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Gist Road Landslide

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DesastreFEMA-1046-DR
ApplicantSanta Clara County
Appeal TypeSecond
PA ID#085-00000
PW ID#75198
Date Signed1999-03-11T05:00:00
Citation: FEMA-1046-DR-CA; Santa Clara County, DSR 75198, Gist Road Landslide

Cross Reference: Disaster-Related Damages, Other Federal Agencies

Summary: As a result of the 1995 winter storms, a landslide occurred downslope of Gist Road, affecting 70 linear feet of the road. State Route 35, a federal-aid road, is located about 15 ft. upslope of Gist Road. An old timber cribwall, about 104 feet in length, is built into the upslope of Gist Road, within the Route 35 right-of-way. No disaster damages to the cribwall or Route 35 were observed by FEMA. To repair the function of Gist Road, the subgrantee proposed construction of two retaining walls. The lower wall would be constructed within the downslope of Gist Road. However, due to limited space restrictions, it was found that it would be necessary to excavate into the upslope side of Gist Road, such that a second wall would be necessary in the upslope, replacing a portion of the existing cribwall. In addition, the subgrantee proposed construction of a new guard rail and an additional drainage system. FEMA concurred with the method of repair but concluded that the upper wall was eligible only to the extent necessary to construct the lower wall, and that the guard rail, additional drainage and other miscellaneous items were not present prior to the disaster and not required by codes and standards or other engineering requirements, and were therefore ineligible. Funding was provided in DSR 75198 in the amount of $425,851. The subgrantee appealed this determination stating that the two wall system was the best engineering solution and most-cost effective method. They asserted that the cribwall and Route 35 pavement were also damaged by the disaster, thus requesting replacement of the full length of the existing cribwall and associated pavement repairs. The Disaster Recovery Manager denied the appeal stating that the additional work was not required as a result of the declared disaster event, and represented an improvement over the pre-disaster condition of the site. The second appeal again requests funding for the additional completed work, for a cost of $584,318, on the basis that the work was performed to repair disaster-related damages.

Issues: Are the additional scope items eligible for disaster assistance?

Findings: No. It is found that State Route 35 is a federal-aid road, such that repair of the road and the cribwall, are not eligible for Public Assistance funding, regardless of the cause of the damages. Other requested additional work items are found to not be required as a result of the disaster.

Rationale: 44 CFR 206.223(a)(1); 44 CFR 206.226(a)

Appeal Letter

March 11, 1999

Mr. D. A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
P.O. Box 419023
Rancho Cordova, California 95741

Dear Mr. Christian:

This is in response to your August 10, 1998, submittal of Santa Clara County's second appeal of DSR 75198 (FEMA-1046-DR-CA). The subgrantee is requesting funding for additional scope of work items performed in the landslide repair of Gist Road and State Route 35. FEMA denied funding for this work on the basis that it was not required as a result of the disaster event, and some completed items represented an improvement over the pre-disaster condition of the facility.

As explained in the enclosed analysis, it is concluded that the subgrantee has not provided sufficient documentation to demonstrate that the additional work performed at the site is necessitated by disaster-related damages, or is required by codes and standards or technical or engineering requirements. Additionally, it is found that State Route 35 is a federal-aid road, such that repair of the road and the cribwall, located within the right-of-way, are not eligible for Public Assistance funding, regardless of the cause of the damages. The eligible scope of work and associated funding provided in DSR 75198 is considered sufficient to restore the facility to pre-disaster condition relative to the demonstrated disaster-related damages. The subgrantee's appeal for additional funding is denied.

Please inform the applicant of my determination. In accordance with the appeal procedure governing appeal decisions made on or after May 8, 1998, my decision constitutes the final decision on this matter. The current appeal procedure was published as a final rule in the Federal Register on April 8, 1998. It amends 44 CFR 206.206.

Sincerely,

/S/

Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate

Enclosure

cc: Richard A. Buck
Disaster Recovery Manager
FEMA Region IX

Appeal Analysis

BACKGROUND
As a result of the 1995 winter storms, a landslide occurred downslope (north side) of Gist Road. The landslide measured approximately 80 feet long, 150 feet high, and 10 to 15 feet deep. Approximately 70 linear feet (lf) of Gist Road, and much of the pavement, was affected by this downslope movement. Upslope of Gist Road (south side) is State Route 35, a federal-aid road locally referred to as Skyline Boulevard. A relatively steep slope (1 horizontal to 1 vertical), approximately 15 feet high, separates the two roads. An old timber cribwall, approximately 104 feet in length, is built into the upslope of Gist Road, within the right-of-way of State Route 35. Santa Clara County (subgrantee) retained a geotechnical consultant, Parikh Consultants, Inc. (Parikh), to assess the damages at Gist Road and to recommend methods of repair. The subgrantee requested assistance from the Federal Emergency Management Agency (FEMA) for the proposed repair.

The results of the geotechnical study were provided in a report dated September 6, 1995. The report indicated that in addition to the damage to the Gist Road pavement, numerous cracks were observed in the Route 35 pavement, suggesting that these conditions were also caused by the downslope movement of Gist Road. To repair the disaster damages, Parikh recommended a two wall system. The lower wall would be constructed within the downslope of Gist Road to restore the function of the road. However, due to limited space, it would be necessary to excavate into the upslope of Gist Road in order to construct the lower wall. This construction activity would require replacement of a portion of the existing upslope timber cribwall. Both walls would be constructed with soldier pile and lagging, with tiebacks. In addition, the geotechnical report recommended installing horizontal drains to relieve water pressures from within the hillside.

On October 11, 1995, an inspection team consisting of representatives of FEMA, the California Office of Emergency Services (OES), and the subgrantee, visited the site to assess the disaster-related damages and determine the necessary repair. Based on the results of the geotechnical report, the subgrantee requested funding for the two walls; 90 lf for the lower wall and 106 lf for the upper wall, replacing the entire length of the existing cribwall. Additionally, the subgrantee requested funding for the recommended drainage system and a concrete type guardrail to be constructed on top of the retaining walls.

To evaluate the scope of work, FEMA performed two independent reviews of the geotechnical aspects of the proposed method of repair. FEMA's geotechnical engineers concurred with the proposed method of repair, but concluded that the pavement cracking observed within Route 35 was not disaster related. Additionally, FEMA concluded that the upper wall was eligible only within the length necessary to facilitate the construction of the lower wall, estimated at 48 linear feet. Reconstruction of the additional length of wall proposed by the subgrantee was found to not be required as a result of the disaster, and therefore not eligible for assistance.

The FEMA inspector prepared Damage Survey Report (DSR) 75198 to include construction of the downslope wall, 48 linear feet of the requested upslope wall, associated pavement repairs and engineering costs ($425,851). Additionally, the DSR included the requested guard rail ($63,205), stating that it may be required by codes and standards, and the requested drainage system ($70,725) as a hazard mitigation proposal (HMP). The FEMA reviewer determined that the guard rail was not present prior to the disaster, and not required by codes and standards, and thus not eligible for funding. Additionally, the reviewer concluded that the subdrain system in the proposed repair method was sufficient, such that the additional horizontal drainage system was not necessary. The HMP was denied. The remaining scope of work proposed by the inspector was found eligible, and DSR 75198 was approved on August 17, 1996, in the amount of $425,851. OES and the subgrantee both submitted non-concurrences relative to the reduced scope of eligible work.

Because the proposed work extended into the California Department Of Transportation's (Caltrans) right-of-way for State Route 35, the subgrantee entered into a Contribution Agreement with Caltrans whereby it was agreed that the subgrantee would be the lead agency over all repairs. Caltrans further issued an encroachment permit which gave the subgrantee full legal responsibility to install the upper wall. The expectation was that Caltrans would reimburse the subgrantee $90,000 for the estimated local share of disaster funding.

In a letter dated December 26, 1996, OES notified FEMA of the subgrantee's March 25, 1996, request for a re-inspection of the site, and their October 2, 1996, request for a supplemental DSR. The subgrantee's March 1996 letter stated that an additional section of roadway collapsed adjacent to the section of roadway currently under construction. The estimated cost of the additional repair work was estimated at $50,000. The October 1996 letter requested a supplemental DSR in the amount of $160,595 to include the adjacent section of Gist Road and other additional repair work. The Disaster Recovery Manager responded to this request in a letter dated June 24, 1997. Regarding the new slipout damages, the Disaster Recovery Manager noted that the additional movement occurred more than one year after the close of the disaster incident period and that no documentation had been provided to connect the new damage to the disaster event. Accordingly, it was found that the additional slipout repairs were not eligible for funding. The other additional requested funding was found to be associated with the additional upper retaining wall section, paving and drainage for Route 35, extensive paving, drainage and guard rail systems, and a future utility duct for Gist Road. The Disaster Recovery Manager noted that these costs represented improvements and hazard mitigation measures which were previously found to be ineligible, and thus remain ineligible for funding. Additionally, question was raised as to the subgrantee's legal responsibility for reconstruction to the upper wall since the transfer for responsibility of the wall construction occurred after the disaster event. The subgrantee's request for supplemental funding was denied.

First Appeal
The subgrantee submitted a first appeal of FEMA's denial for the supplemental funding, transmitted by OES in a letter dated November 21, 1997. The subgrantee argued that efforts associated with the repair of the entire length of the existing cribwall should be included in the eligible scope of work. The subgrantee provided a letter from their geotechnical consultant, Parikh Consultant's Inc., dated September 17, 1997, stating that, in their opinion, the distress to Route 35 was caused by the disaster. No basis for this opinion was provided. The Disaster Recovery Manager responded to the appeal in a letter dated March 18, 1998, stating that the additional work was not required as a result of the declared disaster event, and represented an improvement over the pre-disaster condition of the site.

Second Appeal
The subgrantee's second appeal, transmitted by OES in a letter dated August 10, 1998, again requests funding for the remaining costs associated with the total repair project. The subgrantee states that the total cost for the completed work is $1,100,169, of which $90,000 is associated with non-storm related work on Route 35 and is expected to be reimbursed from Caltrans, and $425,851 was funded through DSR 75198. The subgrantee is requesting funding for the remaining $584,318 on the basis that the associated work wdaSSION
The subgrantee asserts that both the downslope and upslope of Gist Road were damaged during the disaster, requiring construction of a lower retaining wall, replacement of the upper slope cribwall with a new retaining wall, and associated pavement repairs to both Gist Road and State Route 35. The subgrantee states that although Caltrans did have legal responsibility for the work performed in their right-of-way, which includes the timber retaining wall, Caltrans has refused to request disaster assistance from FEMA on the basis that they authorized the subgrantee to perform this work by means of the Contribution Agreement and encroachment permit.

Much of the discussion regarding this site has been associated with whether the repair of State Route 35 and the cribwall was required as a result of the disaster. While the review of the second appeal concurs with the Disaster Recovery Manager that this work was not required as a result of the disaster, further review of the appeal information has confirmed that State Route 35 is a federal-aid road. Accordingly, repairs of this roadway, and other constructed items within the right-of-way, would be under the authority of the FHWA. In accordance with the Title 44 of the Code of Federal Regulations Section 206.226(a), FEMA may not provide permanent restoration assistance for a facility for which another Federal agency has authority to restore, which in this case would be the FHWA. Therefore, neither Caltrans nor the subgrantee are eligible for Public Assistance funding for repair of State Route 35 or the length of cribwall not disturbed by the construction of the lower wall. Caltrans' authorization to the subgrantee to perform this work provides no bearing on the eligibility of the work performed.

A portion of the additional costs requested in the second appeal are associated with the guard rail construction, additional drainage, and other items. As was discussed in FEMA's June 24, 1997, letter and the first appeal response, these items represent improvements to the pre-disaster design as they were not present prior to the disaster and are not supported by approved codes and standards or technical or engineering requirements. The subgrantee has not provided any additional information with the second appeal to support the eligibility for these items. Based on a review of the available information, it is again concluded that there is no basis to fund these additional items.

CONCLUSION
The subgrantee has not provided sufficient documentation to demonstrate that the additional work performed at the site is necessitated by disaster-related damages, or is required by codes and standards or technical or engineering requirements. Additionally, it is found that State Route 35 is a federal-aid road. Accordingly, repair of Route 35 and the cribwall, located within the right-of-way, are not eligible for Public Assistance funding, regardless of the cause of the damages. The eligible scope of work and associated funding provided in DSR 75198 is considered sufficient to restore the eligible facility (Gist Road) to pre-disaster condition relative to the demonstrated disaster-related damages. The subgrantee's appeal for additional funding is denied.