5

 Absent limited circumstances, the federal regulations implementing the Oil Pollution Act of 1990 

(OPA)23 require all claims for removal costs or damages must be presented to the responsible party before 

seeking compensation from NPFC.24

 TKPOA indicated in its initial claim submission to the NPFC that it had presented a claim to the RP but 

did not indicate on which day.25 During the initial review of the claim, the supporting documentation did 

not substantiate that proper presentment had occurred as stated on the OSLTF claim form. Therefore the 

NPFC placed the claim in a preclaim status until TKPOA made proper presentment of its invoices to the 

RP. After TKPOA sent its removal costs to the RP, the claimant’s letter was returned to the claimant 

marked, “Return to Sender.” At this point presentment was initiated by the claimant and on February 11, 

2020, the NPFC was able to assign TKPOA’s claim submission an OPA claim number and begin 

adjudication of its costs.

III. CLAIMANT AND NPFC:

 When an RP has not settled a claim after 90 days, a claimant may elect to present its claim to the 

NPFC.26 On December 27, 2019, the NPFC received a submission for uncompensated removal costs from 

Tahoe Keys Property Owners Association dated December 13, 2019. 

IV. 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.

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 

 

23 33 U.S.C. § 2701 et seq. 24 33 CFR 136.103. 25 OSLTF Claim Form dated December 13, question # 5. 26 33 CFR 136.103. 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). 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.
6

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

 Upon review and adjudication of the claim submission, the NPFC worked closely with the Claimant

to ensure it made proper presentment of its costs to the RP. The NPFC also made several requests for 

additional supporting information to the claimant and worked with them to obtain US EPA FOSC 

coordination. On March 9, 2020, the Claimant provided its invoices to Mr. , US EPA OnScene Coordinator, for his review, as it pertained to the response actions undertaken by the Claimant as 

well as the response contractor, Tow Boat US.39 The US EPA FOSC responded to the Claimant via email 

on March 10, 2020 and provided a statement that based on his review of the Claimant’s invoices 

combined with a conversation with the Claimant, led him to believe the costs were reasonable and 

consistent with the work performed.40

The NPFC obtained a copy of the Claimant’s rate schedule in support of the costs claimed. The 

NPFC requested that the Claimant provide a Tow Boat US rate schedule, but the Claimant has failed to to

respond to tht portion of the request. The Claimant provided proof of payment for the Tow Boat US costs. 

Upon adjudicateion of the costs claimed, the NPFC has determined that some of the costs claimed are 

 

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); 33 U.S.C. § 2713; and 33 CFR Part 136. 36 33 CFR Part 136. 37 33 CFR 136.105. 38 33 CFR 136.203; 33 CFR 136.205. 39 March 9, 2020 Claimant’s email to the FOSC requesting his review of its costs. 40 March 10, 2020 FOSC email to the Claimant and the NPFC.
7

OPA compensable and have been coordinated with the FOSC. The NPFC has determined that the 

approved TKPOA invoiced costs were billed in accordance with the rate schedule in place at the time 

services were rendered. 

Based on the supporting documentation and information provided and/or obtained from various 

sources, the NPFC has determined which of the costs invoiced were billed in accordance with the quoted 

and/or billed rates between the parties. All costs approved for payment by the NPFC were verified as 

being invoiced at the appropriate pricing, including but not limited to, any approved third party or out of 

pocket expenses. All approved costs are supported by adequate documentation which include invoices, 

rate schedules, and were coordinated with the FOSC and determined to be reasonable, necessary.

The amount of compensable costs is $2,797.00, while $7,045.6041 were deemed not compensable for 

the following reasons: 

1. $300.00 for vessel Recovery, Removal, and Transport of the vessel. A Towboat Marine US rate 

schedule was not provided to verify and support these costs. The NPFC requests that each of the 

response actions claimed be broken out into a personnel, materials and equipment category. Each 

section should then be further broken down by individual names of employees, position and rate, 

total hours claimed per person per day along with a description of duties performed. All 

equipment , materials and supplies should be itemized with the appropriate costs attributed to 

each item. Finally, details for the transport of the vessel portion of the claimed costs needs to be 

itemized so that the NPFC can determine how much of the incurred costs were incurred after the 

vessel was removed from the water; 

2. $200.00 for damaged equipment. Please provide the supporting documentation associated with 

the damaged costs claimed. Provide a detailed description of the nature of how the damage was 

incurred along with an itemization of what the $200.00 cost is for; 

3. $69.90 for 30-feet of chain. Please provide a detailed explanation associated with the cost 

claimed. Provide evidence of the existence of the item and evidence that supports the damage was 

incurred as a direct result of the oil spill incident as;

4. $40.70 for Pad Locks. Please provide a copy of the receipts for the purchase of claimed item(s) 

and provide a detailed description and evidence that the damage/loss claimed is related to the oil 

spill incident; and. 

5. $435.00 in personnel / labor costs. On August 2, 2019, The Claimant had 7 additional personnel 

listed without the appropriate supporting documentation to support their necessity in working this 

response incident. The NPFC acknowledges the four people listed in the incident reports. Anyone 

outside of the primary four employees, must be supported by documents that articulate the duties 

each were directly performing as part of this incident. 

 

 Overall Denied Costs = $7,045.6042

 

VI. CONCLUSION:

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

outlined above, Tahoe Keys Property Owners Association’s request for uncompensated removal costs is 

approved in the amount of $2,797.00. 

 

41 Enclosure (1) NPFC Summary of Costs spreadsheet. 42 Enclosure (1) Summary of Costs spreadsheet.