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CLAIM SUMMARY / DETERMINATION 

Claim Numbers: N18023-0007 

Claimant: West Virginia Department of Transportation

Type of Claimant: State

Type of Claims: Public Services 

Claim Manager: 

Amount Requested: $34,218.65 

Action Taken: Denied

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

 

The City of Kenova was forced to shut down its water plant as a result of this incident and, 

therefore, could not provide its customers with water. To ensure its customers maintained water 

service, Kenova outsourced its water service. One of the entities the city engaged was the State 

of West Virginia. West Virginia Department of Transportation (“WV DOT” or “Claimant”), 

assisted Kenova by hauling water to the Kenova water plant. WV DOT submitted a damage 

claim to NPFC seeking $34,218.65 for its personnel, equipment, and materials. 

The NPFC has thoroughly reviewed all documentation submitted with the claim, analyzed 

the applicable law and regulations, and after careful consideration, has determined that this claim 

must be denied in full because claimant failed to provide sufficient documentation to substantiate 

its claim.

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I. INCIDENT, RESPONSIBLE PARTY AND RECOVERY OPERATIONS:

Incident

On December 5, 2017, the Coast Guard issued an Administrative Order to Western Rivers 

Assets, the owner of the GATE CITY and ANNA C, identifying both vessels as substantial 

threats to discharge oil into Big Sandy River, a navigable waterway of the United States near 

 

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 See, 33 CFR 136.239.
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Kenova, West Virginia.5 The Order required the owner to take several mitigation actions to 

avoid an oil pollution incident from its vessels. On January 10, 2018, before the owner complied 

with the Order, the GATE CITY sank at its mooring and discharged oil into the Big Sandy 

River.6 The ANNA C did not sink, but remained a substantial threat of discharge, which 

required response activities to mitigate.

Responsible Parties 

Western Rivers Assets and River Marine Enterprises are jointly and severally liable under 

OPA.7 The NPFC issued Notice of Designation letters to each of them.8 A Notice of Designation 

letter notifies the owners and/or operators of vessels or facilities that their vessel or facility was 

designated as the source of a discharge or substantial threat of a discharge of oil to navigable 

waters of the United States. 

Recovery Operations

United States Coast Guard Marine Safety Unit (MSU) Huntington was the Federal On-Scene 

Coordinator (FOSC) and oversaw the response and removal operations.9

 

As a result of the incident, the City of Kenova’s water plant was forced to shut down from 

January 10 through January 15, 2018.10 During that time, the Kenova water plant could not 

produce or treat new water to maintain water tanks at sufficient levels to provide all customers 

with water. Kenova’s water system has many bulk water customers, particularly manufacturing 

facilities located near the rivers, that depend on water to operate and function safely. According 

to the city, these facilities would have had to shut down if water had been unavailable for an 

extended period of time.11 Kenova asked the claimant, and the claimant agreed, to haul water to 

Kenova’s water treatment plant.

12 

II. CLAIMANT AND RP:

Absent limited circumstances, the Federal Regulations implementing the OPA13 require all 

claims for removal costs or damages must be presented to the RP before seeking compensation 

from the NPFC.14

 

5 Marine Safety Unit Huntington Administrative Order IMD-001 dated December 5, 2017. 6 SITREP-POL One. 7 See, H.R. Rep. No 101-653, at 102 (1990), reprinted in 1990 U.S.C.C.A.N. 779, 780. 8 Notice of Designation letters to Western Rivers Assets dated August 27, 2019, and, River Marine Enterprises dated 

August 27, 2019. 

9 Letter of Delegation – Incident Specific Federal On-Scene Coordinator (FOSC), from CAPT. , CG 

Sector Ohio Valley to CDR. , U.S. Coast Guard dated December 4, 2017. 10 Kenova Volunteer Fire Department Spill Report dated January 29, 2018. 11 Claim Explanation Letter dated March 29, 2019. 12 Original Claim Submission, received August 1, 2019. 13 33 U.S.C. § 2701 et seq. 14 33 CFR 136.103.
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By August 2, 2019, the Claimant had presented its costs to River Marine Enterprises and 

Western Rivers Assets.

15 After receiving confirmation from the RPs that they had denied the 

claim,

16 the NPFC began adjudicating the claim in the amount of $34,218.65.

III. CLAIMANT AND NPFC:

 When an RP denies a claim or has not settled a claim after 90 days of receipt, a claimant may 

elect to present its claim to the NPFC.17 After receiving confirmation that the claims were 

properly presented to each of the RPs, and the RPs denied them, the NPFC began adjudicating 

WV DOT’s claimed costs.18

The WV DOT itemized its claim via the following invoicing/costs:19

1. $25,093.59 in claimed personnel costs;

2. $4,784.61 in claimed equipment costs;

3. $3,277.43 in claimed material costs;

4. $1,063.02 in claimed third-party costs.

Total claimed costs: $34,218.65

Based on the nature of the claimed costs, they are properly characterized as “Government 

Public Services” damages.20 NPFC analyzed them accordingly as detailed below. 

IV. DETERMINATION PROCESS:

The NPFC utilizes an informal process when adjudicating claims against the Oil Spill 

Liability Trust Fund (OSLTF).21 As a result, 5 U.S.C. § 555 (e) requires the NPFC to provide a 

brief statement explaining its determinations. This determination is issued to satisfy that 

requirement for the Claimant’s claim against the OSLTF.

When adjudicating claims against the OSLTF, the NPFC acts as the finder of fact. In this 

role, the NPFC considers all relevant evidence, including evidence provided by claimants and 

evidence obtained independently by the NPFC, and weighs its probative value when determining 

the facts of the claim.22 The NPFC may rely upon, is not bound by the findings of fact, opinions, 

 15 Email from WV DOT to Counsel for River Marine Enterprises and Western Rivers Assets dated August 2, 2019. 16 Email from RP’s counsel dated August 2, 2019. 17 33 CFR 136.103. 18 Original claim submission received by the NPFC on August 1, 2019. 19 See, Enclosure 3 for a further breakdown of claimed costs. 20 See, 33 CFR 136.237-136.241. 21 33 CFR Part 136. 22 See, e.g., Boquet Oyster House, Inc. v. United States, 74 ERC 2004, 2011 WL 5187292, (E.D. La. 2011), “[T]he 

Fifth Circuit specifically recognized that an agency has discretion to credit one expert's report over another when 

experts express conflicting views.” citing Medina County v. Surface Transp. Bd., 602 F.3d 687, 699 (5th Cir. 2010).
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or conclusions reached by other entities.23 If there is conflicting evidence in the record, the 

NPFC makes a determination as to what evidence is more credible or deserves greater weight, 

and finds facts and makes its determination based on the preponderance of the credible evidence.

V. DISCUSSION:

An RP is liable for all removal costs and damages resulting from either an oil discharge or a 

substantial threat of oil discharge into a navigable water of the United States.24 A responsible 

party’s liability is strict, joint, and several.25 When enacting the OPA, Congress “explicitly 

recognized that the existing federal and states laws provided inadequate cleanup and damage 

remedies, required large taxpayer subsidies for costly cleanup activities and presented substantial 

burdens to victim’s recoveries such as legal defenses, corporate forms, and burdens of proof 

unfairly favoring those responsible for the spills.”26 OPA was intended to cure these deficiencies 

in the law.

OPA provides a mechanism for compensating parties who have incurred increased public 

services costs where the responsible party has failed to do so. Increased public services costs are 

defined as, “[d]amages for net costs of providing increased or additional public services during 

or after removal activities, including protection from fire, safety, or health hazards, caused by a 

discharge of oil, which shall be recoverable by a State, or a political subdivision of a State.”27

The NPFC is authorized to pay claims for public services damages.28 The NPFC has 

promulgated a comprehensive set of regulations governing the presentment, filing, processing, 

settling, and adjudicating such claims.29 The claimant bears the burden of providing all evidence, 

information, and documentation deemed relevant and necessary by the Director of the NPFC, to 

support and properly process the claim.30 OPA and its implementing regulations prescribe the 

conditions of payment, as well as restrictions on the types of costs appropriate for payment. 

Before reimbursement can be authorized for public services costs, the claimant must 

establish:

a) The nature of the specific public services provided and the need for those services; 

b) That the services occurred during or after removal activities; 

c) That the services were provided as a result of a discharge of oil and would not 

otherwise have been provided; and 

d) The net cost for the services and the methods used to compute those costs.31

 23 See, e.g., Use of Reports of Marine Casualty in Claims Process by National Pollution Funds Center, 71 Fed. Reg. 

60553 (October 13, 2006) and Use of Reports of Marine Casualty in Claims Process by National Pollution Funds 

Center 72 Fed. Reg. 17574 (concluding that NPFC may consider marine casualty reports but is not bound by them). 24 33 U.S.C. § 2702(a). 25 See, H.R. Rep. No. 101-653, at 102 (1990), reprinted in 1990 U.S.C.C.A.N. 779, 780. 26 Apex Oil Co., Inc. v United States, 208 F. Supp. 2d 642, 651-52 (E.D. La. 2002)(citing S. Rep. No. 101-94 (1989), 

reprinted in 1990 U.S.C.C.A.N. 722). 27 33 U.S.C. § 2702(2)(f). 28 See generally, 33 U.S.C. § 2712 (a)(4); 33 U.S.C. § 2713; and 33 CFR Part 136. 29 33 CFR Part 136. 30 33 CFR 136.105. 31 33 CFR 136.239.
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The amount of compensation allowable is the net cost of the increased or additional service 

provided by the State or political subdivision.32

The NPFC analyzed each of these factors as applied to the claimant and must deny the claim. 

Initially, this claim was properly presented to the RPs by August 2, 2019, after which the NPFC 

began adjudication of the claim. The NPFC requested additional information from the Claimant 

on several occasions33 to allow it the opportunity to supplement the claim submission.34 The 

claimant did not produce adequate information that its claimed costs were reasonable, required, 

and increased or additional to the costs normally incurred by the claimant.35 Specifically:

1. For all claimed Personnel costs totaling $25,093.59, including straight and 

overtime costs, the NPFC requested an explanation as to how these costs were in 

addition to what each person would normally be paid. No evidence was provided 

to support increased or additional costs for the employees claimed.

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Additionally, the number of hours claimed for each employee, multiplied by the 

rates provided, added up to less than the total amount claimed for each 

employee.37 The Claimant was asked to explain this discrepancy multiple times 

from September, 2019 to November, 2019.38 In response, Claimant stated that all 

personnel costs account for a proportionate share of benefit costs, plus a 10% 

assessment for administrative expenses. The example provided by the claimant 

stated that if an employee had a rate of $24.698 per hour and worked for two 

hours straight time, it would be $49.396; and with the additional benefit and 

related costs that total would be approximately $68.35 (less 10% would be 

approximately $62.00). 39 

In its response, however, the claimant failed to provide evidence that these 

straight and overtime hours are increased or additional costs, above what is 

normally paid to its employees. Additionally, the claimant’s explanation as to 

how the total costs per employee is derived lacks clarity. Likewise, the 

explanation for the “additional benefit” costs and its “10% assessment for 

administrative purposes”, was not supported by any source documents, formula 

for how it is computed nor an explanation for what these benefits consist of. 

Finally, by Claimant’s example above, it deducts the 10% assessment from the 

 

32 33 CFR 136.241. 33 Emails from NPFC to WV DOT dated August 15, 2019, September 27, 2019, October 15, 2019, October 17, 

2019, November 15, 2019, and November 27, 2019.

34 On December 4, 2019, Claimant requested, and ultimately executed, a Tolling Agreement with the NPFC to 

provide more time for the Claimant to submit additional details and support for its claimed costs. By its terms, this 

agreement also extended the deadline for NPFC to provide the determination on this claim to April 22, 2020. 35 During the adjudication of this claim, the NPFC explained that it required additional information on several 

occasions providing the claimant ample notice and opportunity to properly substantiate the costs in its claim 

submission.

36 Email from NPFC to WV DOT dated August 15, 2019 and Email from NPFC to WV DOT dated November 15, 

2019.

37 Breakdown of Itemized Invoice for 18R-026 dated February 28, 2018. 38 Emails from NPFC to WV DOT dated September 27, 2019, October 15, 2019, October 17, 2019 and November 

15, 2019. 

39 Section 4-d of Affidavit of , WV DOT District 2 Comptroller, dated January 14, 2020.
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claimed costs, where for its claimed equipment (analyzed below), it adds the 10% 

assessment costs to the equipment costs. Ultimately,there is no explanation why

the 10% assessment is added in one instance and deducted in the other. For the 

reasons stated above, these personnel costs are denied. 

2. For all claimed equipment and material costs totaling $8,062.04,40 the Claimant 

was asked to provide a rate sheet in support of the claimed rates/costs.41

Additionally, when the individual equipment and material costs submitted were

multiplied by the amounts per item, the totals did not equal the sum presented for 

each cost. The Claimant was asked to explain this discrepancy multiple times 

from September, 2019 to November, 2019.42 In response, the Claimant 

explained that all equipment and material costs have a 10% assessment for 

administrative expenses and provided an example.43 The example provided stated 

that a truck which had an hourly rate of $3.70 multiplied by 19 hours would be 

$70.30 plus the 10% assessment, which totals $77.33. When you add the 10% 

assessment rate to each claimed equipment and material cost, the sum equals the 

total costs claimed. 

The NPFC finds these equipment and material costs must be denied. Claimant 

failed to provide a rate schedule to validate the equipment and material costs 

claimed. Additionally, the material costs claimed have different prices per ton for 

the same type of material. Moreover, the 10% assessment for administrative 

purposes is not supported by supporting evidence. 

3. The $1,063.02 in claimed third-party costs consists of meals and motel rooms for 

three employees for $847.50 and a JABO Supply Corporation invoice for 

$215.52.44 The Claimant provided the applicable per diem rate schedule to 

support its lodging, meals and incidentals.45 The per diem rate schedule supports 

the claimed costs for lodging, meals, and incidentals as claimed.. However, the 

costs submitted on the JABO invoice are illegible.

As such, the NPFC finds the lodging, meals and incidentals costs may be payable 

if the claimant can provide evidence to support the personnel costs claimed as 

stated above. Additionally, a JABO invoice with a legible description of items 

purchased would also be required to compensate that cost. 

VI. CONCLUSION:

 

40 Claimed equipment costs of $4,784.61 and material costs of $3,277.43. 41 Email from NPFC to WV DOT dated September 27, 2019. 42 Emails from NPFC to WV DOT dated September 27, 2019, October 15, 2019, October 17, 2019 and November 

15, 2019. 

43 Section 4-d of Affidavit of , WV DOT District 2 Comptroller, dated January 14, 2020. 44 JABO Supply Corporation invoice with paid receipt dated January 12, 2018. 45 U.S. General Services Administration FY 2018 Per Diem Rates for West Virginia.