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CLAIM SUMMARY / DETERMINATION 

Claim Numbers: N18023-0005 and N18023-0006 

Claimant: City of Kenova 

Type of Claimant: Local Government 

Type of Claims: Public Services 

Claim Manager: 

Amount Requested: $135,412.03 (N18023-0005) and $15,535.44 (N18023-0006) 

Action Taken: Total Approved in the Amount of $149,867.45 

EXECUTIVE SUMMARY: 

In January 2018, the Uninspected Towing Vessel (UTV) GATE CITY sank in the Big Sandy 

River, a navigable waterway of the United States, near Kenova, West Virginia. The UTV ANNA 

C1

 was determined to pose a substantial threat of discharge of oil into the Big Sandy River. Both 

vessels required oil pollution response activities and both are relevant to this claim. 

In accordance with the Oil Pollution Act of 1990 (OPA), Western Rivers Assets and River 

Marine Enterprises were identified as the responsible parties (RPs) for the GATE CITY.2

Western Rivers Assets was identified as the responsible party for the ANNA C.3 

The City of Kenova (“Kenova” or “Claimant”) was forced to shut down its water plant as a 

result of this incident and, therefore, could not provide both its bulk and city customers with 

water. To ensure that these customers maintained water service, Kenova outsourced and 

purchased its water service in bulk, increasing its costs to maintain these public services as a 

result. The NPFC has thoroughly reviewed all documentation submitted with the claims, 

analyzed the applicable law and regulations, and after careful consideration, has determined that 

$149,867.45 of the requested $150,947.454 is compensable and offers this amount as full and 

final compensation of these claims.5

I. INCIDENT, RESPONSIBLE PARTY AND RECOVERY OPERATIONS:

Incident

On December 5, 2017, the Coast Guard issued an Administrative Order to Western Rivers 

Assets, the owner of the GATE CITY and ANNA C, identifying both vessels as substantial 

threats to discharge oil into Big Sandy River, a navigable waterway of the United States near 

Kenova, West Virginia.6

 The Order required the owner to take several mitigation actions to 

avoid an oil pollution incident from its vessels. On January 10, 2018, before the owner complied 

 

1 The ANNA C was renamed JO RENEE on November 7, 2008. However, all of the incident documentation refers 

to the vessel as the ANNA C. This determination will refer to it as such to avoid any potential confusion.

2 Western Rivers Assets was the owner. River Marine Enterprises was the operator. 3 Western Rivers Assets was the owner. There was no discernible operator. 4 Original claim submissions (N18023-0005 for $135,412.03 and N18023-0006 for $15,535.44) received by the 

NPFC on February 13, 2019. The claimant later amended its sum certain for claim N18023-0005 to $135,412.01 via 

email dated May 28, 2019.

5 33 CFR 136.115.

6 Marine Safety Unit Huntington Administrative Order IMD-001 dated December 5, 2017. 
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with the Order, the GATE CITY sank at its mooring and discharged oil into the Big Sandy 

River.7 The ANNA C did not sink, but remained a substantial threat of discharge, which 

required response activities to mitigate.

Responsible Parties 

Western Rivers Assets and River Marine Enterprises are jointly and severally liable under 

OPA.8 The NPFC issued Notice of Designation letters to each of them.9 A Notice of Designation 

letter notifies the owners and/or operators of vessels or facilities that their vessel or facility was 

designated as the source of a discharge or substantial threat of a discharge of oil to navigable 

waters of the United States. 

Recovery Operations

United States Coast Guard Marine Safety Unit (MSU) Huntington was the Federal On-Scene 

Coordinator (FOSC) and oversaw the response and removal operations.10 

As a result of this incident, the City of Kenova’s water plant was forced to shut down from 

January 10 through January 15, 2018.11 During that time, the Kenova water plant could not 

produce or treat new water to maintain water tanks at sufficient levels to provide all customers 

with water. Kenova’s water system has many bulk water accounts, particularly manufacturing 

facilities located near the rivers, that depend on water to operate and function safely. These 

facilities would have had to shut down if water had been unavailable for an extended period of 

time.12

To ensure itscommercial and residential customers maintained water service, the City of 

Kenova outsourced and purchased water in bulk from the City of Ashland, KY (via water line), 

the City of Lavalette, WV (through a bypass), and West Virginia American Water (via Ace 

Services trucks)13 to keep the clear well14 at the plant full.15 

II. CLAIMANT AND RP:

Absent limited circumstances, the Federal Regulations implementing the OPA16 require all 

claims for removal costs or damages must be presented to the RP before seeking compensation 

from the NPFC.17

 

7 SITREP-POL One. 8 See, H.R. Rep. No 101-653, at 102 (1990), reprinted in 1990 U.S.C.C.A.N. 779, 780. 9 Notice of Designation letters to Western Rivers Assets dated January 17, 2018, River Marine Enterprises dated 

August 3, 2018, and Gate City Transportation dated August 3, 2018. 

10 Letter of Delegation – Incident Specific Federal On-Scene Coordinator (FOSC), from CAPT. , 

CG Sector Ohio Valley to CDR. , U.S. Coast Guard dated December 4, 2017.

11 Kenova Volunteer Fire Department Spill Report dated January 29, 2018. 12 Claim Explanation Letter dated March 29, 2019. 13 The West Virginia American Water Invoice makes up the entirety of NPFC Claim # N18023-0006. 14 A clear well is a component of a municipal drinking water purification system. It refers to the final storage stage 

in the system, following the filtration and disinfection stages. 15 Claim Explanation Letter dated March 29, 2019. 16 33 U.S.C. § 2701 et seq. 17 33 CFR 136.103.
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The claimant initially presented its claims to Western River Assets, LLC on February 15, 

2018 and February 21, 2018.18 However, at the time it submitted its claim to the NPFC, Kenova 

had yet to present to River Marine Enterprises. On January 2, 2019, the claimant presented its 

costs via USPS Certified Mail19 to River Marine Enterprises.20 After the regulatory ninety-day 

waiting period had elapsed, the NPFC began adjudicating the claim which included personnel, 

equipment, and materials in the amount of $150,947.47.

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.21 The initial claims to the NPFC came in without 

confirmation that the claimed costs were presented to River Marine Enterprises. As a result, the 

NPFC notified the claimant that it could not adjudicate the claims until proper presentment was 

made to each of the RPs. Claimant’s counsel confirmed River Marine Enterprises received the 

claimed costs on January 2, 201922 and as of April 2, 2019, had not settled the claim. At that 

point the claims were properly presented to each of the RPs, and the NPFC began adjudicating 

Kenova’s claimed costs, totaling $150,947.47.

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The claims were received by the NPFC as two distinct set of costs presented to the RP. 

Initially, the NPFC opened two separate claim files noting these dollar values. After further 

review of the claims, it became apparent that these costs are for the same type of OPA damage 

(Public Services) and, therefore, the NPFC has combined both costs into one determination 

here.24

The City of Kenova broke down its claims via the following invoicing/municipal costs:25

1. Kenova Volunteer Fire Department (VFD) (to include Ceredo, Prichard and 

England Hill VFDs): Services/Assistance provided to the Kenova Water Plant 

from January 11th thru January 14th, 2018. These VFD’s provided engines to 

transfer water, including pumping water from tanker trucks with potable water 

that could go straight into the water system for use.

VFD personnel were also called by the City of Kenova to put its boat in the water 

to assist with water sampling on the river, around the intakes and also to 

document through photographs anything that might be a contaminate that would 

affect the water intake at the water plant. 

 18 Cover Letters dated February 15, 2108 for $135,412.03 and February 21, 2018 for $15,535.44. 19 The Claimant also presented to Gate City River Transportation, LLC, as well, but at the time of adjudication, it 

was no longer considered an RP for this incident.

20 Letter to River Marine Enterprises dated December 31, 2018. 21 33 CFR 136.103. 22 Email from claimant’s counsel dated June 11, 2019 with attached signed certified mail receipt card. 23 Original claim submissions (N18023-0005 for $135,412.03 and N18023-0006 for $15,535.44) received by the 

NPFC on February 13, 2019. The claimant later amended its sum certain for claim N18023-0005 to $135,412.01 via 

email dated May 28, 2019.

24 33 CFR 136.109(a). 25 See the Summary of Costs spreadsheet as an enclosure to this determination for a further breakdown of claimed 

costs.
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2. Ace: The City hired Ace Services to haul water to the water plant for the City of 

Kenova.

3. Perfection Rubber & Supply Company: The City purchased fittings and related 

items needed to hook up pumps to offload water from tanker trucks into the 

Kenova water plant’s clear well, which would not been necessary but for the spill. 

(Kenova normally gets its water from intakes near where the M/V Gate City 

sank.)

4. Service Pump and Supply: The pump was rented for the purpose of offloading 

water from tanker trucks into the City of Kenova’s clear well, which would not 

have been necessary but for the spill.

5. CI Thornburg, Inc: The $175.55 invoice covered fittings purchased to hook up 

additional pumps to offload water into the clear well. The $3,000 and $1,520 

invoices were for carbon, a tank, a mixer, a pump, and related supplies used to 

pump carbon into the water system after the spill. The City of Kenova was 

required to do this to satisfy West Virginia Division of Health requirements 

before the water plant could be brought back on line.

6. Lavalette Public Service District: During the emergency, the Lavalette Public 

Service District provided water and related services to the City of Kenova. They 

did this by putting in a bypass pump from their system to Kenova’s system to help 

pump water to Kenova water customers in Kenova service areas near them.

7. City of Ashland: The City of Ashland, Kentucky, provides water to a neighboring 

service area. The Cities of Ashland and Kenova maintain a water line that 

connects the two water systems in case of a water emergency like this 

one.(Unfortunately, the line is insufficient by itself to support Kenova’s customer 

base and thus the reason for obtaining water from the Lavalette Public Service 

District and West Virginia American Water, as well...)

8. Lowe’s Pro Services: Bottled water for the crews.

9. WV American Water (For N18023-0006): West Virginia American Water Co. 

provided water for the City. This was brought in via the Ace trucks and made 

available through a fire hydrant and hauled by tanker trucks to the City’s clear 

well so that water services could be maintained.

IV. DETERMINATION PROCESS:

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

Liability Trust Fund (OSLTF).26 As a result, 5 U.S.C. § 555 (e) requires the NPFC to provide a 

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

requirement for the Claimant’s claim against the OSLTF.

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

 26 33 CFR Part 136. 27 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).
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or conclusions reached by other entities.28 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 finds facts and makes its determination based on the preponderance of the credible evidence.

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.29 A responsible 

party’s liability is strict, joint, and several.30 When enacting the 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.”31 OPA was intended to cure these deficiencies 

in the law.

OPA provides a mechanism for compensating parties who have incurred increased public 

services costs where the responsible party has failed to do so. Increased public services costs are 

defined as, “[d]amages for net costs of providing increased or additional public services during 

or after removal activities, including protection from fire, safety, or health hazards, caused by a 

discharge of oil, which shall be recoverable by a State, or a political subdivision of a State.”32

The NPFC is authorized to pay claims for public services damages.33 The NPFC has 

promulgated a comprehensive set of regulations governing the presentment, filing, processing, 

settling, and adjudicating such claims.34 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.35 OPA and its implementing regulations prescribe the 

conditions of payment, as well as restrictions on the types of costs appropriate for payment. 

Before reimbursement can be authorized for public services costs, the claimant must 

establish:

a) The nature of the specific public services provided and the need for those services; 

b) That the services occurred during or after removal activities; 

c) That the services were provided as a result of a discharge of oil and would not 

otherwise have been provided; and 

d) The net cost for the services and the methods used to compute those costs.36

 28 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). 29 33 U.S.C. § 2702(a). 30 See, H.R. Rep. No. 101-653, at 102 (1990), reprinted in 1990 U.S.C.C.A.N. 779, 780. 31 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). 32 33 U.S.C. § 2702(2)(f). 33 See generally, 33 U.S.C. § 2712 (a)(4); 33 U.S.C. § 2713; and 33 CFR Part 136. 34 33 CFR Part 136. 35 33 CFR 136.105. 36 33 CFR 136.239.
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The NPFC analyzed each of these factors and determined that most of the costs incurred by 

the City of Kenova and submitted herein are compensable additional public services costs based 

on the supporting documentation provided. The NPFC determined all approved costs were 

invoiced to and paid by the claimant. Additionally, all approved costs were supported by 

adequate documentation that included invoices, affidavits, signed statements, rate schedules, 

salaries, proofs of payment, and FOSC statements. 

 The amount of compensable costs for claim N18023-0005 is $134,332.01, while $1,080.00 

was deemed not compensable for the following reasons: 

1. Kenova Volunteer Fire Department Invoice dated January 13, 2018 – The NPFC 

denied a total of $587.50 as follows: 

a. The Kenova Volunteer Fire Department invoiced five sections of 2.5” x 50 ‘ 

hose damaged beyond use; each hose was invoiced at $235.00 for a total cost of 

$1,175.00. However, no depreciation of the used hoses was applied to the cost 

of the invoiced hoses. When asked, Mr. , Fire Chief for the 

Kenova Volunteer Fire Department, provided a signed statement which 

estimated the value of each of the claimed fire hoses (pre-spill) to be $117.50. 

Therefore, the NPFC approved the pre-spill value of the hoses; which results in 

a denial of $117.50 ($235 - $117.50 = $117.50). Therefore, the NPFC denies 

$587.50 in claimed hose costs. (See the attached Summary of Costs 

spreadsheet).

2. Kenova Volunteer Fire Department Invoice dated January 13, 2018 – The NPFC 

denied a total of $117.50 as follows: 

a. The Kenova Fire Department, who was supervising the Ceredo Volunteer Fire 

Department, invoiced one section of Ceredo Volunteer Fire Department 3” x 

50’ hose damaged beyond use; for a total cost of $235.00. However, no 

depreciation of the used hose was applied to the cost of the invoiced hose. When 

asked, Mr. , Fire Chief for the Kenova Volunteer Fire 

Department, provided a signed statement which estimated the value of the hose 

(pre-spill) to be $117.50. Therefore, the NPFC approved the pre-spill value of 

the hose; which results in a denial of $117.50 ($235 - $117.50 = $117.50). . 

Therefore, the NPFC denies $117.50 in claimed hose costs. (See the attached 

Summary of Costs spreadsheet). 

3. Lavalette Public Service District Invoice 48458 dated 1/19/18 – The NPFC denied a 

total of $375.00 (the full cost of the invoice) as follows: 

a. The Lavalette Public Service District invoiced one section of 1.75” x 50’ hose 

and two sections of 2.5” x 50’ hose damaged beyond use; for a total cost of 

$375.00. However, no depreciation of the used hose was applied to the cost of 

the invoiced hoses. When asked, Mr. , General Manager of the 

Lavalette Public Service District, provided a signed affidavit which states that it 

is unknown when the fire hoses were purchased or what their useful life might