Codes and Standards

Summary Paragraph

Between April 30 and May 18, 2010, floodwaters inundated and submerged the Applicant’s Facility.  FEMA prepared Project Worksheet (PW) 5226 for damages to various electrical and mechanical components.  FEMA obligated the PW at $99,748.79.  The Applicant submitted its first appeal to Tennessee Emergency Management Agency (Grantee) on June 24, 2011, requesting an additional $1,018,124.60 in funding, excluding design costs.  The Applicant, through its first appeal submission, requested that FEMA fund upgrades the Applicant argued were required by Tennessee Department of Environment and Conservation Design Criteria for Sewage Works (TDEC Design Criteria), the 2008 addition of 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).  More specifically, the Applicant argued these codes required replacement of a damaged flow meter in a buried vault, a backup generator, a third pump attachment, a new heating ventilation and air conditioning (HVAC) system, new combustible gas detectors, and new stairs and walkways.  On May 11, 2015, the Region IV Regional Administrator (RA) granted the appeal in part, approving $479,398.34 in Public Assistance (PA) funding.  The RA determined that only the elevation of the MCC and VFDs as well as the installation of the flow meter in a vault were reimbursable and approved funding accordingly.  She determined the other requested code upgrades were not damaged elements, but new or reconfigured components. On July 31, 2015, the Applicant submitted its second appeal, requesting PA funding for $265,057.00 in upgrades previously denied, arguing that the costs are eligible for funding because the TDEC Design Criteria satisfies the criteria outlined in 44 C.F.R. § 206.226(d).    

Authorities and Second Appeals

• Stafford Act § 406.

• 44 C.F.R. § 206.226(d).

• DAP 9527.4, Construction Codes and Standards.

• DAP9526.1, Hazard Mitigation Under Section 406 (Stafford Act).

• 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 predisaster 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 upgrades the Applicant contends are mandated by the TDEC Design Criteria do not meet the “apply to the type of repair” prong of 44 C.F.R. § 206.226(d).Consequently, the upgrades are not eligible for PA reimbursement.

• 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 Design Criteria are not acceptable standards and upgrades completed in accordance with them are not eligible for PA reimbursement.