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Second Appeal Brief
PA ID# 089-UJ3ZE-00; Williamsburg Regional Hospital
PW ID# PW 718; Direct Result of Disaster – Negligence – Mold Remediation – Codes and Standards – Support Documentation – 50 Percent Rule
More than two feet of rainfall fell over the course of several weeks in early October 2015 overwhelming the roof drains of Williamsburg Regional Hospital (Facility), resulting in water intrusion and mold growth. Both the Applicant and FEMA completed assessments of the damage which resulted in conflicting information. FEMA eventually determined that the total approved repair costs for Project Worksheet (PW) 718 (prior to insurance deductions) were $1,393,512.36. The Applicant appealed, stating that FEMA’s repair scope of work (SOW) was grossly inadequate, and if corrected, would result in $33 million to replace the Facility, based on the 50 percent rule. FEMA Region IV forwarded the appeal documentation to an independent technical group, Nationwide Infrastructure Support Technical Assistance Consultants (NISTAC) for evaluation of the Applicant’s claim. NISTAC determined that although initial damage was disaster-related, the Applicant had not demonstrated it took timely action to protect the Facility from further damage post-disaster. NISTAC also prepared an estimate using the cost estimating format (CEF) that contained the same base costs (Part A) determined by FEMA, but estimated an additional $159,357.00 in soft costs for the repair work. The FEMA Region IV Regional Administrator (RA) denied the Applicant’s appeal for replacement costs, but increased the approved project costs (pre-insurance deductions) to reflect NISTAC’s additional estimated expenses. In its second appeal, the Applicant disputes the finding it did not make timely repairs, states all mold remediation was required as a the direct result of the disaster, asserts upgrades associated with repair work are required by codes and standards, and reiterates that if FEMA increases the repair SOW to reflect the Applicant’s estimates, the costs would exceed 50 percent of the replacement value.
Authorities and Second Appeals
- Stafford Act § 406(e); 44 C.F.R. §§ 206.206(a), 206.223(a), 206.223(e), 206.226(d), 206.226(f); PA Guide, at 2, 29, 31-32, 36; FEMA Fact Sheet 9580.100, Mold Remediation, at 1; Dep’t of Transp., FEMA-4068-DR-FL, at 4-5; Univ. of N.D., FEMA-1174-DR-ND, at 4-5.
- To be eligible for PA grant funding, an item of work must be required as a direct result of the disaster. It is the Applicant’s responsibility to demonstrate that the damage claimed is disaster-related. FEMA may not provide assistance if an applicant’s negligence causes damages, such as when an applicant fails to take prudent measures to protect a facility from further damage.
- Certain work, such as the repair of the initial water damage, mold remediation, and necessary abatement due to contamination, were the direct result of the disaster. However, in the aftermath of the disaster, the Applicant failed to take prudent measures to prevent continued water intrusion into the Facility and to stop the spread of mold contamination, despite recommendations to that effect from its contractor.
- FEMA may reimburse upgrade costs associated with the repair or replacement of disaster damaged elements, if the upgrades are required by applicable codes, standards, or specifications.
- Here, the Applicant cited to general code authorities, but did not explain or detail what specific code section(s) apply to specific items of work.
There are no compelling grounds to reverse the RA’s decision. FEMA affirms total project costs (pre-insurance deductions) in the amount of $1,552,869.36. Since this amount is less than 50 percent of the replacement value, the Applicant’s request for replacement costs is denied.