Claim Number: 

Claimant: 

Type of Claimant: 

Type of Claim: 

Claim Manager: 

Amount Requested: 

FACTS: 

CLAIM SUMMARY I DETERMINATION 

913018-0001 

Washington State Depai1ment of Ecology 

State Government 

Removal Costs 

$6.428.2 1 

Oil Spill Incident: On November 20, 2007 at 13:05 PST, personnel from Washington State 

Department of Ecology (DOE) responded to a rep011 that a 30-foot recreational vessel. the 

COMMANDER TOAD was partially submerged in its berth at Eagle Harbor Marina on 

Bainbridge Island, Washington. 1 DOE estimated that 30 gallons of oil were released into the 

waterway. On-water recovery removed 28 gallons of diesel oil. Eagle Harbor is a tributary of 

Pudget Sound and a navigable waterway of the U.S. 

Responsible Party: The responsible pa11y (RP) for the spill is Team Tiburon Foundation of 

Belvedere. CA that owned the COMMANDER TOAD at the time of the spi ll incident.2 

Mr. represented the responsible party (RP). Mr. hired Mr. , 

a local salvage diver to seal the leaking diesel fuel tanks and to raise the vessel. DOE asked Mr. 

 to hire a qualified oil-spill removal contractor that was capable of recoveri ng the oilsheen from the waterway. However, at the time, Mr. refused to hire an oil spill response 

contractor. 

Claimant & Claim: On December 4, 2012, the NPFC received a removal cost claim from the 

State of Washington Department of Ecology (DOE). The DOE oversees cleanup of oil-spills in 

the state and is considered the State On Scene Coordinator (SOSC). 

DOE seeks its uncompensated removal costs for this incident in the amount of $6.428.21.3 

Description of Removal Acitivities: DOE personnel arrived on-scene November 20, 2007 at 

13 :05 hours and observed diesel-oil discharging from the COMMANDER TOAD. DOE 

observed that there was no boom around the vessel and found oil saturated sorbents around the 

vessel. DOE personnel observed an oil-sheen covering approximately 6,000 square-feet of 

harbor waters. 

DOE deployed its supply of oil-sweeps and requested the local fire depai1ment deploy its 

containn1ent boom and additional sorbents. When the potential responsible pai1y (PRP). Mr. 

refused to hire a qualified oil-spill response contractor to recover the residual oil from 

the waterway. DOE hired Phillips Services Corporation (PSC) to handle response actions. 

1 See National Response Center report # 855099 dated November 20, 2007 taken at 13: 15 hours. 2 See Initial Report Evironmental Report Tracking System #602 139 by WADOE (Claimant Exhibit R) 3 See Claimant Exhibit B 
Further removal actions were taken on November 21, 2007 after DOE returned to the scene and 

found that the containment boom had been removed by the PRP's local diver. After discussion 

with Mr. DOE found that he was not prepared to properly raise the vessel and persuaded 

Mr. to hire another contractor to raise the vessel. Emerald Underwater Services was 

hired by the PRP to raise the vessel, without further pollution incident. The PRP paid for 

Emerald Underwater Services and reimbursed the harbor and local fire department for use of its 

sorbents and boom. 

Federal On-Scene Coordination: DOE contacted USCG, Petty Officer Hughes at MSO Pudget 

·Sound and conveyed to Hughes that DOE was responding to the spill. MSO Pudget Sound 

agreed with DOE that DOE would oversee the response and cleanup . .i 

APPLICABLE LAW: 

Under OPA 90, at 33 USC § 2702(a), responsible patiies are liable for removal costs and 

damages resulting from the discharge of oil into navigable waters and adjoining shorelines, as 

described in Section 2702(b) of OPA 90. A responsible party's liability will include "removal 

costs incurred by any person for acts taken by the person whi ch are consistent with the National 

Contingency Plan'·. 33 USC § 2702(b)(l)(B). 

"Oil" is defined in relevant pati, at 33 USC§ 2701 (23), to mean "oil of any kind or in any f01m, 

including petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other than dredged 

spoil". 

The Oil Spill Liability Trust Fund (OSL TF), which is administered by the NPFC, is available, 

pursuant to 33 USC§§ 2712(a)(4) and 27 13 and the OSLTF claims adjudication regulations at 

33 CFR Part 136, to pay claims for uncompensated removal costs that are detem1ined to be 

consistent with the National Contingency Plan and uncompensated damages. 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". 

Under 33 USC §27 13(b)(2) and 33 CFR 136.103(d) no claim against the OSLTF may be 

approved or certifi ed for payment during the pendency of an action by the claimant in court to 

recover the same costs that are the subj ect of the claim. See also, 33 USC §27 13(c) and 33 CFR 

136.103( c)(2) [claimant election]. 

33 U.S.C. §2713(d) provides that "If a claim is presented in accordance with this section, 

including a claim for interim, short-tenn damages representing less than the full amount of 

damages to which the claimant ultimately may be entitled, and full and adequate compensation is 

unavailable, a claim for the uncompensated dan1ages and removal costs may be presented to the 

Fund. " 

See MISLE case #383234 in admin record 
Under 33 CFR 136.1 05(a) and 136.105(e)(6), the claimant bears the burden of providing to the 

NPFC. all evidence, information. and documentation deemed necessary by the Director, NPFC. 

to support the claim. 

Under 33 CFR 136.1 OS(b) each claim must be in writing, for a sum certain for each category of 

uncompensated damages or removal costs resulting from an incident. In addition, under 33 CFR 

136. the claimant bears the burden to prove the removal actions were reasonable in response to 

the scope of the oil spill incident, and the NPFC has the authority and responsibility to perform a 

reasonableness determination. Specifically, under 33 CFR 136.203, "a claimant must establish -

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

incident; 

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

(c) That the actions taken were determined by the FOSC to be consistent with the National 

Contingency Plan or were directed by the FOSc.·· 

Under 33 CFR 136.205 '·the amount of compensation allowable is the total of uncompensated 

reasonable removal costs of actions taken that were determined by the FOSC to be consistent 

with the National Contingency Plan or were directed by the FOSC. Except in exceptional 

circumstances, removal activities for which costs are being claimed must have been coordinated 

with the FOSC." [Emphasis added]. 

DFJERM!NAT!ON OF LOSS: 

Overview: 

1. Federal On-Scene Coordination was provided by Sector Pudget Sound (MISLE case 

#38324). 

2. The incident involved the discharge of oil as defined in OPA, 33 U.S.C. Section 2701 (23) 

to navigable waters. 

3. In accordance with CFR 135. 106 Claimant has ce1iified that no suit has been filed in court 

for the claimed uncompensated removal costs. 

4. The claim was submitted within the six year statute oflimitations for claims 33 U.S.C. 2712 

(h)( 1) 

Analysis of Claim: 

The NPFC Claims Manager has reviewed the cost invoices and dailies to confirm that the 

claimant has incuned all costs as claimed. The review focused on: (1) whether the actions tken 

were compensable '·removal actions'· under OPA and the claims regulations at 33 CFR 136 (e.g., 

actions to prevent, minimize and mitigate the effects of the incident); (2) whether the costs were 

incurred as a result of these actions; (3) whether the actions taken were determined by the FOSC 
to be consistent with the National Contingency Plan; and (4) whether the costs were adequately 

documented and reasonable. 

Costs were incuned after the PRP refused to hire an oil-spill response organization to cleanup 

the oil on harbor waters. $5,557.83 represents the cost to hire Global Diving and Salvage to 

cleanup and recover oil on the water. Global Diving and Salvage is the subcontractor to Phillips 

Services Corporation (PSC). PSC is retained under a contract by DOE to respond to spills 

whenever it is needed. 5 The remainder of the uncompensated removal costs represent $818.38 

for two DOE personnel and $52.00 in per diem for meals for two days ($5,557.83 + $818.38 + 

$52 = $6,428.21).6 

Claimant seeks reimbursement of its uncompensated removal costs associated with its response 

personnel and for oil removal services provided by Global Diving and Salvage as subcontractor 

to PSC. Uncompensated removal costs consist of $818.38 for the time and benefis for DOE 

personnel: 7 Chris Wilkerson and Dave Kline and $52 for per diem for two meals. 

8 The distance 

from the DOE office to the spill location is approximately 87 miles each way. Additionally, the 

NPFC will compensate DOE for the services of its contractor, Global Diving and Salvage that 

provided oil spill removal services invoiced at $5,557.83 for personnel and equipment identified 

in Global Diving and Salvage's dailies that were reimbursed by the DOE.9 The NPFC will 

reimburse the Claimant for the base salary of each employee, at their houly rates as found in PSC 

rate sheet. 10 

The NPFC sent a RP Notification letter to the PRP on December 6, 2012. To date, no response 

has been received. 

AMOUNT: $6,428.21 

Claim Supervisor: 

Date of Supervisor's review: January JO, 2013 

Supervisor Action: Approved 

Supervisor's Comments: 

5 See Memorandum of Agreement - contractor cost agreement (Claimant Exhibit E) in admin record 6 See W ADOE Detail Expenditures (Claimant Exhibit B, C, D & I) in admin record 7 See Claimant Exhibit C in admin record 

8 See DOE Travel Expense Voucher (Claimant Exhibit D - per diem costs) 

9 See invoice #5788222 from PSC to W ADOE December 31 , 2007 10 See Global Diving & Salvage dailies (Claimant Exhibit J)