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CLAIM SUMMARY / DETERMINATION on RECONSIDERATION

Claim Number: N18023-0008 

Claimant: City of Kenova 

Type of Claimant: Government 

Type of Claim: Public Services 

Claim Manager: 

Amount Requested: $26,942.94 

Action Taken: Offer in the amount of $24,988.82 

EXECUTIVE SUMMARY:: 

In January 2018, the Uninspected Towing Vessel (UTV) GATE CITY sank in the Big Sandy 

River, a navigable waterway of the United States, near Kenova, West Virginia. The UTV 

ANNA C1

 was determined to pose a substantial threat of discharge of oil into the Big Sandy 

River. Both vessels required oil pollution response activities and both are relevant to this claim. 

In accordance with the Oil Pollution Act of 1990 (OPA), Western Rivers Assets and River 

Marine Enterprises were identified as the responsible parties (RPs) for the GATE CITY.2

 

Western Rivers Assets was identified as the responsible party for the ANNA C.3

 Western Rivers 

and River Marine are both owned by Mr. . 

The City of Kenova’s Water Treatment Plant closed its water intakes due to the incident. 

Because of this, they could not produce or treat river water to maintain water tanks at sufficient 

levels to provide their customers with clean water. The City of Kenova (“Kenova” or 

“Claimant”) presented its claim to the RP. Having not received payment from the RP after 

ninety days,4 Kenova presented its claim to the National Pollution Funds Center (NPFC) for 

$73,446.26.5 Kenova initially sought reimbursement for increased personnel costs, additional 

water purchased, lost water sales, miscellaneous supplies, fuel costs, and legal fees. 

Subsequently, Kenova withdrew its lost water sales costs totaling $39,739.88 and deducted 

$2,000.00 from the legal expenses costs from the claim, which reduced its claimed costs from 

$73,446.26 to $31,706.38.6

 The NPFC determined $6,918.55 of the requested amount as 

compensable, and offered this amount to Kenova as full compensation of the claim.7 On April 

15, 2020, the NPFC received the Claimant’s timely request for reconsideration for $26,942.94.8

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

the original claim, the request for reconsideration, all information provided by the Claimant, 

information it obtained independently, and the applicable law and regulations. Upon 

 

1 The ANNA C was renamed JO RENEE on November 7, 2008. However, all of the incident documentation refers 

to the vessel as the ANNA C. This determination will refer to it as such to avoid any potential confusion. 2 Western Rivers Assets was the owner. River Marine Enterprises was the operator.

3 Western Rivers Assets was the owner. There was no discernible operator. 4 33 CFR 136.103(c).

5 Letter from Claimant’s counsel dated August 26, 2019 containing its original claim submission. 6 Letter from Claimant to NPFC dated October 23, 2019. 7 NPFC determination issued to Claimant dated February 24, 2020.

8 Letter from Claimant’s counsel to the NPFC dated April 15, 2020, requesting reconsideration of the NPFC’s 

determination dated February 24, 2020.

(b) (6) (b) (6)
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reconsideration, the NPFC concludes that the facts established within the NPFC’s initial 

determination as well as information provided by the Claimant within its request for 

reconsideration or obtained independently by the NPFC support the Claimant’s request for 

reconsideration and offers to reimburse the Claimant $24,988.82 for damages incurred as a result 

of the oil spill incident, as outlined in the original determination and below.

I. CLAIM HISTORY:

On August 27, 2019, the Claimant submitted its claim to the NPFC for $73,446.26.9 On 

October 23, 2019, Claimant withdrew legal expenses in the amount of $2,000.00 from its claim, 

reducing its claimed legal costs from $6,100.00 to $4,100.00. The Claimant also submitted a 

withdrawal of its claimed lost water sales revenue in the amount of $39,739.88. Subsequently, 

the claimant verified its new claimed sum of $31,706.38.10 On February 24, 2020, the NPFC 

determined that $6,918.55 of the $31,706.38 was compensable, and denied the remainder of the 

claimed costs.

11

On April 15, 2020, the NPFC received the Claimant’s timely request for reconsideration.

12

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.13 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.14

On April 15, 2020, the Claimant timely requested reconsideration of the NPFC’s initial 

determination and provided information in support of costs denied by the NPFC.

15 Specifically,

Claimant’s counsel categorized the charges denied by the NPFC and provided statements and 

factual evidence to allegedly support why those charges should be compensable.

III. ANALYSIS ON REQUEST ON 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 in accordance with our governing claims 

regulations at 33 CFR 136.115(d).

 9 Letter from Claimant’s counsel dated August 26, 2019 containing its original claim submission. 10 Email from Claimant to NPFC dated October 24, 2019. 11 NPFC determination issued to Claimant dated February 24, 2020. 12 Letter from Claimant’s counsel to the NPFC dated April 15, 2020, requesting reconsideration of the NPFC’s 

determination dated February 24, 2020.

13 33 CFR 136.105(a). 14 33 CFR 136.115(d). 15 Letter from Claimant’s counsel to the NPFC dated April 15, 2020, requesting reconsideration of the NPFC’s 

determination dated February 24, 2020.
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The NPFC has thoroughly reviewed and considered the Claimants’ request for 

reconsideration and because the claimant has met its burden, finds the following costs 

reimbursable as described below:

1. Non-Police Personnel Costs

 

NPFC Initial Determination – Charges in the amount of $22,202.40 were denied as the 

claimant failed to meet its burden in demonstrating that these costs were based on 

increased hours or wages compared to normal costs incurred by the Claimant.16

Claimant’s Response - Charges totaling $16,638.96 of the originally claimed $22,202.40 

in non-police personnel costs should be approved. The costs represent hours worked 

outside of employees’ standard regular work hours. The amounts are readily calculable 

based on time reports and payroll records previously provided,17 along with information 

included in Claimant’s reconsideration request,18 which contained the standard workweeks 

of various employees for whom reimbursement is sought. The standard workweek 

information was provided by Mayor Timothy Bias and , who supervise 

Water Department employees. Claimant stated the hourly rate information was verifiable

through a spreadsheet maintained by , who tracked personnel time 

devoted to the spill, and by taking employees’ gross pay for the subsequent week and 

dividing it by weighted hours worked. The hours claimed per individual, were broken 

down into weekday overtime, Saturday overtime and Sunday overtime. The rates were

categorized as regular hourly rates, overtime hourly rates and Sunday overtime rates. 

Claimant’s reconsideration request explained the overtime rates of non-police personnel as 

1.5 times the regular rate for all weekdays and Saturdays over forty hours, and double the 

regular rate for all hours worked on Sunday.20 Claimant provided a spreadsheet displaying 

the calculation of personnel and benefits costs outside employees’ standard work weeks 

attributable to the spill.21 The calculations display the overtime hours cited on the 

employee time sheets and reports, the hourly rates provided on the summary of Water 

Department employees’ oil spill time and pay rates, and benefits costs which include 

FICA, retirement and workers compensation costs. Claimant explained these benefits 

costs as FICA/Medicare taxes equaling 7.65% of wages, retirement contributions equaling 

11% of wages, and workers’ compensation costs equaling 12% of wages.22

NPFC Determination upon Reconsideration – The NPFC was unable to verify hourly rates 

using the employee’s gross pay for the subsequent week, then dividing it by weighted 

 

16 NPFC determination issued to Claimant dated February 24, 2020. 17 Exhibit 2 and 3 of Letter from Claimant to NPFC dated October 23, 2019. 18 Letter from Claimant’s counsel to the NPFC dated April 15, 2020, requesting reconsideration of the NPFC’s 

determination dated February 24, 2020.

19 Letter from Claimant’s counsel to the NPFC dated April 15, 2020, Exhibit 1, requesting reconsideration of the 

NPFC’s determination dated February 24, 2020.

20 Letter from Claimant’s counsel to the NPFC dated April 15, 2020, requesting reconsideration of the NPFC’s 

determination dated February 24, 2020.

21 Revised Wage-Benefits Calculations Spreadsheet dated April 15, 2020. Claimant’s reconsideration letter notes the 

spreadsheet was originally created by Kenova’s external accountant, and the information was modified by 

Claimant’s counsel to eliminate time that would be part of an employee’s standard workweek and to add Police 

Department employees.

22 Letter from Claimant’s counsel to the NPFC dated April 15, 2020, requesting reconsideration of the NPFC’s 

determination dated February 24, 2020.

(b) (6) (b) (6)
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hours worked as suggested by the Claimant. However, the NPFC was able to verify hourly 

rates through the spreadsheet maintained by .

23 Additionally, the overtime 

hours provided in the reconsideration request match the overtime hours cited on employee 

time sheets and reports,

24 and the hourly rates for overtime costs submitted for non-police 

personnel match the hourly rates cited on the summary of Water Department employees’ 

oil spill time and pay rates.25 Using the standard percentages provided by the claimant to 

calculate the benefits costs, the NPFC was able to validate the benefits costs for each of 

the personnel. As such, the supporting documentation provided indicates employees 

worked overtime hours because of the incident, and explains the rates used to calculate the 

totals, while supporting the total costs paid. Therefore, upon reconsideration the NPFC 

approves all non-police personnel costs, totaling $16,638.96.

2. Police Personnel Costs

NPFC Initial Determination - Charges in the amount of $1,680.00 for Police Department 

costs were denied because Claimant failed to explain the rates used to reach the totals 

provided. Specifically, the $25.50 per overtime hour rate claimed for four of the five 

personnel, and the $37.50 per overtime hour rate claimed for the Chief of Police could not 

be validated by any of the supporting information provided by Kenova.26 

Claimant’s Response –The $1,680.00 in police personnel costs should be approved. 

Claimant provided a breakdown of police hours and hourly costs with their 

reconsideration claim.

27 Claimant states the hourly rate for the Chief of Police is 

calculated by dividing his gross pay by the weighted hours worked.28 Using the gross 

income amount of $1,001.54 shown on the current earnings report dated January 5, 

2018,29 and dividing the gross income amount by the standard 40 hours regular time work 

schedule supported by the employee time sheets and reports document,30 the claimant

cites the hourly rate for the Chief of Police as $25.04 per hour.31 The claimant states the 

Chief of Police overtime rate as being 1.5 times his regular rate, which would determine 

his overtime rate as $37.56 per hour. The overtime rate is supported on the bottom of the 

employee time sheets and reports document.32 These documents support 26 overtime 

hours associated with the water plant shutdown.33 Using the overtime rate of $37.56 per 

hour, Kenova claims $976.56 plus the benefits costs of $299.32, which totals $1,275.88 

for the Chief of Police’s 26 overtime hours. The Claimant states the hourly rate for all 

other police officers whose overtime costs are claimed is calculated by dividing their gross 

 

23 Letter from Claimant’s counsel to the NPFC dated April 15, 2020, Exhibit 1, requesting reconsideration of the 

NPFC’s determination dated February 24, 2020.

24 Exhibit 2 of Letter from Claimant to NPFC dated October 23, 2019. 25 Exhibit 1 of Letter from Claimant to NPFC dated October 23, 2019. 26 NPFC determination issued to Claimant dated February 24, 2020. 27 Letter from Claimant’s counsel to the NPFC dated April 15, 2020, requesting reconsideration of the NPFC’s 

determination dated February 24, 2020.

28 Letter from Claimant’s counsel to the NPFC dated April 15, 2020, requesting reconsideration of the NPFC’s 

determination dated February 24, 2020.

29 Exhibit 3 of Letter from Claimant to NPFC dated October 23, 2019. 30 Exhibit 2 of Letter from Claimant to NPFC dated October 23, 2019. 31 Letter from Claimant’s counsel to the NPFC dated April 15, 2020, requesting reconsideration of the NPFC’s 

determination dated February 24, 2020.

32 Exhibit 2 of Letter from Claimant to NPFC dated October 23, 2019. 33 Exhibit 2 of Letter from Claimant to NPFC dated October 23, 2019.

(b) (6)
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pay by weighted hours worked, and cites the hourly rate as $17.00 per hour, and overtime 

rate as $25.50 per hour.34

NPFC Determination upon Reconsideration – The NPFC finds the $25.04 hourly rate for 

the Chief of Police is properly supported. At 1.5 times his hourly pay rate, the $37.56 per 

hour overtime rate, multiplied by the 26 hours supported by the employee time reports,

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equals $976.56. Using the standard percentages provided by the claimant to calculate the 

benefits costs, the NPFC is able to validate the benefits costs for the remaining $299.32 

claimed. 

The gross income amounts of the remaining 4 police officers cited, are unequal to one 

another as shown on the current earnings report dated January 5, 2018.36 When dividing 

the amounts of the 40 hour work week cited on the employee time sheets and reports 

document,37 the rates generated for police personnel , 

and do not match the $17.00 per regular hourly rate suggested by the 

Claimant.38 Dividing the gross average rate of the police officers also fails to produce the 

regular hourly rate suggested. Although 1.5 times this regular rate of $17.00 per hour 

equals the $25.50 overtime hourly rate suggested by the Claimant, the NPFC cannot 

validate this rate using the documentation provided. For policeman , 

dividing the amount found on the subsequent week’s earnings report,

39 does equal the 

$17.00 regular hourly rate suggested by the Claimant. However, the employee time reports 

for fail to display any of the overtime hours cited by the Claimant 

associated with the water plant shutdown.40 Additionally, the time reports for all police 

personnel other than the Chief of Police fail to validate the overtime hours requested by 

the Claimant.

41 Additionally, when comparing the overtime totals requested in Kenova’s 

reconsideration request with the overtime totals cited on the Kenova Police Department 

memorandum,42 they do not match. When adding the costs claimed for the Chief of Police 

with the police personnel totals provided in Kenova’s reconsideration request letter,43 the 

total for all police costs fails to match the $1,680.00 in police costs requested.44 As such, 

all overtime costs for police officers other than the Chief of Police, are denied. However, 

of the $1,680.00 requested on reconsideration, the NPFC finds the Police Chief’s overtime 

hours and benefits accrued during the spill incident totaling $1,275.88 are compensable. 

The remaining $404.12 in police costs are denied. 

3. Miscellaneous Supply Costs

 

34 Letter from Claimant’s counsel to the NPFC dated April 15, 2020, requesting reconsideration of the NPFC’s 

determination dated February 24, 2020.

35 Exhibit 2 of Letter from Claimant to NPFC dated October 23, 2019. 36 Exhibit 3 of Letter from Claimant to NPFC dated October 23, 2019. 37 Exhibit 2 of Letter from Claimant to NPFC dated October 23, 2019. 38 Letter from Claimant’s counsel to the NPFC dated April 15, 2020, requesting reconsideration of the NPFC’s 

determination dated February 24, 2020.

39 Exhibit 3 of Letter from Claimant to NPFC dated October 23, 2019. 40 Exhibit 2 of Letter from Claimant to NPFC dated October 23, 2019. 41 Exhibit 2 of Letter from Claimant to NPFC dated October 23, 2019. 42 Kenova Police Department memorandum dated February 2, 2018. 43 Letter from Claimant’s counsel to the NPFC dated April 15, 2020, requesting reconsideration of the NPFC’s 

determination dated February 24, 2020.

44 See, NPFC Summary of Costs dated May 18, 2020 for a detailed explanation of these costs. 

(b) (6) (b) (6) (b) (6) (b) (6) (b) (6)
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NPFC Initial Determination – Charges in the amount of $155.4345 were denied because 

the Claimant did not explain nor produce supporting documentation for these costs.46

Claimant’s Response – The $155.43 in supply costs should be approved. The Claimant 

explained these costs consisted of plug grounds, power centers, a canopy and tarps, which

were necessary for the two kerosene heaters to be plugged in safely, and to prevent heat 

from escaping into the atmosphere.47

NPFC Determination upon Reconsideration – The Claimant provided a reasonable 

explanation of the costs incurred during a period of time when sub-freezing temperatures 

were encountered and heaters needed to be used to keep pumps from freezing. Therefore,

the NPFC approves these supply costs totaling $155.43.

4. Legal Costs

NPFC Initial Determination – Charges in the amount of $1,550.00 were denied because

the 6.2 hours claimed on January 11, 2018 provided the following description: “research 

environmental law and statute. Research done in contemplation of which governmental 

agencies were required to be notified. Determination of the controlling agency in charge of 

the spill site. Research as to what notification responsibility the City of Kenova had to the 

public authorities.” The NPFC found these costs describe actions counsel took to educate 

himself on the law and administrative procedures required during a spill incident; not 

actions that directly influenced response efforts.48

Claimant’s Response – The $1,550.00 for legal research should be approved. The 

Claimant asserts the actions counsel took to research various state and federal 

requirements was reasonable in order to properly advise Kenova officials during the spill 

response.

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NPFC Determination upon Reconsideration - No new documentation was provided to 

support the denied legal costs. Additionally, by January 11, 2018, the Coast Guard had 

already been notified and had been in contact with Kenova’s water treatment plant about 

notification requirements.50 Therefore, without any new evidence to consider, the 

$1,550.00 in costs for this date remain denied. 

IV. CONCLUSION:

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

the reasons outlined above, the Claimant’s request for reconsideration for its uncompensated 

damages is approved in the amount of $24,988.82.

 45 Kenny’s Queen Hardware Invoice dated January 11, 2018. 46 NPFC determination issued to Claimant dated February 24, 2020. 47 Letter from Claimant’s counsel to the NPFC dated April 15, 2020, requesting reconsideration of the NPFC’s 

determination dated February 24, 2020.

48 NPFC determination issued to Claimant dated February 24, 2020. 49 Letter from Claimant’s counsel to the NPFC dated April 15, 2020, requesting reconsideration of the NPFC’s 

determination dated February 24, 2020.

50 MISLE case report 1112177 dated January 10, 2018.