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Second Appeal Brief
PA ID# 037-52004-00; Nashville-Davidson County
PW ID# 5522 ; Pipe Insulation Replacement
Conclusion: The Applicant provided sufficient documentation to support the need for replacement of pipe insulation due to mold contamination.
During the incident period of April 30 to May 18, 2010, severe storms and flooding caused the Cumberland River to overflow, submerging the Applicant’s K. R. Water Treatment Plant. The Plant’s Filter/Chemical Building was inundated and its below-grade rooms flooded. FEMA prepared PW 5522 in the amount of $3,128,178.01 for repairs to the building. FEMA initially determined that the costs of the replacement of the pipe insulation due to mold contamination were ineligible because either the repairs were needed due to deferred maintenance or the contamination could not be verified. The Applicant submitted a first appeal in the amount of $3,047,519.38 for several items, including $141,577.00 for the replacement of the pipe insulation. The Regional Administrator (RA) found that there was limited contamination and not enough to merit full pipe insulation replacement; that the Applicant’s technical memorandum did not specify the precise facility location or dimensions of the tested pipes; and their unit linear costs. Finally, the RA stated that the Applicant did not refute the original determination of deferred maintenance. On second appeal, the Applicant argued that the damage was disaster-related, that it was necessary to replace the pipe insulation, and claimed that maintenance was not deferred. The Applicant provided a survey report supporting the claim of adequate maintenance.
Authorities and Second Appeals
- 44 C.F.R. § 206.223(a)(1)
- Recovery Division Fact Sheet 9580.100, Mold Remediation at 4 (Nov. 7, 2006)
- PA Guide, at 32
- City of Port Arthur, FEMA-1606-DR-TX, at 3.
- 44 C.F.R. § 206.223(a)(1) provides that to be eligible for reimbursement, an item of work must “[b]e required as the result of the emergency or major disaster event.”
- The pipe insulation was in an area that was completely submerged with floodwaters resulting from the disaster.
- Recovery Division Fact Sheet 9580.100, Mold Remediation provides that “It is the responsibility of the applicant to show evidence of mold contamination or damage during the inspection.”
- The Applicant conducted testing; 45 percent of the samples contained mold at that time.
- The PA Guide at 32 states that for “mold remediation to be eligible, the mold must not be a result of poor facility maintenance or failure to take protective measures in a reasonable time after the event.”
- The Applicant took prompt action to drain and dry the plant immediately following the flood waters receding.
- The Applicant provided a 2009 survey report to demonstrate proper maintenance.
- City of Port Arthur, FEMA-1606-DR-TX, at 3, states that under FEMA’s mold remediation policy, “soft surfaces such as ceiling tiles, cellulose and fiberglass insulation, and wallboards should be replaced after being contaminated with mold.”
- The Applicant’s paper-backed pipe insulation should be considered a soft surface.