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Withlacoochee Water Pollution Control Plant

Appeal Brief Appeal Letter

Appeal Brief

Desastre1833-DR-GA
ApplicantCity of Valdosta
Appeal TypeSecond
PA ID#185-78800-00
PW ID#863
Date Signed2012-07-27T04:00:00

Citation:       FEMA-1833-DR-GA; City of Valdosta, Withlacoochee Pollution Control Plant, PW 863

Cross -

Reference:  Hazard Mitigation

Summary:    The Withlacoochee Pollution Control Plant (WPCP) in the City of Valdosta (Applicant) sustained damage as a result of severe storms and flooding associated with FEMA-1833-DR-GA.  FEMA prepared PW 863 for $527,184 to fund the repair of the facility.  The Applicant requested approval of the relocation of the facility at an estimated cost of $94,325,027 as a hazard mitigation proposal (HMP).  The FEMA Regional Administrator denied the Applicant’s request to relocate the WPCP, because the HMP to relocate the facility applied to undamaged elements of the facility and was not cost effective.

                     In its first appeal, the Applicant stated that the relocation of the WPCP should be funded by FEMA based on code and standard requirements set forth in the International Building Code (IBC) and because the other technically feasible hazard mitigation options are prohibited by the Lowndes County Unified Land Development Code (ULDC).  The FEMA Regional Administrator denied the first appeal because the HMP applies predominantly to undamaged elements of the facility.  Further, the facility did not sustain substantial damage nor require substantial improvement; therefore, the code requirements cited by the Applicant did not apply.

                     In its second appeal, the Applicant states that because the WPCP is located in a Special Flood Hazard Area (SFHA), the ULDC prohibits the reconstruction of the facility.  According to the Applicant, the ULDC also prohibits new construction and substantial improvements to the facility, which precludes the Applicant from considering the other technically feasible mitigation options that FEMA proposed.  The Applicant states that the ULDC “prohibits the major repairs needed for the plant to operate” within permit requirements.  The Applicant concludes that the WPCP should be eligible for relocation because it is not repairable and relocation is a cost-effective option.

Issue:           Is the relocation of the plant a cost-effective hazard mitigation measure addressing only the damaged portions of the facility?

Finding:       No.  The plant sustained minor damage and the Benefit-Cost Analysis resulted in a benefit to cost ratio of 0.04.

Rationale:    Disaster Assistance Policy DAP9526.1, Hazard Mitigation Funding Under Section 406 (Stafford Act), dated July 30, 2007.

Appeal Letter

July 27, 2012


Charley English
Director
Georgia Emergency Management Agency
Post Office Box 18055
Atlanta, Georgia  30316 -0055

Re:  Second Appeal–City of Valdosta, PA ID 185-78800-00, Withlacoochee Water Pollution Control Plant, FEMA-1833-DR-GA, Project Worksheet (PW) 863

Dear Mr. English:

This letter is in response to a letter from your office dated February 15, 2012, which transmitted the referenced second appeal on behalf of the City of Valdosta (Applicant).  The Applicant requests that the Department of Homeland Security’s Federal Emergency Management Agency (FEMA) fund a Hazard Mitigation Proposal (HMP) for the relocation of the Withlacoochee Water Pollution Control Plant (WPCP) in the amount of $88,650,000.

Background

As a result of the severe storms and flooding that occurred in March and April 2009, the sludge belt conveyor system and the filtration system at the WPCP were damaged, along with portions of the electrical and mechanical systems in other inundated areas of the plant.  FEMA prepared PW 863 for $527,184 on June 26, 2009, to fund $221,159 for completed repairs to the electrical systems, motors, bearings, and appurtenances, and $306,025 for the estimated cost to repair the sludge belt conveyor and backwash filters.  FEMA obligated PW 863 on January 6, 2010.

After a series of meetings with the Georgia Emergency Management Agency (Grantee) and Applicant representatives in April, May, and June 2010, and in response to the Applicant’s request to consider the relocation of the damaged WPCP as an HMP, FEMA agreed to work with the Applicant to explore hazard mitigation options.  At the request of and in coordination with the Applicant, FEMA developed three HMPs, including two flood-proofing options and an option to relocate the WPCP at an estimated cost of $94,325,027.  The Applicant decided to pursue the option to relocate the plant.  On December 10, 2010, the FEMA Regional Administrator denied the Applicant’s request to relocate the WPCP, because the HMP to relocate the facility applied to undamaged elements of the facility and was not cost effective.

First Appeal

On February 11, 2011, the Applicant submitted its first appeal of the denial of the HMP, and the Grantee transmitted the appeal to FEMA on February 15, 2011.  The Applicant stated that the relocation of the WPCP should be funded by FEMA based on code and standard requirements set forth in the International Building Code (IBC) and because the other technically feasible hazard mitigation options are prohibited by the Lowndes County Unified Land Development Code (ULDC).

On November 10, 2011, the FEMA Regional Administrator denied the first appeal.  The Regional Administrator concluded that the HMP to relocate the plant was not eligible because it applied largely to undamaged elements of the facility.  Further, the facility did not sustain substantial damage nor require substantial improvement; therefore, the code requirements cited by the Applicant did not apply.

Second Appeal

The Applicant submitted its second appeal on February 1, 2012, which was forwarded to FEMA by the Grantee on February 15, 2012.  The Applicant states that because the WPCP is located in a Special Flood Hazard Area (SFHA), the ULDC prohibits new construction and substantial improvements to the facility at its current location.   The Applicant therefore requests hazard mitigation funding under the Public Assistance Program to relocate the WPCP and argues that relocation is a cost-effective option.  The Applicant requests that FEMA approve $88,650,000 for the relocation of the WPCP.  If the full relocation of the WPCP is not approved, the Applicant requests consideration of an alternative to relocate a portion of the plant at an estimated cost of $59,420,000.  FEMA’s initial estimate for the relocation based on information available at the time was $94,325,027, however the Applicant is requesting $88,650,000 with the second appeal.

Discussion

Under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), FEMA is authorized to provide funding for the restoration of eligible disaster damaged facilities.  FEMA may also consider additional funding to reduce future risk of damage as facilities are repaired.  As stated in Disaster Assistance Policy DAP9526.1 Hazard Mitigation Funding Under Section 406 (Stafford Act), hazard mitigation funding under Section 406 is discretionary and only FEMA has the authority to determine which hazard mitigation measures it will fund.  The policy (DAP9526.1) establishes the criteria FEMA uses to consider hazard mitigation funding as part of the Public Assistance Program.  Two primary criteria in the policy are that the hazard mitigation funding is limited to the restoration of the elements of a facility damaged in the disaster and that it be cost effective.   The version of the policy that is in effect for this disaster was issued on July 30, 2007.

At the request of the Applicant, FEMA worked with the Applicant in the summer of 2010 to develop several HMPs for the WPCP.  These included full relocation of the WCPC, and two flood-proofing options based on construction of flood walls.  The Applicant chose to pursue relocation of the WPCP.  In the second appeal, the Applicant objects to the FEMA Regional Administrator’s denial of an HMP that was developed by FEMA’s technical resources.  However, Version 1 of PW 863 in which the HMP to relocate the WPCP was submitted, states that, “Although the Project Specialist has concerns about eligibility of much of the requested work, the applicant requested FEMA’s assistance in preparing this PW supporting applicant’s position for total plant location.  Major eligibility issues have been identified in the following scope of work.”  FEMA Project and Technical Specialists responsible for developing HMPs are not ultimately responsible for determining the eligibility of the proposals.  All HMPs must be reviewed for eligibility based on the requirements set forth in Disaster Assistance Policy DAP9526.1, Hazard Mitigation Funding Under Section 406 (Stafford Act).  The Regional Administrator made that determination on eligibility on December 10, 2010. 

Disaster Assistance Policy DAP9526.1 states that mitigation measures funded under Section 406 are to address the parts of a facility that were damaged by the disaster and must be cost effective.  The WPCP incurred damage to portions of the plant as a result of the disaster.  The HMP to relocate the entire WPCP requests funding for many elements of the facility that were not damaged as a result of the disaster.  The HMP to relocate the WPCP therefore does not meet this provision of the policy.  The cost to relocate the plant was originally estimated by FEMA to be $94,325,027.  (The Applicant is requesting $88,650,000 in the second appeal.)  Damage to the WPCP was $527,184.  FEMA’s Benefit-Cost Analysis (BCA) of the relocation proposal resulted in a benefit-cost ratio of 0.04.  In order to be considered cost effective, the ratio must be greater than one.  The Applicant’s alternative to relocate a portion of the plant at an estimated cost of $59,420,000 would similarly fail to yield a benefit-cost ratio greater than one.  The HMP to relocate the WPCP would apply mitigation funding to elements that were not damaged in the disaster and it is not cost effective.  Therefore, the HMP does not comply with DAP9526.1.

The Applicant contends that FEMA’s BCA should include loss of function as a benefit.  The version of DAP9526.1 in effect at the time of the declared event did not allow loss of function costs to be included in a BCA for hazard mitigation measures funded under Section 406.  The Applicant contends that this is not the case, because FEMA’s BCA software allowed the documentation of loss of function damages at the time of the disaster.  FEMA’s BCA software is used to analyze the cost effectiveness of hazard mitigation measures proposed for funding under both Section 404 and Section 406 of the Stafford Act.  FEMA allows loss of function to be considered for HMPs under Section 404; however, until FEMA revised DAP9526.1, on March 30, 2010, FEMA did not allow loss of function to be included as a benefit when evaluating HMPs under Section 406.  The version of the policy in effect at the time of this disaster clearly states in Section VII.B.3 the costs to be included in the BCA, and this does not include loss of function.  The BCA calculated by FEMA correctly applies the policy in effect for this disaster with regard to the exclusion of loss of function.

The Applicant also asserts that because the ULDC prohibits substantial improvements to critical facilities located in a Special Flood Hazard Area (SFHA), and the WPCP is a critical facility located in the SFHA, the ULDC precludes substantial improvements to the WPCP therefore requiring its relocation.  As part of the second appeal, the Applicant provided information from a flood zone study that indicates much of the WPCP is located in an SFHA.  The Applicant cited the Lowndes County ULDC in indicating that the local code prohibits substantial improvements of critical facilities in an SFHA.  The Lowndes County ULDC does state that critical facilities shall not be located in the 100-year flood plain.  Provisions in the ULDC related to substantial improvements state that new construction or substantial improvements of non-residential buildings shall have the lowest floor 2 feet above the base flood elevation.  The Applicant argues that the provisions in the ULDC prohibit substantial improvements of the WPCP.  The Lowndes County ULDC defines substantial damage as damage resulting in restoration costs of more than 50% of the pre-disaster market value of the facility.  Substantial improvement is defined as improvement of a structure which, during a five year period, exceeds 50% of the pre-disaster market value of the facility.  The disaster caused $527,184 in damage to the WPCP.  The WPCP was not substantially damaged by the disaster and the repairs are not substantial improvements; therefore, the code does not prohibit the repairs to the facility, nor do they require full relocation of the WPCP in order to conduct the repairs.

The Applicant’s appeal also references Federal floodplain management regulations and provisions in FEMA regulations for relocation of facilities.  Although FEMA is required to avoid long- and short-term adverse impacts associated with occupancy of the floodplain, Part 9 of FEMA regulations is based on consideration of practical alternatives, which includes the consideration of cost.   Relocation of a facility that incurred $527,184 in damage for a cost of $88,650,000 is not a cost-effective practical alternative.  With regard to the provision for relocation of facilities in FEMA regulations (44CFR206.226(g)), this applies to restoration of destroyed facilities.  The WPCP was not destroyed and therefore this provision in the regulation does not apply. 

Conclusion

I have reviewed the information submitted with the second appeal and have determined that the Regional Administrator’s decision in the first appeal is consistent with Public Assistance Program regulations and policy.  The proposal to relocate the Withlacoochie Water Pollution Control Plant is not eligible under the Public Assistance Program.  Accordingly, I am denying the second appeal.  This determination is the final decision on this matter pursuant to Title 44 of the Code of Federal Regulations § 206.206, Appeals.   Please inform the Applicant of my decision.

Sincerely,

/s/

Deborah Ingram

Assistant Administrator

Recovery Directorate

cc:   Major P. May
Regional Administrator
FEMA Region IV