5

 On September 24, 2021, Lone Star arrived to the scene and found the vehicle accident and 

located the spill in the culvert. Lone Star utililized a pump sprayer to administer a dispersant 

product identified as Performance Wash to treat the area of the creek that contained the 

discharged oil.20 Lone Star did not sample the leaked fluid, but the FOSC was able to determine 

after the fact that it was more than likely than not, an OPA oil.21 

II. CLAIMANT, RP, AND THE NPFC: 

Absent limited circumstances, the federal regulations implementing the Oil Pollution Act of 

1990 (OPA)22 require all claims for removal costs or damages must be presented to the 

responsible party before seeking compensation from the NPFC.23 When an RP has not settled a 

claim after ninety days of receipt or denies a claim, a claimant may elect to present its claim to

the NPFC.

24 Lone Star presented its claimed costs to on December 6, 2021.25 

Having not received payment after ninety days, Lone Star presented its uncompensated removal 

cost claim to the NPFC for $1,936.94 on March 17, 2022.26 

III. DETERMINATION PROCESS:

 The NPFC utilizes an informal process when adjudicating claims against the Oil Spill 

Liability Trust Fund (OSLTF).27 As a result, 5 U.S.C. § 555(e) requires the NPFC to provide a 

brief statement explaining its decision. This determination is issued to satisfy that requirement.

 When adjudicating claims against the OSLTF, the NPFC acts as the finder of fact. In this 

role, the NPFC considers all relevant evidence, including evidence provided by claimants and 

evidence obtained independently by the NPFC, and weighs its probative value when determining 

the facts of the claim.28 The NPFC may rely upon, is not bound by the findings of fact, opinions, 

or conclusions reached by other entities.29 If there is conflicting evidence in the record, the 

NPFC makes a determination as to what evidence is more credible or deserves greater weight, 

and makes its determination based on the preponderance of the credible evidence. 

 

20 See, Lone Star “Response Summary” (pgs 2-3), contained within the claim submission. 21 The NPFC cautions that claimants have the burden of proof to demonstrate that the event was an “incident” as 

defined by OPA. One of the factors that they must establish is that the released substance that led to the removal 

actions was, in fact, an OPA oil. This is best accomplished by taking a sample of the spilled substance and 

submitting the results to the NPFC in the claims submission. See generally, 33 U.S.C. § 2701(14); 33 CFR 136.105. 22 33 U.S.C. § 2701 et seq. 23 33 CFR 136.103(c)(1). 24 33 CFR 136.103. 25 See, email from Lone Star to NPFC dated March 29, 2022. For completeness, Lone Star also submitted its costs to 

the other RP, on April 1, 2022 as well. 26 Claim submission. 27 33 CFR Part 136. 28 See, e.g., Boquet Oyster House, Inc. v. United States, 74 ERC 2004, 2011 WL 5187292, (E.D. La. 2011), “[T]he 

Fifth Circuit specifically recognized that an agency has discretion to credit one expert's report over another when 

experts express conflicting views.” (Citing, Medina County v. Surface Transp. Bd., 602 F.3d 687, 699 (5th Cir. 

2010)). 29 See, e.g., Use of Reports of Marine Casualty in Claims Process by National Pollution Funds Center, 71 Fed. Reg. 

60553 (October 13, 2006) and Use of Reports of Marine Casualty in Claims Process by National Pollution Funds 

Center 72 Fed. Reg. 17574 (concluding that NPFC may consider marine casualty reports but is not bound by them).

(b) (6) (b) (6)
6

V. DISCUSSION: 

 An RP is liable for all removal costs and damages resulting from either an oil discharge or a 

substantial threat of oil discharge into a navigable water of the United States.30 An RP’s liability 

is strict, joint, and several.31 When enacting OPA, Congress “explicitly recognized that the 

existing federal and states laws provided inadequate cleanup and damage remedies, required 

large taxpayer subsidies for costly cleanup activities and presented substantial burdens to 

victim’s recoveries such as legal defenses, corporate forms, and burdens of proof unfairly 

favoring those responsible for the spills.”32 OPA was intended to cure these deficiencies in the 

law. 

 OPA provides a mechanism for compensating parties who have incurred removal costs where 

the responsible party has failed to do so. Removal costs are defined as “the costs of removal that 

are incurred after a discharge of oil has occurred or, in any case in which there is a substantial 

threat of a discharge of oil, the costs to prevent, minimize, or mitigate oil pollution from an 

incident.”33 The term “remove” or “removal” means “containment and removal of oil [...] from 

water and shorelines or the taking of other actions as may be necessary to minimize or mitigate 

damage to the public health or welfare, including, but not limited to fish, shellfish, wildlife, and 

public and private property, shorelines, and beaches.”34 

 The NPFC is authorized to pay claims for uncompensated removal costs that are consistent 

with the National Contingency Plan (NCP).35 The NPFC has promulgated a comprehensive set 

of regulations governing the presentment, filing, processing, settling, and adjudicating such 

claims.36 The claimant bears the burden of providing all evidence, information, and 

documentation deemed relevant and necessary by the Director of the NPFC, to support and 

properly process the claim.37

 Before reimbursement can be authorized for uncompensated removal costs, the claimant must 

demonstrate by a preponderance of the evidence: 

(a) That the actions taken were necessary to prevent, minimize, or mitigate the effects of the 

incident; 

(b) That the removal costs were incurred as a result of these actions;

(c) That the actions taken were directed by the FOSC or determined by the FOSC to be 

consistent with the National Contingency Plan. 

(d) That the removal costs were uncompensated and reasonable.38

 

30 33 U.S.C. § 2702(a). 31 See, H.R. Rep. No 101-653, at 102 (1990), reprinted in 1990 U.S.C.C.A.N. 779, 780. 32 Apex Oil Co., Inc. v United States, 208 F. Supp. 2d 642, 651-52 (E.D. La. 2002) (citing S. Rep. No. 101-94 

(1989), reprinted in 1990 U.S.C.C.A.N. 722). 33 33 U.S.C. § 2701(31). 34 33 U.S.C. § 2701(30). 35 See generally, 33 U.S.C. § 2712 (a)(4); and 33 CFR Part 136. 36 33 CFR Part 136. 37 33 CFR 136.105. 38 33 CFR 136.203; 33 CFR 136.205.