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Second Appeal Analysis
PA ID# 125-U00B3-00; Clarksville Gas and Water
PW ID# 5599; Codes and Standards
Beginning on April 30, 2010, severe storms, tornadoes, heavy rains, high winds, flooding, and flash flooding impacted the City of Clarksville, TN. The Old Russelville Pike Lift Station (Facility) owned by Clarksville Gas and Water (Applicant) sustained damage to its motors, pumps, the Motor Control Center (MCC) switchgear and other components of the electrical infrastructure. The Applicant contracted Shermco Industries to complete the necessary work items. FEMA prepared Project Worksheet (PW) 5599 as a Category F project to remove, recondition and replace two 300 horsepower (HP) motors, pump seals, and shaft bearings; remove, recondition and replace two 30 HP submersible pumps and five HP grinder motor pumps; replace controllers and variable frequency drives (VFDs); replace main utility cables; and rebuild the MCC, replace two motor starters, and disconnects, relays, switches, and meters. FEMA found certain tasks in Shermco’s Scope of Work partly or wholly ineligible for Public Assistance (PA) reimbursement. FEMA obligated PW 5599 for $232,276.26, which included Direct Administrative Costs (DAC) and a Cost Estimating Format (CEF) estimate.
The Applicant’s first appeal is dated June 24, 2011. In it, the Applicant requested that FEMA (1) increase the CEF to account for electrical contractor services; (2) approve code upgrades for the magnetic flow meter, the heating, ventilation, and air conditioning (HVAC) system, combustible gas detectors and stairs and walkways; (3) approve a Hazard Mitigation Proposal (HMP) elevating the switchgear above the May 2010 flood event and build an accompanying new powerhouse to support the elevated switchgear; (4) approve a HMP for new submersible pumps and; (5) address miscellaneous issues, including granting a time extension for the project completion date, reimbursing design costs and rehabilitation costs, and determining the Facility’s components were elevated vertically above the floodplain.
In a letter dated April 23, 2015, the FEMA Region IV Regional Administrator (RA) partially approved the appeal for an additional $345,121.78, subject to insurance reductions, for electrical contractor services, mechanical and electrical contract work, and for HMP costs for two submersible pumps. However, the RA denied costs associated with code compliance requirements (Item 2) because she determined that the work addressed elements not damaged by the disaster. In addition, while the RA determined the HMP to elevate the powerhouse above the existing lift station (Item 3) was potentially eligible, she found that the Applicant had not provided an acceptable benefit/cost analysis methodology to determine cost effectiveness pursuant to Recovery Policy 9526.1, Hazard Mitigation Funding Under Section 406 (Stafford Act).
In a second appeal, dated July 24, 2015, the Applicant requests an additional $386,256.22 to elevate the Facility’s powerhouse and address what it asserts are code compliance costs denied on first appeal. The Applicant asserts that FEMA incorrectly classified the project, to elevate the powerhouse, as hazard mitigation. The Applicant contends that this project and the other code compliance requests are mandated by the Tennessee Department of Environment and Conservation (TDEC) Design Requirements. The Applicant further asserts that the TDEC Design Requirements are acceptable “standards” under Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.226(d), and as such, upgrades performed in accordance with the criteria are eligible for Public Assistance (PA) funding. To substantiate its claim, the Applicant references Tennessee Rule 0400-40-02, which it states requires TDEC approval for all design plans, and in order to obtain such approval, the design must be performed in accordance with TDEC requirements. In addition, the Applicant offers a July 23, 2015 letter from the Chief Engineer for the Division of Water Resources. The letter states, “[t]his letter is to confirm that as part of the TDEC approval process, all design[s] must be in full compliance with TDEC Design Standards and all applicable code requirements.”
Codes and Standards
The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) § 406 and implementing regulations authorize FEMA to provide federal assistance to a local government for the repair, restoration, or replacement of a facility damaged by a declared disaster and in conformity with current applicable codes, specifications, and standards. The regulations define “standards” as codes, specifications or standards required for the construction of facilities. Pursuant to 44 C.F.R. § 206.226(d), FEMA may reimburse costs of federal, state, and local repair or replacement codes or standards, if the codes or standards (1) apply to the type of repair or restoration required; (2) are appropriate to the predisaster use of the facility; (3) are found reasonable, in writing, and formally adopted and implemented by the state or local government on or before the disaster declaration date or be a legal federal requirement applicable to the type of restoration; (4) apply uniformly to all similar types of facilities within the jurisdiction of owner of the facility and; (5) were enforced during the time standards were in effect. All five prongs must be met in order to be eligible for PA funding. Further explaining eligibility criteria, FEMA Disaster Assistance Policy (DAP) 9527.4, Construction Codes and Standards, states FEMA has the authority and responsibility to determine which repairs, code-mandated or otherwise, are eligible for assistance, and generally does not fund code-mandated work that does not meet all five prongs of 44 C.F.R. § 206.226(d), regardless of whether the work is needed to obtain a building, occupancy or environmental permit.
FEMA does not dispute that the TDEC Design Criteria apply to the type of repair or restoration required, are appropriate to the predisaster use of the Facility, are reasonable, in writing, and in effect at the time of the disaster. However, the TDEC Design Criteria do not meet the “formally adopted and implemented” or “uniformly applied” requirements of 44 C.F.R. § 206.226(d)(3) and (4).
The Applicant asserts that the TDEC Design Criteria are required by Tennessee Rule 0400-40-02, because the Rule references the document. This is the Applicant’s primary argument for why TDEC Design Criteria are acceptable standards pursuant to 44 C.F.R. § 206.226(d). However, Tennessee Rule 0400-40-02 was not in effect at the time of the disaster. Even though Tennessee Rule 1200-40-02 was in effect at the time of the disaster and includes an identical reference, Tennessee Rule 1200-40-02 does not mandate the use of the TDEC Design Criteria, but only requires that a licensed engineer prepare an engineering report or plans in accordance with “generally accepted wastewater engineering practices.” While Tennessee Rule 1200-40-02 recommends the TDEC Design Criteria as guidance, it explicitly provides that an engineer may deviate from the TDEC Design Criteria when their design is “adequately supported by calculations and actual testing data.”
DAP 9527.4, Construction Codes and Standards, explains that codes or standards are considered “formally adopted” if adopted by the appropriate legislative body or regulatory authority within the jurisdiction and formally incorporated into the building code or local government ordinance. Further, the policy stipulates that design standards, guidelines, policies, industry practices, or other non-mandatory provisions do not meet this criteria.
There is no evidence that the TDEC Design Criteria are rules formally adopted by the TDEC. In fact, Tennessee Rule 1200-40-02 explains the TDEC Design Criteria are internal guidance that TDEC has made available to the public. Moreover, the Applicant has not demonstrated that the TDEC Design Criteria have been formally incorporated into the jurisdiction’s building code or government ordinance, as required by FEMA policy. Finally, the TDEC Design Criteria appear to be design standards or guidelines because they explicitly state that they are meant to provide consistency but allow the engineer to use his own judgment in supplementing the TDEC Design Criteria. For these reasons, the TDEC Design Criteria do not meet the “formally adopted” requirement of 44 C.F.R. § 206.226(d)(3).
Uniformly Applied and Enforced
Pursuant to 44 C.F.R. § 206.226(d), the code or standard must be uniformly applied to all similar types of facilities in the jurisdiction. FEMA policy explains that the code or standard cannot be subject to discretionary enforcement by building or permitting officials and must provide for uniform accountability in the event of noncompliance. Moreover, the code or standard cannot be merely a recommendation or allow for variances.
On second appeal, the Applicant provides a letter from the TDEC Division of Water Resources Chief Engineer stating, “[i]n cases when required repairs [to the damaged wastewater collection, transfer, and treatment infrastructure] were greater than those considered typical maintenance activities, design of the repairs were required to be performed by a Tennessee licensed professional engineer. The design documents were then required to be submitted to TDEC-Division of Water Resources for approval prior to construction.” The letter goes on to state, “… as part of the TDEC approval process, all design[s] must be in full compliance with TDEC Design Standards and all applicable code requirements.” Although these statements imply that the TDEC Design Criteria are more than just a suggestion, the TDEC Design Criteria state otherwise. The TDEC Design Criteria not only allow for variances, if the variances can be substantiated by calculations and testing data, the approving regulatory body may use its discretion when approving engineering plans that deviate from the TDEC Design Criteria. In addition, neither the second appeal nor the letter from TDEC’s Chief Engineer provide the method for uniform accountability in the event of noncompliance. As such, the Applicant has not substantiated that the TDEC Design Criteria are uniformly applied pursuant to 44 C.F.R. § 206.226(d)(4).
Pursuant to 44 C.F.R. § 206.226(d) and Disaster Assistance Policy (DAP) 9527.4, Construction Codes and Standards, the TDEC Design Criteria do not meet the criteria as standards under the PA Program because they were not formally adopted or uniformly applied and enforced at the time of the disaster. As such, the upgrades performed to comply with TDEC Design Criteria are not eligible for PA reimbursement.
 Recovery Policy RP9526.1, Hazard Mitigation Funding Under Section 406 (Stafford Act) (Mar. 30, 2010).
 While the Applicant makes reference to TDEC “design requirements,” the citation for the document that the Applicant provided is State of Tennessee, Department of Health and Environment, Division of Water Pollution Control, Design Criteria for Sewage Works (Apr. 1989) [hereinafter Design Criteria].
 Tenn. Comp. R. & Regs. 0400-40-02 (2013).
 Letter from Chief Eng’r, TN Dep’t of Env’t and Conservation, Div. of Water Res., to Public Assistance Specialist, TN Emergency Mgmt. Agency (July 23, 2015) [hereinafter Letter from Chief Engineer].
 The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 406, 42 U.S.C. § 5172 (2007); see also 44 C.F.R. § 206.226 (2009).
 44 C.F.R. § 206.221(i).
 44 C.F.R. § 206.226(d)(1)-(5).
 Disaster Assistance Policy DAP9527.4, Construction Codes and Standards, at 3 (Feb. 5, 2008).
 Tenn. Comp. R. & Regs. 0400-40-02-.03(2).
 FEMA does not dispute that Tennessee Rule 0400-40-02 was formally promulgated by an agency that has the authority to promulgate rules. However, Tennessee Rule 0400-40-02 was formally adopted in December 2013. Because it was adopted after the disaster event, the 2013 Rule is not applicable to this appeal. However, during the disposition of this appeal, FEMA obtained Tenn. Comp. R. & Regs. 1200-40-02 (1988), in effect at the time of the disaster.
 Tenn. Comp. R. & Regs. 1200-40-02-.03(2).
 DAP 9527.4, Construction Codes and Standards, at 5-6 (emphasis added).
 Tenn. Comp. R. & Regs. 1200-40-02-.03(2).
 DAP 9527.4, Construction Codes and Standards, at 6.
 44 C.F.R. § 206.226(d)(4).
 DAP 9527.4, Construction Codes and Standards, at 7.
 See FEMA Second Appeal Analysis, City of Gulfport, FEMA-1604-DR-MS, at 3 (Sep. 25, 2012) (determining that Design Criteria for public water systems published by the Mississippi Department of Health did not meet FEMA’s requirements for uniform application because the criteria provided recommendations, not requirements, and allowed for variances in application).
 Letter from Chief Engineer, at 1.