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37th Avenue, SW

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DesastreFEMA-1361-DR
ApplicantCity of Seattle
Appeal TypeSecond
PA ID#033-63000-00
PW ID#1829
Date Signed2004-01-20T05:00:00
Citation: FEMA-DR-1361-WA, 37th Avenue, SW

Cross-reference: Eligible Work, Site Stability

Summary: On February 28, 2001, the Nisqually Earthquake caused a slide to occur in the City of Seattle, damaging a 200-foot section of 37th Avenue South West. The City of Seattle, the Applicant, made emergency repairs to stabilize the site, and then initiated a geotechnical investigation of the site through its contractor, in part to ascertain the danger to down slope houses. Project Worksheet (PW) 1829 for $52,676.95 was prepared on February 27, 2002, for emergency and permanent road repair and the geotechnical investigation, but made ineligible for Federal Emergency Management Agency (FEMA) funding until the City stabilized the site.

On August 7, 2002, the Applicant submitted its first appeal, claiming that the work completed to stabilize the site, and examine the geotechnical stability of it, constituted emergency work, and should be funded as such. The Regional Director granted that portion of the appeal for overtime and equipment costs for the emergency repair measures on the site, but denied reimbursement for the geotechnical study.

The Applicant submitted its second appeal on March 7, 2003, again requesting payment of the cost of the geotechnical study as emergency work. In its May 7, 2003, letter transmitting the Applicant’s letter to FEMA, the State stated that the site was stable and the full cost of the geotechnical study and road repairs should be funded as permanent work, in the amount of $52,676.95.

Issues: Can the scope of the Applicant’s first appeal be expanded to include payment for the cost of permanent repairs, as requested by the State? Can the geotechnical study be funded in the amount of $19,144.09 as Category C work, as requested by the State? Is all or part of the cost of the geotechnical investigation contracted by the City eligible for payment as Category B Emergency Work, as requested by the Applicant in its first and second appeals?

Findings: The scope of the appeal cannot be expanded from that of the original appeal by the City of Seattle. Only the question regarding the eligibility of the geotechnical investigation for reimbursement will be addressed in the second appeal. A full understanding of the forces acting on the residences could not be achieved without more detailed soils analyses, and these are eligible for reimbursement as Emergency Work under 44CFR § 206.225. However, the development of permanent repair options that were included in the report are not eligible for reimbursement as emergency work and will not be funded. The appeal is partially granted.

Rationale: 44 CFR § 206.225

Appeal Letter

January 20, 2004

Ms. Donna J. Voss
Deputy State Coordinating Officer, Public Assistance Program
Emergency Management Division, Military Department
State of Washington
MS: TA-20, Building 20
Camp Murray, Washington 98430-5122

Re: Second Appeal – City of Seattle, PA ID 033-63000-00, 37th Avenue, SW,
FEMA-DR-1361-WA, Project Worksheet (PW) 1829

Dear Ms. Voss:

This is in response to your May 7, 2003, letter forwarding the referenced second appeal on behalf of the City of Seattle. The City disputes the Federal Emergency Management Agency’s eligibility determination regarding a geotechnical study conducted on and along 37th Avenue, SW, following the Nisqually Earthquake. The amount in question is $19,144.08.

In your transmittal letter, you recommended that the geotechnical study be funded as permanent work (in lieu of funding it as emergency work as requested by the City) and that full funding in the amount of $52,676.95 as identified on the Project Worksheet for permanent repairs to 37th Avenue be obligated.

As described in the enclosed appeal analysis, we will not obligate full funding in the amount of $52,676.95 for permanent repairs to the roadway because the City specifically excluded this issue from both of its appeals.

With regard to the geotechnical study commissioned by the City, we find that 70% of the costs of the study, or $13,400.86, are eligible for reimbursement as emergency work. Payment of $566.16, granted in the first appeal but not reimbursed because it was less than $1,000, will be added for a total of $13,967.02. By copy of this letter, I am asking our Region X Regional Director to obligate funding in this amount for payment to the City of Seattle.

Please inform the City of my decision. My determination constitutes the final decision on this matter, pursuant to 44 CFR §206.206.

Sincerely,
/S/
Daniel A. Craig
Director
Recovery Division
Emergency Preparedness and Response

Enclosure

cc: John E. Pennington
Regional Director
Region X

Appeal Analysis

BACKGROUND

On February 28, 2001, the Nisqually Earthquake caused a slide to occur in the City of Seattle, damaging a 200-foot section of 37th Avenue South West. The City of Seattle, the Applicant, was concerned that the three homes below the slide faced an immediate threat as a result of it. One home (2418 37th Avenue SW) exhibited structural damage and ongoing pressure on the foundation as a result of the slide. The City patched cracks in the road above the slide to prevent further damage from water infiltration and barricaded the road. The City then initiated a geotechnical investigation through its contractor, AMEC Earth & Environmental, Inc. The contractor was authorized to begin work on March 1, 2001, although the contractor and the City did not sign the contract until April 26 and May 2, 2001, respectively.

Project Worksheet (PW) 1829 for $52,676.95 was prepared on February 27, 2002, for emergency and permanent road repair and a geotechnical investigation. Funding was obligated on May 24, 2002, but a notation was made on the PW that there were no eligible costs until the Applicant stabilized the site. (This condition of the grant was based on FEMA contractor staff site visits on March 10 and 12, 2001, and June 22, 2001, during which slope instability was noted.)

First Appeal

On August 7, 2002, the Applicant submitted its first appeal, transmitted and supported by the State in a letter to FEMA dated October 7, 2002. The basis of the appeal was the City’s claim that the work completed to patch the cracks in the road to prevent further damage at the site and examine the geotechnical stability of it, constituted emergency work, and should be funded as such. The amount shown on the PW as emergency work was $21,030.29, of which $19,144.08 was for the geotechnical investigation. The State’s analysis supported $20,046.04 of the emergency work claimed by the Applicant, including the full $19,144.08 for the geotechnical investigation.

In his letter of December 12, 2002, the Director of FEMA Region X granted that portion of the appeal for overtime and equipment costs for the emergency repair measures on the road, but because the eligible overtime and equipment costs were less than $1,000, reimbursement was not made. The request for reimbursement for the geotechnical study was denied, based in part on the fact that the introduction in the contractor’s report states that the purpose of the report is to “derive conclusions, recommendations, and repair options for the street.”

Second Appeal

On March 7, 2003, the Applicant submitted its second appeal, transmitted by the State in a letter to FEMA dated May 7, 2003. The Applicant again requested payment of the cost of the geotechnical study as emergency work, and since payment of the costs of this geotechnical study would be over the $1,000 PW minimum, the City also requested payment of the overtime and equipment costs not paid in the first appeal. The Applicant raised the following main points in this appeal:

· Under “Essential Assistance” in FEMA’s Landslide Policy (9524.2), “… emergency protective measures to stabilize slopes and hills that were damaged by a disaster may be eligible only if necessary to eliminate or lessen immediate threats to life, public health, safety, or significant additional damage to improved public or private property. Technical investigations may be eligible to determine appropriate engineering methods for reducing the immediate threats.
·
· The damage to 37th Street SW caused the City of Seattle Transportation Department to believe that the abutting homes might be facing an immediate threat as a result of the roadway damage.
·
· The City took immediate action to prevent further damage to the roadway and determine whether private homes and public safety were at risk. This action consisted of patching pavement cracks to prevent water infiltration, barricading the street, and contracting for an emergency geotechnical evaluation.
·
In its May 7, 2003, letter transmitting the Applicant’s letter to FEMA, the State made the following points and recommendations:

· During its review of the appeal, the State received new information, which indicates that the hillside is stable and does not have a history of landslides as previously supposed.
·
· The geotechnical study should be funded in the amount of $19,144.09 as Category C work.
·
· In light of the conclusions drawn from the recent information, which substantiates the 37th Avenue hillside’s stability, full funding in the amount of $52,676.95, as identified in PW 1829, for the 37th Avenue permanent repairs, Category C should be made.
·
Appeal Issues

· Can the scope of the Applicant’s first appeal be expanded to include payment for the cost of permanent repairs, as recommended by the State?

· Can the geotechnical study be funded in the amount of $19,144.09 as Category C work, as recommended by the State?

· Is all or part of the cost of the geotechnical investigation contracted by the City eligible for payment as Category B Emergency Work, as requested by the Applicant in its first and second appeals?

DISCUSSION

Can the scope of the Applicant’s first appeal be expanded to include payment for the cost of permanent repairs, as requested by the State? Can the geotechnical study be funded in the amount of $19,144.09 as Category C work, as requested by the State?

In its first appeal letter dated August 7, 2002, the city states, “FEMA determined that … the site is unstable due to an identified, pre-existing condition, and therefore the cost to restore the facility is on hold pending site-stabilization by the City. Please note that the City does not concur with this finding…. The City is not [emphasis added] contesting this finding as part of this appeal, however. We are requesting only that the eligibility of the Category B work be untied from the Category C permanent restoration work at the site.”

In its second appeal letter dated March 7, 2003, the City states, “At several points, the FEMA analysis uses references to permanent repair as a justification for denying the [first] appeal. These references are irrelevant to the appeal review since permanent repair is not the subject of the appeal.”

It is clear that the Applicant, the City of Seattle, did not intend to appeal for payment of repair of the road as permanent work, nor for payment of the geotechnical study as permanent work.

Is all or part of the cost of the geotechnical investigation contracted by the City eligible for payment as Category B Emergency Work, as requested by the Applicant in its first and second appeals?

In a memo report documenting site visits on March 10 and 12, 2001, FEMA’s consulting engineer documented cracking and displacement of 37th Avenue SW in the immediate vicinity of the residence at 2418 97th Avenue SW. It also documented emergency repairs to the road by City crews to limit water entering cracks in the road pavement. The memo also reports damage to the residence, including racking of the carport, warping of the ceiling, and apparent bending of the wooden and steel supports under the house. One of the two houses adjacent to the residence at 2418 37th Avenue was reported to have cracked soils around the pile foundation and taut foundation cross bracing, indicating possible racking of the house.

A March 14, 2001, reconnaissance report, the City’s consultant, AMEC Earth & Environmental, Inc., also documented damage to the roadway and significant stresses on the residence at 2418 37th Avenue. It stated, “If action is not taken to reduce the force … against the residence, this could resuliclans.

In a contract signed on April 26 and May 2, 2001 by the City and its contractor, AMEC Earth & Environmental, Inc., the City authorized the contractor to commence work as of March 1, 2001, to include the following:

· Initial site reconnaissance.
·
· Geotechnical field exploration with 4 to 5 soil borings. One soil boring will be located at the east side of the house or slope. The rest of [the] borings will be on the street. The maximum depth of the borings will be 50 feet below the street level.
·
· Geotechnical laboratory testing which will be used to evaluate the engineering and index properties of the soils. The tests will include but not [be] limited to moisture content, grain size analysis, and Atterberg limit testing.
·
· Geotechnical Research and Analysis. These will include reviewing the site history, analyzing data, developing geologic cross sections, performing slope stability analyses to establish soil strength parameters and to investigate repair options.
·
· Geotechnical Report Preparation which will include but not be limited to site plan, soil boring logs, testing results, description of surface and groundwater conditions, geotechnical analysis results, soil strength parameters, alternatives for stabilizing the slope and approximate costs, and recommended repair alternative.
·
As a “Special Consideration”, the contract stated: “Determine if the street is jeopardizing the subject private house.”

In response to the contract, AMEC Earth & Environmental, Inc. prepared a report dated June 13, 2001. The transmittal letter to the City states in part, “The purpose of this study was to investigate the above referenced site [2400 Block 37th Avenue S.W.] in order to derive conclusions and recommendations regarding repair options for the street and develop repair cost estimates.” This transmittal letter does not adequately reflect the contract requirements or the contents of the report itself. The report addresses each of the contract items summarized above and devotes considerable attention to the analyses of the site stability and soil conditions, both before and after the proposed repair options.

CONCLUSION

The scope of the appeal cannot be expanded from that of the original appeal by the City of Seattle. Accordingly, only the question regarding the eligibility of the geotechnical investigation for reimbursement can be addressed in the second appeal.

Site visits by both City and FEMA contractors confirmed a reasonable expectation of the immediate danger of continuing damage to both public and private property on the site. Site visits identified surface creep and settlement of the road surface, as well as significant forces on at least one home down slope from the road sufficient to cause permanent damage to it if not addressed.

A detailed understanding of the forces acting on the residences could not be achieved without more detailed soils analyses, and these are eligible for reimbursement as emergency work under 44 CFR § 206.225. However, the development of permanent repair options is not eligible for reimbursement as emergency work and will not be funded. We determined that approximately 70% of the costs of the geotechnical investigation performed under contract for the City meets the eligibility criteria. A revised PW for 70% of the study cost of $19,144.08 ($13,400.86) will be prepared. In addition, the amount not paid from the first appeal ($566.16) because it is less than $1,000 will be included on the PW. Total reimbursement will be $13,967.02. The appeal is partially granted.