4

form, Ecology invoice summary sheet, Ecology labor costs including salary and benefits, 

Ecology lab costs, lab analysis, ICS forms, Ecology incident reports, NRC report, photographs, 

news articles, email correspondence, copies of correspondence, miscellaneous RP information 

and FOSC correspondence and/or documentation.21

III. DETERMINATION PROCESS:

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

Liability Trust Fund (OSLTF).22 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.23 The NPFC may rely upon, is not bound by the findings of fact, opinions, 

or conclusions reached by other entities.24 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.

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.25 An RP’s liability 

is strict, joint, and several.26 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.”27 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 

 21 Ecology complete claim submission dated August 29, 2019. 22 33 CFR Part 136. 23 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)). 24 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). 25 33 U.S.C. § 2702(a). 26 See, H.R. Rep. No 101-653, at 102 (1990), reprinted in 1990 U.S.C.C.A.N. 779, 780. 27 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).
5

incident.”28 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.”29

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

with the National Contingency Plan (NCP).30 The NPFC has promulgated a comprehensive set

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

claims.31 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.32

 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.33

 The NPFC analyzed each of these factors and determined that the uncompensated removal 

costs incurred by Ecology and submitted herein are compensable removal costs based on the 

supporting documentation provided. In accordance with the National Contingency Plan (NCP) 

at 40 CFR 300.300(d) under Phase I – Discovery or notification, it states at (d)....” Upon receipt 

of a notification of discharge, the NRC shall promptly notify the OSC. The OSC shall ensure 

notification of the appropriate state agency of any state which is, or may reasonably be expected 

to be, by the discharge. The OSC shall then proceed with the following phases as outlined in the 

RCP and ACP”.

Ecology was notified via NRC report # 1197622 on November 18, 2017, that the F/V LIHUI II sank 

at the Ilwaco Marina and discharged fuel into the Columbia River, a navigable waterway of the 

United States. Ecology responded immediately and deployed hard boom while working jointly 

with the FOSC to handle the response actions.34 Ecology also took samples and handled the 

sample identification which has been provided to the FOSC substantiating that the product 

recovered was an OPA oil.35 Based on the nature of the activities to respond, deploy boom prior 

to the arrival of the FOSC’s response contractor, and the actions undertaken to handle lab 

analysis, Ecology’s costs have been determined to be consistent with the NCP. The costs 

claimed were billed in accordance with the state’s published rates for personnel time and lab 

 28 33 U.S.C. § 2701(31). 29 33 U.S.C. § 2701(30). 30 See generally, 33 U.S.C. § (a) (4); 33 U.S.C. § 2713; and 33 CFR Part 136. 31 33 CFR Part 136. 32 33 CFR 136.105. 33 33 CFR 136.203; 33 CFR 136.205. 34 Ecology claim submission, Incident Summary section. 35 Ecology lab analysis and sample documentation included in the claim submission.
6

costs and therefore determined to be reasonable, necessary and in accordance with the FOSC’s 

response objectives as supported by the record.36

 

VI. CONCLUSION:

 Based on a comprehensive review of the record, the applicable law and regulations, and for 

the reasons outlined above, the State of Washington – Department of Ecology’s request for 

uncompensated removal costs is approved in the amount of $2,044.17. 

 This determination is a settlement offer,37 the claimant has 60 days in which to accept this 

offer. Failure to do so automatically voids the offer.38 The NPFC reserves the right to revoke a 

settlement offer at any time prior to acceptance.39 Moreover, this settlement offer is based upon 

the unique facts giving rise to this claim and is not precedential.

 

Claim Supervisor: 

Date of Supervisor’s review: 9/16/19 

Supervisor Action: Offer Approved

 

36 USCG MISLE Case # 1106901 opened November 20, 2017 and USCG Pollution Investigator statement of MST 

 dated January 2, 2018. 37 Payment in full, or acceptance by the claimant of an offer of settlement by the Fund, is final and conclusive for all 

purposes and, upon payment, constitutes a release of the Fund for the claim. In addition, acceptance of any 

compensation from the Fund precludes the claimant from filing any subsequent action against any person to recover 

costs or damages which are the subject of the uncompensated claim. Acceptance of any compensation also 

constitutes an agreement by the claimant to assign to the Fund any rights, claims, and causes of action the claimant

has against any person for the costs and damages which are the subject of the compensated claims and to cooperate 

reasonably with the Fund in any claim or action by the Fund against any person to recover the amounts paid by the 

Fund. The cooperation shall include, but is not limited to, immediately reimbursing the Fund for any compensation 

received from any other source for the same costs and damages and providing any documentation, evidence, 

testimony, and other support, as may be necessary for the Fund to recover from any person. 33 CFR § 136.115(a). 38 33 CFR § 136.115(b). 39 33 CFR § 136.115(b).

(b) (6), (b) 

(5)