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Second Appeal Analysis
PA ID# 125-U00B3-00; Clarksville Gas and Water
PW ID# 5224; Codes and Standards
From April 30 to May 18, 2010, severe storms, tornadoes, heavy rains, high winds, and flooding affected the City of Clarksville, Tennessee. Floodwaters from the event inundated the McClure Street Lift Station (Facility) owned by Clarksville Gas and Water (Applicant) causing substantial damage to the Facility, much of which was located below the ground floor level.
The Federal Emergency Management Agency (FEMA) prepared Project Worksheet (PW) 5224 to capture permanent repairs and hazard mitigation measures to the Facility. Within the PW scope of work (SOW), FEMA addressed removal, rebuilding and replacement of pump motors and pump seal assemblies, rebuilding the motor control center (MCC), replacing variable frequency drives (VFD), and repairing all relays, switches and meters damaged by the flood. In PW 5224, FEMA determined that $160,941.62 in costs were eligible for reimbursement.
In a first appeal dated June 24, 2011, the Applicant contested several items. First, the Applicant requested that FEMA modify the Cost Estimating Format (CEF) to account for electrical contractor services, project management services, and the cost of rebuilding the MCC. The Applicant also asked FEMA to approve code compliance upgrades for the installation of a flow meter, improved heating, ventilation and air conditioning (HVAC) system, combustible gas detectors, installation of a backup generator, and new stairs and walkways for the Facility. According to the Applicant, the requested code compliance upgrades were mandated by TDEC Design Criteria, the National Fire Protection Association 820 Standard for Fire Protection in Wastewater Treatment and Collection Facilities (NFPA 820), and the 2003 International Building Code (IBC). Lastly, the Applicant asked FEMA to increase the CEF to include two hazard mitigation measures.
On May 12, 2015, the FEMA Region IV Regional Administrator (RA) issued the first appeal decision. The RA partially approved the appeal for $292,130.30, subject to an insurance commitment, for the: (1) allowance of electrical contractor services; (2) reimbursement of costs for the repair of the MCC and replacement of the VFDs; (3) construction of a platform to elevate the MCC, the VFDs and the back-up generator; (4) Hazard Mitigation Proposal (HMP) costs for two submersible pumps; and (5) reinstatement of a previous National Flood Insurance Program (NFIP) reduction. The RA also stated that all partially approved costs were subject to reconciliation at project closeout. However, the RA denied costs associated with code compliance upgrades because the listed items (i.e., the flow meter, combustible gas detectors, HVAC system, backup generator and stairs and walkways) were not damaged by the disaster, but rather were new or reconfigured components.
On July 31, 2015, the Applicant filed its second appeal, requesting an additional $320,215.19, specifically for the flow meter, combustible gas detectors, HVAC system, backup generator, and new stairs and walkways. The Applicant contends that these code compliance upgrades are mandated by the TDEC Design Criteria, are acceptable “standards” under Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.226(d), and are reasonably related to the repairs. As such, the Applicant argues that the upgrades performed to the Facility 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. Additionally, the Applicant offers a July 23, 2015 letter from the 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.” The letter further states that, “[i]f such a design is found not to comply with these standards and requirements, the design submittal is to be rejected until such requirements are met.”
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 pre-disaster 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 for the upgrade work to be eligible for PA funding. Further explaining eligibility criteria, FEMA Disaster Assistance Policy (DAP) 9527.4, Construction Codes and Standards, states that 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 pre-disaster use of the Facility, and 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,” “uniformly applied,” and “enforced during the time it was in effect” requirements of 44 C.F.R. § 206.226(d)(3)-(5).
The Applicant asserts that the TDEC Design Criteria are required by Tennessee Rule
0400-40-02 because that 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, 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 TDEC Design Criteria when their design is “adequately supported by calculations and actual testing data.”
FEMA Disaster Assistance Policy DAP9527.4, Construction Codes and Standards, explains that codes or standards are considered “formally adopted” if 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 are not 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, as required by FEMA policy. Instead, 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)(4), the code or standard must be uniformly applied to all similar types of facilities in the jurisdiction and enforced during the time it was in effect. 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 itself provides 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 and enforced pursuant to 44 C.F.R. § 206.226(d)(4)-(5).
TDEC Requirements Approved on First Appeal
In response to the Applicant's first appeal, the RA determined that the Applicant's HMP request on first appeal to construct a platform to elevate the MCC and VFDs was eligible because it was required by the TDEC Design Criteria and pertained to damaged elements of the facility. However, because the TDEC Design Criteria do not meet the formally adopted or uniformly applied and enforced prongs of 44 C.F.R. § 206.226(d), the upgrades are not eligible for funding on the basis of code compliance. This upgrade, however, may be eligible as an HMP under the
Stafford Act§ 406 as the MCC and VFD 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 this work is ineligible as a code or standard compliance requirement, FEMA will consider whether it potentially is eligible as an HMP under Stafford Act § 406.
Pursuant to 44 C.F.R. § 206.226(d) and DAP 9527.4, Construction Codes and Standards, the TDEC Design Criteria do not meet the requirement of a code or standard under the PA Program because they were not formally adopted nor uniformly applied and enforced at the time of the disaster. Therefore, all of the code compliance upgrades, which were added to the Facility to comply with TDEC Design Criteria, are not eligible for PA reimbursement. FEMA Region IV will consider whether the work to construct an elevated platform for the MCC, VFDs and generator potentially is eligible as a Hazard Mitigation Proposal.
 Letter from Mayor, City of Clarksville, to Governor’s Authorized Representative, Tenn. Emergency Mgmt. Agency, at Exhibit 18 (June 24, 2011).
 FEMA First Appeal Analysis, Clarksville Gas and Water, FEMA-1909-DR-TN, PW 5224 (May 12, 2015).
 Letter from Mayor, City of Clarksville, to Governor’s Authorized Representative, Tenn. Emergency Mgmt. Agency (July 31, 2015) (In its first appeal, the Applicant specifically cited to NFPA 820 as the code requirement for the HVAC system and the combustible gas detectors. Likewise, the Applicant specifically cited to the IBC as the code requirement for the stairs and walkways. However, in its second appeal, the Applicant only cites to the “TDEC Requirements” (i.e. TDEC Design Criteria) as the code requirement for the flow meter, HVAC system, combustible gas detector(s) stairs and walkways, and backup power generator at the McClure Street Life Station.) [hereinafter Letter from Mayor].
 Tenn. Comp. R. & Regs. 0400-40-02 (2013).
 Letter from Chief Eng’r, Tenn. Dep’t of Env’t and Conservation, Div. of Water Res., to Pub. Assistance Specialist, Tenn. Emergency Mgmt. Agency (July 23, 2015) [hereinafter Letter from Chief Eng’r].
 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).
 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), which was 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)-(5).
 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) (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). See also, FEMA Second Appeal Analysis, Clarksville Gas and Water, FEMA-1909-DR-TN, PW 4710 (Apr. 11, 2016), FEMA Second Appeal Analysis, Clarksville Gas and Water, FEMA-1909-DR-TN, PW 5225 (Apr. 11, 2016), FEMA Second Appeal Analysis, Clarksville Gas and Water, FEMA-1909-DR-TN, PW 5226 (Dec. 30, 2015), FEMA Second Appeal Analysis, Clarksville Gas and Water, FEMA-1909-DR-TN, PW 5068 (Dec. 30, 2015), and FEMA Second Appeal Analysis, Clarksville Gas and Water, FEMA-1909-DR-TN, PW 5599 (Nov. 30, 2015), (All finding that TDEC Design Criteria do not meet the “formally adopted” requirement of 44 C.F.R. § 206.226(d)(3)).
 Letter from Chief Eng’r
 Design Criteria, at Chapter 1, § 18.104.22.168.
 FEMA First Appeal Analysis, Clarksville Gas and Water, FEMA-1909-DR-TN, PW 5224, at 4 (May 12, 2015).
 Disaster Assistance Policy DAP9526. l, Hazard Mitigation Under Section 406 (Stafford Act), at 3 (Mar. 30, 2010).