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Second Appeal Analysis
PA ID# 041-99041-00; El Paso County
PW ID# (PW) 201, 202 ; Direct Result of Disaster
Disaster, Ceiling Collapse, and Immediate Aftermath
From May 4 to June 16, 2015, areas in central and eastern Colorado, including El Paso County (Applicant) experienced severe storms, tornadoes, flooding, landslides, and mudslides. Continuous heavy rainfall impacted the roof of the El Paso County Criminal Justice Center (Facility). The first leak in the Facility’s roof was reported on May 7, 2015; other roof leaks occurred throughout the Facility in the ensuing weeks.
Rainwater penetrated the asphalt membrane and wood board surface of the roof over Module J, an area containing the Facility’s kitchen. Water saturated underlying insulation, penetrated a second layer of wood sheeting and subsurface metal decking, and leaked onto drywall in the ceiling below. Despite efforts to relieve pressure from the water, on May 24, 2015, a section of the ceiling measuring approximately 8 feet by 8 feet collapsed onto the floor below. The Applicant contracted Trafton Roofing, Inc. (Trafton) to make patch repairs to the roof. Trafton completed repairs in early June 2015, with associated costs totaling $2,484.00.
Facility staff noticed mold spores in the debris created by the ceiling collapse. The Applicant contracted ServPro of South Colorado Springs (ServPro) to contain and decontaminate the area. Costs for ServPro’s mold remediation services totaled $14,679.20. Mold inspection and air sampling found concentrations of airborne mold spores in the kitchen, including in locations outside the immediate area of the ceiling collapse, as well as evidence of rodent infestation. The Applicant closed the kitchen and contracted to locate a mobile kitchen trailer at the Facility, beginning food preparation activities in the trailer on June 8, 2015, and continuing until the kitchen was reopened four months later.
Roof Assessment and Restoration
The Applicant initiated an assessment of the roof’s condition with plans to replace it in some areas. To this end, the Applicant contracted CSNA Architects (CSNA) for design and engineering services. CSNA hired Division 7 Design (D7D), a roofing consultant, to inspect and evaluate the roof and provide replacement options. In an inspection report dated June 17, 2015, D7D summarized its findings regarding areas of the roof that dated to the original construction of the Facility, including the Module J roof. D7D concluded: (1) the topmost layer of asphalt exhibited signs of consistent failure, including large gaps and tears and extensive patch repairs; (2) approximately 4,836 square feet (sq. ft.) of subsurface roof insulation was saturated; and (3) leaking from roof-mounted Heating, Ventilation, and Air Conditioning (HVAC) units was responsible for some of the subsurface moisture. D7D recommended the Applicant replace all saturated insulation and completely resurface the original-construction areas of the roof.
Based on the D7D report, CSNA developed a project to replace saturated insulation and add a new surface membrane to the roof over Modules D, I, and J, a combined area of approximately 57,000 sq. ft. In August 2015, the Applicant received bid applications for the project, ultimately awarding the contract to iiCon Construction Group, LLC (iiCon). Between September and November 2015, iiCon replaced the roof over Modules D, I, and J. The Module J roof was replaced between September 8 and 23, 2015. Interior renovation was completed and the Applicant reopened the kitchen on October 9, 2015.
The Applicant submitted a claim with its insurer, FM Global. An insurance adjuster visited the Facility and inspected the damage on June 2, 2015. In a statement of findings written after the inspection, FM Global noted the roof was severely degraded, which “resulted in multiple events of interior water leaks throughout the building over an extended period of time,” and found “no discrete event of physical loss or damage contributing to the current roof condition.” However, FM Global determined damage in the area of the May 24, 2015 ceiling collapse was recoverable under the Applicant’s insurance policy, and recommended the Applicant replace a 20 foot by 20 foot section of the Module J roof and the ceiling beneath it. FM Global estimated costs to complete such repairs at $35,000.00, which was less than the Applicant’s $100,000.00 insurance policy deductible. Finally, FM Global determined costs incurred to remediate mold outside the area of the ceiling collapse, as well as the costs of operating the mobile kitchen trailer, were not reimbursable.
In a July 2, 2015 letter to FM Global, a third-party claims administrator, representing the Applicant, stated the Facility roof showed evidence of hail damage dating to severe storms in 2014. The claims administrator asserted such damage contributed to the May 24, 2015 ceiling collapse, and thus replacement of the Facility’s roof was warranted and covered under the Applicant’s insurance policy. On August 7, 2015, the FM Global insurance adjuster inspected the Facility roof a second time, confirming recoverable hail damage to rooftop cooling fins and fan hood domes, but finding no such damage to the asphalt membrane on the Facility roof.
Request for Public Assistance (PA) and Initial Eligibility Decisions
The President issued a Federal disaster declaration on July 16, 2015, and the Applicant submitted a request for PA for the Facility on July 27, 2015. The Applicant requested funding for permanent work to replace the roof over Modules D, I, and J, and for interior repairs in the kitchen, with estimated costs of $1,044,082.40. The Applicant also requested funding for emergency work for: (1) mold remediation and testing; (2) rental and other costs associated with operating the mobile kitchen trailer; (3) portable sanitation facilities; (4) force account materials; (5) expenses incurred in providing additional meals to the Facility’s inmate population; and (6) employee salary expenses, with estimated costs of $576,485.45. In a November 19, 2015 email, FEMA informed the Applicant the claim had been accepted and that a project worksheet (PW) would be developed to capture the replacement of the roof.
FEMA prepared PW 201 to document Category E (buildings) permanent work to restore the Module J roof and kitchen ceiling, and PW 202 to document Category B (emergency protective measures) emergency work associated with mold remediation and operation of the mobile kitchen trailer. In a January 7, 2016 email, FEMA informed the Applicant that a review of supporting documentation found all requested repairs to the Facility were not eligible for PA funding, as maintenance records showed significant predisaster deterioration of the roof. On March 1, 2016, FEMA issued a Request for Information (RFI) to the Colorado Division of Homeland Security and Emergency Management (Grantee) and the Applicant. In the RFI, FEMA stated the available information did not establish the damage to the Facility’s roof was a direct result of the disaster, or that the Applicant had taken “appropriate and reasonable measures” to recover insurance proceeds. Among other items, FEMA requested information detailing the “damage mechanism” that led to the ceiling collapse, and the specific damages necessitating the complete replacement of the Facility’s roof. FEMA noted it had invited both parties to a facilitated discussion, and requested the Applicant submit answers to the RFI at that meeting.
On March 15, 2016, FEMA, the Grantee, the Applicant, and CSNA conducted a facilitated discussion concerning project eligibility. During the discussion, the Applicant acknowledged that it had identified replacement of the Facility’s original-construction roof as a critical maintenance requirement several years before the disaster. However, the Applicant asserted the roof had not deteriorated and was functioning as intended prior to the disaster, and that the disaster caused the ceiling to collapse. The Applicant referred to predisaster maintenance records, statements from “experts” it retained to evaluate the roof, and the lack of additional leaks in the kitchen area to support its assertion. FEMA expressed difficulty in accepting the Applicant’s arguments that the amount of predisaster maintenance indicated the roof was functioning as intended, and that rainwater during the disaster caused the roof to fail.
FEMA issued PA Determination Memoranda for each PW. For PW 201, FEMA determined that documentation provided with the Applicant’s claim demonstrated the Facility roof was in a severely degraded condition prior to the incident period, and the replacement of the Modules D, I, and J roof was therefore not required as a direct result of the disaster. However, FEMA determined costs incurred to patch the roof and repair interior drywall and insulation in the area of the ceiling collapse in Module J were eligible. Based on FM Global’s estimate, FEMA obligated $35,000.00 for repairs, plus $1,378.95 in Direct Administrative Costs (DAC).
For PW 202, FEMA noted the Applicant’s need for a temporary kitchen was related to the duration of the construction required to replace the Modules D, I, and J roof, which was not required as a direct result of the disaster. All costs associated with the mobile kitchen trailer, including expenses for additional meals and employee salaries, were therefore ineligible. FEMA also found the Applicant had not provided information that would enable an eligibility determination for the costs of portable sanitation facilities and force account materials claimed. Finally, FEMA determined the mold testing and remediation conducted in the immediate aftermath of the ceiling collapse was eligible for reimbursement. Based on the ServPro invoice, FEMA obligated $14,679.20 for mold remediation services, plus $1,378.95 in DAC.
In letters dated August 13, 2016, the Applicant appealed FEMA’s determinations for both PWs, requesting approval of all costs ($1,045,461.35 under PW 201, and $577,864.40 under PW 202). The Applicant reiterated earlier arguments regarding its predisaster maintenance program; further, that the roof did not leak for several weeks into the incident period and experienced no other interior leaks in the kitchen was evidence the roof was functioning properly prior to the disaster. The Applicant then noted leaks in other areas of the Facility that occurred during the incident period, as well as findings in the D7D roof inspection, as support for its request to replace the roof over Modules D, I, and J.
Further, the Applicant asserted FM Global’s statement of findings was the only document in the record to conclude the damage at issue was not a result of the disaster. The Applicant referred to statements from its Facilities Maintenance Manager (a professional engineer (P.E.)), a CSNA Architect, and a third-party P.E. retained to assist with the appeal, which attested the damage to the Facility roof was a direct result of the disaster. In a letter dated October 6, 2016, the Grantee expressed support for the appeal.
On December 16, 2016, FEMA issued RFIs for each PW. For PW 201, among other items, FEMA requested information regarding: (1) the scope of work (SOW) and itemized costs for the project; (2) the Applicant’s insurance claim with FM Global; (3) the Module J roof repair performed by Trafton; and (4) the leaks that occurred in other areas of the Facility during the disaster. In its response, the Applicant stated it was not responsible for calculating total costs under PW 201 and therefore could not explain the itemized costs listed in FEMA’s RFI; further, its original submission had only included items of work related to the roof repair. Regarding its insurance settlement, the Applicant stated it had exhausted all options for recovering additional proceeds from FM Global. The Applicant attached procurement and invoicing documentation related to the roof repairs (including the Trafton patch repairs), and a map of the roof leaks that occurred prior to and during the disaster.
For PW 202, among other items, FEMA requested information related to: (1) emergency protective measures taken in the immediate aftermath of the ceiling collapse, including patch repairs to the Module J roof and any corresponding ceiling repairs; (2) ServPro’s mold testing and remediation services; and (3) the additional meal expenses claimed by the Applicant. The Applicant provided a timeline for the roof construction project, procurement and invoicing documentation for the Trafton patch repairs and ServPro’s mold remediation services, and explained the additional meal expenses were due to strict inmate dietary requirements, which it observed while the roof over Modules D, I, and J was being replaced.
On March 10, 2017, FEMA issued a consolidated Final RFI for both PWs, expressing concern the administrative record lacked information supporting the Applicant’s claim. FEMA indicated the majority of the items of work at issue were improvements to the predisaster design of the Facility or, in the case of the mobile kitchen trailer, were necessary because of such improvements. FEMA requested any additional documentation supporting the Applicant’s claims to the contrary. Noting specific passages from the FM Global insurance policy, FEMA disputed the Applicant’s statement that all options for recovering additional proceeds had been exhausted. Finally, based on the Applicant’s response to the Basic RFI’s, FEMA presented an itemized SOW for each PW, which revised the cost of each project (and therefore the amounts on appeal) to $1,051,964.17 for PW 201 and $573,731.06 for PW 202. FEMA requested clarification of each SOW, if necessary, and explanations for specific items of work and costs.
In its response to the Final RFI, the Applicant withdrew items of work from each PW, further revising the amounts on appeal. The Applicant requested FEMA transfer the Trafton patch repairs to the PW 202 SOW, as it considered such work to be a temporary emergency protective measure, not a permanent repair. The Applicant disputed FEMA’s assessment of the roof’s predisaster condition, any suggestion that it was requesting an improved project, and FEMA’s assertion that it had not exhausted all options for recovering additional insurance proceeds. Finally, the Applicant stated it provided sufficient documentation to demonstrate damage to the roof was a direct result of the disaster.
On September 13, 2017, the FEMA Region VIII Acting Regional Administrator (RA) partially granted the appeal, but stated subsequent reviews might conclude damage to the Facility was the result of a pre-existing condition, which could result in the deobligation of both PWs. For PW 201, the RA found the roof over Modules D, I, and J was in a severely degraded condition prior to the incident period, and its replacement was not necessary as a direct result of the disaster. The RA concluded the replacement of the roof was an improvement to the Facility’s predisaster condition, and was ineligible for PA funding. However, the RA upheld FEMA’s earlier determination, finding the Trafton roof patch and the ceiling repairs over the area of the collapse were necessary as a direct result of the disaster. The RA maintained FEMA’s initial obligation of $35,000.00 for repairs, plus $1,378.95 for DAC.
For PW 202, the RA determined the airborne mold spore contamination of the kitchen was likely a result of the ceiling collapse, and the closure of the kitchen for a period of one month, in order to mitigate risks from such contamination, was reasonable. The RA approved an additional $77,950.00 for estimated costs to operate the mobile kitchen trailer for one month, and maintained the previously approved costs of $14,679.20 for mold remediation and $1,378.95 for DAC. Finally, regarding the Applicant’s insurance settlement, the RA determined the FM Global policy covered all damage and associated costs that were eligible for PA funding (totaling $127,629.20, excluding DAC). Accordingly, the RA deducted actual and anticipated proceeds from the claim, reducing the total obligation for both PWs to $100,000.00, the amount of the Applicant’s deductible.
In a letter dated November 10, 2017, the Applicant appeals the RA’s determination, but revises its claim under PW 201 to include only the replacement of the roof over Module J, asserting the failure of the roof in this area caused the ceiling to collapse. Accordingly, the Applicant lowers the amount on appeal for PW 201 to $290,180.08, and the total for both PWs to $761,802.01. For PW 201, the Applicant reiterates its earlier arguments, and disputes the RA’s determination that replacement of the roof constitutes an improvement to predisaster conditions. Based on the items of work found eligible in the first appeal determination, the Applicant argues that FEMA had in fact agreed that the failure of the roof over Module J was a direct result of the disaster, and thus the matter in dispute is the method of repair, not the eligibility of the damage. In this light, the Applicant states FEMA’s authority does not extend to determining repair methods; the Trafton patch repairs were a temporary measure, and the complete replacement of the roof was cost-effective, reasonable, necessary, and done in accordance with applicable codes and standards.
For PW 202, the Applicant argues the RA’s determination to fund just one month of operations for the mobile kitchen trailer was arbitrary and unreasonable. The Applicant asserts FEMA should fund the costs for the four months the trailer was in operation, due to the length of time required for contract procurement and construction of the new roof. Finally, with regard to its insurance settlement, the Applicant notes it received no actual proceeds from FM Global, asserts it has satisfied any requirement to pursue such proceeds, and disputes the RA’s determination that additional proceeds may be available. In a January 4, 2018 transmittal, the Grantee expresses support for the appeal.
Direct Result of Disaster
FEMA provides PA funding to eligible applicants for the repair, restoration, reconstruction, or replacement of facilities damaged or destroyed by major disasters. To be eligible for PA funding, an item of work must be required as a direct result of the disaster. Deferred maintenance, such as repairing deteriorated asphalt and leaking roofs, is not eligible because it does not meet the criterion of being disaster-related. Similarly, damage that results from a cause other than the designated event, such as work to correct inadequacies that existed prior to the disaster, is not eligible. It is the applicant’s responsibility to demonstrate that the damage is disaster-related, and where pre-existing damage exists, to distinguish that damage from the disaster-related damage.
- Predisaster Maintenance
On second appeal, the Applicant asserts it “regularly and appropriately maintained the roof in question.” To demonstrate its roof maintenance program, the Applicant relies on a work order log, listing repairs to the Facility’s roof between 2005 and 2015. The log contains 89 entries in total, of which 57 are represented as work orders related to leaks in the Facility’s roof. The Applicant recorded five leaks in the kitchen or Module J roof in the two years preceding the disaster. The work order log demonstrates the Applicant’s efforts to maintain the roof. However, as noted in previous determinations, the number and frequency of leaks indicate the predisaster Module J roof was prone to leaking and no longer functioned reliably.
In the June 2015 roof inspection, D7D discovered “[e]xtensive patch work” in the asphalt membrane and saturation of the underlying insulation. Nothing in the D7D inspection report distinguishes post-disaster work (e.g., the Trafton repairs) from the predisaster roof repairs listed in the work order log. Rather, D7D assessed that the Applicant’s work to maintain the roof “has stopped the leaks, but has done nothing to deter the cancer inside the assembly … [t]rapped vapor pressure rips the patch apart, allowing moisture back into the system … a vicious ongoing cycle for maintenance personnel.” This and other statements from the D7D inspection report demonstrate the long-term condition of the Facility’s roof, including the secondary effects of the Applicant’s repair methods. The D7D report confirms the Module J roof was deteriorated prior to the disaster, and indicates the Applicant’s efforts to maintain the roof were not effective at preventing water intrusion over time.
- Predisaster Conditions
The Applicant also asserts that the roof was “performing its intended function of protecting the structure and providing a weather-tight barrier” prior to the incident period, and the damage at issue was therefore a direct result of the disaster. However, as noted previously, the Applicant requested funding to replace the Module J roof more than one year before the disaster. The Applicant marked the March 13, 2014 funding request “urgent,” and justified it by noting that the roof “is past it’s [sic] useful life and is deteriorating.” In a related slide presentation, the Applicant described the request as part of a Facility maintenance plan, which “has been presented as a ‘Critical Need’ for each of the last 3-years, but there has been no funding available.” The Applicant reiterated this statement at the March 2016 facilitated discussion, but argued that the roof “was not in imminent danger of needing replacement” at the time the request was submitted. Nevertheless, the documents demonstrate that as early as 2013, the Applicant identified deterioration to the extent that it recommended completely replacing the Module J roof, but deferred such work due to lack of funding.
The Applicant’s description of the kitchen ceiling collapse supports this assessment of predisaster conditions. Having observed visible mold spores in the debris created by the collapse, the Applicant stated “[i]t is probable that water was on the [kitchen] ceiling for some time, perhaps as long as 1-2 weeks – a time sufficient for the development of mold that would be visible to the naked eye.” Thus, the Applicant concluded it was likely water leaked onto the ceiling as early as May 10, 2015. This contradicts the Applicant’s repeated assertions that the roof did not begin to leak until the day of the ceiling collapse on May 24, 2015, which it argued was proof that the roof was functioning as intended for the first several weeks of the incident period.
More importantly, the Applicant’s description of the collapse brings to light questions as to the timing of the roof leak that are relevant to the assessment of predisaster conditions. Here, FEMA notes that the original-construction Module J roof was composed of various materials (i.e., asphalt, wood, roofing insulation, and metal) in multiple layers. Unlike the ceiling, the roof did not collapse. Rather, rainwater entered through one or more fissures, or a ruptured seam, in the asphalt membrane, then penetrated the underlying layers of the roof – a wood board layer, a layer of insulation, a second wood board layer, and the metal deck – before leaking onto the drywall ceiling below. If water leaked onto the ceiling 1-2 weeks before the collapse, as the Applicant asserts, it follows that the failure of the asphalt membrane and the penetration of subsurface roofing materials that precipitated the leak had to occur even earlier, closer in time to the beginning of the incident period. The information provided by the Applicant does not establish precisely when the roof leak occurred, or the amount of time required for the water intrusion. However, the circumstances of the ceiling collapse contradict the assertion that the roof was maintained to a “water tight” standard prior to the disaster, and instead indicate the roof was already in a deteriorated state and susceptible to leaks when the disaster began.
The CSNA Architect’s statement further supports this conclusion. On second appeal, the Applicant relies on the CSNA Architect’s assessment that the roof was functioning as intended prior to the incident period. However, in the same assessment, the CSNA Architect stated “[t]here is no doubt that [the Applicant] could have benefitted from a new roof installed in the recent past. A new roof might have even prevented the catastrophic failure and the resultant damage.” Though the CSNA Architect qualified this statement (“there is no guarantee that it would have”), he nevertheless acknowledged a potential link between predisaster deterioration and damage to the kitchen ceiling.
Finally, FEMA notes the following items in the administrative record that are relevant to the determination of predisaster conditions:
- In the June 17, 2015 roof inspection report, D7D noted leaking HVAC units, including one unit on the Module J roof, which were responsible for some of the subsurface moisture present in the insulation.
- The July 2, 2015 letter regarding the second insurance claim conveyed the Applicant’s belief that severe hail storms in 2014 damaged the roof and contributed to the ceiling collapse. The letter included photographs purporting to show hail impact damage in the original-construction asphalt membrane.
- A project specifications document for the contract to replace the Facility’s roof noted “catastrophic failure” caused by the disaster, but stated “other areas are experiencing gradual and continual roofing failures caused by age.” The document also assessed the saturation of roofing insulation was “caused by water infiltration and deterioration of a large portion of the roof curbs parapets and expansion joints [sic] caused by the aging of the system.”
- In a May 29, 2015 email, the Applicant’s Environmental Health Program Manager summarized an earlier discussion with the Facilities Maintenance Manager regarding mold remediation, in which the latter stated the “current plan involves an assessment of the roof … for other smaller leaks that may have gone unnoticed for some time.”
It is the Applicant’s responsibility to provide information distinguishing any disaster-related damage from the pre-existing deterioration. The available documentation instead demonstrates a significant predisaster issue with the function of the roof, and indicates sources of roof damage unrelated to the disaster. The Applicant has not demonstrated items of work to completely replace the Facility’s Module J roof were required as a direct result of the disaster; such work is therefore ineligible for reimbursement.
- Kitchen Ceiling Collapse - Eligibility
On first appeal, the RA upheld PA funding for work to patch the roof and replace roofing insulation over the ceiling collapse, and to repair drywall in the Facility’s kitchen. However, the RA stated “[s]ubsequent reviews may determine that the roof leak, resulting damage to the kitchen ceiling[,] and airborne contamination were caused by a preexisting, deteriorated asphalt and leaking roof, and may result in reduction of all PW 201 and 202 award amounts.” In order to uphold the RA’s decision, on second appeal FEMA must confirm that any previously approved repair work was necessary as a direct result of the disaster.
The Applicant asserts heavy rains “overwhelmed” the roof and resulted in the collapse of the kitchen ceiling. FEMA acknowledges that the collapse occurred during the incident period, and thus the water that leaked onto the ceiling was produced by the disaster. However, the damage to the ceiling did not occur separately from the damage to the roof. Rather, one was a necessary condition for the other to occur, i.e., the damage in the kitchen occurred because of the intrusion of water through the roof above it. The eligibility of these items of work rests on determining how the water entered the roof, as the source of the damage to the roof was the proximate cause of the ceiling collapse, and the reason for any associated repair work.
Above, and in the previous eligibility decisions, FEMA determined that the record demonstrates the entire Module J roof was deteriorated prior to the disaster. Nevertheless, in an effort to uphold the first appeal decision, FEMA closely examined the available documentation for any information that might indicate the roof in the smaller area directly over the ceiling collapse was damaged by the disaster. FEMA located two potential sources, as follows:
First, the P.E. retained by the Applicant to review project documentation assessed that “ponding” of rainwater may have led to excessive weight on the roof assembly, which caused the leak and subsequent ceiling collapse. The P.E. concluded it was “likely that the integrity of the roof was compromised after experiencing excessive rainfall and ponding from May 1 [sic] to May 24, 2015.” However, the P.E. assessed the leak occurred only after several weeks of heavy rainfall. This conflicts with the Applicant’s assessment that water was likely on the ceiling well before the collapse, which, as discussed above, indicates the roof leak began closer in time to the beginning of the incident period. Additionally, the P.E. did not describe how the ponding occurred, i.e., he did not assess roof slope or drainage, or how the lack of these properties in this specific area led to the ponding of water to such an extent that the water’s weight damaged the asphalt membrane. Such an assessment is necessary, considering the area contained a roof-mounted drain.
Second, the Applicant states D7D “was hired specifically for the purpose of evaluating damage caused by [the disaster].” Notionally, then, the D7D report should contain specific information depicting the effects of the disaster on the roof assembly. However, D7D did not distinguish disaster-related damage from pre-existing deterioration; in fact, the report did not include references to the May 24, 2015 kitchen ceiling collapse or the disaster at all. Instead, as above, it confirmed a long-term issue with the deterioration of the asphalt membrane, and determined roof-mounted HVAC units contributed to the saturation of subsurface insulation. D7D noted one such HVAC unit on the Module J roof, in close proximity to the area of the ceiling collapse.
FEMA is unable to locate any other source in the administrative record that distinguishes the area of the roof over the ceiling collapse from the larger Module J roof. The available information does not demonstrate the kitchen ceiling collapse resulted from disaster-related damage to the roof, instead of the pre-existing deterioration. Therefore, the Applicant has not shown that the items of work to patch the roof and replace insulation in the area of the collapse, and to repair the kitchen ceiling drywall, were required as a direct result of the disaster. Such items of work are ineligible for PA funding.
- Eligibility of PW 202
Like permanent restoration work, emergency protective measures must be required as a direct result of the declared major disaster or emergency. The Applicant implemented emergency protective measures to test for and remediate mold, and to operate the mobile kitchen trailer, because of the collapse of the kitchen ceiling. As the repairs to the ceiling collapse and Module J roof are ineligible, the emergency protective measures under PW 202 are also ineligible.
FEMA will not adjudicate the issue pertaining to the Applicant’s insurance settlement, identified on second appeal, as any further determination regarding the availability of additional insurance proceeds has no effect on the outcome of the appeal.
The Applicant has not demonstrated the work to replace the Facility’s Module J roof was required as a direct result of the disaster. Moreover, FEMA is unable to affirm the previous determination approving PA funding under PW 201. Consequently, all items of work under PWs 201 and 202 are ineligible. This appeal is denied and FEMA will deobligate all funding for PWs 201 and 202.
 The Facility is managed by the El Paso County Sheriff’s Detention Bureau and typically houses in excess of 1,500 inmates on a daily basis. The original structure dates to 1987. Per the Applicant’s description, the Facility is comprised of five buildings, encompasses approximately 437,000 square feet (sq. ft.), and has a roof area of approximately 111,000 sq. ft. Interior spaces are separated into “modules,” lettered A through K.
 Letter from El Paso Cty., to State Mitigation and Recovery Officer and Mitigation and Recovery Mgr., Colo. Div. of Homeland Sec. and Emergency Mgmt. (DHSEM), at 4 (Aug. 13, 2016) (submitting the first appeal for PW 201) [hereinafter Applicant First Appeal (PW 201)].
 See Pub. Servs. Infrastructure, El Paso Cty., Roof Plan (CJC) (Mar. 9, 2016) [hereinafter Roof Plan with Leak Locations] (depicting a schematic drawing of the Facility and noting the locations of roof leaks that occurred prior to and during the incident period).
 CSNA Architects, El Paso County CJC Emergency Repairs Project Bid/Construction Documents (July 13, 2015) [hereinafter Bid/Construction Schematics] (describing the composition of the Facility roof as “[a] top layer of built-up roofing and patch work 7/8 inch thick over a 1 inch thick wood fiber board … hot mopped to 2 inch ridged insulation over 1/2 inch wood fiber board over a metal deck. Total depth 4 1/2 inch [sic]”).
 Trafton Roofing, Inc., Invoice No. 42 (June 5, 2015).
 ServPro of South Colorado Springs, Invoice No. 4706084 (June 9, 2015).
 Div. 7 Design, Roof Inspection Report, El Paso County Criminal Justice Center (June 17, 2015) [hereinafter D7D Roof Inspection Report].
 El Paso Cty., Project File for CJC Kitchen (Jan. 11, 2017) (listing all dates for the replacement of the Module J roof and the renovation of the Facility kitchen).
 Letter from Sr. Adjuster, FM Global, to El Paso Cty., at 2 (June 12, 2015).
 Letter from Claims Account Exec., IMA Fin. Grp., to Sr. Adjuster, FM Global (July 2, 2015) [hereinafter IMA Letter to FM Global].
 Letter from Sr. Adjuster, FM Global, to El Paso Cty. (Sept. 28, 2015).
 Email from Tech. Specialist, FEMA Region VIII, to Facilities Maint. Mgr., Pub. Servs. Dep’t, El Paso Cty. (Nov. 19, 2015, 1808 MST).
 Email from FEMA to Facilities Maint. Mgr., Pub. Servs. Dep’t, El Paso Cty., et al. (Jan. 7, 2015, 1042 MST). The scanned copy of the email, available in the administrative record, is truncated and incomplete, but appeared to offer options to the Applicant for continued development of the project(s).
 Letter from Pub. Assistance Branch Chief, FEMA Region VIII, to State Pub. Assistance Officer, Colo. DHSEM and Interagency Relations Mgr., El Paso County, at 1 (Mar. 1, 2016) [hereinafter Basic RFI – Consolidated PWs].
 FEMA Region VIII, El Paso County Criminal Justice Center – PWs 201 and 202, Facilitated Discussion Meeting Notes (Mar. 15, 2016) [hereinafter Facilitated Discussion Meeting Notes].
 Id. at 4 (“we say the damage occurred during this disaster, we have given the maintenance records and our experts say [the] roof worked as it was designed before the incident”).
 FEMA Region VIII, FEMA Pub. Assistance Determination Memo (PW 201) (June 3, 2016) [hereinafter PA Determination Memo (PW 201)]; FEMA Region VIII, FEMA Pub. Assistance Determination Memo (PW 202) (June 3, 2016).
 Project Worksheet 201, El Paso Cty., Version 0 (June 6, 2016).
 Project Worksheet 202, El Paso Cty., Version 0 (June 6, 2016).
 Applicant First Appeal (PW 201), at 1; Letter from El Paso Cty., to State Mitigation and Recovery Officer and Mitigation and Recovery Mgr., Colo. Div. of Homeland Sec. and Emergency Mgmt. (DHSEM), at 1 (Aug. 13, 2016) (submitting the first appeal for PW 202).
 Letter from Dir., Office of Emergency Mgmt., Colo. DHSEM, to Acting Reg’l Adm’r, FEMA Region VIII (Oct. 6, 2016).
 Letter from Pub. Assistance Appeals and Audits Lead, FEMA Region VIII, to Representative, El Paso Cty. (Dec. 16, 2016) (issuing the Basic RFI for PW 201); Letter from Pub. Assistance Appeals and Audits Lead, FEMA Region VIII, to Representative, El Paso Cty. (Dec. 16, 2016) (issuing the Basic RFI for PW 202).
 Letter from Representative, El Paso Cty., to Representative, FEMA Region VIII (Undated) (responding to the Basic RFI for PW 201).
 Letter from Representative, El Paso Cty., to Representative, FEMA Region VIII (Undated) (responding to the Basic RFI for PW 202).
 Letter from Acting Reg’l Adm’r, FEMA Region VIII, to Dir., Office of Emergency Mgmt., Colo. DHSEM and Interagency Relations Mgr., El Paso Cty. (Mar. 10, 2017).
 Id. at 5. FEMA referenced a provision from the Applicant’s insurance policy that “include[d] allowances in the event that the insured and FM Global fail to agree on the actual cash value or the amount of loss,” as well as additional coverage for “vacating expenses” that it inferred may have covered the closure of the Facility’s kitchen.
 The revised amounts did not include the Applicant’s DAC claims, which did not change.
 Letter from El Paso Cty., to FEMA Region VIII (Apr. 10, 2017). The Applicant revised the amount on appeal to $1,018,371.23 for PW 201 and $471,621.93 for PW 202.
 Letter from Acting Reg’l Adm’r, FEMA Region VIII, to Dir. Colo. DHSEM and Interagency Relations Mgr., El Paso Cty. (Sept. 13, 2017), at 2 [hereinafter First Appeal Determination Letter].
 Letter from Interagency Relations Mgr., El Paso Cty., to Appeals Officer, Nat’l Processing Ctr., FEMA and Office of Emergency Mgmt., Colo. DHSEM (Nov. 10, 2017) [hereinafter Applicant Second Appeal].
 Id. at 2. The Applicant does not describe the method by which it calculated the revised amount on appeal, though it notes the reduction in square footage for the roof area claimed (from 56,627 sq. ft. to 13,047 sq. ft.). The Applicant also bases the revised amount on the costs for PW 201 as stated in its first appeal letter, rather than FEMA’s revision in the Final RFI, which was based on an itemized SOW for that project.
 Letter from Dir., Colo. DHSEM, to Assistant Adm’r, Recovery Directorate, FEMA Headquarters and Reg’l Adm’r, FEMA Region VIII (Jan. 4, 2018).
 Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act of 1988 § 406, 42 U.S.C. § 5172 (2012).
 Title 44 Code of Federal Regulations (44 C.F.R.) § 206.223(a)(1) (2014); Public Assistance Guide, FEMA 322, at 29 (June 2007) [hereinafter PA Guide].
 Id. at 33; FEMA Second Appeal Analysis, Vil. of Waterford, FEMA-4020-DR-NY, at 4 (Sept. 4, 2014); FEMA Second Appeal Analysis, Republic Cty. Highway Dep’t, FEMA-4230-DR-KS, at 4 (July 26, 2017).
 Applicant Second Appeal, at 3.
 El Paso Cty., Work Order Log: “All Work Orders with Roof in Them” (Dec. 17, 2015).
 Id. The entries for work orders 267411, 267412, 292872, 319309, and 319949 indicate repairs to leaks in the kitchen or Module J roof. The work orders were completed between July 1, 2013 and Apr. 20, 2015.
 PA Determination Memo (PW 201), at 5; FEMA First Appeal Analysis, El Paso Cty., FEMA-4229-DR-CO, at 7 (Sept. 13, 2017) [hereinafter First Appeal Analysis].
 D7D Roof Inspection Report, at 1-2.
 The maintenance work order log lists several patch repairs, demonstrating a predisaster repair method that included patching leaks in the asphalt membrane. In contrast, none of the work order descriptions indicate the replacement of saturated roofing insulation. On second appeal, the Applicant disputes FEMA’s earlier determination that patching the roof’s asphalt membrane without addressing subsurface moisture was its standard repair practice. However, the Applicant did not describe an alternative repair method, and did not provide supporting documentation, such as additional predisaster maintenance records, inspection reports, contract documentation, material purchase invoices, or photographs, demonstrating it maintained the original-construction roof with any method other than applying patches.
 D7D Roof Inspection Report, at 2.
 E.g., Id. at 1-2. D7D also stated: “[a] consistent failure in what could be a 28 year old mineral surfaced built-up roof was viewed;” “[t]here are major failures in the mineral surfaced top sheet. This system has simply out lived its dependable life;” and assessed that the “[s]un heats the trapped moisture in summer months, which expands creating blisters or bubbles in the membrane.” The Applicant provided a statement from D7D, noting that the inspection occurred after the disaster, and cautioning “application of the June 17th report retroactively might result in conclusions not supported by facts;” Email from President, Div. 7 Design, Inc., to Principal, CSNA Architects (Feb. 4, 2016, 1406 MST). However, there is no explanation of this statement, nor any discussion of specific findings from the June 2015 roof inspection, which would further contribute to FEMA’s understanding of the D7D report.
 Applicant Second Appeal, at 3, 7.
 First Appeal Analysis, at 7.
 El Paso Cty., 5 Year Maintenance Request Form (Mar. 13, 2014) (depicting a request for funding to replace the Module J roof). The administrative record contains similar funding request forms for the replacement of the roof over Modules B/D, H, and I.
 Pub. Servs. Dep’t, El Paso Cty., Major Maintenance Project for El Paso County Sheriff, at 5 (Undated). Although the presentation is undated, it describes future-year funding under the Applicant’s 2015 to 2019 annual budgets, and thus predates the incident period.
 Facilitated Discussion Meeting Notes, at 3.
 El Paso Cty. Budget, DR-4229-CO Project Worksheet Narrative, at 4 (Undated) [hereinafter PW Narrative]. The Applicant made a similar assessment in its first appeal letter; Applicant First Appeal (PW 201), at 2 (“[i]t is believed that water was on the ceiling during the month of May for a sufficient time so that the mold would be visible to the naked eye”). Cleanfax.com, a website operated by the International Sanitary Supply Association, a cleaning industry trade organization, supports the Applicant’s observation, finding mold spores growing on wet wallboard may not be visible to the naked eye for several weeks; Cleanfax, How long does it take mold to grow?, https://cleanfax.com/restoration/how-long-does-it-take-mold-to-grow/ (last visited Aug. 8, 2018).
 Applicant First Appeal (PW 201), at 2, 4; Applicant Second Appeal, at 3; PW Narrative, at 4; Facilitated Discussion Meeting Notes, at 4; Letter from Facilities Maint. Mgr., Pub. Servs. Dep’t, El Paso Cty., to Disaster Recovery Coordinator, Colo. DHSEM, at 2 (Jan. 19, 2016); Letter from Senior Project Mgr., The Sulzer Grp., to Interagency Relations Officer, Admin. And Fin. Servs., El Paso Cty., at 1-2 (Aug. 12, 2016) [hereinafter P.E. Letter].
 At the facilitated discussion, the Applicant referred to the source of the water penetration as a “roof leak,” and stated “water entered thru [sic] the roof and caused the ceiling to fail.” The Applicant did not know if the penetration occurred at a seam in the asphalt membrane or elsewhere; Facilitated Discussion Meeting Notes, at 4, 6. The precise number of water penetration locations in the Module J roof is not noted in supporting documentation.
 Applicant Second Appeal, at 3 (quoting and citing to Letter from Principal, CSNA Architects, to Disaster Recovery Coordinator, Colo. DHSEM, at 1 (Feb. 12, 2016) [hereinafter CSNA Architect Letter]).
 CSNA Architect Letter, at 2.
 D7D Roof Inspection Report, at 3-4.
 IMA Letter to FM Global, at 2-3.
 Contracts and Procurement Div., El Paso Cty., General Specifications for CJC Emergency Repair Project, at 1 (Undated). Though the document is undated, it contains references to the contract bidding timeline that indicate it was prepared prior to July 24, 2015.
 Email from Envtl. Health Program Mgr., El Paso Cty., to Facilities Maint. Mgr., El Paso County (May 29, 2015, 1534 MDT).
 First Appeal Determination Letter, at 2.
 Applicant Second Appeal, at 7.
 Supra note 36. The CSNA Architect recognized the linkage between predisaster condition and the kitchen ceiling collapse in his assessment of the roof; supra note 57.
 PA Determination Memo (PW 201), at 8-9; First Appeal Analysis, at 7.
 E.g., “after four (4) straight weeks of constant rain, the roof at the [Facility] developed multiple leaks … [o]ne leak was above the drywall ceiling of the [Facility] kitchen”); Id. at 1.
 CSNA’s schematic drawings of the Facility depict a drain in the area of the Module J roof over the ceiling collapse; see Bid/Construction Schematics, at 5-7. Photos of the area provided in the D7D roof inspection report also show the drain; see D7D Roof Inspection Report, at 4.
 Applicant Second Appeal, at 3.
 FEMA compared the description, photographs, and a schematic drawing of the unit’s location, provided in the D7D report, with a schematic drawing depicting the location of the May 24, 2015 roof leak and ceiling collapse, provided by the Applicant with its response to the Basic RFI for PW 201. Overlaying the two schematic drawings shows the leaking HVAC unit is in close proximity to the location of the ceiling collapse, as reported by the Applicant; see D7D Roof Inspection Report, at 2, 4; Roof Plan with Leak Locations, at 1.
 Cf. FEMA Second Appeal Analysis, University of Houston, FEMA-1791-DR-TX, at 3 (July 28, 2017) (finding costs to replace the roof over the Applicant’s Facility were eligible based on the nature and extent of the damage recorded in the PW 7021 damage assessment). FEMA determined the roof was eligible for replacement in part by examining monthly inspection reports, provided by the Applicant, which demonstrated the roof was undamaged prior to the disaster.