Codes and Standards
PA ID# 125-U00B3-00; Clarksville Gas and Water
PW ID# 4722; Codes and Standards
04/21/2016
Conclusion: Upgrades needed for the Applicant’s Facility to comply with National Pollutant Discharge Elimination System (NPDES) effluent limitations are not the result of the disaster event. Moreover, the Facility was non-compliant at the time of the disaster. In addition, Tennessee Department of Environment and Conservation (TDEC) Design Criteria are not “standards” pursuant to 44 C.F.R. § 206.226(d). As such, Public Assistance (PA) reimbursement is not available for such upgrades.
Summary Paragraph
Following severe storms, heavy rains, flooding, and flash flooding in May 2010, FEMA prepared Project Worksheet 4722 to address damage to the Applicant’s UV disinfection system and other components. However, FEMA ultimately obligated it for zero dollars because it determined the Facility was located in a USACE flowage easement. In the first appeal, the Applicant: (1) refuted FEMA’s determination that because the Facility was located within a USACE flowage easement, it was ineligible for PA reimbursement; (2) requested an improved project, and associated costs, to replace the UV disinfection system with a system utilizing bulk sodium hypochlorite to meet current regulatory discharge limitation standards; and (3) submitted a Hazard Mitigation Proposal. While the Region IV Regional Administrator granted certain requests in the first appeal, she determined that the regulatory requirements became effective after the disaster declaration date, therefore, were not required by the original scope of work and capped the total eligible amount at $2,947,415.70. On second appeal, the Applicant requests an additional $2,772,584.30 to replace its Facility with one that meets the 2007 NPDES permit requirements because the 2007 permit has the same effluent limitations as those required in 2010. The Applicant also asserts that the disinfection system is subject to TDEC design requirements which mandate the disinfection system to be appropriately sized to meet the 2007 NPDES permit requirements.
Authorities and Second Appeals
Stafford Act § 406.
44 C.F.R. § 206.223(a); 44 C.F.R. § 206.226(d).
DAP 9527.4, Construction Codes and Standards.
PA Guide, at 34.
Clarksville Gas and Water, FEMA-1909-DR-TN, at 4.
Headnotes
Pursuant to Stafford Act § 406 and 44 C.F.R. § 206.223, repair or replacement of a facility in conformance with its pre-disaster design, including any applicable codes and standards, is eligible for PA reimbursement if it is the result of a declared disaster.
The PA Guide states FEMA does not fund work to bring non-compliant facilities into compliance.
The Applicant’s requested upgrades were required by NPDES permit requirements, regardless of the disaster event.Moreover, the Facility was not compliant with 2007 NPDES permit requirements at the time of the disaster.As such, the upgrades are not eligible for PA funding.
According to 44 C.F.R. § 206.226(d)
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 for purposes of PA, and upgrades completed in accordance with them are not eligible for reimbursement.