5

earnings capacity costs; and $1,500.00 in alleged natural resource damages.15 By the date of this 

determination, there is no evidence that the RP has either settled or denied the Claimant’s costs. 

III. CLAIMANT AND NPFC:

When an RP denies a claim or has not settled a claim after 90 days of receipt, a claimant may 

elect to present its claim to the NPFC.16 Claimant presented its claim to the National Pollution 

Funds Center (NPFC) for $16,000.00 on July 20, 2022, seeking, $2,000.00 in alleged 

uncompensated removal costs; $500.00 in alleged loss of subsistence use costs; $12,000.00 in 

alleged loss of profit & earnings capacity costs; and $1,500.00 in alleged natural resource 

damages.

17

The NPFC notified the claimant that they must first present the claim to the RP before the 

claim could be adjudicated by the NPFC. Claimant presented its costs to the RP on October 16, 

2022.18 With no proof of settlement of the claim within 90 days or denial of the claim, the NPFC 

converted the submission into a claim on January 14, 2023.19

IV. DETERMINATION PROCESS:

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

Liability Trust Fund (OSLTF).20 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.21 The NPFC may rely upon, is not bound by the findings of fact, opinions, 

or conclusions reached by other entities.22 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.

15Claim submission dated July 19, 2022. 16 33 CFR 136.103. 17Claim submission dated July 19, 2022.

18 Email fm NPFC to RP Claims Administrator dated January 19, 2023. 19 Email from NPFC to Claimant dated January 27, 2023. 20 33 CFR Part 136. 21 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)). 22 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).
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.23 An RP’s liability 

is strict, joint, and several.24 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.”25 OPA was intended to cure these deficiencies in the 

law. 

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

damages where the responsible party has failed to do so. 

Mr. claimed the following costs: $2,000.00 for Removal Costs; $500.00 for Subsistence 

Use; $12,000.00 for Profits and Earning Capacity; and $1,500.00 for Natural Resources for a 

total claimed amount of $16,000.00. The claimant did not provide any additional information 

with their claim except for a signed Claim Form with a general description of the injury from the 

oil spill. 

Additional information was requested by the NPFC on September 21, 202226 to determine if the 

claimant could substantiate any of the claimed costs. On October 6, 2022, Claimant stated they 

were gathering documents and would send them as soon as they had everything together.27 

On January 27, 2023, the NPFC provided Claimant 14 days to respond to the NPFC’s request for 

additional information sent on September 21, 2022.28 Claimant failed to provide any further 

communications. 

Below is an analysis of each claimed OPA category: 

Removal Costs - $2,000.00 

Compensation allowable is the total of uncompensated reasonable removal costs for actions 

taken that were determined by the FOSC to be consistent with the National Contingency Plan 

(NCP) or were directed by the FOSC. 

The NPFC requested claimant provide information to prove these costs.

29 No evidence was 

provided by the claimant. 

23 33 U.S.C. § 2702(a). 24 See, H.R. Rep. No 101-653, at 102 (1990), reprinted in 1990 U.S.C.C.A.N. 779, 780. 25 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). 26 Email from NPFC to Claimant dated September 21, 2022. 27 Email from Claimant to NPFC dated October 6, 2022. 28 Email from NPFC to Claimant dated January 27, 2023. 29 Email from NPFC to Claimant dated September 21, 2022. 

(b) (6)
7

Claimant failed to provide any evidence they performed response actions to remove oil from this 

incident. The signed claim submission form states there was “an oil sheen on water over the dead 

crabs for over a week”. However, Claimant did not provide any evidence their traps were located 

in the incident. Claimant states they spent “funds to clean traps and move traps” but no evidence 

was provided of oiled traps, the cost to clean traps, nor that the removal of oil was in accordance 

with the NCP or directed by the FOSC. Therefore the claim for removal costs in the amount of 

$2,000.00 is denied. 

Loss of Subsistence Use - $500.00

A claim for loss of subsistence use of natural resources may be presented only by a claimant who 

uses, for subsistence, the natural resources which have been injured, destroyed, or lost, without 

regard to the ownership or management of resources. 

On September 21, 2022 the NPFC requested additional information; specifically for the claimant 

to: 

1. Identify each specific natural resource for which compensation for loss of

subsistence use is being claimed (e.g., fish, lobster, crab, etc.);

2. Describe the actual subsistence use you make of each specific natural

resource you identify; 

3. Describe how and to what extent your subsistence use of the natural 

resource was affected by the injury to, destruction of, or loss of, each 

specific natural resource;

4. Describe each effort you made to mitigate your subsistence use loss; and

5. Describe any compensation available to you for the subsistence loss you 

suffered.

Claimant has not provided any of the requested information above. Therefore the claim for loss 

of subsistence in the amount of $500.00 is denied. 

Profits and Earning Capacity - $12,000.00

A claim for loss of profits or impairment of earning capacity must prove: a) that the claimant’s 

property was injured, destroyed, or lost; b) that the claimant’s income was reduced as a 

consequence of the oil spill; c) the amount of the claimant’s loss of profits or earnings in 

comparable periods and during the period when the claimed loss was suffered, as established by 

income tax returns, financial statements and similar documents. In addition, comparable figures 

for profits or earnings for the same or similar activies outside of the area affected by the incident 

also must be established. 

On September 21, 2022 the NPFC requested additional information; specifically for the claimant 

to prove: 

1. That your lost profits or earnings were caused by the oil spill 

and the amount you are claiming is appropriate; 

2. That your income was reduced due to the damage or loss of 

property or natural resources; and how much it was reduced;

3. The amount of profits and earnings you had in similar time 

periods (aside from the time period you are stating affected your profits or