CLAIM SUMMARY / DETERMINATION FORM 

Date : 12/18/2008 

Claim Number : 909032-001

Claimant : Eddyville Riverport and Industrial Development Authority Inc 

Type of Claimant : Corporate (US) 

Type of Claim : Removal Costs 

Claim Manager : 

Amount Requested : $13,838.73 

FACTS: 

Oil Spill Incident: On September 15, 2008, the Kentucky Department of Environmental 

Protection was contacted by the Eddyville River Port Authority (ERIDA) about a strong 

diesel fuel smell coming from the vicinity of Rottgering Marine, located on the 

Cumberland River, a navigable waterway of the US. Kentucky DEP responded to the 

scene. After interviewing Mr. , it was discovered that strong winds from the 

night before allowed a 50 foot sailboat to come untied and drift downriver. The sailboat 

collided with an Eddyville River Port barge and sunk. The Kentucky DEP response 

officer worked with the Environmental Protection Agency (EPA) for FOSC coordination. 

ERIDA hired SWS to remove the vessel to further mitigate the risk of remaining fuel 

spilling into the water. The NPFC has issued an RP Notification Letter to the owner of 

the vessel. 

Description of Removal Activities for this claimant: Kentucky DEP and ERIDA 

conducted initial and follow up response, overseeing SWS removal of the vessel. SWS 

costs paid by ERIDA included personnel, equipment and removal of the vessel. SWS 

billed Kentucky DEP for the removal of the oil and disposal costs.

The Claim: On December 1, 2008, ERIDA submitted a removal cost claim to the 

National Pollution Fund Center (NPFC) for reimbursement of their uncompensated 

removal and legal costs in the amount of $13,838.73. 

ERIDA is claiming SWS Environmental personnel costs of $1,392.00 and equipment 

costs of $11,022.73. Legal costs come to $1,424.00. 

APPLICABLE LAW: 

Under the Oil Pollution Act of 1990 (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. Removal costs are those 

“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) 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. 

Under 33 USC §2713(a) all claims for removal costs or damages, with exceptions not applicable 

here, shall be presented first to the responsible party or guarantor of the source designated. 

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 USC §2715(a) any person, including the Fund, who pays compensation pursuant to this 

Act to any claimant for removal costs or damages shall be subrogated to all rights, claims, and 

causes of action that the claimant has under any other law.

Under 33 CFR 136.105(a) and 136.105(e)(6), the claimant bears the burden of providing 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 136.107,

“(a) The claims of subrogor (e.g., insured) and subrogee (e.g., insurer) for removal costs and 

damages arising out of the same incident should be presented together and must be signed by all 

claimants.

(b) A fully subrogated claim is payable only to the subrogee.”.

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.” 

Under 33 CFR 136.115(d), the Director, NPFC, will, upon written request of the claimant or the 

claimant's representative, reconsider any claim denied. This is a de novo review. The request for 

reconsideration must be in writing and include the factual or legal grounds for the relief 

requested, providing any additional support for the claim. The request for reconsideration must 

be received by the NPFC within 60 days after the date the denial was mailed to the claimant or 

within 30 days after receipt of the denial by the claimant, whichever date is earlier.
DETERMINATION OF LOSS: 

A. Overview: 

1. BM1 and EPA Region III provided FOSC coordination. 

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

2701(23), to navigable waters.

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 on time. 

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

with the claim and determined that the removal costs presented were for actions in 

accordance with the NCP and that the costs for these actions were indeed reasonable 

and allowable under OPA and 33 CFR § 136.205. 

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. 

On that basis, the Claims Manager hereby determines that the claimant did in fact incur 

$12,414.73 of uncompensated removal costs and that that amount is properly payable by the 

OSLTF as full compensation for the reimbursable removal costs incurred by the claimant and 

submitted to the NPFC under claim #909032-001. In accordance with 33 CFR 136.105 

(e)(8), the NPFC can not reimburse the claimant for attorney’s fees. Therefore, the 

$1,424.00 submitted by the claimant in this regard is denied. The claimant states that all 

costs claimed are for uncompensated removal costs incurred by the claimant for this incident 

on September 15, 2008. The claimant represents that all costs paid by the claimant are 

compensable removal costs, payable by the OSLTF as presented by the claimant. 

C. Determined Amount: 

The NPFC hereby determines that the OSLTF will pay $12,414.73 as full compensation for 

the reimbursable removal costs incurred by the Claimant and submitted to the NPFC under 

claim # 909032-001. All costs claimed are for charges paid for by the Claimant for removal 

actions as that term is defined in OPA and, are compensable removal costs, payable by the 

OSLTF as presented by the Claimants. 

AMOUNT: $12,414.73

Claim Supervisor: 

Date of Supervisor’s review: 

Supervisor Action: