CLAIM SUMMARY / DETERMINATION on RECONSIDERATION

Claim Number: 919017-0001 

Claimant: Ken’s Booming & Boat Service, Inc. 

Type of Claimant: Oil Spill Removal Organization 

Type of Claim: Removal Costs 

Claim Manager: 

Amount Requested: $111,432.34 

Action Taken: Offer in the amount of $32,232.15 

EXECUTIVE SUMMARY: 

On October 17, 2017, Ken’s Booming & Boat Service, Inc. (Ken’s or Claimant) responded to 

a call from the New York City Department of Corrections (NYDOC) to cleanup an oil spill into 

the East River, a navigable waterway of the United States. The spill was the result of a fuel oil 

transfer initiated at the Vernon C. Bain Center (VCBC), a NYDOC corrections facility.1 United 

States Coast Guard Sector New York, in its capacity as the Federal On Scene Coordinator 

(FOSC), received the notification and determined that NYDOC was the responsible party as 

defined by the Oil Pollution Act of 1990 (OPA)2 and issued it verbal Notice of Federal Interest 

(NOFI)3. Additionally, the FOSC determined that the New York Department of Environmental 

Conservation (NYDEC), in its capacity as the State On Scene Coordinator (SOSC), would have 

lead jurisdiction on the cleanup and no further Coast Guard action was required.4 

Ken’s presented its claim for $111,432.34 in uncompensated removal costs to the National 

Pollution Funds Center (NPFC) on February 21, 2019.56 The NPFC thoroughly reviewed all 

documentation submitted with the claim, analyzed the applicable law and regulations, and 

concluded that $32,232.15 of the $111,432.34 was compensable as full and final compensation 

of Ken’s claim.7 On October 14, 2019, the NPFC received Ken’s timely request for 

reconsideration. Ken’s did not provide any additional support for its position with its request.8

 

Requests for reconsideration are considered de novo. The NPFC has thoroughly reviewed the 

original claim, the request for reconsideration, all information provided by Ken’s, information it 

obtained independently, and the applicable law and regulations. Upon reconsideration, the NPFC 

concludes that the facts established by this record reaffirm the NPFC’s determination to 

reimburse Ken’s $32,232.15 for uncompensated removal costs incurred as a result of the oil spill 

incident as outlined in the original determination and below. 

 

I. CLAIM HISTORY: 

 

On February 21, 2019, Ken’s Booming & Boat Service, Inc. presented an uncompensated 

removal costs claim to the NPFC for $111,432.34. The NPFC thoroughly reviewed the original 

claim, all information provided by Ken’s or obtained independently, the relevant statutes and 

 

1 Incident Description Report Email from to , Page 1, Paragraph 1, dated October 18, 

2017.

2 33 U.S.C. § 2701(32).

3 United States Coast Guard SITREP dated October 17, 2017.

4 United States Coast Guard SITREP dated October 17, 2017, page 2 entry dated October 20, 2017.

5 Optional OSLTF Claim Form signed by , dated February 19, 2019. 6 33 CFR 136.103(b)(3).

7 NPFC determination issued to Ken’s Booming & Boat Service, Inc., dated August 15, 2019.

8 Letter from to the NPFC dated October 14, 2019, requesting reconsideration of the NPFC’s initial 

August 15, 2019 determination.

(b) (6)(b) (6)(b) (6)(b) (6) (b) (6) (b) (6)(b) (6)(b) (6) (b) (6)
regulations, and ultimately determined that $32,232.15 of the $111,432.34 was compensable and 

denied the remainder of the claimed costs.

9 The NPFC’s initial determination is hereby 

incorporated by reference. 

II. REQUEST FOR RECONSIDERATION: 

 The regulations implementing OPA require requests for reconsideration of an initial 

determination to be in writing and include the factual or legal grounds for the relief requested, 

along with any additional support for the claim. The claimant has the burden of providing all 

evidence, information, and documentation deemed necessary by the NPFC to support the 

claim.10 When analyzing a request for reconsideration, the NPFC performs a de novo review of 

the entire claim submission, including any new information provided by the Claimant in support 

of its request for reconsideration. The written decision by the NPFC is final.11

On October 14, 2019, the claimant timely requested reconsideration of the NPFC’s initial 

determination.12 In its request for reconsideration, the claimant asserts that it was not informed 

at any time by the State On Scene Coordinator (SOSC) that the spill response was deemed 

complete and that the New York City Department of Corrections (NYDOC) personnel informed 

it of the need for additional cleanup of fuel oil that was located inside the bilge of the Vernon C. 

Bain Correctional Center, and that it was instructed not to remove boom placed around the prison 

barge until completion of the bilge cleanup.13 Ken’s also stated that NYDOC deemed the 

“internal facility response” an emergency because it posed health and safety risks for the prison 

inmates. Lastly, Ken’s restated its opinion that its cleanup of the bilge was necessary to eliminate 

the real and substantial risk of discharge of oil into the East River.

14

III. ANALYSIS OF THE REQUEST FOR RECONSIDERATION: 

In its original determination, the NPFC determined that the facility response was not an OPA 

incident and thus it could not pay for this portion of the claim; to wit: 

On October 20, 2017, the SOSC performed an inspection of the shoreline 

and facility from the waterway and determined that no further pollution 

existed. Later the same day, Ken’s stated that NYDOC personnel aboard 

the facility informed them that additional oil spill cleanup was required 

inside the barge due to the presence of fuel oil in the bilge area as a result 

of the spill.15 

From October 20, 2017 through October 30, 2017, Ken’s provided 

personnel, spill materials and vacuum truck services in order to remove 

the fuel contained within the bilge area of the barge. 

 

9 NPFC determination issued to Ken’s Booming & Boat Service, Inc., dated August 15, 2019.

10 33 CFR 136.105(a). 11 33 CFR 136.105(a). 12 Email from with attachment letter from to the NPFC dated October 14, 2019, 

requesting reconsideration of the NPFC’s initial August 15, 2019 determination.

13 The NPFC notes that because it was unclear when Ken’s was notified by the SOSC that the boom could be 

removed, it approved Ken’s claimed amount for the boom that remained in the water for the entirety of both the 

waterborne and facility responses. See, NPFC’s initial August 15, 2019 determination. 14 Letter from of Ken’s to the NPFC dated October 14, 2019, requesting reconsideration of the NPFC’s 

initial August 15, 2019 determination. 

15 Ken’s letter to NPFC dated May 23, 2019.

(b) (6)(b) (6) (b) (6) (b) (6)
The NPFC denies [this portion of the claim] because the internal facility 

response was not an OPA compensable incident. There was no actual 

discharge of oil, nor was there a substantial threat of the discharge of oil, 

into a navigable waterway of the United States. On the date of the 

waterborne incident, the SOSC also inspected the facility and noted in his 

report that upon inspection of the engine room and containment area, that 

the product had been contained.16 The SOSC provided direction to 

mitigate and cleanup up the waterborne event, only.17 Nothing in the 

SOSC’s report indicates that this spill met the definition of an OPA 

incident nor did the SOSC direct any cleanup activities aboard the facility. 

Nor is there any evidence in the record that the SOSC directed or 

coordinated the response aboard the facility. Further, the NPFC 

independently reviewed the facts and circumstances surrounding the 

internal facility spill and did not consider it an OPA incident.18 

The regulations implementing OPA require requests for reconsideration of an initial 

determination to be in writing and include the factual or legal grounds for the relief requested, 

along with any additional support for the claim.19 

In its request for reconsideration, Ken’s did not submit any new supporting documentation to 

substantiate its request. Three days after receiving the claimant’s reconsideration request, in an 

effort to assist the claimant, NPFC advised the claimant of the information it could provide in 

order to substantiate its assertions and in turn, likely succeed, upon reconsideration. The NPFC 

noted that the claimant would have to provide evidence that the SOSC determined the incident to 

be an OPA event in that it posed a substantial threat of discharge into a navigable waterway of 

the United States, in this case, the East River. Then, if the SOSC were to so determine, the NPFC 

advised, as with all other claims in accordance with the regulations, the claimant would also need 

to provide evidence that its actions were consistent with the National Contingency Plan. The 

NPFC concluded its letter by providing the contact information of the SOSC to facilitate Ken’s 

interaction with him. The NPFC has independently contacted the SOSC on multiple occasions 

and, on each occasion, the SOSC has maintained that the facility incident was not an OPA 

incident, as it did not pose a substantial threat to the navigable waterway. 

Ken’s responded to the NPFC’s letter on October 31, 2019. That letter merely reasserted the 

claimant’s position in its request for reconsideration that the internal facility response posed a 

“...very real and substantial threat...” of discharge into a navigable waterway of the United 

States, while providing pictures of the facility. However, the claimant’s assertions are not 

evidence and claimant has provided nothing further on this issue. The claimant did not provide 

any evidence that the SOSC had determined the event to be an OPA incident. 

Further, the NPFC understands Ken’s position that the New York City Department of 

Corrections sought Ken’s assistance with the facility incident. While this may constitute a 

contractual obligation between the two parties, it has no bearing on whether the claimant’s work 

is OPA-compensable. In order for the costs incurred by the claimant to be OPA-compensable, 

 

16 NYSDEC Spill Report Form for Spill Number 1706950 from , page 3, paragraph 5, last updated March 

13, 2018.

17 NYSDEC Spill Report Form for Spill Number 1706950 from , page 3, last updated March 13, 2018. 18 NPFC determination issued to Ken’s Booming & Boat Service, Inc., dated August 15, 2019 19 33 CFR 136.115(d).

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the event must be an OPA incident under the statute.20 In this case, there is no evidence that the 

facility incident was an OPA incident and thus the NPFC is not authorized to compensate the 

claimant. 

IV. CONCLUSION: 

The NPFC reviewed Ken’s original claim submission, its request for reconsideration, all 

additional information provided by the claimant and additional information acquired 

independently. The NPFC concludes that claimant has failed to meet its burden under the 

regulations. The facts of this case do not support the reimbursement of the previously denied 

amount of $79,200.19 in uncompensated removal costs under OPA because Ken’s has not 

demonstrated that the internal facility response work has been determined by the SOSC to be an 

OPA incident. As such, under the governing law and regulations, the NPFC is not authorized to 

compensate the claimant. 

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

the reasons outlined above, the NPFC hereby determines it will uphold its original offer to pay 

$32,232.15 as full compensation for the reimbursable removal costs incurred by the Claimant 

and submitted to the NPFC under claim # 919017-0001. 

AMOUNT: $32,232,1521

 

 

 

Claim Supervisor: 

Date of Supervisor’s review: 12/11/19 

Supervisor Action: Partial offer on reconsideration approved

 

20 33 U.S.C. § 2701, et seq. Whether an event is an OPA incident is a threshold question on whether a claim can be 

paid by the NPFC.

21 See, NPFC Summary of Costs spreadsheet from the initial August 15, 2019 NPFC Claim Determination.

(b) (6)(b) (6)(b) (6)