Codes and Standards

Appeal Brief

Summary Paragraph

Beginning on April 30, 2010, severe storms, tornadoes, heavy rains, high winds, flooding, and flash flooding affected the City of Clarksville, TN.  The Applicant’s Facility sustained damage to its motors, pumps, Motor Control Center (MCC) and other components of the electrical infrastructure.  FEMA prepared Project Worksheet (PW) 4710 to address damage to the Facility.  In its first appeal, the Applicant requested that FEMA: (1) modify the Cost Estimating Format to account for electrical contractor services, project management services, and competitive bidding estimates for repair and replacement costs; (2) approve TDEC Design Criteria code upgrades for the addition of a flow meter, backup generator and third submersible pump;  (3) approve a Hazard Mitigation Proposal (HMP) to (a) construct a support structure to elevate the generator and control panels above the May 2010 flood event, and (b) install new submersible dry pit pumps; and (4) address miscellaneous issues.  The Regional Administrator (RA) partially approved the appeal for an additional $240,023.11.  The partial approval included: (1) allowance of electrical contractor services; (2) an increased costs for mechanical and electrical contract work (Item 1 above) for the construction of a platform to elevate the new MCC (Item 3(a) above); and (3) HMP costs for three submersible pumps subject to closeout reconciliation.  However, the RA denied certain costs associated with code compliance requirements (Item 2) because of work elements not damaged by the disaster.  Additionally, she found the project management costs (Item 1) submitted to be too vague to determine whether they were reasonable.  The Applicant’s second appeal argues that the other code compliance requests are mandated by TDEC requirements and eligible for funding.

Authorities and Second Appeals

• Stafford Act § 406.

• 44 C.F.R. § 206.226(d).

• DAP 9527.4, Construction Codes and Standards.

• FEMA Second Appeal Analysis, City of Gulfport, FEMA-1604-DR-MS, at 3.

Headnotes

• 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 are a 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.

• The TDEC Design Criteria do not meet the “formally adopted” or “uniformly applied” prongs of 44 C.F.R. § 206.226(d).As such, the upgrades completed in accordance with them are not eligible for PA reimbursement.

Appeal Letter

Appeal Analysis

Background

From April 30 to May 18, 2010, severe rainstorms created flooding of the Red River in the City of Clarksville, Tennessee.  Clarksville Gas and Water’s (Applicant) Red River Lift Station (Facility) suffered up to 38 inches of floodwater inundation for several days.  Inside the facility, standing floodwaters damaged two mechanical pumps and two 75 horsepower (HP) electrical pump motors, the Motor Control Center (MCC), and peripheral electrical components and wiring.

The Federal Emergency Management Agency (FEMA) prepared Project Worksheet (PW) 4710 as a Category F-Utilities[1] project to capture repairs and hazard mitigation to the Facility.  The PW scope of work (SOW) included project management services, electrical evaluation and testing services, repair of the two mechanical pumps using new seal replacements, refurbishment of the 75 HP electrical pump motors, replacement of the MCC, and repair of the peripheral components and wiring.  The PW also included a Hazard Mitigation Proposal (HMP) to replace the two 75 HP electrical pump motors with three 60 HP submersible electrical pump motors.[2]  FEMA obligated $125,868.63, which included reimbursement for work completed, Direct Administrative Costs (DAC), and the HMP.

First Appeal

In a first appeal dated June 24, 2011,[3] the Applicant requested that FEMA (1) modify the scope of work items and base costs in the Cost Estimating Format to account for electrical contractor services, actual costs for project management services and competitive bid estimates to rebuild the MCC, the two mechanical pumps and the two 75 HP electrical pump motors; (2) approve code upgrades for the addition of a flow meter, a backup power generator, and a third submersible pump;[4] (3) approve the HMP to (a) construct a support structure to elevate the proposed backup generator and the MCC above the May 2010 flood event, and (b) install new submersible pumps in the dry well and; (4) address miscellaneous issues of project completion date, complexity of design reimbursement, and pump station component orientation within the floodplain.

In the first appeal decision letter dated May 12, 2015, the FEMA Region IV Regional Administrator (RA) partially approved the appeal for an additional $240,023.11.  The approved partial appeal consisted of awarding reimbursement of electrical contractor services; increased costs for mechanical and electrical contract work (Item 1 above) for the construction of a platform to elevate the new MCC (Item 3(a)) – classifying the platform as code compliance; and HMP costs for three submersible pumps – reclassifying the third pump as a HMP instead of code compliance – subject to closeout reconciliation.  However, the RA denied certain costs associated with code compliance requirements (Item 2) because that work addressed elements not damaged by the disaster.  Additionally, project management costs (Item 1) submitted, were found to be too vague to determine reasonableness.[5]

Second Appeal

In its July 31, 2015 second appeal letter, the Applicant requests an additional $196,433.15 for a flow meter and backup power source to address code compliance costs it asserts should not have been denied on first appeal.  The Applicant contends that these code compliance requests are mandated by the Tennessee Department of Environment and Conservation (TDEC) design requirements[6]  are acceptable “standards” under Title 44 of the Code of Federal Regulations

(44 C.F.R.) § 206.226(d), and as such, the upgrades performed to comply with the criteria are eligible for Public Assistance (PA) funding.  To substantiate its claim, the Applicant references Tennessee Rule 0400-40-02,[7] 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,[8] 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.”[9] 

Discussion

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.[10]  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.[11]  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.[12] 

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, 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). 

1. Formally Adopted

The Applicant asserts that the TDEC Design Criteria are required by Tennessee Rule

0400-40-02 because the Rule references the document.[13]  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.[14]  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.”[15]  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.”[16]

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.[17]  Further, the policy stipulates that design standards, guidelines, policies, industry practices, or other non-mandatory provisions do not meet this criteria.[18] 

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.[19]  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.[20]  Instead, the TDEC Design Criteria are more similar to 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). 

1. 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.[21]  Moreover, the code or standard cannot be merely a recommendation or allow for variances.[22]

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.”[23]  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.”[24]  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.[25]  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).   

TDEC Requirements Approved on First Appeal

The first appeal response provided that the HMP request to construct a platform to elevate a back-up generator and control panels was eligible on the basis of 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 prongs of 44 C.F.R.

§ 206.226(d), the upgrades are not eligible for funding on the basis of code compliance.[26]  This work may be eligible as hazard mitigation as part of the project.

Conclusion

Pursuant to 44 C.F.R. § 206.226(d) and DAP9527.4, 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 nor uniformly applied and enforced at the time of the disaster.  As such, the upgrades performed to construct an elevated platform, add backup power generation, and provide a flow meter to comply with TDEC Design Criteria are not eligible for PA reimbursement as a code or standard requirement.  FEMA Region IV may consider the work to construct an elevated platform for the Motor Control Center as potentially eligible as a Hazard Mitigation Proposal.