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Second Appeal Brief
PA ID# 000-UV3S5-00; University of Texas Medical Branch
PW ID# 15823; Increased Operating Expenses
Conclusion: The costs associated with the University of Texas Medical Branch’s (Applicant) continuous operation of CSI equipment and regular replacement of point-of-use filters are increased operating expenses rather than costs associated with emergency work.
On September 13, 2008, Hurricane Ike caused the domestic hot water distribution system at the Applicant’s Healthcare Core Complex to shut down for thirteen days. The loss of water circulation caused stagnation throughout the water distribution system and created a favorable environment for Legionella bacteria colonization. The Applicant’s water distribution system was never tested for Legionella before the hurricane. The day water service resumed, the Applicant flushed and treated the water distribution system chemically. Subsequently, the Applicant detected the presence of Legionella within the hot water system and installed point-of-use water filters and performed short-term copper-silver ionization (CSI) treatments. FEMA awarded $1,294,123.85 in PW 15823, to fund emergency protective measures from March 26, 2010 until August 25, 2011, the day the Applicant received authorization from the Texas Commission on Environmental Quality (TCEQ) to install and operate permanent CSI equipment. The Applicant appealed the end date and requested ongoing funding for point-of-use filters and water treatment supplies until modifications are made to the entire water distribution system. On first appeal, the Regional Administrator (RA) denied the appeal finding the costs associated with replacing filters and operating the permanent CSI equipment as ineligible increased operating costs. The Applicant appealed and asserts that ending eligibility on the date the Applicant received authorization from the TCEQ is in error because there is no direct connection between the threat and the authorization.
Authorities and Second Appeals
Stafford Act § 403(a).
44 C.F.R. §§ 206.204, 206.225, 206.223, 206.221(c), 206.201(b).
PA Guide at 54, 55, 139.
Stafford Act § 403(a) authorizes FEMA to provide assistance essential to perform work that reduces “immediate threats to life and property resulting from a major disaster.”
The date the TCEQ authorized continuous operation of permanent CSI equipment represents the date the immediate threat ceased.
The costs associated with the Applicant’s continuous operation of CSI equipment and regular replacement of point-of-use filters are increased operating expenses rather than costs associated with emergency work.
According to 44 C.F.R. § 206.204, if an applicant requests a time extension beyond the limit of the Grantee’s authority, the Grantee must submit the request to the RA for approval. The PA Guide indicates that FEMA provides assistance only for those costs incurred up to the latest approved completion date for a particular project.