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CLAIM SUMMARY / DETERMINATION1

Claim Number: UCGPE22509-URC001

Claimant: Michigan Spill Response

Type of Claimant: OSRO

Type of Claim: Removal Cost

Claim Manager: 

Amount Requested: $88,229.96

Action Taken: Denial

EXECUTIVE SUMMARY::

On June 15, 2022, Michigan State Police reported to the National Response Center (NRC) a 

release of oil from a stormwater outfall into the Flint River, a navigable waterway of the United 

States.2 The NRC notified the United States Environmental Protection Agency Region 5 

(“USEPA” or “FOSC”) and Michigan Department of Environment, Great Lakes and Energy 

(“Michigan EGLE” or “SOSC”), which responded to the incident as the State On Scene 

Coordinator (SOSC).

3 Michigan State Police completed a flyover and found that the sheen 

traveled about twelve miles downstream from the outfall.4

The USEPA, in its capacity as the Federal On-Scene Coordinator (FOSC) for the incident,

arrived on site with its Superfund Technical Assessment and Response Team (START)

contractors late in the afternoon of June 15, 2022.

5

In addition to federal and state authorities, 

local authorities also responded. The Genesee County Hazmat Team called out Michigan Spill 

Response (“MSR” or “Claimant”) to clean up the spill.

6

 Boom was deployed on the Flint River 

in several locations. MSR brought on subcontractors to assist. 

An investigation by Michigan EGLE traced the oil back to Lockhart Chemical Company 

(Lockhart).7 Lockhart’s secondary containment system appears to be a source of the discharge 

of oil to the outfall and, in turn, the river. The claimant alleged that the source of the oil was a 

holding tank at Lockhart’s property in Flint, Michigan.8 In accordance with the Oil Pollution 

1 This determination is written for the sole purpose of adjudicating a claim against the Oil Spill Liability Trust Fund 

(OSLTF). This determination adjudicates whether the claimant is entitled to OSLTF reimbursement of claimed 

removal costs or damages under the Oil Pollution Act of 1990. This determination does not adjudicate any rights or 

defenses any Responsible Party or Guarantor may have or may otherwise be able to raise in any future litigation or 

administrative actions, to include a lawsuit or other action initiated by the United States to recover the costs 

associated this incident. After a claim has been paid, the OSLTF becomes subrogated to all of the claimant’s rights 

under 33 U.S.C. § 2715. When seeking to recover from a Responsible Party or a Guarantor any amounts paid to 

reimburse a claim, the OSLTF relies on the claimant’s rights to establish liability. If a Responsible Party or 

Guarantor has any right to a defense to liability, those rights can be asserted against the OSLTF. Thus, this 

determination does not affect any rights held by a Responsible Party or a Guarantor.

2 NRC Report Number 1338866 dated June 15, 2022.

3 United States Environmental Protection Agency (USEPA) POLREP #1 dated June 18, 2022.

4 United States Environmental Protection Agency (USEPA) POLREP #1 dated June 18, 2022.

5

Id.

6 Genesee County Hazmat letter dated March 10, 2023 confirms that Genesee called MSR to respond to the incident. 

The letter further states all work performed was directed by both the FOSC and the SOSC.

7 United States Environmental Protection Agency POLREP #3 dated June 24, 2022, p.3.

8

Initial claim submission, Optional OSLTF Claim Form dated December 12, 2022.

(b) (6)
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Act of 1990 (OPA),

9 Lockhart, the owner and operator of the facility and its secondary 

containment system that discharged the oil, was identified as the responsible party (RP) for the 

incident.10 

After several days into the spill response, Lockhart relieved MSR of the job on June 20, 

2022. MSR demobilized the same day.11 It is unclear when the response ended, as no final 

Polrep was issued, but work continued at least through the beginning of July 2022.12

Via Invoice dated July 8, 2022, MSR submitted its costs to Lockhart totaling $393,188.61. 

The RP paid MSR $200,000 and the RP’s insurer, Chubb, paid MSR $104,958.65, leaving a 

balance of $88,229.96 unpaid. MSR tried to obtain payment of the balance from both Lockhart 

and Chubb, but Lockhart declared Chapter 7 bankruptcy13 and Chubb denied payment. 

Therefore, MSR submitted this claim to the NPFC for reimbursement. 

The NPFC has thoroughly reviewed all documentation submitted with the claim, analyzed 

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

must be denied.

I. INCIDENT, RESPONSIBLE PARTY AND RECOVERY OPERATIONS:

Incident

On June 15, 2022, Michigan State Police reported to the National Response Center a release 

of oil from a stormwater outfall in the Flint River, a navigable waterway of the United States. 

Michigan State Police performed a flyover and determined that the sheen traveled about twelve 

miles downstream from the outfall. The United States Environmental Protection Agency 

(USEPA), in its capacity as the Federal On-Scene Coordinator (FOSC) for the incident, arrived 

on site with Superfund Technical Assessment and Response Team (START) contractors late in 

the afternoon of June 15, 2022. The claimant alleged that the source of the oil was a holding 

tank at Lockhart Chemical Company (Lockhart) in Flint, Michigan.14 A Michigan EGLE 

investigation determined that the source of the oil was Lockhart’s secondary containment 

system.15

Responsible Party

Both the owner and operator of a facility that discharges oil are Responsible Parties as 

defined by OPA.16 The FOSC and the SOSC identified Lockhart Chemical Company, the owner 

and operator of the facility and its secondary containment system, as the Responsible Party (RP) 

9 33 U.S.C. § 2701(32).

10 United States Environmental Protection Agency POLREP #3 dated June 24, 2022.

11 MSR Daily Field Notes attached to initial claim submission dated December 13, 2022.

12 USEPA site profile attached to the initial claim submission dated December 13, 2022.

13 Notice of Chapter 7 Bankruptcy Case, U.S. Bankruptcy Court, Western District of Pennsylvania, filed October 10, 

2022. According to the Optional OSLTF claim form submission, MSR filed as a creditor with no priority in the 

bankruptcy case on December 12, 2022.

14 Initial claim submission, Optional OSLTF Claim Form dated December 12, 2022.

15 United States Environmental Protection Agency POLREP #3 dated June 24, 2022.

16 33 U.S.C. § 2701(32). 
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for the incident.

17

 On December 14, 2022, the National Pollution Funds Center (NPFC) issued 

an RP Notification Letter to Lockhart Chemical Company via certified mail.18 An RP

Notification letter notifies the owner/operator that a claim was presented to the NPFC seeking 

reimbursement of uncompensated removal costs incurred as a result of a discharge of oil to 

navigable waters of the United States. 

Recovery Operations

The Genesee County Hazmat Team called out MSR to clean up the spill.19 MSR brought on 

subcontractors to assist. MSR responded from June 15, 2022 through June 20, 2022, when it was 

released by Lockhart.20

Containment and/or sorbent boom was deployed and maintained on the Flint River at five 

locations, including at the storm sewer outfall and four other sites downstream. Oil recovery 

activities included the use of oil skimmers, containment/sorbent boom, sorbent pads and vacuum 

trucks through the beginning of July, recovering over 14,000 gallons of oil/water mixture. All 

visible oil product was removed from containment at the outfall location until the source was 

secured and no more product leaked from the outfall. Contractors cleaned the embankment 

using high volume, low pressure wash. It is unclear when the response ended; however, EPA 

transitioned oversight of the spill response to the state at the beginning of July.

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II. CLAIMANT AND RP:

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

1990 (OPA) require all claims for removal costs or damages must be presented to the responsible 

party before seeking compensation from the NPFC.

Via Invoice dated July 8, 2022, MSR submitted its costs to Lockhart totaling $393,188.61. 

Lockhart paid MSR $200,000 and their insurer, Chubb, paid MSR $104,958.65, denying the 

remaining balance of $88,229.96 as not covered by the insurance policy.

22

 Lockhart later 

declared Chapter 7 bankruptcy23. 

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. After more than 90 days passed without payment, on 

December 13, 2022, Claimant presented its claim to the National Pollution Funds Center (NPFC) 

for alleged removal costs totaling $88,229.96.24 

17 United States Environmental Protection Agency POLREP #3 dated June 24, 2022. 

18 NPFC RP Notification Letter dated December 14, 2022 sent via certified mail receipt # 7017 1450 0001 9566 

0154.

19 Initial claim submission, Optional OSLTF Claim Form dated December 12, 2022.

20 MSR Daily Field Notes attached to initial claim submission dated December 13, 2022.

21 USEPA site profile attached to the initial claim submission dated December 13, 2022.

22 Email from Chubb to MSR dated October 5, 2022, submitted with the initial claim submission to NPFC.

23 Notice of Chapter 7 Bankruptcy Case, U.S. Bankruptcy Court, Western District of Pennsylvania, filed October 10, 

2022. According to the Optional OSLTF claim form submission, MSR filed as a creditor with no priority in the 

bankruptcy case on December 12, 2022.

24 MSR original claim submission dated December 13, 2022.
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IV. DETERMINATION PROCESS:

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

Liability Trust Fund (OSLTF).25 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.26 The NPFC may rely upon, is not bound by the findings of fact, opinions, 

or conclusions reached by other entities.27 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.28 An RP’s liability 

is strict, joint, and several.29 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.”30 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.”31 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.”32

25 33 CFR Part 136.

26 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)).

27 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).

28 33 U.S.C. § 2702(a).

29 See, H.R. Rep. No 101-653, at 102 (1990), reprinted in 1990 U.S.C.C.A.N. 779, 780.

30 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).

31 33 U.S.C. § 2701(31).

32 33 U.S.C. § 2701(30).
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 The NPFC is authorized to pay claims for uncompensated removal costs that are consistent 

with the National Contingency Plan (NCP).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

 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 (NCP).

(d) That the removal costs were uncompensated and reasonable.36

OPA defines “compensation allowable” to mean “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.”37

In its claim submission to the NPFC, MSR stated that it had not yet obtained a copy of the 

FOSC final report and had reached out to the two USEPA officials who oversaw the spill 

response in order to obtain it. MSR suggested that it might be more expedient if the NPFC 

reached out to the USEPA FOSCs and provided the contact information for them.38 Since MSR

was unable to obtain FOSC coordination, NPFC reached out to the USEPA FOSCs on several 

occasions querying whether MSR’s actions were directed by the FOSC or were determined to be 

consistent with the NCP.

39

 

The Lead USEPA FOSC, Mr. , informed the NPFC that he was not on-scene until 

after MSR was released from the spill response, but it is his understanding that there was 

mismanagement of resources, personnel and a lack of response efficiency by MSR.

40

 The NPFC 

was not able to obtain the FOSC’s official position regarding MSR’s response actions. The 

NPFC notified MSR of this and explained that MSR bears the burden of demonstrating that the 

actions undertaken were directed by the FOSC or were determined by the FOSC to be consistent 

with the National Contingency Plan (NCP). The NPFC further explained that without the 

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 136.203; 33 CFR 136.205.

37 33 U.S.C. § 2701(30).

38 MSR claim submission email to NPFC dated December 13, 2022.

39 NPFC sent emails to the USEPA FOSCs on December 14, 2022, January 11, 2023, January 30, 2023, February 

10, 2023, and March 8, 2023, in an effort to obtain an opinion as to MSR’s response actions. 

40 Email from USEPA FOSC to NPFC dated January 12, 2023.

(b) (6)