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Mold Remediation

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1604-DR
ApplicantForrest County
Appeal TypeSecond
PA ID#035-99035-00
PW ID#Project Worksheet 8837
Date Signed2009-02-18T05:00:00
Citation:FEMA-1604-DR-MS, Forrest Count, Mold Remediation, Project Worksheet (PW) 8837

Summary: Hurricane Katrina disrupted electrical power in the Forrest County (Applicant) Courthouse for nine days. The power disruption, high humidity, and moisture resulted in the growth and spread of mold throughout the facility which necessitated extensive interior repairs and temporary relocation of staff. Staff returned to the facility immediately after the storm and remained in the building until May 2006. FEMA initially prepared Project Worksheet (PW) 8837 for $506,108, the estimated cost of mold remediation and temporary relocation. Following further review of the PW, FEMA denied the funding. FEMA determined that a combination of deferred maintenance and post-storm negligence caused the damages. Based upon inspections, FEMA’s mold specialist determined the building was in an advanced state of disrepair and that moisture and significant mold growth existed in the building prior to the storm. The inspection team also claimed that the Applicant was negligent in protecting the facility from further damage because maintenance staff had not cleaned Heating, Ventilation, and Air Conditioning (HVAC) systems or replaced filters prior to restoring power.

The Applicant appealed the denial of Public Assistance funding asserting that it acted in a prudent manner by quickly restoring temperature and humidity control in an effort to minimize additional mold proliferation. The Applicant also contends that FEMA should provide reimbursement for at least 40 percent of mold remediation costs based on a reasonable apportionment for disaster-related damage and claims. The Applicant also contested FEMA’s claim of negligence.

Issues: Was the mold damage a direct result of the disaster?

Findings: No.

Rationale: 44 CFR §206.223; FEMA Recovery Division Fact Sheet 9580.100, Mold Remediation, dated November 7, 2006

Appeal Letter

Thomas M. Womack
Governor’s Authorized Representative
Mississippi Emergency Management Agency
P.O. Box 5644
Pearl, MS 39208

Re: Second Appeal–Forrest County, PA ID 035-99035-00, Mold Remediation,
FEMA-1604-DR-MS, Project Worksheet (PW) 8837

Dear Mr. Womack:

This letter is in response to your letter dated May 12, 2008, which transmitted the referenced second appeal on behalf of Forrest County (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of Public Assistance funding for mold remediation and temporary relocation costs at the Forrest County Courthouse.

On August 29, 2005, Hurricane Katrina damaged the electrical distribution system in Forrest County. As a result, the Courthouse did not have power for nine days. The only damage to the Courthouse was several broken windows. The Applicant returned to the Courthouse after electrical power was restored and continued to use the building until May 2006. In May 2006, the Applicant relocated functions that were performed at the Courthouse to other facilities and initiated mold remediation measures at Courthouse. The mold remediation measures included the removal and replacement of ceiling tiles, carpeting, wall coverings, and fabric-covered furniture. In response to the Applicant’s request for assistance, FEMA initially prepared Project Worksheet (PW) 8837 for $506,108 for the estimated cost of mold remediation and temporary relocation. After inspecting the Courthouse and reviewing the proposed scope of work, FEMA determined that the work was not eligible because it was not required as a direct result of the disaster. Rather, the work was required because of deferred maintenance and post-storm negligence.
The Applicant submitted its first appeal in a letter dated February 9, 2007. Based on an analysis of “storm damage” performed by the Applicant’s consultant, the Applicant requested that FEMA provide funding for at least 40 percent of mold remediation costs. The Regional Administrator denied the first appeal in a letter dated January 17, 2008, stating that the Applicant failed to take prudent measures to clean and disinfect heating, ventilation, and, and air conditioning (HVAC) systems and the facility was in significant disrepair prior to the disaster. Therefore, the damage was not a direct result of the disaster.

The Applicant submitted its second appeal in a letter dated March 12, 2008. The Applicant reasserts that it acted in a prudent manner by quickly restoring temperature and humidity control in an effort to minimize additional mold proliferation. The Applicant also contends that FEMA did not attempt to determine a reasonable apportionment between disaster-related and non-disaster-related damage and claims.

44 CFR §206.223 requires that to be eligible for assistance, an item of work must be the result of the disaster. As explained in the Regional Administrator’s first appeal response, mold and condition for mold propagation, existed at the Courthouse prior to the disaster. Therefore, the mold remediation work that the Applicant performed in May 2006 was not caused by Hurricane Katrina. Further, the Applicant did not provide any compelling reason to support its request to apportion 40 percent of the mold remediation costs to Hurricane Katrina. Regarding the negligence issue, it is reasonable to assume that one would change the filters and clean and disinfect the HVAC system before reactivating the system after nine days without power. However, the fact that the Applicant did not perform these activities is not a determining factor in this appeal determination.

I reviewed the all information submitted with the appeal and have determined that the mold remediation work that the Applicant performed was not caused by Hurricane Katrina. Accordingly, I am denying the second appeal.

Please inform the Applicant of my decision. This determination constitutes the final decision on this matter pursuant to 44 CFR §206.206.

Sincerely,
/s/

James A. Walke
Acting Assistant Administrator
Disaster Assistance Directorate

cc: Major P. May
Regional Administrator
FEMA Region IV
Last updated February 4, 2020