CLAIM SUMMARY / DETERMINATION FORM 

Date : 8/31/2010 

Claim Number : 910120-001

Claimant : Metropolitan Marine Solutions 

Type of Claimant : Corporate 

Type of Claim : Removal Costs 

Claim Manager : 

Amount Requested : $7,288.75 

FACTS: 

Oil Spill Incident: On May 30, 2009, a vessel belonging to Mr. crashed 

into rocks in Lake Mohave, in Lake Mead National Recreation Area, a navigable 

waterway in the US. Ms. with the Nevada Department of Wildlife 

(NDOW) contacted Mr. with Metropolitan Marine Solutions (MMS) to 

recover the sunken vessel and to remove any oil, fuel and contaminants present in the 

water.1 Mr. responded to recover the sunken vessel and to remove any oil, fuel 

and contaminants present in the water. The vessel was leaking pollutants, and had the 

potential to leak fuel. Mr. was named as the Responsible Party (RP). 

Description of removal actions performed: After receiving an “order to remove” by 

NDOW, the claimant, MMS, arrived on-site on May 30, 2009. Upon arrival, MMS 

deployed absorbent boom around the work area of the vessel to minimize any pollutants 

that escaped due to the removal of the vessel. MMS then worked to remove the vessel, 

transporting it successfully from the waterway. 

 The Claim: On June 22, 2010, MMS submitted a removal cost claim to the National 

Pollution Funds Center (NPFC), for reimbursement of removal costs in the amount of 

$7,288.75 for the services provided May 30, 2009. This claim is for removal costs based 

on the rate schedule in place at the time services were provided. A copy of the vendor 

rate schedule is provided in the claim submission. 

This claim consists of copies of the invoicing and associated dailies, a copy of the Vessel 

Assist incident report, a copy of the NDOW Vessel Report for this incident, State of 

California Notary Public Certificate of Acknowledgement forms, copies of USPS 

Confirmation Receipts, a copy of USPS Track & Confirm and Delivery receipts and 

internal email correspondence. 

The review of the actual cost invoicing and dailies focused on: (1) whether the actions 

taken were compensable “removal actions” under OPA and the claims regulations at 33 

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

adequately documented. 

 

1

 See NDOW Vessel Report, dated 5/30/2009. 
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;

(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: 

A. Overview:

1. The incident involved the report of a discharge of “oil” as defined in OPA 90, 33 U.S.C. 

§ 2701(23), to navigable waters.

2. 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.

3. The claim was submitted within the 6 year statute of limitation o for removal costs.

4. An attempt was made to contact the Responsible Party by the NPFC but the letter was 

returned as undeliverable.

5. The NPFC Claims Manager has thoroughly reviewed all documentation submitted with 

the claim and determined that the claim should be denied.

B. 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 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. 

The Claims Manager has been unable to confirm whether the costs claimed were 

reasonable and necessary and performed in accordance with the National Contingency 

Plan (NCP). FOSC oversight was not present during this response and the record does 

not support that the salvage response was an appropriate activity.

MMS claims a total of $7,288.75 in uncompensated removal costs. However, there are 

some issues with this claim. First, while it could be argued that an OPA event occurred 

although the record does not demonstrate by a preponderance of the evidence that a 

discharge occurred nor is there any evidence of how much fuel was aboard the vessel at 

the time of the incident. The claim documentation does not indicate what type of 

absorbent materials were used and in what quantity for the alleged spill. The Claimant 

has provided a disposal manifest for 1 drum which covers debris from more than one 

response as described by the Claimant to the NPFC. Additionally, disposal was not 

performed until July 22, 2010, some 14 months after the fact. 

Second, the costs for the “Environmental Response,” at a rate of $145.00 per hour, is not 

listed in rate schedule provided with the claim and costs entitled “Containment, Dive 

Equipment Cleaning” at a rate of $85.00 per hour is also not supported by the rate 

schedule provided. Third, the disposal manifest provided is for multiple jobs over the 

course of multiple years. The Claimant is unable to provide sufficient evidence that what 
was disposed of pertains to this particular response and waiting 14 months to perform 

disposal is not consistent with the NCP. 

Third, the claimant is requesting storage fees for the storage of the vessel after it was 

removed from the waterway. This is not a removal cost and is therefore denied. Finally, 

during a phone conversation the NPFC had with Mr. on Thursday, July 24, 

2010, Mr advised that his workers do not get paid until he gets paid therefore it is 

not clear that the Claimant has uncompensated removal costs associated with his response 

personnel without proof of payment to individuals. Based on the totality of the 

information, this claim is denied. 

C. Determined Amount: 

The NPFC hereby determines that the claim is denied for the following reasons: (1) no 

FOSC coordination in accordance with 33 CFR §136.203 & 205; (2) no evidence that the 

incident discharged oil to navigable waters as determined by the FOSC; (3) insufficient 

evidence to support the claim in accordance with 33 CFR §136.105(e)(6); (4) proof all 

costs are uncompensated as the Claimant has failed to provide substantiation of payment 

to the response personnel associated with this response; and (5) claimant’s documentation 

is lacking to support proper disposal in accordance with the NCP. 

AMOUNT: $0.00

Claim Supervisor:

Date of Supervisor’s review: 9/7/10 

Supervisor Action: Denial approved 

Supervisor’s Comments: