Legal Responsibility, Result of Declared Incident, Work Completion Deadlines

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4399
Applicant	Department of Environmental Protection
Appeal Type	Second
PA ID#	000-U03AE-00
PW ID#	GMP 84781
Date Signed	2022-11-08T17:00:00

Summary Paragraph

From October 7-19, 2018, Hurricane Michael caused strong winds, torrential rain and tidal surge which impacted the Department of Environmental Protection (Applicant).  The President issued a major disaster declaration on October 11, 2018.  FEMA created Grants Manager Project (GMP) 84781 for work items such as, septic/well pumping at properties within the Florida Caverns State Park (State Park) and mold remediation at the Applicant’s research laboratory.  FEMA issued a Request for Information (RFI) inquiring about locations for septic/well tank pumping and the Applicant’s legal responsibility for the pump outs completed at residential locations within the State Park.  FEMA then issued a Determination Memorandum granting $99,356.02 but denying $132,075.63.  FEMA denied costs for septic tank pumping work because it exceeded the regulatory time limitation of six months for emergency work.  FEMA then found that the Applicant had not provided documentation to confirm legal responsibility for the septic tank pump outs completed at residential properties.  Finally, FEMA determined the Applicant did not substantiate that mold remediation at the research laboratory was required as a result of the disaster.  The Applicant appealed, noting that the Director of the Florida Division of Emergency Management (Recipient) had previously extended the period of performance deadline for emergency work projects for this disaster.  The Region IV Regional Administrator denied the appeal on April 6, 2022.  FEMA found that the Applicant had not shown that: (1) it had requested a time extension for completion of work to temporary facilities beyond the initial six-month period of performance; (2) it was legally responsible for residential septic tank pumping; or (3) mold remediation work was required as a result of the declared incident.  The Applicant submitted a second appeal.  The Applicant first demonstrates through supporting documentation that the amount in dispute does not relate to temporary facilities.  Next, it provides property information that demonstrates it owns the buildings, all located within the State Park, that required pump outs.  Lastly, the Applicant submitted photographs showing mold growth in the buildings following the disaster. 

Authorities and Second Appeals

• Stafford Act § 403(a)(3).
• 44 C.F.R. §§ 206.223(a)(1)-(3), 206.225(a)(1), 206.204(c)(1)(c)(2)(ii).
• PAPPG, at 19-20, 82, 141.

Headnotes

• Recipients have the authority to extend emergency work project deadlines by six months.
  • The Recipient issued two three-month time extensions for emergency work beyond the initial period of performance and the work was completed within the timeframe of those extensions.
• To be eligible, work must be the legal responsibility of the applicant requesting assistance.
  • Legal responsibility was substantiated with tax records and inventory lists demonstrating the Applicant’s ownership of six buildings, all located in the Applicant’s State Park.
• For mold remediation, applicants must demonstrate that damage was caused directly by the declared incident.
  • In this case, the Applicant provided photographs and a mold remediation receipt dated shortly after the disaster to substantiate that mold was caused by the disaster.

Conclusion

The Applicant has substantiated that: (1) it completed the pump outs and mold remediation within the extended period of performance deadline; (2) it was legally responsible for the for the septic pump outs; and (3) the mold remediation work was required as a direct result of the declared incident.  Therefore, the requested work is eligible for Public Assistance and this appeal is granted.

Appeal Letter

Appeal Analysis

Background

From October 7-19, 2018, Hurricane Michael caused strong winds, torrential rain, and tidal surge, which resulted in extensive damage throughout Florida.  The President declared this a major disaster on October 11, 2018.  Florida’s Department of Environmental Protection (Applicant) requested Public Assistance (PA) funding for emergency protective measures performed from October 7-11, 2019.  FEMA created Grants Manager Project (GMP) 84781 to capture claimed costs totaling $231,431.65 for items including septic/well pumping at properties within the Florida Caverns State Park (State Park) and mold remediation at the Applicant’s research laboratory.

FEMA issued a Request For Information (RFI) on December 29, 2020, inquiring about locations for septic/well tank pumping and the Applicant’s legal responsibility for the pump outs completed at residential locations within the State Park.  FEMA also requested specific details about the mold remediation work performed by its contractor at the research laboratory, including any mold testing and exigent circumstances justifying that work.  FEMA did not receive a response.

On May 17, 2021, FEMA issued a Determination Memorandum granting $99,356.02, but denying $132,075.63, which included $113,817.74 in contract costs, and $18,257.89 for rented equipment.  First, FEMA denied costs for septic tank pumping work completed at properties within the State Park because it exceeded the regulatory time limitation of six months for emergency work.  Second, FEMA found that the Applicant had not provided documentation to confirm legal responsibility for the septic tank pump outs completed at residential properties.  Finally, FEMA determined the Applicant did not substantiate that mold remediation at the research laboratory was required as a result of the disaster.   

First Appeal

The Applicant appealed on July 16, 2021, requesting $107,052.80.  Regarding the project completion deadline issue, the Applicant noted the Director of the Florida Division of Emergency Management (Recipient) had previously extended the period of performance deadline for emergency work projects for this disaster.  The Applicant argued the only issue mentioned in a FEMA RFI was the lack of time extension.  The Applicant advised it was not notified of missing documentation, nor was a formal RFI issued for the mold remediation.  The Applicant requested FEMA review additional documents attached to its appeal.  The Recipient supported the Applicant’s appeal.

The Region IV Regional Administrator (RA) denied the appeal on April 6, 2022.  FEMA found that the Applicant had not shown that: (1) it had requested a time extension for completion of work to temporary facilities beyond the initial six-month period of performance (notwithstanding the Recipient’s extension);[1] (2) it was legally responsible for residential septic tank pumping; or (3) mold remediation work was required as a result of the declared incident.  FEMA also found the Applicant did not provide documentation indicating that it performed mold testing prior to the remediation work to verify the extent of mold growth or that it took protective measures to prevent the spread of mold in a reasonable time after the incident, given the extended length of time between the October 2018 disaster and the February 28, 2019, mold remediation proposal in the record.

Second Appeal

The Applicant submitted a second appeal on May 27, 2022, requesting that FEMA approve $104,471.41, which includes $82,425.00 for septic pumping and $22,046.41 for mold remediation.  The Applicant included supporting documentation to demonstrate that the amount in dispute does not relate to temporary facilities.  Then, it provides property information that demonstrates it owns the buildings within the State Park that required pump outs, as well as their specific locations within the State Park.  Next, it clarifies that it is requesting reimbursement for mold remediation performed from November 14, 2018, through December 6, 2018.  Lastly, in support of its claim that mold remediation was required as a direct result of the flooding from the disaster, the Applicant submitted insurance reports with photographs showing mold growth in the buildings following the disaster.  The Recipient supports the Applicant’s appeal.

 

Discussion

Work Completion Deadlines

FEMA may provide assistance for work or services essential to saving lives and protecting and preserving property or public health and safety.[2]  The regulatory deadline for completing emergency work is six months from the declaration date.[3]  Recipients may extend the deadline for emergency work project deadlines by six months.[4] 

The initial regulatory project completion deadline for emergency work projects for this disaster was April 11, 2019.  The Recipient then permissibly extended the deadline by six months to October 11, 2019.  As the Applicant demonstrated through second appeal documentation that the work did not pertain to temporary facilities, FEMA approval for this extension was not required.  The work at issue, the pump outs and mold remediation, was completed by May 22, 2019, which is within the extended period of performance deadline. 

Legal Responsibility

To be eligible, work must be the legal responsibility of the applicant requesting assistance.[5]  To determine legal responsibility for emergency work, FEMA evaluates whether the applicant requesting the assistance either had jurisdiction over the area or the legal authority to conduct the work related to the request at the time of the incident.[6]

The Applicant has provided documentation demonstrating it conducted septic pump outs for six buildings that were all located in its State Park.  The Applicant also supplied an inventory of Applicant-owned buildings and tax records that demonstrate the Applicant owns all six buildings that received pump outs from October 2018, through May 2019.[7]  Three of the buildings were residences for its park rangers and other employees, two buildings were restroom facilities, and one building was an equipment shed and shop.  The documentation therefore substantiates that the Applicant was legally responsible for the septic pump outs.

Result of Declared Incident - Mold Remediation

An applicant is responsible for showing that emergency work is required due to an immediate threat resulting from the declared incident, and that mold remediation is required to address damage caused directly by the declared incident.[8]  An incident may cause facilities to be inundated or exposed to wet and humid weather conditions for extended periods of time.[9]  These conditions may cause growth and spreading of mold in structures and on contents, causing threats to public health and increasing the repair cost.[10]  In these instances, certain mold remediation activities may be eligible as emergency protective measures.[11]  Applicants must follow applicable state, territorial, tribal, and local government guidelines for mold sampling and remediation.[12]

The Applicant submitted a receipt from its contractor for mold restoration and remediation services rendered at its research laboratory from November 11 through December 6, 2018, shortly after the October 2018 disaster.  The timing supports the Applicant’s contention that it undertook emergency protective measures to prevent the additional spread of mold within a reasonable time period after the disaster.  Additionally, the Applicant-provided photographs dated November 8, 2018, and December 13, 2018, clearly depict the presence of mold at its research laboratory.  Of note, FEMA policy does not require pre-remediation mold sampling to determine the presence of mold or for mold remediation to be eligible.  Instead, the Applicant was required to follow applicable state, territorial, tribal, and local government guidelines.  The administrative record in this case includes applicable guidance from the Florida Department of Health that recommends mold testing and sampling not be used were visible mold growth is present, further establishing that the Applicant was not required to conduct pre-remediation mold sampling.[13] 

Based on the above, the Applicant has established that the mold was caused by the declared incident and therefore, the mold remediation work is eligible for PA reimbursement.

 

Conclusion

The Applicant has substantiated that: (1) it completed the pump outs and mold remediation within the extended period of performance deadline; (2) it was legally responsible for the for the septic pump outs; and (3) the mold remediation work was required as a direct result of the declared incident.  Therefore, the requested work is eligible for Public Assistance and this appeal is granted.[14]

 

[1] The Recipient extended the period of performance deadline for emergency work to October 11, 2019. 

[2] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 403(a)(3), Title 42 United States Code § 5170b(a)(3) (2018).

[3] Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.204(c)(1) (2018); Public Assistance Program and Policy Guide, 104-009-2, at 141 (Apr. 2018) [hereinafter PAPPG].

[4] 44 C.F.R. § 206.204(c)(2)(ii).  Cf., PAPPG, at 79, which states that for temporary facilities, only FEMA has authority to approve any time extensions. 

[5] 44 C.F.R. § 206.223(a)(3); PAPPG, at 20.

[6] PAPPG, at 20.

[7] See State of Florida Lands and Facilities Inventory Search, Division of State Lands https://prodenv.dep.state.fl.us/DslPi/searchStateFacilityNew.action (last visited Oct. 3, 2022).

[8] 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(3); PAPPG, at 19.

[9] PAPPG, at 82.

[10] Id.

[11] Id.

[12] Id.

[13] See generally, Fla. Dep’t of Health, Mold and Moisture, https://www.floridahealth.gov/environmental-health/mold/index.html (last visited Oct. 11, 2022) (stating that the department does not recommend mold testing/sampling and states if visible mold growth is present, sampling is not needed).

[14] The issues of eligibility of the $104,471.41 in costs for the approved work and final environmental and historical preservation (EHP) review are remanded to Region IV Public Assistance.  The Applicant may submit a first appeal pursuant to 44 C.F.R. § 206.206 if FEMA issues a new determination denying either costs (in whole or in part) associated with the approved work or for noncompliance with EHP requirements.