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Second Appeal Letter
PA ID# 167-ULN6R-00; Port of Galveston
PW ID# 14938, 14985 & 14998; Legal Responsibility
April 29, 2011
State Coordinating Officer
Texas Department of Public Safety
5805 N. Lamar Boulevard, Box 4087
Austin, Texas 78773
Re: Second Appeals–Port of Galveston, PA ID 167-ULN6R-00, Legal Responsibility, FEMA-1791-DR-TX, Project Worksheets (PW) 14938, 14985, and 14998
Dear Mr. Patterson:
This is in response to your letters dated December 8, 2010, which transmitted the referenced second appeals on behalf of the Port of Galveston (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding for repairs to Piers B, C, and D at Pelican Island.
On September 13, 2008, storm surge and debris from Hurricane Ike resulted in damage to Pelican Island piers B, C, and D in the Port of Galveston, Texas. FEMA prepared PW 14998 to document damage to Pier B; PW 14985 to document damage to Pier C; and PW 14938 to document damage to Pier D. On December 1, 2009, FEMA determined that the costs the Applicant incurred in repairing Piers B and D were ineligible because the damages were not a direct result of the disaster. On December 9, 2009, FEMA similarly determined that repairs to Pier C were ineligible.
The Applicant appealed these determinations with letters dated February 2, 2010 (PW 14985), February 5, 2010 (PW 14938), and February 9, 2010 (PW 14998). In each of these appeals, the Applicant asserted that FEMA did not properly inspect the entire piers for damage caused by Hurricane Ike. In support of its claims, the Applicant submitted 2010 inspection reports by Lloyd Engineering, Inc., which stated that the damages in dispute were caused by Hurricane Ike. FEMA responded to the Applicant’s appeals with letters dated September 17, 2010 (PW 14998) and September 20, 2010 (PWs 14938 and 14985).
FEMA’s responses indicated that the piers were leased to the Gulf Copper and Manufacturing Corporation (Lessee) at the time of the disaster. Pursuant to Title 44 Code of Federal Regulations (CFR) §206.223(a)(3), General Work Eligibility, in order to be eligible, the work must “be the legal responsibility of an eligible applicant.” According to the Applicant’s lease, in Section 10.02, Partial Destruction, the Lessee is responsible for damage caused by “fire, windstorm, hurricane or any other casualty,” and that the “Lessee must, at its sole cost and expense, immediately repair, reconstruct or replace the damaged or destroyed property…”
The Applicant appealed these determinations with letters submitted November 23, 2010. The Applicant stated that it “does not refute that the lease states that the legal responsibility for maintenance and repair rests with the Lessee.” The Applicant argues that its actions in repairing the piers after Hurricane Ike were necessitated by the severity of the damage caused by the storm, and requests flexibility in the interpretation of the lease agreement.
FEMA’s regulations are clear in establishing that in order to be eligible for Public Assistance funding, work must be the legal responsibility of an eligible applicant. The lease agreement for the piers is also clear in stating that the Lessee is responsible for damage to the piers, including damage caused by hurricanes.
I have reviewed the information submitted with the appeals and have determined that the Applicant does not have legal responsibility for repairs to the damaged piers, and the cost of repairing the piers is not eligible for Public Assistance funding. The Regional Administrator’s decisions in the Applicant’s previous appeals are consistent with Public Assistance regulations and policy. Therefore, I am denying the Applicant’s requests. This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals.
cc: Tony Russell
FEMA Region VI