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Mold Remediation

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1603-DR
ApplicantHousing Authority of New Orleans
Appeal TypeSecond
PA ID#071-U8M7N-00
PW ID#256 Project Worksheets
Date Signed2009-04-14T04:00:00
Citation: FEMA-1603-DR-LA, Housing Authority of New Orleans, Mold Remediation, 256 Project Worksheets (PWs)

Cross-reference: Mold Remediation

Summary: FEMA prepared 256 PWs under Category B, in the total amount of $15,741,366, for proposed emergency mold remediation at facilities operated by the Housing Authority of New Orleans (Applicant). The Applicant requested that FEMA extend the deadline from June 30, 2006, to December 31, 2007, for mold remediation to be considered eligible as emergency protective measures. FEMA denied the Applicant’s request and processed the 256 PWs for zero dollars because it was determined that mold remediation was not completed prior to June 30, 2006. In its first appeal, the Applicant contested FEMA’s denial to extend the deadline for remediation to be eligible under Category B. The Applicant claimed that emergency mold remediation was not completed prior to the deadline because of understaffing, lack of funding, shortage of contract labor, lawsuits, and time-consuming procurement procedures. The Regional Administrator denied the first appeal stating that emergency mold remediation must be completed in the immediate aftermath of a disaster to be effective and remediation activities after June 30, 2006, will become part of the Applicant’s permanent repairs. In its second appeal, the Applicant asserted that the deadline chosen by FEMA is “arbitrary and capricious.” The Applicant claimed that remediation work should be addressed under Category B because the work is being done to protect public property and to protect the health and safety of those persons who will re-occupy, visit, or work in the facilities.

Issues: 1) Was mold remediation completed in the immediate aftermath of the disaster to prevent further damage to public property?

Findings: 1) No.

Rationale: Stafford Act Section 403(a); 44 CFR §206.225(a)(3); Fact Sheet 9580.100, Mold Remediation

Appeal Letter

April 14, 2009

Colonel Thomas Kirkpatrick (Ret.)
State Coordinating Officer
Governor’s Office of Homeland Security and Emergency Preparedness
7667 Independence Boulevard
Baton Rouge, Louisiana 70806

Re: Second Appeal–Housing Authority of New Orleans, PA ID 071-U8M7N-00,
Mold Remediation, FEMA-1603-DR-LA, 256 Project Worksheets

Dear Colonel Kirkpatrick:

This letter is in response to your letter dated August 14, 2008, which transmitted the referenced second appeal on behalf of the Housing Authority of New Orleans (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding under Category B, in the amount of $15,741,366, for mold remediation on 256 Project Worksheets (PWs).

FEMA prepared 256 PWs under Category B for proposed emergency mold remediation at facilities operated by the Applicant. In a letter dated June 30, 2006, the Applicant requested that the deadline of June 30, 2006, contained in FEMA Information Sheet No. 012 – Mold Remediation version 4 be extended “such that mold remediation work will continue to be treated as Category B work until the date of the applicable deadline for completion of Category B work, as it may be extended from time to time.” FEMA denied the Applicant’s request and processed the PWs for zero dollars because the mold remediation was not completed prior to June 30, 2006.

On June 20, 2007, the Applicant again requested a time extension until December 31, 2007, to complete mold remediation projects under Category B. The Director of the Louisiana Transitional Recovery Office stated in a letter dated August 31, 2007, that “mold remediation is no longer an immediate threat to health and safety; therefore, the Applicant’s request for an extension is denied. Information Sheet #12’s cutoff date of June 30, 2006, for the consideration of mold remediation work as Cat B is still effective.”

The Applicant submitted its first appeal to the Governor’s Office of Homeland Security and Emergency Preparedness (GOHSEP) on November 26, 2007. In its appeal, the Applicant contested FEMA’s denial to extend the deadline for remediation to be eligible under Category B.

The Applicant claimed that mold remediation was not completed prior to the deadline because of understaffing, lack of funding, shortage of contract labor, lawsuits, and time-consuming procurement procedures. The Regional Administrator denied the appeal on April 4, 2008, stating that emergency mold remediation must be completed in the immediate aftermath of a disaster to be effective and remediation activities after June 30, 2006, will become part of the Applicant’s permanent repairs.

The Applicant submitted its second appeal to GOHSEP on June 16, 2008. In its appeal, the Applicant asserted that the deadline chosen by FEMA is “arbitrary and capricious.” The Applicant claimed that remediation work should be addressed under Category B because the work is being done to protect public property and to protect the health and safety of those persons who will re-occupy, visit, or work in the facilities. GOHSEP supported the Applicant’s appeal position.

This appeal relates to funding for mold remediation in Section 9k public housing units. The Department of Housing and Urban Development has authority to fund the permanent repair of Section 9k units. FEMA policy authorizes funding of Category B Emergency Protective Measures in these units. FEMA considered mold remediation as Category B Emergency Protective Measures following Hurricane Katrina to allow maximum funding for applicants with Section 9k units and a more favorable cost share for other applicants.

Emergency mold remediation must be completed in the immediate aftermath of a disaster to prevent mold propagation in previously unaffected areas of the facility. Mold remediation may be eligible, either as an emergency protective measure in the immediate aftermath of a disaster, or as part of permanent repair work. On February 24, 2006, FEMA published disaster-specific guidance (DSG), Information Sheet No. 12 – Mold Remediation version 4, which describes work that is eligible under Category B or Category E. According to the DSG, remediation is funded under Category B when “activities were performed to stop the spread of mold.” The DSG considers mold remediation completed after June 30, 2006, more than nine months after the disaster, to be Category E.

In its appeal, the Applicant argued that mold remediation completed after the deadline should be funded under Category B because the work is necessary to protect public health and safety. However, the Applicant has not provided any information demonstrating it performed any mold remediation work prior to June 30, 2006, or prior to submitting its second appeal on
June 16, 2008.

To prevent the presence of mold from being an immediate threat to public health and safety, the Applicant may limit access to the facilities. Disaster-related damage from mold propagation may be safely remediated as part of the Applicant’s permanent repairs. Therefore, per Information
Sheet No. 12 – Mold Remediation version 4, remediation activities completed after
June 30, 2006, are not eligible for funding under Category B, Emergency Protective Measures.

I reviewed the information submitted with the appeal and determined that the Regional Administrator’s decision in the first appeal is consistent with Public Assistance regulations and policy. Accordingly, I am denying the second appeal.

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

Sincerely,
/s/
James A. Walke
Acting Assistant Administrator
Disaster Assistance Directorate

cc: Gary Jones
Acting Regional Administrator
FEMA Region VI

Tony Russell
Acting Director
LA Transitional Recovery Office
Last updated February 4, 2020