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Second Appeal Analysis
PA ID# 125-U00B3-00; Clarksville Gas and Water
PW ID# 5226; Codes and Standards
Between April 30 and May 18, 2010, floodwaters inundated and submerged Clarksville Gas and Water’s (Applicant) Main Lift Station (Facility). The facility was submerged to a depth of 39 inches for a period of one week. The disaster declaration date for FEMA-1909-DR-TN was May 4, 2010. FEMA originally prepared Project Worksheet (PW) 5226 for the damage and associated costs of completed and uncompleted work and obligated the PW for $99,748.79.
The PW’s damage description section listed the following items as damaged by the flooding: two 125 horsepower pump motors, two variable frequency drives (VFD), electrical equipment below the flood line, electrical wiring and fixtures below the ground level, support bearings on the extended shaft, flow meter, pump seals, bubbler system, and other electrical equipment. The PW further described the following work to be completed: removing, rebuilding, and replacing pump motors and pump seal assemblies; removing and replacing compressors and bubbler assemblies; rebuilding a Motor Control Center (MCC); replacing two VFDs; replacing two motor starters and disconnects, relays, switches and meters; replacing a flow meter; and re-starting the pumping system. The PW described certain work completed by contractor, Shermco Industries, to evaluate the electrical infrastructure. FEMA found certain tasks in Shermco’s scope of work (SOW) to be partially or wholly ineligible. FEMA obligated PW 5226 for $99,748.79 which included reimbursement for work completed, Direct Administrative Costs (DAC), a Cost Estimating Format (CEF) estimate, and a hazard mitigation proposal (HMP).
The Applicant submitted its first appeal to Tennessee Emergency Management Agency (Grantee) on June 24, 2011. Through its first appeal submission, the Applicant requested $1,018,125.00 in additional funding. The Applicant asked FEMA to eliminate the insurance reduction, arguing 49 percent of the station was below grade and also sought funding for electrical contractor’s services, additional costs to repair the MCC and replace VFDs, and additional project management costs, arguing FEMA did not properly estimate these costs. Further, the Applicant’s first appeal submission petitioned for an addition to its existing (HMP), an extension of the project completion date, and reimbursement for design costs.
The Applicant’s first appeal submission also asked FEMA to provide funding for certain upgrades the Applicant argued were required by codes and standards. The Applicant argued the Tennessee Department of Environment and Conservation Design Criteria for Sewage Works (TDEC Design Criteria) requires upgrades to the facility in the form of replacement of a damaged flow meter in a buried vault, a backup generator, and a third pump attachment. Further, the Applicant contended the 2008 addition of the National Fire Protection Association 820 Standard for Fire Protection in Wastewater Treatment and Collection Facilities (NFPA 820) required installation of a new heating ventilation and air conditioning (HVAC) system, and new combustible gas detectors. Lastly, the Applicant’s submission argued the 2003 International Building Code (IBC) required the installation of new stairs and walkways.
In a letter dated May 11, 2015, the Region IV Regional Administrator (RA) granted the appeal in part, approving an additional $479,398.34 in funding. The RA found certain funding for costs pertaining to the MCC and VFDs to be eligible,  and approved a portion of the HMP pertaining to submersible pumps. Further, the RA determined design costs would be reviewed at closeout and also removed the insurance deduction. The RA noted that the Grantee had already approved a time extension.
As to Applicant’s requested code compliance related upgrades, the RA approved funding for work to construct a platform to elevate the MCC and VFDs and also work to install a new flow meter in a vault. However, reimbursement of costs pertaining to the other requested upgrades was denied as the upgrades did not pertain to damaged elements but rather new or reconfigured components.
On July 31, 2015, the Applicant submitted its second appeal to the Grantee, requesting PA funding for $265,057.00 in upgrade costs. Specifically, the Applicant requests funding to upgrade the facility with a new HVAC system, new combustible gas detectors, new stairs and walkways, and a new back-up power generator.
The second appeal submission argues that the costs of the requested upgrades are eligible for funding because the TDEC Design Criteria satisfies all five code and standard criteria outlined in 44 C.F.R. § 206.226(d). 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 Design Criteria. In addition, the Applicant offers a July 23, 2015 letter from the TDEC Chief Engineer for the Division of Water Resources, which provides “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 are appropriate to the predisaster use of the Facility, and are reasonable, in writing, and in effect at the time of the disaster. However, the upgrades the Applicant contends are necessitated by the TDEC Design Criteria do not apply to the required repair work and thus do not satisfy the “apply to the type of repair or restoration” prong of 44 C.F.R. § 206.226(d)(1). Further, 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).
i. Apply to the Type of Repair or Restoration Required
The Applicant asserts that the upgrades were required based on the amount of repair and are reasonable for the type and extent of the repair. However, the upgrades suggested by the TDEC Design Criteria do not apply to the type of repair work as required by 44 C.F.R. § 206.226(d)(1).
In explaining 44 C.F.R. § 206.226(d)(1), Disaster Assistance Policy (DAP) 9527.4, Construction Codes and Standards, states that code provisions that require upgrades to undamaged structural or non-structural elements or systems (e.g. mechanical, electrical) are generally not eligible for funding. Such provisions are evaluated by FEMA on a case-by-case basis and must be based on a reasonable and technically supportable relationship to the elements damaged as a result of the disaster event. This analysis is necessary regardless of whether a building official requires the additional work, or the work is needed to obtain a building, occupancy, environmental, or other permit. For example, the Public Assistance Guide states that “FEMA would pay to install a code-required new sprinkler system throughout a multistory building if that building were being replaced. However, FEMA would not pay for installing such a system if the eligible work involved repair only, unless it was required based on the amount of repair.”
In this instant, the Applicant’s requested upgrades do not restore or replace damaged elements and are unrelated to the eligible repair work. The upgrades are completely new items technically unrelated to the damaged elements and damaged systems. There exists no relationship between the amount of eligible repairs and the requested upgrades. As such, a new HVAC system, new combustible gas detectors, new stairs and walkways, and a new back-up power generator are more analogous to the sprinkler system described in the PA Guide’s example. Like the sprinkler system, the requested upgrades are new systems in a facility undergoing repair.
The new HVAC system, new combustible gas detectors, backup generator, and new stairs and walkways are not eligible for funding because they are not required based on the amount of repairs. The items and components damaged as a result of the disaster do not bear a technically supportable relationship to these upgrades. First, from an engineering perspective, completion of the disaster related repairs was feasible without performing the upgrades. Further, the upgraded systems are completely new and unrelated to the damaged elements. While the Applicant asserts TDEC’s approval is a requirement for completion, this assertion does not make the upgrades eligible for funding—a technically supportable relationship must exist. For these reasons, the upgrades suggested by the TDEC Design Criteria do not apply satisfy the “apply to the type of repair or restoration” prong of 44 C.F.R. § 206.226(d)(1).
ii. Formally Adopted
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. Although Tennessee Rule 1200-40-02 was in effect at the time of the disaster and includes an identical reference, it 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 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 they are adopted by an 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.
The TDEC Design Criteria do not appear to be rules formally adopted by the TDEC. Rather, as Tennessee Rule 1200-40-02 explains, the TDEC Design Criteria are internal guidance that TDEC has made available to the public. The Applicant has not demonstrated that the TDEC Design Criteria have been formally incorporated into the jurisdiction’s building code or government ordinance to comply with FEMA policy. Instead, the TDEC Design Criteria seem to serve as design standards or guidelines because they explicitly state that they are meant to provide consistency while also allowing engineers to use their 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).
iii. Uniformly Applied and Enforced
Pursuant to 44 C.F.R. § 206.226(d)(4), 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.
In its second appeal submission, the Applicant provided a letter from the TDEC Division of Water Resources Chief Engineer that states, “[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).
In response to the Applicant’s first appeal, the RA determined that certain upgrades required by the TDEC Design Criteria were eligible for funding. These upgrades included 1) the replacement of a storm damaged flow meter and its installation in a new vault and 2) the elevation of a MCC and multiple VFDs. The RA found these upgrades to pertain to damaged items and thus satisfy the “apply to the type of repair” requirement of §206.226(d)(1). However, because the TDEC Design Criteria do not satisfy the “formally adopted and implemented” or “uniformly applied” requirements of 44 C.F.R. § 206.226(d)(3) and (4), the upgrades are not eligible for funding on the basis of code compliance.
These upgrades, however, may be eligible as an HMP under the Stafford Act § 406 because the flow meter, MCC and VFDs were damaged as a result of the disaster. To be considered as an HMP, the upgrade must comply with the requirements in DAP 9526.1, Hazard Mitigation Funding Under Section 406 (Stafford Act). Most notably, DAP 9526.1 requires that mitigation measures are shown to be cost effective. While the upgrades are not eligible as a code or standards compliance upgrade, FEMA will consider the potential eligibility of this work as an HMP under Stafford Act § 406.
The upgrades suggested by the TDEC Design Criteria do not apply to the type of repair as required by 44 C.F.R. § 206.226(d)(1). Further, the TDEC Design Criteria do not meet the criteria of codes and standards eligible for funding under the PA Program because they were not formally adopted, and were not uniformly applied and enforced at the time of the disaster as required by 44 C.F.R. § 206.226(d)(3) & (4). As such, the upgrades are not eligible for PA reimbursement.
Further, work to install a new flow meter in a vault and work to elevate the MCC and multiple VFDs is not eligible as a code or standard requirement. However, FEMA will consider the potential eligibility of this work as an HMP.
 The Applicant’s first appeal letter states the Applicant is appealing $1,092,216.10. The figures presented by the Applicant in its submission, however, total $1,018,125.00. The $74,091.10 difference potentially pertains to design costs requested by the Applicant.
 The proposal included elevation of a new powerhouse and installation of new submersible dry pit pumps.
 While the Applicant makes reference to State of Tennessee Design Criteria for Sewage Works, 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]
 The elevated platform for the MCC and VFD was approved by the RA as a code compliance upgrade required by the TDEC Design Criteria.
 The Applicant’s first appeal submission argued for these costs as a HMP not a code compliance requirement. The RA found it eligible as a code compliance upgrade required by the TDEC Design Criteria.
 The Applicant’s second appeal submission states the amount appealed is $612,817,76. The sum of code compliance costs, using figures in the Applicant’s first appeal submission, for an HVAC system, stairs and walkways, a back-up generator and combustible gas detectors equaled $265,057.00. The Applicant’s number of $612,817.76 does not take into account costs denied on first appeal but not requested on second appeal.
 The second appeal submission did not include the request for a third pump attachment. The first appeal submission argued this attachment was a TDEC Design Criteria required upgrade.
 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).
 DAP 9527.4, Construction Codes and Standards, at 4-5.
 Public Assistance Guide, FEMA 322, at 34 (June 2007) [hereinafter PA Guide].
 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.
 Design Criteria, at Chapter 1, § 18.104.22.168.
 Disaster Assistance Policy DAP9526.1, Hazard Mitigation Under Section 406 (Stafford Act), at 3 (Mar. 30, 2010).