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Second Appeal Brief
PA ID# 000-UV3S5-00; University of Texas Medical Branch
PW ID# 15822; Direct Result of Disaster, Predisaster Conditions
Conclusion: The Applicant’s proposed items of work are not required as a result of the disaster. They are modifications to address pre-existing inadequacies in the Applicant’s hot water system. They do not restore, but rather modify, the system’s predisaster design and capacity. The predisaster function of the hot water system has been restored through the permanent installation of Copper-Silver Ionization equipment.
On September 13, 2008, Hurricane Ike struck Galveston, Texas. The resulting loss of power disrupted the hot water distribution system at the Applicant’s Healthcare Core Complex. The loss of water circulation caused stagnation throughout the hot water distribution system. This stagnation, combined with elevated temperatures for thirteen days, created a favorable environment for Legionella bacteria colonization. Before the disaster, the Applicant never tested its hot water distribution system for Legionella since it was not required to do so. After the disaster, 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 funded these emergency protective measures in Project Worksheet (PW) 15823 and awarded the Applicant $1,294,123.85. These emergency protective measures were funded until August 25, 2011, when the Applicant received authorization from the Texas Commission on Environmental Quality (TCEQ) to permanently install and operate CSI equipment. In December of 2012, FEMA approved PW 15822 (Category E) for $529,631.16 for the purchase, permanent installation, and start-up of a CSI system. Based on a consultant’s report which recommended various improvements to the hot water system, the Applicant also requested an additional $12,248,641.00 in Public Assistance (PA) funds. However, FEMA determined the Applicant’s requested items of work (i.e. replacing storage tanks, modifying recirculation systems, installing instantaneous hot water heaters, providing ultra-violet radiation, removing dead leg piping, and relocating water softeners and pumps) were not required as a result of the disaster and therefore denied the Applicant’s request for the additional $12,248,641.00. In March 2013, the Applicant appealed arguing that CSI treatments alone would not rid its hot water system of Legionella. The Applicant sought an additional $12,248,641.00 to replace storage tanks, modify recirculation systems, install instantaneous hot water heaters, provide ultra-violet radiation, remove dead leg piping, and relocate water softeners and pumps. On February 10, 2016, the FEMA Regional Administrator (RA) denied the Applicant’s appeal. The RA stated that the Applicant’s hot water system was not physically damaged by the disaster. The proposed items of work were not repairs of disaster-related damage, but rather modifications to remove pre-existing inadequacies in the system. On April 25, 2016, the Applicant filed its second appeal. The Applicant argued that FEMA is required to restore the hot water system to its predisaster condition. The Applicant maintains that the predisaster condition to be restored is a hot water system that is free from Legionella bacteria, thus requiring replacement of major system components.
Authorities and Second Appeals
- Stafford Act § 406.
- 44 C.F.R. §§ 206.201(h), 206.223(a)(1).
- PA Guide, at 29, 54, 79.
- Univ. of Tex. Med. Branch., FEMA-1791-DR-TX, at 1, 4, 5.
- City of Boulder, FEMA-4145-DR-CO, at 4.
- Delaware Cty. Dept. of Pub. Works, FEMA-4020-DR-NY, at 2, 3.
- Per 44 C.F.R. § 206.223(a)(1), to be eligible for financial assistance, an item of work must be required as the result of a major disaster event.
- Per the PA Guide, at 29, work to correct inadequacies that existed prior to the disaster, is not eligible.
- The Applicant’s proposed items of work are not required as a result of the disaster. They are modifications to address pre-existing inadequacies in the hot water system.
- Per the PA Guide, at 79, permanent work is that which is required to restore a damaged facility, through repair or restoration, to its pre-disaster design, function, and capacity.
- The Applicant’s proposed modifications to its hot water system would change the predisaster design of the facility and improve its predisaster capacity.
- The facility’s predisaster function of providing safe, usable hot water, has already been restored through the permanent installation of a CSI system.