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Second Appeal Brief
PA ID# 167-ULN6R-00; Port of Galveston
PW ID# 14938, 14985 & 14998; Legal Responsibility
Citation: FEMA-1791-DR-TX, Port of Galveston PWs 14938, 14985, and 14998
Reference: Legal Responsibility
Summary: 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. However, these piers were identified as in need of repair in a report submitted to the Port of Galveston (Applicant) by Lloyd Engineering, Inc. in 2004. According to this report, corrosion, spalling, and impact damage to these piers was present in 2004. FEMA determined that repairs to piers B, C and D are ineligible because the damages are not a direct result of the disaster. 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 previous lessee had made repairs to piers C and D, “except for the last 300 feet of Pier D” and noted that Pier B was in adequate condition for vehicular traffic at the time of the disaster. The reports state that the damages in dispute were caused by Hurricane Ike. FEMA responses to the Applicant’s appeals noted 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), in order to be eligible, the work must be the legal responsibility of an eligible applicant. According to Section 10.02, Partial Destruction, of the Applicant’s lease, the lessee is responsible for damage caused by storms. The Applicant appealed these determinations with letters submitted November 23, 2010. The Applicant “does not dispute that its lease states that the legal responsibility for maintenance and repair rests with the lessee.” The Applicant argues that its actions were necessitated by the severity of the damages caused by the storm.
Issue: Does the Applicant have the legal responsibility to repair the piers?
Rationale: 44 CFR §206.223(a)(3) General work eligibility.