- 44 C.F.R. § 206.223(a)(3)
- PA Guide, at 23, 30, 31.
- Pursuant to 44 C.F.R. § 206.223 (a)(3), in order to be eligible for PA funding, an item of work must be the legal responsibility of an eligible applicant.
- According to the PA Guide, ownership of a facility is generally sufficient to establish legal responsibility. This holds true even if the owner leases out an eligible facility, except when the controlling lease states that the lessee is responsible for repairs to the facility or maintains insurance for repairs. The lease usually contains general repair and maintenance language; however, responsibility for damage resulting from a disaster may not be established. In the absence of any mention in the lease, the owner of the facility will be assumed responsible for the repair.
- The Applicant owned the facility at the time of the disaster.
- The two controlling leases do not clearly establish that ECIDA or BSR were responsible for the level of repairs resulting from disaster damage.
- Pursuant to FEMA policy, absent a clear delegation of legal responsibility for disaster-related repairs, the Applicant, as the owner of the facility, is legally responsible for such repairs.
From August 8 to August 10, 2009, severe storms and flooding damaged sections of the Buffalo Southern Railway Line 1246 (facility) owned by the Applicant. However, the facility is leased to the Erie County Industrial Development Agency (ECIDA), and sub-leased to the Buffalo Southern Railroad, Inc. (BSR)—a private company. Culverts were plugged, and ballast
alongside and underneath the railway ties were damaged in different sections along the track from track mile markers 10.8 to 32.6. A total of five PWs—963, 964, 966, 967 and 968—were drafted to address the damage along this stretch of the facility. Upon review of the two controlling leases, FEMA field personnel determined the repair work for the facility was ineligible because the Applicant was not legally responsible for the facility at the time of the disaster event. In the first appeal, the Applicant asserted that it and ECIDA both understood that major capital repair was the responsibility of the Applicant. The Region II Acting Regional Administrator (RA) denied the first appeal because she determined that the Applicant—although owner of the facility—was not legally responsible for repairs to the facility because the leases in effect at the time of the disaster explicitly state BSR was responsible for all repair work.