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Second Appeal Analysis
PA ID# 125-U00B3-00; Clarksville Gas and Water
PW ID# 4722; Codes and Standards
In May 2010, severe storms, tornadoes, heavy rains, high winds, flooding, and flash flooding impacted the City of Clarksville, Tennessee. As a result, the Ultraviolet (UV) Filter Building (Facility) within Clarksville Gas and Water’s (Applicant) wastewater treatment plant (WWTP) was flooded and the Facility’s UV disinfection system was damaged. FEMA prepared Project Worksheet (PW) 4722 to estimate damage and associated costs to the Facility. FEMA estimated the amount of disaster damage at $2,176,377.70. During FEMA’s review of PW 4722, it determined that the Facility was located within a United States Army Corps of Engineers (USACE) flowage easement and the easement agreement indemnified or held the Federal Government harmless for any damage, including flood damage, to the Facility; and as such, was ineligible for Public Assistance (PA) funding. The PW was obligated as a zero dollar PW.
In its first appeal dated June 24, 2011, the Applicant refuted FEMA’s determination that because the Facility was located within a USACE flowage easement, it was ineligible for PA reimbursement. The Applicant argued that the hold harmless provision in the easement agreement had no bearing on Stafford Act funding. The Applicant also disputed the eligible amount of funding for the work. The Applicant requested a total amount of $5,720,000.00, as opposed to $2,176,377.70 originally estimated by FEMA. The Applicant attributed the additional costs to replacement, as opposed to repair, of the Facility to meet current regulatory discharge limitation standards. The Applicant requested an improved project to replace the UV disinfection system with a system utilizing bulk sodium hypochlorite which it asserted would meet regulatory requirements and was the least cost alternative. Finally, the Applicant submitted a Hazard Mitigation Proposal (HMP) to raise an existing berm that protects the Facility from 100-year flood events to a level of protection equal to the May 2010 disaster event plus a three-foot freeboard, surrounding the entire WWTP complex.
In a letter dated May 12, 2015, the Region IV Regional Administrator (RA) partially approved the appeal determining that the USACE flowage easement did not contain indemnification or hold harmless language; thus, the provisions of the easement agreement did not affect PA eligibility. In addition, the RA agreed that the predisaster UV disinfection system did not meet current regulatory requirements, and approved an improved project to install the bulk sodium hypochlorite system, contingent upon its receipt of a Grantee-approved time extension request and an accepted improved project request. However, the RA determined that additional costs to comply with an August 1, 2010 National Pollutant Discharge Elimination System (NPDES) permit were ineligible because the permit established discharge limitation standards after the disaster declaration date and the upgrades were not required to restore the Facility to pre-disaster design and capacity and capped the total eligible amount at $2,947,415.70. Regarding the HMP, the RA stated that FEMA would review the proposal once all appealed PWs within the WWTP were completed.
The Applicant requests an additional $2,772,584.30 to replace its Facility with one that meets the NPDES permit requirements in a July 31, 2015 second appeal letter. The Applicant asserts that, while the RA discussed a 2010 NPDES permit in the first appeal decision, the 2007 NPDES permit has similar wording and standards and was in effect at the time of the disaster. The Applicant provides the 2007 permit with its second appeal. The Applicant also asserts that the disinfection system is subject to Tennessee Department of Environment and Conservation (TDEC) design requirements. The Applicant states that TDEC requirements mandate the disinfection system be appropriately sized to meet the 2007 NPDES permit requirements.
Result of the Disaster
The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) § 406 authorizes FEMA to provide federal assistance to a local government for the repair, restoration, or replacement of a facility damaged or destroyed by a declared disaster “on the basis of the design of such facility as it existed immediately prior to the declared event and in conformity with current applicable codes, specifications and standards.” However, to be eligible for PA funding, the work must be the result of the disaster event, regardless of whether the work is a necessary code or standard upgrade, meaning there must be a direct relationship between the upgrade work and the disaster damage. Stated differently, while any upgrade must comply with all applicable environmental laws, this does not necessarily mean the upgrade work is eligible under the PA Program. Moreover, FEMA does not fund work to bring in to compliance facilities in violation of codes or standards at the time of the disaster.
As required by the Clean Water Act, all municipal, industrial and commercial facilities that discharge wastewater or stormwater directly from a point source into a water of the United States must obtain an NPDES permit to ensure that the receiving waters will achieve their Water Quality Standards. Compliance with an NPDES permit does not mandate certain design or construction methods, but requires a permitee to meet certain effluent discharge limits at its facility. The Applicant states that, when the Facility was installed in 2001, the permit requirements mandated a disinfection standard of 200 fecal coliform per 100 milliliters (mL) by monthly geometric mean. However, a new NPDES permit was issued in 2007 requiring a disinfection limit of 126 E. coli per 100 mL by monthly geometric mean and 487 E. coli per 100 mL as a daily maximum, a more stringent effluent limitation. The Applicant argues that the 2007 NPDES permit requirements mandate that the UV system be upgraded to comply with current effluent limitations. Moreover, the Applicant asserts that, because the UV system was damaged by the declared event, the upgrades are eligible for PA reimbursement because the requirements of Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.226(d) have been met.
Even if NPDES permit requirements are deemed “codes” under 44 C.F.R. § 206.226(d), it is important to note that the disaster did not necessitate the requirements in the 2007 NPDES permit. The issuance of the NPDES permit in April 2007 compelled the more stringent effluent discharge limits. Because the UV Filter Building is part of a wastewater treatment facility, the Applicant was required to comply with the new effluent limitations, effective on June 1, 2007, and perform the necessary upgrades irrespective of whether the disaster damaged the Facility or not. Therefore, upgrading the UV system to comply with more stringent effluent limitations was not required as the result of the disaster. Consequently, costs associated with such upgrades are not eligible under the PA program.
Further, the Applicant concedes that the UV system did not meet the 2007 NPDES permit requirements at the time of the disaster in its second appeal. Environmental Protection Agency (EPA) records also show the WWTP’s effluent violated NPDES requirements immediately prior, during, and immediately following the disaster event. The second appeal provides no explanation as to why, almost three years after the permit became effective, the Facility had not been updated to comply with the 2007 NPDES permit requirements. Because work to bring facilities in violation of code into compliance is not eligible under the PA Program, upgrade work necessary to bring the UV disinfection system into compliance with NPDES permit requirements is not eligible.
Codes and Standards
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: apply to the type of repair or restoration required; are appropriate to the predisaster use of the facility; 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; apply uniformly to all similar types of facilities within the jurisdiction of the owner of the facility; and were enforced during the time it was in effect. All five prongs must be met in order to be eligible for PA funding. Disaster Assistance Policy (DAP) 9527.4, Construction Codes and Standards, states that work to upgrade or change the configuration of systems in conformance with certain code provisions will be evaluated for reasonableness on a case-by-case basis, regardless of whether a building official requires additional work or the work is needed to obtain a building permit.
In its second appeal, the Applicant argues that the upgrades to the disinfection system are required by the TDEC Design Criteria and that TDEC must approve all designs. The Applicant further argues that the Design Criteria are “standards” under 44 C.F.R. § 206.226(d).
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).
As required by 44 C.F.R. § 206.223, upgrades done in order for the Applicant’s Facility to comply with NPDES effluent limitations are not the result of the disaster event. Moreover, the Applicant’s Facility was non-compliant at the time of the disaster, and FEMA does not provide grant assistance to bring facilities in to compliance. As such, PA reimbursement is not available for such upgrades. In addition, TDEC Design Criteria are not “codes” or “standards” pursuant to 44 C.F.R. § 206.226(d). As such, any upgrades performed to conform to the Design Criteria also are not eligible for PA reimbursement.
 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].
 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. § 206.223(a) (2009).
 44 C.F.R. § 206.223(a)(1) (stating an item of work must be required as the result of the major disaster event in order to be eligible for assistance); see DAP 9527.4, Construction Codes and Standards, at 4.
 Public Assistance Guide, FEMA 322, at 34 (June 2007) [hereinafter PA Guide].
 See Federal Water Pollution Control Act, Pub. L. No. 92-500, §§ 318, 402 and 405, 33 U.S.C. §§ 1328, 1342 and 1345 (1972).
 DAP 9527.4, Construction Codes and Standards, at 3 (mandating that an upgrade be required under the relevant standard because of the disaster damage and/or repair work necessary to repair that damage).
 Letter from Mayor, City of Clarksville, to Dir., Tenn. Emergency Mgmt. Agency (July 31, 2015) (stating “FEMA’s response to Clarksville’s first appeal of PW 4722 correctly states… that the existing (pre-flood) UV system did not meet NPDES permit requirements”).
 EPA Envirofacts, Integrated Compliance Information System (ICIS), //iaspub.epa.gov/enviro/ICIS_DETAIL_REPORTS_NPDESID.icis_tst?npdesid=TN0020656&npvalue=1&npvalue=13&npvalue=14&npvalue=3&npvalue=4&npvalue=5&npvalue=6&rvalue=13&npvalue=2&npvalue=7&npvalue=8&npvalue=11&npvalue=12 (last visited Feb. 5, 2016).
 FEMA Second Appeal Analysis, Clarksville Gas and Water, FEMA-1909-DR-TN, at 4 (Nov. 30, 2015) and FEMA Second Appeal Analysis, Clarksville Gas and Water, FEMA-1909-DR-TN, at 6 (Dec. 30, 2015) (determining that TDEC Design Criteria are not “standards” pursuant to 44 C.F.R. § 206.226(d) and DAP 9527.4, Construction Codes and Standards, because they were not formally adopted or uniformly applied and enforced at the time of the disaster).
 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.