Mold Remediation
Appeal Brief
Appeal Letter
Appeal Analysis
Citation: FEMA-1361-DR-WA; Washington State Department of Social and Health Services; PW 904 Town Square Complex, Building 6
Cross-reference: Legal Responsibility; Disaster-Related Damage
Summary: As a result of the Nisqually Earthquake, a water pipe broke in Building 6 of the Town Square Complex in Olympia, Washington, damaging equipment, supplies, and furniture, as well as carpeting and ceiling tiles within the Applicants leased space. The landlord repaired the pipe break and attempted to dry the building. After mold spores were later detected within the office space and air quality issues were raised, the Applicant requested assistance for cleaning of their contents and other related efforts at a cost of $691,124. FEMA reviewed the request, and the terms of the lease agreement with the building owner, and concluded that the requested scope of work was not eligible for FEMA assistance. This determination was based primarily on the conclusion that (1) the presence of mold spores were not a direct result of the disaster, but rather the landlords failure to properly clean and dry the saturated carpets and ceiling tiles, and (2) the lease agreement states that the building owner is responsible for building maintenance such that the cleaning efforts are not the legal responsibility of the Applicant. The Applicants first appeal asserts that the mold spores are a direct result of the event, and that the requested work relates solely to the Applicants contents such that the cleaning is not the landlords responsibility but their own. The Regional Director denied the first appeal stating that the mold is the result of dampness that remained for a period of time and is considered a secondary effect separate from the declared event by a period of time. Also, the work is not the legal responsibility of the Applicant. Rather, it is the legal responsibility of the building owner. The Applicants second appeal again challenges the issue of legal responsibility for the work.
Issues: (1) Is the presence of mold spores a direct result of the disaster?(2) Is the Applicant legally responsible to remediate the mold condition?
Findings: (1) No. The mold spores are a secondary effect of the disaster. (2) No. The work performed is consistent with the landlords contractual responsibility to keep the premises in good repair and tenantable condition, and for maintaining indoor air quality.
Rationale: 44 CFR 206.223. To be eligible for assistance, an item of work must be a direct result of the disaster and the legal responsibility of an eligible Applicant.
As a result of the Nisqually Earthquake (FEMA-1361) on February 28, 2001, a water pipe broke in Building 6 of the Town Square Complex in Olympia, Washington, damaging equipment, supplies, and furniture, as well as carpeting and ceiling tiles. The Washington State Department of Social and Health Services (Applicant) leased space in this building. After mold spores were detected within the office space, the Applicant requested assistance from the Federal Emergency Management Agency (FEMA) for costs for cleaning its contents and other related efforts.
According to the landlord, the water pipe break was stopped within an hour of the earthquake. Crews were deployed to mop the area the same day, and drying equipment (fans and dehumidifiers) operated for the following 18 days. The building was approved for occupancy on March 5, 2001, and staff began returning to the facility. The staff raised air quality issues in March and April. The landlord tested for mold and reported positive results on June 7, 2001. The Applicant decided to reestablish its office at another location, but determined it would be necessary to decontaminate the office contents before transporting them to the new facility.
On August 7, 2001, FEMA prepared Category B Project Worksheet (PW) 904 to document the scope of work and estimated associated costs identified by the Applicant relative to the mold remediation of its contents. The Applicant requested funding for cleaning all its property within the leased space due to the development of mold spores within the carpet, ceiling tiles and upholstered furniture, and for temporary relocation for one week during the cleaning effort. The estimated costs for these efforts were reported at $691,124.
FEMA reviewed the circumstances of the pipe break and resulting damage to the contents, and the terms of the lease agreement with the building owner, and concluded that the requested scope of work was not eligible for FEMA assistance. This determination was based on the conclusion that (1) the presence of mold spores was not a direct result of the disaster, but rather the landlords failure to properly clean and dry the saturated carpets and ceiling tiles, (2) the lease agreement states that the building owner is responsible for building maintenance such that the cleaning efforts are not the legal responsibility of the Applicant, and (3) the damages were reported after the 60-day deadline for reporting damages (referenced as May 27, 2001, 60 days from the March 28, 2001, Kickoff Meeting). PW 904 was prepared for $0 on August 7, 2001.
First Appeal
The Applicant submitted a first appeal of FEMAs determination that PW 904 was not eligible on November 26, 2001. The appeal was transmitted and supported by the State in a letter dated January 23, 2002. In response to FEMAs conclusions regarding project eligibility, the Applicant asserted that (1) the presence of the mold spores is in fact directly related to the event because the earthquake caused the pipe failure, (2) while the lessor is responsible for maintenance of the facility, the Applicant emphasizes that the requested scope related solely to the personal property of the Applicant and not to the lessors facility components, and (3) the subject facility was not discussed until the third of three Kickoff Meetings for this Applicant which was held on April 12, 2001; the potential for mold spores was identified to FEMA as early as June 1, 2002, and described on PW 211within the 60-day deadline.
The Regional Director denied the first appeal in a letter dated May 6, 2002, stating again that the work is not the legal responsibility of the Applicant. He stated that the broken pipe and the cleanup of the effects of the pipe rupture were the responsibility of the building owner, and that the new damage was not reported within the time allowed by Title 44 of the Code of Federal Regulations (44 CFR). The Regional Director indicated that the mold is the result of dampness that remained for a period of time and is considered a secondary effect separate from the declared event by a period of time. Further, the first appeal response indicated that the Applicant was negligent by not mitigating the effects of moisture when it was first detected in March and April, but rather waiting until May 8, 2001, to initiate testing of the space. Regarding the time for reporting damages, the Regional Director indicated that the first Kickoff Meeting was held on March 28, 2001, thus requiring the report of damages by May 27, 2001. Further, it was noted that PW 211 only indicated that testing for mold spores was being performed, it did not specifically identify their presence. The actual damages were not reported until June 25, 2001.
Second Appeal
The Applicant submitted a second appeal of FEMAs determination to deny funding for mold remediation that was transmitted and supported by the State in a letter dated September 12, 2002. The Applicant requested $871,852 for the remediation work. The Applicant asserts that FEMAs allegations of negligence are without factual or legal support, again stating that the steps taken by the landlord were timely, appropriate and reasonable under the circumstances. The Applicant references FEMA funding of mold remediation in other disasters, suggesting that mold remediation is an eligible item.
DISCUSSION
The primary issues of the appeal are associated with FEMAs determination that mold remediation of the Applicants office contents is the responsibility of the landlord since the landlord is responsible for building maintenance, including the repair of the earthquake damaged pipe and the resulting moisture effects. The two primary positions disputed by the Applicant are discussed separately below. The Applicant does not agree with FEMAs position that the damages were reported after the 60-day deadline for reporting damages (referenced as May 27, 2001, 60 days from the March 28, 2001, Kickoff Meeting). While it does appear that the Applicant did not report the mold spore damages until the 60-day deadline for reporting damages passed, this appeal has been reviewed on the merit of the scope of work and legal responsibility rather than solely on a timeframe issue.
(1) The presence of mold spores were not a direct result of the disaster, but rather the landlords failure to properly clean and dry the saturated carpets and ceiling tiles.
(2)
The Applicant asserts that the landlord performed prudent measures in response to the pipe break by drying the area and the landlord cannot be solely responsible for the development of the mold spores. The Applicant has provided information to demonstrate that the measures taken by the landlord are consistent with procedures recommended for these circumstances.
It is not disputed that the landlord took timely measures to initiate the cleaning and drying of the office space from the water leakage. However, as evidenced by the presence of the mold spores, it is apparent that the efforts taken were not sufficient to fully remove the resulting moisture and continued measures were necessary to adequately address the cleanup of the water leakage and to restore acceptable levels of air quality.
(3) The lease agreement states that the building owner is responsible for building maintenance such that the cleaning efforts are not the legal responsibility of the Applicant.
(4)
The lease agreement clearly states that the building owner is responsible for maintenance of the building, including items such as utility system components and floor coverings, for keeping the premises in good repair and tenantable condition, and for maintaining indoor air quality. To this end, the landlord repaired the pipe break and initiated the itter damage. The initial measures taken were not, however, sufficient to fully restore the building. The resulting need to remove mold spores from the building components and affected contents is considered a continuation of the effort to restore the building, and in particular, is consistent with the landlords contractual responsibility to maintain indoor air quality. Accordingly, we conclude that the efforts necessary to remediate the mold spores are not the responsibility of the Applicant and, therefore, costs incurred by the Applicant are not eligible for assistance.
CONCLUSION
Based on a review of the information provided in the Applicants second appeal, we have concluded that the additional measures taken to remove the mold spores are a continuation of the efforts taken by the landlord to restore the building following the pipe break. This effort is consistent with the landlords contractual responsibility to keep the premises in good repair and tenantable condition, and for maintaining indoor air quality. Accordingly, we have determined that work performed to remove the mold spores is not the legal responsibility of the Applicant. Therefore, costs incurred by the Applicant are not eligible for assistance. The Applicants appeal is denied.
Appeal Brief
| Disaster | FEMA-1361-DR |
| Applicant | Washington State Department of Social and Health Services |
| Appeal Type | Second |
| PA ID# | 000-UKTGB-00 |
| PW ID# | 904 |
| Date Signed | 2003-04-02T05:00:00 |
Appeal Letter
April 2, 2003
Ms. Donna Voss
Public Assistance Program
Emergency Management Division
State of Washington Military Department
MS: TA-20 Building 20
Camp Murray, WA 98430-5122
RE: Second Appeal Washington State Department of Social and Health Services, PAID 000-UKTGB-00, Mold Remediation, 1361-DR-WA, Project Worksheet (PW) 904
Dear Ms. Voss:
This letter is in response to the referenced second appeal transmitted by your letter dated September 12, 2002. The Washington State Department of Social and Health Services (Applicant) is requesting funding for mold remediation following an earthquake-induced pipe break in its leased office space in the Town Square Complex. FEMA denied funding for this work because the remediation efforts were not the legal responsibility of the Applicant.
As explained in the enclosed analysis, I have determined that the work performed to remove the mold spores is a continuation of the efforts taken by the landlord to restore the building following the pipe break. This work is consistent with the landlords contractual responsibility to keep the premises in good repair and tenantable condition, and for maintaining indoor air quality. Accordingly, the Applicant was not legally responsible for the work. Therefore, the Applicants appeal is denied.
Please inform the Applicant of my determination. My determination constitutes the final decision on this matter as set forth in 44 CFR §206.206.
Sincerely,
/S/
Laurence W. Zensinger
Acting Director
Recovery Division
Emergency Preparedness and Response Directorate
Enclosure
cc: John E. Pennington
Regional Director
FEMA Region X
Ms. Donna Voss
Public Assistance Program
Emergency Management Division
State of Washington Military Department
MS: TA-20 Building 20
Camp Murray, WA 98430-5122
RE: Second Appeal Washington State Department of Social and Health Services, PAID 000-UKTGB-00, Mold Remediation, 1361-DR-WA, Project Worksheet (PW) 904
Dear Ms. Voss:
This letter is in response to the referenced second appeal transmitted by your letter dated September 12, 2002. The Washington State Department of Social and Health Services (Applicant) is requesting funding for mold remediation following an earthquake-induced pipe break in its leased office space in the Town Square Complex. FEMA denied funding for this work because the remediation efforts were not the legal responsibility of the Applicant.
As explained in the enclosed analysis, I have determined that the work performed to remove the mold spores is a continuation of the efforts taken by the landlord to restore the building following the pipe break. This work is consistent with the landlords contractual responsibility to keep the premises in good repair and tenantable condition, and for maintaining indoor air quality. Accordingly, the Applicant was not legally responsible for the work. Therefore, the Applicants appeal is denied.
Please inform the Applicant of my determination. My determination constitutes the final decision on this matter as set forth in 44 CFR §206.206.
Sincerely,
/S/
Laurence W. Zensinger
Acting Director
Recovery Division
Emergency Preparedness and Response Directorate
Enclosure
cc: John E. Pennington
Regional Director
FEMA Region X
Appeal Analysis
BACKGROUNDAs a result of the Nisqually Earthquake (FEMA-1361) on February 28, 2001, a water pipe broke in Building 6 of the Town Square Complex in Olympia, Washington, damaging equipment, supplies, and furniture, as well as carpeting and ceiling tiles. The Washington State Department of Social and Health Services (Applicant) leased space in this building. After mold spores were detected within the office space, the Applicant requested assistance from the Federal Emergency Management Agency (FEMA) for costs for cleaning its contents and other related efforts.
According to the landlord, the water pipe break was stopped within an hour of the earthquake. Crews were deployed to mop the area the same day, and drying equipment (fans and dehumidifiers) operated for the following 18 days. The building was approved for occupancy on March 5, 2001, and staff began returning to the facility. The staff raised air quality issues in March and April. The landlord tested for mold and reported positive results on June 7, 2001. The Applicant decided to reestablish its office at another location, but determined it would be necessary to decontaminate the office contents before transporting them to the new facility.
On August 7, 2001, FEMA prepared Category B Project Worksheet (PW) 904 to document the scope of work and estimated associated costs identified by the Applicant relative to the mold remediation of its contents. The Applicant requested funding for cleaning all its property within the leased space due to the development of mold spores within the carpet, ceiling tiles and upholstered furniture, and for temporary relocation for one week during the cleaning effort. The estimated costs for these efforts were reported at $691,124.
FEMA reviewed the circumstances of the pipe break and resulting damage to the contents, and the terms of the lease agreement with the building owner, and concluded that the requested scope of work was not eligible for FEMA assistance. This determination was based on the conclusion that (1) the presence of mold spores was not a direct result of the disaster, but rather the landlords failure to properly clean and dry the saturated carpets and ceiling tiles, (2) the lease agreement states that the building owner is responsible for building maintenance such that the cleaning efforts are not the legal responsibility of the Applicant, and (3) the damages were reported after the 60-day deadline for reporting damages (referenced as May 27, 2001, 60 days from the March 28, 2001, Kickoff Meeting). PW 904 was prepared for $0 on August 7, 2001.
First Appeal
The Applicant submitted a first appeal of FEMAs determination that PW 904 was not eligible on November 26, 2001. The appeal was transmitted and supported by the State in a letter dated January 23, 2002. In response to FEMAs conclusions regarding project eligibility, the Applicant asserted that (1) the presence of the mold spores is in fact directly related to the event because the earthquake caused the pipe failure, (2) while the lessor is responsible for maintenance of the facility, the Applicant emphasizes that the requested scope related solely to the personal property of the Applicant and not to the lessors facility components, and (3) the subject facility was not discussed until the third of three Kickoff Meetings for this Applicant which was held on April 12, 2001; the potential for mold spores was identified to FEMA as early as June 1, 2002, and described on PW 211within the 60-day deadline.
The Regional Director denied the first appeal in a letter dated May 6, 2002, stating again that the work is not the legal responsibility of the Applicant. He stated that the broken pipe and the cleanup of the effects of the pipe rupture were the responsibility of the building owner, and that the new damage was not reported within the time allowed by Title 44 of the Code of Federal Regulations (44 CFR). The Regional Director indicated that the mold is the result of dampness that remained for a period of time and is considered a secondary effect separate from the declared event by a period of time. Further, the first appeal response indicated that the Applicant was negligent by not mitigating the effects of moisture when it was first detected in March and April, but rather waiting until May 8, 2001, to initiate testing of the space. Regarding the time for reporting damages, the Regional Director indicated that the first Kickoff Meeting was held on March 28, 2001, thus requiring the report of damages by May 27, 2001. Further, it was noted that PW 211 only indicated that testing for mold spores was being performed, it did not specifically identify their presence. The actual damages were not reported until June 25, 2001.
Second Appeal
The Applicant submitted a second appeal of FEMAs determination to deny funding for mold remediation that was transmitted and supported by the State in a letter dated September 12, 2002. The Applicant requested $871,852 for the remediation work. The Applicant asserts that FEMAs allegations of negligence are without factual or legal support, again stating that the steps taken by the landlord were timely, appropriate and reasonable under the circumstances. The Applicant references FEMA funding of mold remediation in other disasters, suggesting that mold remediation is an eligible item.
DISCUSSION
The primary issues of the appeal are associated with FEMAs determination that mold remediation of the Applicants office contents is the responsibility of the landlord since the landlord is responsible for building maintenance, including the repair of the earthquake damaged pipe and the resulting moisture effects. The two primary positions disputed by the Applicant are discussed separately below. The Applicant does not agree with FEMAs position that the damages were reported after the 60-day deadline for reporting damages (referenced as May 27, 2001, 60 days from the March 28, 2001, Kickoff Meeting). While it does appear that the Applicant did not report the mold spore damages until the 60-day deadline for reporting damages passed, this appeal has been reviewed on the merit of the scope of work and legal responsibility rather than solely on a timeframe issue.
(1) The presence of mold spores were not a direct result of the disaster, but rather the landlords failure to properly clean and dry the saturated carpets and ceiling tiles.
(2)
The Applicant asserts that the landlord performed prudent measures in response to the pipe break by drying the area and the landlord cannot be solely responsible for the development of the mold spores. The Applicant has provided information to demonstrate that the measures taken by the landlord are consistent with procedures recommended for these circumstances.
It is not disputed that the landlord took timely measures to initiate the cleaning and drying of the office space from the water leakage. However, as evidenced by the presence of the mold spores, it is apparent that the efforts taken were not sufficient to fully remove the resulting moisture and continued measures were necessary to adequately address the cleanup of the water leakage and to restore acceptable levels of air quality.
(3) The lease agreement states that the building owner is responsible for building maintenance such that the cleaning efforts are not the legal responsibility of the Applicant.
(4)
The lease agreement clearly states that the building owner is responsible for maintenance of the building, including items such as utility system components and floor coverings, for keeping the premises in good repair and tenantable condition, and for maintaining indoor air quality. To this end, the landlord repaired the pipe break and initiated the itter damage. The initial measures taken were not, however, sufficient to fully restore the building. The resulting need to remove mold spores from the building components and affected contents is considered a continuation of the effort to restore the building, and in particular, is consistent with the landlords contractual responsibility to maintain indoor air quality. Accordingly, we conclude that the efforts necessary to remediate the mold spores are not the responsibility of the Applicant and, therefore, costs incurred by the Applicant are not eligible for assistance.
CONCLUSION
Based on a review of the information provided in the Applicants second appeal, we have concluded that the additional measures taken to remove the mold spores are a continuation of the efforts taken by the landlord to restore the building following the pipe break. This effort is consistent with the landlords contractual responsibility to keep the premises in good repair and tenantable condition, and for maintaining indoor air quality. Accordingly, we have determined that work performed to remove the mold spores is not the legal responsibility of the Applicant. Therefore, costs incurred by the Applicant are not eligible for assistance. The Applicants appeal is denied.
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