant provided as an attachment to the County’s letter dated August 27, 2007. However, the total cost of $467,530 was zeroed out as ineligible since it referred to work that was not a result of the disaster. The difference between FEMA’s total cost and the Applicant’s cost is due to numerical errors in the Applicant’s estimate. The scope of work was included in the PW to provide for environmental and historical compliance in accordance with 44 CFR Part 10.
The Applicant sent the second part of the first appeal to OES in a letter dated May 15, 2008, and OES forwarded the appeal to FEMA in a letter dated July 10, 2008 in support of the Applicant’s appeal. In the appeal the Applicant argued that the County never proposed improvements to the site; therefore, it should be classified as a normal restoration project rather than an Improved Project. The appeal stated that, “The County had a retaining wall and only seeks a retaining wall to return the facility to its predisaster condition.” The Applicant stated that, despite repeated requests and the preparation of PW versions 0, 1, and 2, the PW still does not present a scope of work with estimated costs sufficient to repair the damages that were described in the original PW. In the appeal the Applicant stated that, “Version 1 only recognizes (and obligated funds for) the propriety of the long ago completed contracted emergency work performed at this site. It does not include any retaining wall restoration nor restoration of the integral ground as described in Version 0.” The Applicant noted in the appeal that the original PW stated that the work was 100 percent complete, which was not the case. The Applicant further noted that the damage description in the PW makes it appear that the 40 feet of damage to the wall occurred at one location, when in fact there was a 16-foot-long failure of the wall where the 18-inch CMP was damaged and another 24 feet of wall damage at a location approximately 380 feet to the east.
The Applicant also stated that, upon inspecting the damaged area further, the County became concerned that more damage may have occurred than was originally identified. Therefore, the County engaged the services of a geotechnical consulting firm, MatriScope Engineering Laboratories, Inc. (MatriScope), to further investigate the site. MatriScope performed field and laboratory investigations in April 2008 and issued its findings in a report dated May 14, 2008. In the appeal the Applicant referred to additional damages to 156 feet of wall, over and above the 40 feet identified in the PW, which the Applicant describes as “not readily observable damages attributable to DR 1628 and the damages identified as attributable to DR 1646,” for a total length of damage equal to 196 feet. In the appeal, the Applicant only requested that FEMA fund repairs to 196 feet of wall damaged by the floods, at an estimated cost of $311,365, even though the Applicant intends to ultimately replace the entire 386 feet of wall.
FEMA responded to the Applicant’s appeal in a letter to OES dated October 14, 2008. In that response, FEMA stated that damages referred to by the Applicant as not readily observable cannot be validated by FEMA. FEMA denied the appeal and reiterated that the work proposed by the Applicant in the appeal constitutes an Improved Project. In FEMA’s analysis of the appeal, FEMA noted that the Applicant’s geotechnical consultant performed its investigations more than two years after FEMA-1628-DR-CA had been declared, and a subsequent disaster of a similar nature had been declared within that period.
FEMA-1646-DR-CA was declared in June 2006, which included Napa County as eligible for Public Assistance. It appears in the appeal that the Applicant was under the impression that the additional damage to the wall at Site 5 resulting from the second disaster would still be addressed in PW 2738, when in fact that damage should have been addressed in a PW under the declaration for the subsequent disaster. Furthermore, FEMA noted that the 40 lineal feet of damaged rock and mortar wall described in the original version of PW 2738 is supported by the contract between the County and its general engineering contractor, Harold Smith and Sons, as well as by two of the contractor’s invoices.
The Applicant submitted the second appeal to the California Emergency Management Agency (CalEMA), formerly OES, on February 6, 2009, and CalEMA forwarded the appeal to FEMA in a letter dated April 7, 2009, in support of the Applicant’s appeal. In that letter, CalEMA argues that replacement of the wall is a codes and standards issue, since the Applicant previously asserted that good engineering practice and CalTrans standards preclude repairing only the damaged portions. The County asserts that it has a long standing established and customary practice to adhere to the CalTrans standards, which have also been formally adopted into the County’s Road and Street Standards.
In the second appeal the Applicant essentially reiterates the arguments presented in the first appeal letter to CalEMA dated May 15, 2008. The Applicant reiterates that the County never proposed improvements to the site; therefore, the work should be classified as a normal restoration project rather than an Improved Project. The Applicant states in the second appeal that there are two different walls that were damaged, one being the mortared rock wall described in the original PW and the other being a concrete wall that was not identified in the PW or any of the subsequent versions. The Applicant restates the County’s position that, despite repeated requests and the preparation of PW versions 0, 1, and 2, the PW still does not present a scope of work with estimated costs sufficient to repair the damages that were described in the original PW. The Applicant reiterates that, “Version 1 only recognizes (and obligated funds for) the propriety of the long ago completed contracted emergency work performed at this site.” The Applicant argues that FEMA is incorrect in stating that PW 2738-1 reinstates portions of the scope of work omitted from the original version. The Applicant points out that, “It does not include any mortared or concrete retaining wall restoration nor restoration of the integral ground as described in Version 0.” The Applicant again states that concerns regarding the wall led the County to engage the services of a geotechnical consulting firm, MatriScope. Referring to a statement made in the MatriScope report, the Applicant states (p. 6) that, “This additional information defines a total of 196 feet in the vicinity of MP 0.71 to be directly attributable to and damaged by the flood waters of the DR 1628 disaster event, as documented in the geotechnical analysis, concurrence by OES’ field representatives and the attached photos.” However, in the very next paragraph (p. 6) the Applicant states that, “The combination of not readily observable damages attributable to DR 1628 and the damages identified as attributable to DR 1646 which were never added (as the inspection team indicated it would do) to PW 2738 contribute to the 196 linear feet the County is prepared to attribute to disaster damage.” The Applicant is requesting that FEMA fund repairs to 196 feet of wall at an estimated cost of $311,365.
Additional work on the facility beyond that which is required to restore it to its predisaster condition places the project into the category of an Improved Project. Since it is the Applicant’s intention to reconstruct the entire wall, the project meets the definition of an Improved Project, which requires that the federal share of the cost be capped at the amount defined in the PW.
FEMA does not support the Applicant’s position that repairs should be funded for 196 feet of wall. There is insufficient evidence to support the Applicant’s claim that more than 40 feet of wall was damaged in the declared event. While the Applicant claims to have identified 196 feet of wall damage, the Applicant states that part of the damage is attributed to the declared event for which the PW was written (FEMA-1628-DR-CA) and part is attributed to a subsequent declared event (FEMA-1646-DR-CA). The Applicant contends that the County’s position is supported by its geotechnical consultant (MatriScope); however, MatriScope performed its services almost two years after both events. Furthermore, MatriScope was not hired by the Applicant to perform a root-cause analysis of the damage, as implied in the Applicant’s appeals. In its report, MatriScope states that, “The purpose of our investigation was to explore and evaluate subsurface conditions at the site to provide geotechnical engineering recommendations for project design and construction.” Therefore, FEMA stands by its original position, as stated in response to the first appeal, that the Applicant is only eligible for restoration of 40 feet of wall to its predisaster condition. Additional damage to the wall, which the Applicant alleges to have occurred as a result of the subsequently disaster (FEMA-1646-DR-CA) should be addressed in a Project Worksheet prepared under that disaster declaration.
In the first appeal the Applicant requested funding for the entire 386 feet of new wall, essentially with the argument that the work is required under codes and standards. However, in the second appeal the Applicant is requesting funding for only 196 feet of wall allegedly damaged by the event. Nevertheless, in its letter of transmittal CalEMA argues that replacement of the wall is a codes and standards issue, since the Applicant previously asserted that good engineering practice and CalTrans standards preclude repairing only the damaged portions. CalEMA contends that the Applicant’s proposal to replace the wall meets the eligibility requirements and intent of FEMA’s requirements for work under the category of codes and standards. The second appeal contains documents intended to support the Applicant’s position that the County has a long standing established and customary practice to adhere to the CalTrans standards, which have also been formally adopted into the County’s Road and Street Standards.
FEMA’s requirements state that, “The code or standard must apply to the repair work or restoration required. … However, if a facility needs repair work only, upgrades would apply to the damaged element only. … FEMA would have to determine that the requirement is reasonable for the type and extent of the repair.” The documentation provided in the second appeal simply indicates that the County has adopted material specifications and construction standards set forth by CalTrans. Neither the Applicant nor CalEMA presented any documentation from CalTrans indicating that the entire wall would need to be replaced when only 40 feet (which equates to approximately 10 percent) were damaged. Therefore, FEMA does not agree that 40 feet of damage to the wall necessitates replacement of the entire wall under the provisions in the federal regulations for codes and standards.
The Applicant still asserts that none of the PW versions address the costs associated with repairs to the damaged wall. The Applicant is incorrect in this regard, although the costs for work to be completed at Site 5 may be insufficient. PW 2738-1 included the structural backfill and riprap under the heading of work to be completed, as provided in the original draft of PW 2738-0, which appear as line items 20 through 21 in PW 2738-1. The Applicant argues that, “Version 1 only recognizes (and obligated funds for) the propriety of the long ago completed contracted emergency work performed at this site.” Funds for this emergency work were obligated in the amount of $41,134 when FEMA granted the portion of the Applicant’s first appeal dealing with the time and materials contract. However, additional costs in the amount of $3,906 were added to the PW as work to be completed at Site 5 for backfill and riprap. The Applicant is correct, however, in arguing that the federal regulations allow for repairs to predisater condition. FEMA agrees that riprap is not a repair in kind for a mortared rock wall. The original version of the PW states that, “The retaining wall needs to be restored, the integral ground behind the wall needs to be replaced to support the roadway and the damaged section of 18-in. RCP culvert needs to be replaced.” Therefore, the Applicant is correct in the assertion that while a temporary repair had been made, a permanent repair remained to be completed at the time the original PW was written, which would involve the reconstruction of a retaining wall.
A version to the PW will be prepared to address the scope of work for repairs to the damaged wall as described in the original PW. The Applicant intends to replace the existing wall, described in part as a mortared rock wall, with an MSE wall consisting of interlocking blocks and geosynthetic reinforced earth. FEMA recognizes that construction of an MSE wall would in all likelihood be more cost effective, as the County stated in its letter of August 27, 2007, than either a mortared rock gravity retaining wall, a cast-in-place concrete gravity retaining wall, or a cast-in-place reinforced concrete cantilever retaining wall. The proposed wall will apparently also incorporate hazard mitigation measures not addressed in the original PW. The following provides a basis for an estimate of these costs, using the Applicant’s scope of work and historic cost data.
In the second appeal the Applicant is requesting funding for an estimated amount of $311,365 for repairs to 196 feet of wall, which corresponds to approximately $1,589 per linear foot of wall; however, the Applicant has not provided any documentation supporting this estimate. In the Applicant’s request to FEMA in August 2007 for a version, the County requested funding for an estimated cost of $467,530 to replace 386 feet of wall, which corresponds to approximately $1,211 per linear foot of wall. FEMA is in basic agreement with the scope of work and historic costs provided by the Applicant in its letter dated August 27, 2007, which was incorporated into PW 2738-2.
The second version of the PW contains 15 line items (lines 25 through 39, totaling $467,530) that address work related to construction of an MSE wall, using unit costs provided by the Applicant. FEMA is in basic agreement with the estimate, with the exception of the estimated design cost of $74,745, which equates to almost 23 percent of total $327,080 net construction cost (lines 25 through 32 and 37 through 39) on which design services are typically estimated. The design of an MSE wall on a competent foundation, as exists at Site 5, is not a complex engineering undertaking. Using Curve B of the FEMA Public Assistance Guide, 12.5 percent of the net construction cost is obtained as a more appropriate estimate for engineering design, which equates to $40,885. This yields a revised estimate of $433,670 for 386 feet of wall, or approximately $1,123 per linear foot of wall. Applying this estimate to the restoration of the 40 feet of damaged wall yields an estimate of $44,920. Since the cost of riprap and backfill included in PW 2738-1 for repairs at Site 5 is insufficient to replace the wall, but is currently obligated, that cost (line items 20 through 22, totaling $3,906) must be subtracted from the new estimate for restoration of the 40 feet of damaged wall. This yields the amount of $41,014 to be included in a version to the PW to address restoration of the 40 feet of damaged wall to predisaster condition.
The Applicant’s second appeal is partially granted in the amount of $41,014 for work to restore 40 feet of damaged retaining wall along White Sulphur Springs Road. The Applicant has not provided evidence that more than 40 feet of damage occurred during the declared event. Any additional damage to the wall that may have occurred as a result of a subsequent federally declared disaster needs to be verified by FEMA and addressed in a Project Worksheet prepared under that disaster declaration. The project falls under the category of an Improved Project because it is the Applicant’s intention to perform work on portions of the wall that were not damaged during the declared event.