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Second Appeal Brief
PA ID# 045-78200-00; Jackson County Port Authority
PW ID# 10965; Debris Removal Costs
SECOND APPEAL BRIEF
Jackson County Port Authority, PA ID 045-78200-00
Project Worksheet (PW) 10965
Citation: FEMA-1604-DR-MS; Jackson County Port Authority (Applicant), PW 10965
Reference: General Eligibility; Legal Responsibility; Debris Removal
Summary: On December 4, 1995, the Applicant entered into a lease with Gulf Coast Cold Storage, Inc (GCCS), a private-for-profit company, which leased a cold-storage facility located at the Port of Pascagoula. The lease placed responsibility for major repairs of the facility on the Applicant, but not the removal of contents within the facility. Following Hurricane Katrina, GCCS, at its own initiative and expense, hired contractors to remove and depose of decomposing poultry from the storage facility. At the request of the Applicant, FEMA prepared PW 10965 to reimburse those costs totaling $340,499. On November 30, 2007, FEMA determined that the debris removal costs were not eligible for reimbursement because the lease did not specify that the Applicant had legal responsibility to remove GCCS’s contents from the storage facility and because GCCS’s insurance covered these costs.
The Applicant submitted its first appeal on March 3, 2008, asserting that it was legally responsible for repairs to the facility, to remove the contents because of threats to public health and safety, and that FEMA incorrectly interpreted the lease by assigning responsibility for debris removal to GCCS. FEMA denied the appeal concluding that the cost to dispose of the poultry was not incurred by the Applicant, but by GCCS. The Applicant did not provide documentation to demonstrate it had any legal obligation to reimburse GCCS for costs incurred by GCCS or that an insurance claim had been filed by either party. A second appeal was submitted by the Applicant on October 20, 2008, and reiterates its position presented in the first appeal. The Applicant did not present new information to support its second appeal.
Issues: 1) Is GCCS an eligible applicant?
2) Did the Applicant establish that it had legal responsibility for the work?
3) Is the cost to remove the contents from the facility eligible?
Finding: 1) No. GCCS is a private-for-profit company and therefore, is not eligible for FEMA Public Assistance.
2) No. The lease between the Applicant and GCCS does not specify that the Applicant has legal responsibility to remove product entrusted to GCCS from the storage facility.
3) No. FEMA does not provide assistance to an eligible applicant to reimburse a private entity for its cost to remove debris or its property.
Rationale: 44 CFR §206.222, Applicant eligibility; 44 CFR §206.223(a)(3), General work eligibility, General; 44 CFR §206.224(c), Debris removal, Assistance to individuals and private organizations