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Second Appeal Brief
PA ID# 167-ULN6R-00; Port of Galveston
PW ID# 15838; Direct Result of Disaster, Legal Responsibility–Private Entity
Conclusion: The Port of Galveston has not demonstrated the work to repair damage to Pier 14 East was required as a direct result of the disaster. Moreover, the Applicant was not legally responsible for the work to repair the pier at the time of the disaster. Therefore, the work is ineligible.
In September 2008, Hurricane Ike impacted the state of Texas, including Galveston County, where the Port of Galveston (Applicant) is located. The Applicant submitted a field PW, prepared by its consultant, seeking funding for repair of erosion damage at Pier 14 East (Facility). FEMA denied funding, and the Applicant filed a first appeal. The Regional Administrator determined that the Facility was ineligible because (1) its pre-disaster condition precluded Public Assistance funding, and (2) the Applicant was not legally responsible for the Facility because of a lease that specifically made the tenant, not the Applicant, responsible for hurricane damage. The Applicant submitted a second appeal, arguing that it demonstrated the damage to the pier occurred as a result of the disaster. It also argued that another provision in the lease allowed it to terminate the agreement if the pier was totally destroyed. It asserted that the pier was totally destroyed because it was inoperable, and it effectively terminated the lease when it moved the tenant to another pier.
Authorities and Second Appeals
- 44 C.F.R. § 206.223(a)(1), (3).
- PA Guide, at 23, 29-31, 33.
- Knowledge is Power Program (KIPP), FEMA-1603-DR-LA, at 3.
- 44 C.F.R. § 206.223(a)(1) requires that work must be required as a result of a disaster.
- The PA Guide states work to correct pre-disaster inadequacies, or damage caused by inadequate maintenance, is ineligible.
- Pier 14 East was poorly maintained and in a state of disrepair prior to the disaster. The Applicant has not demonstrated the proposed work was required a direct result of the disaster, rather than to correct predisaster deficiencies.
- 44 C.F.R. § 206.223(a)(3) requires the work to be the legal responsibility of the Applicant.
- The PA Guide applies this rule at the time of the disaster and states that a lease makes a tenant legally responsible if it specifically covers disaster damage. A post-disaster transfer of responsibility from an ineligible applicant to an eligible applicant does not make a facility eligible.
- The lease made the tenant, not the Applicant, legally responsible for Pier 14 East at the time of the disaster. The tenant was legally responsible for the Facility. While the Applicant could terminate the lease if the disaster totally destroyed the pier, this post-disaster transfer did not make the project eligible.