Flooding of Sanitary Sewer System

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1044-DR
ApplicantLake County Public Works Department
Appeal TypeSecond
PA ID#033-00000
PW ID#73738,73747
Date Signed1997-09-30T04:00:00
Citation: FEMA-1044-DR-CA; Lake County Public Works Department; DSRs 73738 and 73747; Lake County Sewer System and Kelseyville County Water Works District #3

Cross-Reference: Utility costs, Emergency response measures, Operational expenses

Summary: As a result of winter storms, the Lake County Sanitation District's and the Kelseyville County Water Works' sanitary sewer systems were inundated with floodwaters. Both systems required additional wastewater pumping and extra testing for contamination. The costs included emergency protective measures, increased power consumption, barricades and sandbagging, bacteriological testing, additional chlorine, and pump repairs. FEMA removed the costs incurred due to increased power consumption and bacteriological testing from the scope of eligible work because they were an operational expense increase, and, therefore, were not eligible. The subgrantee appealed the determination of ineligibility stating that the removed items are emergency protective measures covered under 44 CFR 206.225. After review, the Regional Director determined that the costs associated with additional water quality testing were eligible. However, the electrical power cost for extra pumping during the flood event was still not eligible because it is required as part of normal plant operation during the wet weather months. The subgrantee submitted a second appeal asserting that the additional wastewater pumping is an emergency protective measures, therefore, the electrical power costs should be eligible under 44 CFR 206.225.

Issues: Should FEMA fund increased utility cost incurred during emergency response measures?

Findings: No. Power consumption costs are an operational expense, and, therefore, do not meet any of the eligibility requirements for an emergency response.

Rationale: A requirement for all types of utilities is that increases in operating expenses, even if a result of a disaster, are not eligible.

Appeal Letter

September 30, 1997

Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
74 North Pasadena Avenue, West Annex, 3rd Floor
Pasadena, California 91103

Dear Mr. Najera:

This is in response to your February 7, 1997, submittal, of Lake County's second appeal of damage survey reports (DSRs) 73738 and 73747 under FEMA-1044-DR-CA. The subgrantee is requesting funding for increased electrical power consumption at the Kelseyville waterworks and the Lake County sanitary sewer system.

I have determined that the power consumption costs do not meet any of the eligibility requirements for emergency response. Even though additional wastewater pumping was required as a result of the disaster, the utility costs associated with this work is an increase in operational expense. Therefore, as explained in the enclosed analysis, I have denied this appeal.

Please inform the applicant of my determination. The applicant may submit a third appeal to the Director of FEMA. The appeal must be submitted through your office and the Regional Director within 60 days of receipt of this determination.

Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate

Enclosure

Appeal Analysis

BACKGROUND
As a result of winter storms during January and February of 1995 (FEMA-1044-DR-CA), the Lake County Sanitation District's and the Kelseyville County Water Works' sanitary sewer systems were inundated with floodwaters. This inundation resulted in extraordinary expenses to the subgrantee due to additional wastewater pumping and extra testing for contamination. Inspectors from the Federal Emergency Management Agency (FEMA) and the State of California Governor's Office of Emergency Services (OES) prepared damage survey reports (DSRs) 73738 (Lake County) and 73747 (Kelseyville County) to describe the costs incurred as a result of the disaster. The costs included emergency protective measures, increased electrical power consumption due to pumping, barricades and sandbagging, bacteriological testing, additional chlorine, and pump repairs. DSRs 73738 and 73747 were prepared for $11,928 and $19,312, respectively.

After review, FEMA removed the costs of increased power consumption and bacteriological testing from the scope of eligible work resulting in an $8,553 reduction in funding from both DSRs combined. The ineligible costs were determined to be an increase in operational expense, and, therefore, did not meet eligibility requirements for emergency work.

First Appeal
With a May 23, 1996, letter, OES transmitted two letters from the subgrantee dated February 21, 1996, appealing the denial of work items from DSRs 73738 and 73747. The subgrantee was opposed to the deletion of extra power costs and bacteriological tests from the eligible scope of work and stated that these were emergency protective measures necessary to reduce immediate threats to public health and minimize additional damage to improved public and private facilities. In addition, OES noted that the increased power costs were demonstrated by using a three-year average of power consumption for January/February and bacteriological testing was a necessary measure to eliminate the risk of a threat to public health. To substantiate its claim of additional incurred costs the subgrantee submitted electrical utility bills and water quality testing bills.

After review, the Regional Director determined that the costs associated with additional water quality testing should be eligible pursuant to Title 44 of the Code of Federal Regulations (CFR) section 206.225(a). In support of this decision the Regional Director stated that additional water quality testing during a plant-flooding event is necessary to eliminate an immediate threat to the drinking water source for the community. Accordingly, DSR 71656 was prepared and approved for $2,079, as a supplement to DSR 73738, and DSR 71657 was prepared and approved for $889, as a supplement to DSR 73747. However, the Regional Director maintained that the electrical cost for pumping was not eligible because it was not considered an emergency protective measure, as it was required as part of normal plant operation.

Second Appeal
With a February 7, 1997, letter, OES transmitted the subgrantee's November 20, 1996, second appeal of DSRs 73738 and 73747. OES and the subgrantee again asserted that the additional wastewater pumping is eligible under 44 CFR 206.225. The subgrantee also noted that the DSRs were originally prepared in accordance with 44 CFR 206.202(d) and that the costs were identified as eligible and were concurred with by all members of the inspection team. In addition, the subgrantee noted that flooding of raw sewage lift station facilities are not part of the normal operations during the wet weather months but, in fact, presented an immediate threat to the public health.

DISCUSSION
FEMA policy states, "Another general requirement for all types of utilities is that increases in operating expenses, even if a result of the disaster, are not eligible." Even though additional wastewater pumping was required as a result of the disaster, the utility costs associated with this work is an increase in operational expense. Therefore, these costs are ineligible for FEMA assistance.

The subgrantee's first and second appeals state that all eligible work and costs identified during the inspection are in accordance with 44 CFR 206.202(d) and, therefore, should be eligible because the costs were identified as being eligible and were concurred with by all members of the inspection team. The role of the inspection team is to identify all apparent damages and the eligible scope of work as reported by the subgrantee and to prepare quantity and cost estimates for the work. The inspection team can only make recommendations relative to project eligibility. Upon completion, per 44 CFR 206.202(e), DSRs are subject to review and the Regional Director is authorized to make the final eligibility determination.

CONCLUSION
Costs incurred due to increased power consumption are operational expenses, and, therefore, do not meet FEMA eligibility requirements. Thus the appeal is denied.
Last updated February 4, 2020