B-158318, JAN. 17, 1966, 45 COMP. GEN. 409

B-158318, JAN. 17, 1966, 45 COMP. GEN. 409

STATES - FEDERAL AID, GRANTS, ETC. - DISASTER RELIEF - UNCOMPLETED CONSTRUCTION FINANCIAL ASSISTANCE TO REPAIR PORTIONS OF A SEWAGE TREATMENT PLANT DAMAGED BY TORNADOES AFTER STATE PUBLIC UTILITY ACCEPTANCE BUT BEFORE COMPLETION OF THE OVERALL PROJECT MAY NOT BE AUTHORIZED UNDER THE FEDERAL DISASTER ACT, 42 U.S.C. 1855 ET SEQ., THE PLANT NOT IN OPERATION AT THE TIME OF THE DAMAGE IS NOT AN "ESSENTIAL PUBLIC FACILITY" WITHIN THE MEANING OF THE ACT THAT CONTEMPLATES ASSISTANCE FOR THE ALLEVIATION OF THE IMMEDIATE EFFECTS OF A MAJOR DISASTER AND FOR THE REPAIR OF ESSENTIAL FACILITIES ON A TEMPORARY OR EMERGENCY BASIS, LEAVING RESTORATION, REPLACEMENT, OR PERMANENT IMPROVEMENTS TO LOCAL GOVERNMENT, AND WHILE A SEWAGE TREATMENT PLANT IS AN ESSENTIAL FUNCTION, THE DAMAGED FACILITY NOT YET COMPLETED IN THE OVERALL, NOT IN USE, OR SCHEDULED FOR OPERATION IS NOT WITHIN THE PURVIEW OF THE FEDERAL DISASTER ACT, AND A FEDERAL CONTRIBUTION TO FINANCIALLY ASSIST IN THE REPAIR OF THE DAMAGED PORTIONS OF THE PLANT MAY NOT BE AUTHORIZED.

TO THE DIRECTOR, OFFICE OF EMERGENCY PLANNING, JANUARY 17, 1966:

BY LETTER OF JANUARY 7, 1966, THE ACTING DIRECTOR REQUESTED OUR OPINION CONCERNING AUTHORITY UNDER THE FEDERAL DISASTER ACT, PUBLIC LAW 875, 81ST CONG., AS AMENDED, 42 U.S.C. 1855 ET SEQ., TO PROVIDE FINANCIAL ASSISTANCE FOR THE REPAIR OF PORTIONS OF A SEWAGE TREATMENT PLANT DAMAGED AS A RESULT OF TORNADOES, SEVERE STORMS AND FLOODING IN THE STATE OF COLORADO.

THE ESSENTIAL FACTS MAY BE SUMMARIZED AS FOLLOWS, QUOTING FROM THE ACTING DIRECTOR'S LETTER:

1. THE METROPOLITAN DENVER SEWAGE DISPOSAL DISTRICT NO. 1 IS A PUBLIC UTILITY CONSTITUTED AS A POLITICAL SUBDIVISION OF THE STATE OF COLORADO UNDER THE STATUTES OF THAT STATE.

2. THE DISTRICT HAS SUBMITTED A PROJECT APPLICATION, INCLUDING CERTAIN REPAIRS TO A SEWAGE TREATMENT PLANT NOW UNDER CONSTRUCTION. THE PLANT HAS NEVER BEEN USED AND IS NOT EXPECTED TO START OPERATION UNTIL APPROXIMATELY SEPTEMBER 1, 1966. HOWEVER, THE DAMAGED PORTIONS OF THE PLANT FOR WHICH REPAIRS ARE REQUESTED HAVE BEEN ACCEPTED BY THE DISTRICT AS COMPLETE AND IT HAS THE RESPONSIBILITY TO MAINTAIN THESE FACILITIES. APPROXIMATELY 35 PERCENT OF THE FACILITY HAS BEEN ACCEPTED AS COMPLETE FOR WHICH PAYMENT OF $6,000,000 HAS BEEN MADE BY THE DISTRICT. THE COST OF THE NECESSARY REPAIRS IS ESTIMATED AT $85,000. THIS ESTIMATED COST OF NECESSARY REPAIRS WAS ARRIVED AT BY REPRESENTATIVES OF THE COLORADO STATE DEPARTMENT OF PUBLIC HEALTH AND THE U.S. PUBLIC HEALTH SERVICE FOLLOWING A JOINT INSPECTION OF THE PLANT.

THE ACT PROVIDES IN PERTINENT PART, AS FOLLOWS:

IT IS THE INTENT OF CONGRESS TO PROVIDE AN ORDERLY AND CONTINUING MEANS OF ASSISTANCE BY THE FEDERAL GOVERNMENT TO STATES AND LOCAL GOVERNMENTS IN CARRYING OUT THEIR RESPONSIBILITIES TO ALLEVIATE SUFFERING AND DAMAGE RESULTING FROM MAJOR DISASTERS, TO REPAIR ESSENTIAL PUBLIC FACILITIES IN MAJOR DISASTERS, AND TO FOSTER THE DEVELOPMENT OF SUCH STATE AND LOCAL ORGANIZATIONS AND PLANS TO COPE WITH MAJOR DISASTERS AS MAY BE NECESSARY. 42 U.S.C. 1855.

SEC. 3. IN ANY MAJOR DISASTER, FEDERAL AGENCIES ARE AUTHORIZED WHEN DIRECTED BY THE PRESIDENT TO PROVIDE ASSISTANCE (A) BY UTILIZING OR LENDING, WITH OR WITHOUT COMPENSATION THEREFOR, TO STATES AND LOCAL GOVERNMENTS THEIR EQUIPMENT, SUPPLIES, FACILITIES, PERSONNEL, AND OTHER RESOURCES, OTHER THAN THE EXTENSION OF CREDIT UNDER THE AUTHORITY OF ANY ACT; (B) BY DISTRIBUTING, THROUGH THE AMERICAN NATIONAL RED CROSS OR OTHERWISE, MEDICINE, FOOD, AND OTHER CONSUMABLE SUPPLIES; (C) BY DONATING OR LENDING EQUIPMENT AND SUPPLIES, DETERMINED UNDER THEN EXISTING LAW TO BE SURPLUS TO THE NEEDS AND RESPONSIBILITIES OF THE FEDERAL GOVERNMENT, TO STATES FOR USE OR DISTRIBUTION BY THEM FOR THE PURPOSE OF THIS CHAPTER INCLUDING THE RESTORATION OF PUBLIC FACILITIES DAMAGED OR DESTROYED IN SUCH MAJOR DISASTER AND ESSENTIAL REHABILITATION OF INDIVIDUALS IN NEED AS THE RESULT OF SUCH MAJOR DISASTER; (D) BY PERFORMING ON PUBLIC OR PRIVATE LANDS PROTECTIVE AND OTHER WORK ESSENTIAL FOR THE PRESERVATION OF LIFE AND PROPERTY, CLEARING DEBRIS AND WRECKAGE, MAKING EMERGENCY REPAIRS TO AND TEMPORARY REPLACEMENTS OF PUBLIC FACILITIES OF STATES AND LOCAL GOVERNMENTS DAMAGED OR DESTROYED IN SUCH MAJOR DISASTER, PROVIDING TEMPORARY HOUSING OR OTHER EMERGENCY SHELTER FOR FAMILIES WHO, AS A RESULT OF SUCH MAJOR DISASTER, REQUIRE TEMPORARY HOUSING OR OTHER EMERGENCY SHELTER, AND MAKING CONTRIBUTIONS TO STATES AND LOCAL GOVERNMENTS FOR PURPOSES STATED IN THIS SUBDIVISION. * * * 42 U.S.C. 1855B.

WE UNDERSTAND THAT ALL ADMINISTRATIVE REQUIREMENTS OF THE ACT HAVE BEEN MET, THE SOLE QUESTION FOR DETERMINATION BEING WHETHER THE PLANT INVOLVED MAY BE CONSIDERED AN "ESSENTIAL PUBLIC ACILITY" WITHIN THE MEANING OF THE ACT, IN LIGHT OF THE FACT THAT IT WAS NOT IN OPERATION AT THE TIME IT WAS DAMAGED. THE ACTING DIRECTOR REACHES AN AFFIRMATIVE CONCLUSION IN THIS REGARD ON THE BASIS THAT THE PLANT'S FUNCTION TO ABATE POLLUTION OF THE SOUTH PLATTE RIVER IS CONSIDERED TO BE AN ESSENTIAL FUNCTION OF THE SEWAGE DISPOSAL DISTRICT. WE CANNOT AGREE.

THE ACT PROVIDES FOR FEDERAL ASSISTANCE TO STATES AND LOCAL GOVERNMENTS (INCLUDING DISTRICTS) IN CARRYING OUT THEIR RESPONSIBILITIES TO ALLEVIATE SUFFERING AND DAMAGE RESULTING FROM MAJOR DISASTERS AND TO REPAIR ON A TEMPORARY AND EMERGENCY BASIS ESSENTIAL PUBLIC FACILITIES IN MAJOR DISASTERS. THE UNDERLYING PURPOSE OF THE ACT IS TO PROVIDE THAT RELIEF WHICH IS ESSENTIAL TO THE HEALTH AND WELL-BEING OF THE RESIDENTS OF MAJOR DISASTER AREAS. IT WAS THE INTENT THAT SUCH RELIEF WOULD BE UPON AN EMERGENCY BASIS ONLY WITH ONLY TEMPORARY REPAIR OR MAJOR REPLACEMENT OF PUBLIC FACILITIES TO BE MADE DURING AND IMMEDIATELY AFTER DISASTERS. THE ACT DOES NOT CONTEMPLATE THE FINANCING OF PERMANENT REPAIRS OR REHABILITATION BUT RATHER IS DESIGNED TOWARD ALLEVIATING THE IMMEDIATE EFFECTS OF DISASTERS. AFTER SUCH FEDERAL ASSISTANCE, IT WAS CONSIDERED THAT THE RESTORATION, REPLACEMENT, OR PERMANENT IMPROVEMENT OF PUBLIC FACILITIES WAS A RESPONSIBILITY OF THE LOCAL GOVERNMENTS. THE ENTIRE TENOR OF THE ACT IS TO ASSIST LOCAL GOVERNMENTS WITH RESPECT TO THEIR OBLIGATIONS IN MEETING THE IMMEDIATE NEEDS OF LOCAL CITIZENS FOLLOWING MAJOR DISASTERS. SEE H.REPT. NO. 2727, DATED JULY 25, 1950. THIS CONCEPT OF THE ACT HAS BEEN RECOGNIZED IN THE IMPLEMENTING REGULATIONS PROMULGATED BY YOUR OFFICE. NOTE PARTICULARLY THE PROVISIONS COVERING CRITERIA FOR ELIGIBILITY, AT 32 CFR 1710.10:

FEDERAL FINANCIAL ASSISTANCE UNDER PUBLIC LAW 875 SHALL BE LIMITED TO PROTECTIVE WORK AND OTHER WORK FOR THE PROTECTION OF LIFE AND PROPERTY, DEBRIS AND WRECKAGE CLEARANCE, AND EMERGENCY REPAIRS AND TEMPORARY REPLACEMENT OF ESSENTIAL PUBLIC FACILITIES OF STATES AND LOCAL GOVERNMENTS, INCLUDING PROVISIONS FOR TEMPORARY HOUSING OR EMERGENCY SHELTER.

(C) EMERGENCY REPAIRS AND TEMPORARY REPLACEMENTS. IN PROVIDING FINANCIAL ASSISTANCE FOR MAKING EMERGENCY REPAIRS TO AND TEMPORARY REPLACEMENTS OF PUBLIC FACILITIES OF STATES AND LOCAL GOVERNMENTS WHICH HAVE BEEN DAMAGED OR DESTROYED, THE FOLLOWING CRITERIA SHALL APPLY:

(1) EMERGENCY REPAIRS AND TEMPORARY REPLACEMENTS SHALL BE MADE ONLY TO THOSE FACILITIES THE OPERATION OF WHICH IS ESSENTIAL TO HEALTH, SAFETY OR WELFARE.

(2) ASSISTANCE IN MAKING EMERGENCY REPAIRS OR TEMPORARY REPLACEMENTS SHALL BE LIMITED TO PROVIDING FOR THE RESUMPTION OF ESSENTIAL PUBLIC SERVICES UNTIL SUCH TIME AS PERMANENT REPAIRS OR REPLACEMENTS MAY BE MADE, EXCEPT WHEN SPECIFICALLY AUTHORIZED BY THE DIRECTOR PURSUANT TO SUBPARAGRAPH (3) OF THIS PARAGRAPH.

(3) A FEDERAL FINANCIAL CONTRIBUTION TOWARD THE PERMANENT REPLACEMENT OF A PUBLIC FACILITY, IN LIEU OF AND IN AN AMOUNT NO GREATER THAN THAT ESTIMATED TO BE REQUIRED FOR THE TEMPORARY REPLACEMENT OR EMERGENCY REPAIR, MAY BE AUTHORIZED WHERE SUCH PERMANENT REPLACEMENT WILL EXPEDITIOUSLY PERMIT THE RESUMPTION OF THE ESSENTIAL PUBLIC SERVICE PROVIDED BY THE FACILITY.

WHILE THE SEWAGE TREATMENT PLANT INVOLVED IS DOUBTLESS IN FURTHERANCE OF AN ESSENTIAL FUNCTION OF THE DISTRICT, WE CAN FIND NO BASIS FOR CONCLUDING THAT THE REPAIR OF A DAMAGED PORTION OF A FACILITY NOT YET COMPLETED IN THE OVERALL, NOT IN USE, AND NOT SCHEDULED TO BE PLACED IN OPERATION FOR A CONSIDERABLE PERIOD OF TIME, MAY PROPERLY BE SAID TO BE WITHIN THE PURVIEW OF FEDERAL DISASTER ACT PURPOSES AS SET FORTH ABOVE, IN THE ACT ITSELF, ITS LEGISLATIVE HISTORY AND THE IMPLEMENTING REGULATIONS ISSUED UNDER IT. ACCORDINGLY, WE MUST ADVISE THAT FEDERAL CONTRIBUTION TOWARD FINANCIALLY ASSISTING IN THE REPAIR OF THE DAMAGED PORTIONS OF THE FACILITY IN QUESTION IS NOT AUTHORIZED UNDER THE PROVISIONS OF THE FEDERAL DISASTER ACT.