CLAIM SUMMARY / DETERMINATION FORM

Claim Number : P11005-0001 

Claimant : Eastern Environmental Management, LLC

Type of Claimant : OSRO

Type of Claim : Removal Costs 

Claim Manager : 

Amount Requested : $57,395.98 

FACTS: 

The Incident

On January 7, 2011, Sector North Carolina received a report from Beaufort County Sheriff’s 

department of a fire at McCotter’s Marina in Washington, NC located on Broad Creek/Pamlico 

River. The Marina fire resulted in approximately 26 recreational vessels being destroyed in the 

fire and sinking at the pier. Approximately 1,500 gallons of fuel products were released into 

Broad Creek, a navigable waterway of the US. Three different Fire Departments responded to 

the fire.1 The MISLE Case Report Number is 534323. 

The Removal Actions

The United States Coast Guard, Sector North Carolina (USCG) was the Federal On Scene 

Coordinator (FOSC) for this incident. In that capacity, they opened a Federal Project Number

(FPN) and contracted with the Claimant, Eastern Environmental Management (EEM) to perform 

removal/response actions and clean up the spill.2

 Upon further investigation by the NPFC, Coast 

Guard documentation shows that the Claimant was paid approximately $107,000.00 for response 

and removal actions taken in response to this incident.3

On 14 January 2011, the FOSC deemed the incident and all actions associated with the incident 

complete via “POLREP Six & Final”.4 According to POLREP Six and Final, the Claimant, 

EEM, was to remove all remaining oiled debris, sorbent material and equipment from the scene.” 

After the FOSC issued the final POLREP, the Marina entered into a separate agreement with the 

Claimant whereby the Claimant would remain on scene with personnel, material and equipment 

to assist in the salvage of the vessels from the waters of the Marina. The Claimant allegedly 

incurred costs that totaled $80,495.10. According to the evidence presented by the Claimant, the 

Claimant presented its costs to the Marina for payment. The Marina failed to pay the Claimant 

in full. To date, the Claimant has only been compensated in the amount of $23,099.12. The 

Claimant now presents its claim to the Oil Spill Liability Trust Fund (OSLTF) via the National 

Pollution Funds Center (NPFC) for uncompensated removal costs in the remaining amount of 

$57,395.98.5

1 Case Report 534323, POLREP One, 7 January 2011

2 POLREP 1, dated 7 January 2011 3 Coast Guard Authorization to Proceed

4 SITREP, POL Six and Final, 14 January 2011. 

5 See, Cover Letter from EEM signed and dated 10 January 2012, by 

 

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]. 

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. No FOSC Coordination has been provided by Sector North Carolina for the actions 

undertaken by the Claimant after 14 January 2011 33 CFR 136.203 & 205.

2. The incident involved the report of a discharge and a substantial threat of a discharge of 

“oil” was defined by OPA 90, 33 U.S.C. 2701 (23), to navigable waters; 

3. Prior presentment of costs to the RPs was not made by the Claimant, prior to submission 

of the claim to the Fund. 33 U.S.C. 2701 (32), 33 CFR 136.103(a)

4. The claim was submitted within the six year period of limitations for removal costs 

claims to the Fund. 33 U.S.C. 2712 (h) (1)

5. 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; 

6. The NPFC Claims Manager thoroughly reviewed all documentation submitted with the 

claim as well as other information obtained during the course of the adjudication such as 

the POLREPS, the CASE REPORT in MISLE as well as the Case File assembled and 

kept by the NPFC Case Management Division of the NPFC and has determined this 

claim is denied for the reasons set forth below.

B. Analysis:

The NPFC’s review of the claim focused on (1) whether the actions taken were compensable 

removal actions under OPA and the claims regulations at 33 CFR Part 136 (whether the 

actions were taken to prevent, minimize and mitigate the effects of the incident (2) whether 

the costs were incurred as a result of these actions; (3) whether the actions taken are 

determined to be consistent with the National Contingency Plan (NCP) or directed by the 

FOSC; (4) whether the costs were adequately documented and reasonable, (5) whether the 

Claimant’s submitted costs were uncompensated; and finally, (6) the Claimant made proper 

presentment of costs to the RPs as required by the Oil Pollution Act of 1990 at 33 U.S.C. § 

2713(a) and the claims regulations at 33 C.F.R. § 136.103(a), which state that all claims for 

removal costs and damages must be presented first to the Responsible Party or guarantor. If 

the claim is not settled by any person within 90 days, the Claimant may present the claim to 

the NPFC. 

1. Presentment

As previously stated, there were twenty-six vessels that caught fire and sank at the Marina. 

No known source of the discharge was ever determined. 12 No source sample was 

available.13 However, the record supports a finding that the Marina was not the source of the 

discharge and not the Responsible Party. To the contrary, a POLREP indicates that one of 

the vessels exploded and caught on fire and that fire spread to the other vessels that 

eventually sank at the dock.14 The Marina could not determine which vessel was the source 

of the discharge, so it submitted its costs to each vessel owner and in turn received payments 

from the insurance companies of at least six (6) of the vessel owners. 

Under the presentment requirement, the Claimant has failed to make proper presentment of 

costs to the twenty six RPs as required by the Oil Pollution Act of 1990 at 33 U.S.C. § 

12 POLREP 6 & Final 14 January 2011 13 SITREP-POL Five 13 January 2011 14 POLREP 7 dated January 2011

 
2713(a) and the claims regulations at 33 C.F.R. § 136.103(a), which state that all claims for 

removal costs and damages must be presented first to the Responsible Party(s) or 

guarantor(s) as opposed to the Marina. 

2. FOSC Coordination

In order for a Claimant to be reimbursed for its costs incurred in a removal action, the 

Claimant must show that the actions taken were “reasonable and necessary” to mitigate the 

effects of the incident and were “determined by the FOSC” to be “consistent with the 

National Contingency Plan”.15 This claim is denied because the Claimant has failed to 

obtain FOSC coordination for the actions it undertook from January 14, 2011 forward 

pursuant to the governing claims regulations found at 33 CFR 136.203 & 205. 

As previously stated, the Claimant was hired under an FPN by the FOSC to perform 

response/removal actions from 7 January until 14 January 2011. On or about 14 January 

2011, the FOSC issued its final POLREP indicating that all removal actions were complete 

and that the site was “clean”.

The Claimant has not provided evidence that their actions taken post 14 January 2011 were 

removal costs as defined by the Claims Regulations, and were reasonable and necessary to as 

determined by the FOSC. In fact, the evidence supports a finding that the actions taken post 

January 14th were associated with salvage operations – removing the vessels from the water

after the FOSC determined that no further discharge or threat of discharge existed16. 

The NPFC contacted the FOSC representative in order to obtain clarification on why the 

USCG closed the Federal Project knowing that their contractor remained on scene. In that 

conversation with the FOSC representative, he failed to confirm that the actions taken by the 

Claimant post January 14, 2011 were in fact compensable removal actions. He could not or 

would not confirm whether he was aware that all of the fuel had been removed from the 

vessels. He was aware of the Claimant’s presence, but not all of the actions taken, personnel, 

materials or equipment that were involved or even how long the Claimant remained at the 

scene.

17 

The NPFC has reviewed the evidence submitted by the Claimant in support of its claim for 

removal costs. The invoices and dailies show that the Claimant was on scene from 

approximately 14 January 2011 – 23 March 2011. There are no detailed narratives for the 

work that was performed each day during this period of time, however looking at the 

invoices it appears that there were personnel, materials and equipment on scene that would 

be needed to support salvage operations. 

The cover letter of 10 January 2012 that accompanied the Claimant’s submission to the Fund 

describes its actions as follows: “......(after) January 31......EEM was directed by the 

salvage company and Mr. Henley (owner of the Marina) as to what days we were to have 

personnel and equipment at the site for the removal process. When the boats were being 

raised EEM made access for the crane boat to get in and out of the containment area.....also 

pumped off the fuel tanks of the salvage boats as they were being brought to shore.”18

15 33 CFR 136.203 16 See POLREP Six and Final. 17 Phone conference of 14 February 2012, NPFC personnel and FOSC, Sector North Carolina, MST1 

Claimant’s cover letter dated & signed 10 January 2012 by , included with claims submission to the 

Fund

 
All of the evidence described above does not support a finding that the actions taken by the 

Claimant were coordinated with the FOSC or were reasonable and necessary as determined 

by the FOSC. The NPFC has determined that That the Claimant has not demonstrated that 

their actions were requested and determined by the FOSC to be consistent with the NCP or 

necessary to mitigate a threat of oil since USCG POLREP Six and Final states no further oil 

or threat of oil existed.

The Claimant bears the burden of proving all elements of its claim to the Fund, 33 CFR 

136.105(a). The Claimant has failed to provide sufficient evidence to support this claim as 

identified above, and thus failed to prove its entitlement to reimbursement of uncompensated 

removal costs in the amount of $57,395.98. 33 CFR 136.105(e)(6), 

Should the Claimant decide to request reconsideration, the Claimant will need to provide at a 

minimum, the following information which may result in the NPFC requesting supplemental 

information at a later time:

1. FOSC Coordination from Sector North Carolina indicating that the daily activities 

performed by the Claimant were necessary to include the removal of all sunken vessels at the 

Marina for the primary purpose of pollution prevention. The FOSC would also need to 

indicate why the removal of the vessels vice de-fueling of the tanks was necessary. As such, 

the FOSC would need to issue a supplemental POLREP changing its official position as 

stated in POLREP Six and Final; 

2. The Claimant will need to identify all personnel and equipment that was used during the 

removal of each vessel on a daily basis and indicate why they were needed and what they 

were doing;

3. The Claimant will need to address why there was a need for personnel and equipment on 

scene at the Marina until the end of March 2011 and provide a detailed statement of the 

actions taken on each day personnel and equipment were on scene; and 

4. The Claimant would need to make prior presentment to the twenty six Responsible Parties, as 

identified. 

Determined Amount:

The NPFC hereby determines this claim is denied because (1) the Claimant failed to provide 

FOSC coordination pursuant to 33 CFR 136.203 & 205 and has failed to make prior presentment 

to the Responsible Parties as required by 33 CFR 103(a).

Claim Supervisor: 

Date of Supervisor’s review: 3/2/12 

Supervisor Action: Denial approved 

Supervisor’s Comments: