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CLAIM SUMMARY / DETERMINATION 

Claim Number : 917012-0001 

Claimant : Lac du Flambeau Tribe 

Type of Claimant : Municipality

Type of Claim : Removal Costs

Claim Manager : 

Amount Requested : $9,091.00 

FACTS: 

Oil Spill Incident: On January 31, 2016, the National Response Center (NRC) was notified of a 

vehicle falling through the ice, releasing gasoline into Flambeau Lake. Flambeau Lake, a 

navigable waterway of the United States, is a 1166 acre lake located in Vilas County, 

Wisconsin.1

 The rear portion of the 2000 Ford Explorer, broke through the ice while the driver 

was ice fishing. Subsequently, the vehicle completely broke through the ice before settling at the 

bottom of the lake. The incident occurred on the Lac du Flambeau Reservation. Ms. 

, United States Environmental Agency (USEPA) Region 5, Federal On-Scene Coordinator 

(FOSC) provided after the fact FOSC concurrence.2

Claimant: The Claimant, Lac du Flambeau Band Tribal Natural Resource Department, 

presented a removal cost claim to the National Pollution Funds Center (NPFC) in the amount of 

$9,091.00. Pollution removal activities were conducted by Kumbier Towing and Recovery and 

included equipment and personnel costs for the removal of the vehicle from the lake, associated 

transportation costs, and the deployment of absorbent materials. 

The claim consists of an OSLTF Claim Form, supplemental OSLTF form contents, FOSC 

coordination letter, NRC Report #1139552, LDF Police Report, LDF Citation # S569630, LDF 

Tribal Court Orders # NR-16-101 and NR-16-011, Kumbier Trucking Removal Invoice, proof of 

payment information, and the Standard Form 1080. 

Responsible Party: The Responsible Party (RP) is identified as (Mr. 

. Mr. was issued a Natural Resources Citation for littering on March 9, 

2016.3 Subsequently, Mr. pled guilty “to Failure to Obtain Permit for Structure or 

Deposit in Reservation Water” and the Lac du Flambeau Tribal Conservation Department 

“agreed to accept restitution in the amount of 50% of the amount paid to Kumbier’s Towing 

Service as and for towing and vehicle recovery services.”4

 

1 See Flambeau Lake. Available at: http://dnr.wi.gov/lakes/lakepages/LakeDetail.aspx?wbic=2320500 2 See USEPA letter to the NPFC dated May 17, 2016. 3 See Lac du Flambeau Department of Natural Resources, Natural Resources Citation dated March 9, 2016. 4 See Lac du Flambeau Tribal Court Order Case Nos. NR-16-010 and NR-16-011 dated October 5, 2016. 

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APPLICABLE LAW: 

Under OPA 90, at 33 USC § 2702(a), responsible parties are liable for removal costs and 

damages resulting from the discharge of oil into navigable waters and adjoining shorelines, as 

described in Section 2702(b) of OPA 90. A responsible party’s liability will include “removal 

costs incurred by any person for acts taken by the person which are consistent with the National 

Contingency Plan”. 33 USC § 2702(b)(1)(B). 

"Oil" is defined in relevant part, at 33 USC § 2701(23), to mean “oil of any kind or in any form, 

including petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other than dredged 

spoil”. 

The Oil Spill Liability Trust Fund (OSLTF), which is administered by the NPFC, is available, 

pursuant to 33 USC §§ 2712(a)(4) and 2713 and the OSLTF claims adjudication regulations at 

33 CFR Part 136, to pay claims for uncompensated removal costs that are determined to be 

consistent with the National Contingency Plan and uncompensated damages. 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”. 

Under 33 USC §2713(b)(2) and 33 CFR 136.103(d) no claim against the OSLTF may be 

approved or certified for payment during the pendency of an action by the claimant in court to 

recover the same costs that are the subject of the claim. See also, 33 USC §2713(c) and 33 CFR 

136.103(c)(2) [claimant election]. 

33 U.S.C. §2713(d) provides that “If a claim is presented in accordance with this section, 

including a claim for interim, short-term damages representing less than the full amount of 

damages to which the claimant ultimately may be entitled, and full and adequate compensation is 

unavailable, a claim for the uncompensated damages and removal costs may be presented to the 

Fund.” 

Under 33 CFR 136.105(a) and 136.105(e)(6), the claimant bears the burden of providing to the 

NPFC, all evidence, information, and documentation deemed necessary by the Director, NPFC, 

to support the claim. 

Under 33 CFR 136.105(b) each claim must be in writing, for a sum certain for each category of 

uncompensated damages or removal costs resulting from an incident. In addition, under 33 CFR 

136, the claimant bears the burden to prove the removal actions were reasonable in response to 

the scope of the oil spill incident, and the NPFC has the authority and responsibility to perform a 

reasonableness determination. Specifically, under 33 CFR 136.203, “a claimant must establish - 

(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;
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(c) That the actions taken were determined by the FOSC to be consistent with the National 

Contingency Plan or were directed by the FOSC.” 

Under 33 CFR 136.205 “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.” [Emphasis added]. 

DETERMINATION OF LOSS: 

Overview:

1. Ms. , USEPA, as the Federal On-Scene Coordinator (FOSC) for this incident, 

determined that the actions undertaken by Kumbier Towing were consistent with the NCP for 

the payment of uncompensated removal costs and is consistent with the provisions of 33 

U.S.C. §§ 2702(b)(1)(B) and 2712(a)(4); 

2. The claimant failed to provide sample analysis testing for the spill therefore it is not 

confirmed that the incident involved the report of a discharge of “oil”;

3. In accordance with 33 CFR § 136.105(e)(12), the claimant has certified no suit has been filed 

in court for the claimed uncompensated removal costs; 

4. The claim was submitted within the six year statute of limitations. 33 U.S.C. § 2712(h)(1) 

NPFC Analysis: 

NPFC CA reviewed the actual cost invoices and dailies to confirm that the claimant had incurred 

all costs claimed. The review focused on: (1) whether the actions taken were compensable 

“removal actions” under OPA and the claims regulations at 33 CFR Part 136 (e.g., actions to 

prevent, minimize, mitigate the effects of the incident); (2) whether the costs were incurred as a 

result of these actions; (3) whether the actions taken were determined by the FOSC, to be 

consistent with the NCP or directed by the FOSC, and (4) whether the costs were adequately 

documented and reasonable. 

Upon adjudication of the claim, the NPFC specifically requested a copy of sample analysis from 

the Claimant via an email dated April 13, 2017. It is important to note that the claimant bears the 

burden of proving its claim. In this instance, the Claimant must provide evidence indicating that 

the product spilled is strictly an OPA oil. On May 12, 2017, the Claimant responsed to the 

NPFC’s request for sample analysis and stated, “No water samples were collected. After 

removal no gas remained in the gas tank (the gas tank cover had been removed).” Ms. Hanson 

also provided additional photographs of the “observed light sheen” present during removal 

actions.5

In the case where there is the potential to have “mixed substances”, sample analysis is the only 

way to prove that the product spilled was in fact an OPA oil. Vehicles contain CERCLA 

products such as antifreeze therefore the burden is on the Claimant to demonstrate that the 

 

5 See email from , Lac du Flambeau, to Mr. , NPFC, dated May 12, 2017. 

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