3

CLAIM SUMMARY / DETERMINATION 

Claim Number: 921014-0001

Claimant: State of Washington Department of Ecology

Type of Claimant: State Government

Type of Claim: Removal Costs

Claim Manager: 

Amount Requested: $7,232.88

Action Taken: Denial

EXECUTIVE SUMMARY:

 

On April 5, 2017 at 3:37 pm local time, the State of Washington Department of Ecology 

(“Ecology” or “claimant”) was notified of an incident at Willapa Bay, a navigable waterway of

the United States.1 The oil involved in the incident was lube oil. On April 6, 2017, Ecology, in its 

capacity as the State On Scene Coordinator (SOSC), responded to a report of heavy oil on the 

beach and on driftwood in the vicinity of Jacobson Jetty at Washaway Beach in Pacific County. 

Ecology found a five gallon bucket of used lube oil that floated ashore and “someone” had

opened the bucket and then dumped the lube oil over the driftwood and sand. The bucket was 

open and turned upside down so the oil was still dripping out of the bucket to the sand. The 

affected area was heavily covered in driftwood. The oil impacted an area about 20 to 25 square 

feet, and was estimated as 4/10th of a mile from the parking area. Ecology was not able to 

identify a Responsible Party (“RP”).2

On April 6, 2017, Ecology made initial contact with the United States Coast Guard’s (USCG) 

Sector Columbia River, Astoria Branch and reported there was oil on the beach and requested

that the hire a contractor to handle cleanup. The USCG, in its capacity as the Federal On Scene 

Coordinator (FOSC), stated they preferred not to respond and advised the SOSC that they could 

hire a contractor. Ecology hired Cowlitz Clean Sweep (“CCS”) for the clean-up.

3 The cleanup 

was completed by CCS the same day.4 

 

Ecology presented its uncompensated removal costs claim to the National Pollution Funds 

Center (“NPFC”) on February 11, 2021.5 The NPFC has thoroughly reviewed all documentation 

submitted with the claim, analyzed the applicable law and regulations, and after careful 

consideration has determined that this claim must be denied in full because there is no evidence 

of a substantial threat of discharge into a navigable waterway or that the FOSC coordinated the 

actions undertaken by Ecology’s contractor.

6

 

1 Tab R, State of Washington Department of Ecology claim submission, Ecology Incident Detail Report, Incident 

Information Section dated April 6, 2017.

2 Tab R, State of Washington Department of Ecology claim submission, Ecology Follow Up Incident Detail Report 

dated April 10, 2017, page 5 of 5 of the report.

3 Cowlitz Clean Sweep Invoice #1327258 dated May 8, 2017.

4Tab R, State of Washington Department of Ecology claim submission, Ecology Follow Up Incident Detail Report 

dated April 10, 2017, page 5 of 5 of the report.

533 CFR 136.103(c).

6 FOSC email dated March 19, 2021, states Ecology was already in the process of responding to the incident by the 

time the FOSC was notified.
4

I. INCIDENT, RESPONSIBLE PARTY AND RECOVERY OPERATIONS:

Incident

 On April 5, 2017, the Washington State Department of Fish and Wildlife forwarded an 

email to Ecology that originated from the University of Washington Coastal Observation and 

Seabird Survey Team (“COASST”) regarding the incident at Washaway Beach.7 On April 6, 

2017, Ecology responded to the report of oil on the beach and on driftwood in the area of 

Jacobson Jetty. Ecology reported that a five (5) gallon bucket of lube oil discharged onto the 

sand and driftwood.

8

Responsible Party

 No Responsible Party (RP) has been identified.

9

Recovery Operations

 On April 7, 2017, Cowlitz Clean Sweep (CCS) began recovery and cleanup operations 

placing absorbent pads around the driftwood and affected area and used a gator to remove all 

contaminated sand and wood.10 CCS disposed of the oily contaminated sand and wood.11

II. CLAIMANT AND RP:

 Claims for removal costs or damages may first be presented to the Fund by the Governor of a 

State for costs that are incurred by the State. The claimant could not determine a Responsible 

Party.12

III. CLAIMANT AND NPFC:

 On February 11, 2021, the NPFC received a claim for uncompensated removal costs from the 

claimant dated February 9, 2021. The claim included the invoice from contractor Cowlitz Clean 

Sweep for labor, equipment, disposal, and supplies for $5,988.43, which was paid in full to them 

 

7 Tab R, State of Washington Department of Ecology claim submission, Ecology Incident Detail Report, Incident 

Information Section dated April 6, 2017.

8 Tab R, State of Washington Department of Ecology claim submission, Ecology Follow Up Incident Detail Report 

dated April 10, 2017, page 5 of 5 of the report.

9 Tab R, State of Washington Department of Ecology claim submission, Ecology Follow Up Incident Detail Report 

dated April 10, 2017, page 5 of 5 of the report.

10 Cowlitz Clean Sweep Invoice #1327258 dated May 8, 2017 and associated supporting documentation and 

disposal information.

11 Disposal Manifests #9317094-001 dated April 14, 2017.

12 State of Washington Department of Ecology Oil Spill Liability Trust Fund Modified Claim Form submittal signed 

by on February 9, 2021.
5

on May 9, 2017. The claimant also included compensation for Ecology salaries, benefits, and 

indirect costs totaling $1,244.45 for Spill Responders and .

13

IV. DETERMINATION PROCESS:

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

Liability Trust Fund (OSLTF).14 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.15 The NPFC may rely upon, is not bound by the findings of fact, opinions, 

or conclusions reached by other entities.16 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: 

 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.”17 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.”18 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.”19

 

13 State of Washington Department of Ecology claim submission dated February 9, 2021.

14 33 CFR Part 136.

15 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)).

16 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).

17 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).

18 33 U.S.C. § 2701(31).

19 33 U.S.C. § 2701(30).

7

Date of Supervisor’s review: 3/29/21

Supervisor Action: Denial Approved