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Pi’ilani Highway

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1664-DR
ApplicantMaui County, Department of Public Works/Environmental Management
Appeal TypeSecond
PA ID#009-U60M6-00
PW ID#753, 754, & 755
Date Signed2010-01-11T05:00:00

Citation:         FEMA-1664-DR-HI, Maui County, Department of Public Works/Environmental Management, Pi’ilani Highway, Project Worksheets (PW) 753, 754, and 755

Cross
Reference:
      Emergency Protective Measures

Summary:        On October 15, 2006, an earthquake off the coast of Hawaii caused rockslides along Pi’ilani Highway.  FEMA prepared PWs 753, 754, and 755 for emergency protective measures on Pi’ilani Highway.  However, FEMA performed site inspections and a detailed review of the geologic conditions, and determined that the scopes of work involved permanent repair of rock slopes that were unstable prior to the event.  Therefore, the work sites covered by the PWs were ineligible for FEMA funding.
In its first appeal letter dated June 26, 2008, the Maui County, Department of Public Works/Environmental Management (Applicant) asserted that the scopes of work were necessary as emergency protective measures.  In a letter dated December 4, 2009, the Acting Regional Administrator determined that the cost to perform some emergency protective measures accomplished immediately after the earthquake was eligible.  These measures included the installation of a wire mesh curtain at each site.  The Acting Regional Administrator approved $836,798 for the estimate of eligible project construction costs.
In a letter dated January 27, 2009, the Applicant submitted its second appeal requesting $4,627,539.  The Applicant re-asserts that an immediate threat exists and that additional work to address this threat was necessary.  However, the work performed permanently stabilized slopes that were unstable prior to the disaster.

Issues:             Is the permanent stabilization of the slopes eligible?

Findings:          No.

Rationale:       44 CFR §206.201(b), Definitions used in this subpart; 44 CFR §206.225, Emergency work; Recovery Policy 9524.2, Landslides and Slope Failures, dated May 23, 2006; Public Assistance Guide, FEMA 322

Appeal Letter

January 11, 2010

 

 

Edward T. Teixeira

Vice Director of Civil Defense

State of Hawaii

Department of Defense

Office of the Director of Civil Defense

3949 Diamond Head Road

Honolulu, Hawaii 96816-4495

 

Re:  Second Appeal–Maui County, Department of Public Works/Environmental Management, PA ID 009-U60M6-00, Pi’ilani Highway, FEMA-1664-DR-HI,

       Project Worksheets (PW) 753, 754, and 755

 

Dear Mr. Teixeira:

 

This letter is in response to your letter dated March 25, 2009, which transmitted the referenced second appeal on behalf of Maui County, Department of Public Works/Environmental Management (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $4,627,539 for work it performed on the rock slopes above Pi’ilani Highway.

On October 15, 2006, an earthquake off the coast of Hawaii caused rockslides along the Pi’ilani Highway.  In response to the Applicant’s request, FEMA prepared PW 753 for $261,250 for emergency protective measures along the highway at Kalepa Point; PW 754 for $776,250 for emergency protective measures at Manawainui Gorge; and PW 755 for $255,000 for emergency protective measures at Alelele Bridge.  The scopes of work included scaling rock and installing rock bolts and ring or cable netting.  FEMA subsequently conducted additional site inspections, reviewed the geologic conditions at the sites and other available documentation, and determined that the areas were unstable and experienced rockslides prior to the disaster.  In addition, FEMA’s technical experts concluded that the earthquake did not materially affect the stability of the slopes.  Accordingly, FEMA determined that the scopes of work described in PWs 753, 754, and 755 were ineligible because the work was not required as a direct result of the disaster.

In its first appeal letter dated June 26, 2008, the Applicant requested $1,292,500 for work it performed at the three sites.  The Applicant asserted that the scopes of work were necessary as emergency protective measures to protect the highway from falling rock because the earthquake made the slopes unstable.  In a letter dated December 4, 2009, the Acting Regional Administrator informed the Applicant that the cost to perform some emergency protective measures accomplished immediately after the earthquake was eligible.  These measures included the installation of a wire mesh curtain at each site.  Therefore, the Acting Regional Administrator partially approved the first appeal for $836,797.  The Acting Regional Administrator also determined that the additional scope of work that Applicant requested consisted of permanent work on an unimproved natural feature. 

In a letter dated January 27, 2009, the Applicant submitted its second appeal requesting an additional $4,627,539 for work performed on the slopes along Pi’ilani Highway.  The Applicant re-asserts that an immediate threat existed since it was reasonable to expect ground disturbances in the next five years.  Furthermore, it states that wire mesh netting is only a sufficient barrier against smaller gravel and rock fragments up to three feet in diameter.  Since there were overhangs and loose boulders greater than three feet in diameter, a smaller hexagonal netting to retain materials less than 12 inches in diameter combined with 12-inch inter-locking steel rings to retain the larger materials was required.

The issue in this appeal is whether the work the Applicant performed to stabilize the three sites along the Pi’ilani Highway is eligible as an emergency protective measure under the Public Assistance Program.  Emergency protective measures to stabilize slopes damaged by a disaster may be eligible for reimbursement.  However, the work must be the least costly option required to eliminate an immediate threat to life, public health and safety, or a threat of additional damage to improved public or private property.  The cost of measures that the Acting Regional Administrator approved in the first appeal met the criterion.  The Applicant performed work at the three sites to permanently stabilize slopes that were unstable prior to the earthquake.  This work is not eligible for reimbursement under the Public Assistance program.

I have reviewed the information submitted with the appeal and have determined that the Acting Regional Administrator’s decision on the first appeal is consistent with Public Assistance Program regulations and policy.  Accordingly, I am denying the second appeal.

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

Sincerely,

/s/

Elizabeth A. Zimmerman

Assistant Administrator

Disaster Assistance Directorate

cc:   Nancy Ward

       Regional Administrator

       FEMA Region IX