4

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 

Kenova, West Virginia.7

 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.8

The ANNA C did not sink, but remained a substantial threat of discharge which required 

response activities to mitigate. 

Responsible Parties

Western Rivers and River Marine are responsible parties and are jointly and severally liable 

under OPA.9 The NPFC issued Notice of Designation letters to each of them.10 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

 In response to the UTV GATE CITY oil spill, the City of Kenova shut down its water intakes 

on the date of the spill, January 10, 2018. Kenova obtained approval to re-open its intakes from 

the WV Department of Environmental Protection and WV Department of Health and Human 

Resources on Saturday evening, January 13, 2018. Claimant states the Kenova Water 

Department got its water system completely back on-line on Monday evening, January 15, 

2018.11 Kenova initially claimed loss of water sales revenue, personnel costs, extra fuel costs and

miscellaneous supply costs.12

II. CLAIMANT AND RPs: 

Absent limited circumstances, the federal regulations implementing the Oil Pollution Act of 

1990 (OPA)13 require all claims for removal costs or damages must be presented to the 

responsible party before seeking compensation from the NPFC.14 The claimant presented its 

claims to Western River Assets, LLC on on December 31, 2018. On January 2, the claimant 

presented its costs to River Marine Enterprises.

15 Neither RP has settled the claim.

 

7 Marine Safety Unit Huntington Administrative Order IMD-001 dated, December 5, 2017. 8 SITREP-Pol One. 9 See, H.R. Rep. No 101-653, at 102 (1990), reprinted in 1990 U.S.C.C.A.N. 779, 780. 10 Notice of Designation letters to Western Rivers Assets dated August 27, 2019, and River Marine Enterprises dated 

August 27, 2019.

11 Email from Claimant to NPFC dated September 3, 2019. 12 Claimant did not identify a specific compensation category under the OPA in its claim submission. The NPFC 

placed a majority of these costs under Public Services, because the majority of the claimed costs fell under this OPA 

damage category. The remaining costs were treated as removal costs. 

13 33 U.S.C. § 2701 et seq. 14 33 CFR 136.103. 15 Taylor and Price PLLC payment demand letters dated December 31, 2018 and January 2, 2019.
5

III. CLAIMANT AND NPFC:

When a 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.16 On August 27, 2019, the claimant submitted its claim to 

the NPFC.for $73,446.26. On October 23, 2019, the claimant submitted a withdrawal of legal 

expenses costs in the amount of $2,000.00 from its claim, reducing its 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 

$31,706.38.17

IV. DETERMINATION PROCESS:

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

Liability Trust Fund (OSLTF).18 As a result, 5 U.S.C. § 555(e) requires the NPFC to provide a 

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

 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.19 The NPFC may rely upon, but is not bound by the findings of fact, 

opinions, or conclusions reached by other entities.20 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 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.21 An RP’s liability 

is strict, joint, and several.22 When enacting 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.”23 OPA was intended to cure these deficiencies in the 

law. 

 

16 33 CFR 136.103. 17 Email from Claimant to NPFC dated October 24, 2019. 18 33 CFR Part 136. 19 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)). 20 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). 21 33 U.S.C. § 2702(a). 22 See, H.R. Rep. No 101-653, at 102 (1990), reprinted in 1990 U.S.C.C.A.N. 779, 780. 23 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).
6

 OPA provides a mechanism for compensating parties who have incurred removal costs or 

damages where the responsible party has failed to do so. Removal Costs include any costs 

incurred by any person for acts taken by the person which are consistent with the National 

Contingency Plan.24 Increased Public Service 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.25

The NPFC is authorized to pay claims for unconpensated removal costs determined to be 

consistent with the National Contingency Plan or uncompensated damages including public 

services costs.26 The NPFC has promulgated a comprehensive set of regulations governing the 

presentment, filing, processing, settling, and adjudicating such claims.27 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.28

With regard to claims for removal and public services, the NPFC must independently 

determine that the proof criteria in OPA and the implementing regulations, at 33 CFR Part 136, 

are met, including the general provisions of 33 CFR 136.105, and the specific requirements for 

removal costs and public services claims in, 33 CFR 136.201 and 33 CFR 136.237, respectively. 

Before reimbursement can be authorized for these types of claims, the claimant must 

demonstrate by a preponderance of the evidence that the proof criteria under 33 CFR 136.203 

and 33 CFR 136.239 have been met.

The NPFC analyzed each of these factors and determined that some of the costs incurred by 

the City of Kenova and submitted herein are compensable costs under OPA, based on the 

supporting documentation provided. The NPFC determined all approved costs were invoiced to 

and paid by the claimant. Additionally, all approved costs were supported by adequate 

documentation that included invoices, daily reports, signed letters and fuel log consumption 

reports.

On October 23, 2019, Claimant withdrew all lost water sales costs totaling $39,739.8829

while providing more details for the remaining claimed costs of $31,706.38. The amount of 

compensable costs is $$6,918.55, while $26,587.83 was deemed not compensable as further 

explained below. 

A. Non-Police Personnel Costs

 

24 33 U.S.C. § 2702(b)(1)(B). 25 33 U.S.C. § 2702(b)(2)(F). 26 33 U.S.C. § 2712(a)(4). 27 33 CFR Part 136. 28 33 CFR 136.105. 29 During the adjudication of this claim, Claimant withdrew its claimed lost water sales costs, totaling $39,739.88, 

apparently because it decided it could not prove a loss of profits as required under 33 CFR 136.233. However, as a 

courtesy, the NPFC notes that, if resubmitted, these costs might be compensable as a loss of government revenue 

under 33 CFR 136.225 and 33 CFR 136.227. 
7

Kenova claimed $22,202.40 in personnel costs to the NPFC. Claimant cited that all personnel 

whose hours were attributed to these costs, are hourly employees.30 Rates of pay, time reports, 

and earnings reports were provided from Kenova’s payroll system. 

Upon review of the supporting documentation provided by the claimant, the NPFC requested 

Kenova explain how these costs differentiated from the usual costs incurred in the course of the 

normal duties of the identified personnel in accordance with the requirements found at 33 CFR 

136.239.31 In response, Kenova explained that the personnel for which Kenova is seeking 

reimbursement were pulled off their regular jobs to perform spill-related work including shutting 

down the Big Sandy River water intakes, monitoring the spill and the intakes by boat, 

communicating with federal, state, and local officials about the spill, communicating with 

customers about the spill, identifying other potential sources of water, coordinating the provision 

of water from various sources, transferring water from other sources into the Kenova system, 

obtaining and distributing bottled water to customers, and traveling to various locations to 

purchase supplies, reopening water intakes, and bringing the Kenova water system back online.32

Despite the claimant’s explanation, the NPFC finds the claimant has not met its burden of 

proof to be compensated for increased public services. There was no evidence provided that 

indicated that employees worked additional hours because of the incident. A claimant who 

merely reassigns its employees from their normal course of duties to incident response without 

increasing their hours or wages, does not meet criteria for compensation under the regulations. 

Therefore, the NPFC denies all non-police personnel costs, totaling $22,202.40. 

B. Kenova Police Costs

Kenova claimed $1,680.00 in increased Police Department costs. Claimant attributed costs to 

the Police Department for providing additional security and other public safety activities. The 

NPFC requested an explanation of how these costs were incurred, and supporting documents 

demonstrating how the costs were reached.

33 

In response to the NPFC requests, Claimant stated that the Kenova Police Chief served on 

behalf of the City of Kenova as the primary point of contact with federal and state officials 

responding to the spill. The Claimant also stated that police department employees helped to 

distribute water in a heavily-trafficked area which included a railroad crossing which raised 

public safety concerns. The claimant also indicated the police department provided security that 

was necessary because of the location of the transfer of water from tankers to its facilities, as 

well as ensuring that vehicular traffic was safety routed in and around the transfer site so that 

trucks and tankers could get in and out quickly.34

In support of their costs, Claimant provided time sheets of all the police department

personnel in support of the hours police personnel worked during the closure of the water plant 

 

30 Letter from Claimant to NPFC dated October 23, 2019. 31 Email from NPFC to Claimant dated September 4, 2019. 32 Letter from Claimant to NPFC dated October 23, 2019. 33 Summary of September 4, 2019 phone conversation between NPFC and Claimant. 34 Letter from Claimant to NPFC dated October 23, 2019. 
8

between January 10, 2018 through January 14, 2018.35 The overtime hours cited on the time 

reports of the five police personnel defined by “State of Emergency”, “Water Detail” or 

“Security-Water Plant,” matched the police personnel hours cited in the original claim, and all 

hours documented fell within the dates of the oil spill incident. Claimant also provided earnings 

reports for the month of January 2018 to support the costs paid to police personnel for their 

services during the hours worked between January 10, 2018 through January 14, 2018.36

Claimant explained how all personnel are hourly employees with the exception of the Police 

Chief, who is a salaried employee. While the earnings reports provide paycheck information for 

each pay period during January 2018, they fail 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. While the NPFC requested validation of 

these costs, the claimants failed to provide it. The NPFC finds that the claimant failed to meet its 

burden of proof in accordance with 33 CFR 136.239 37 As such, all claimed police department 

costs, totaling $1,680.00, are denied.

C. Water Costs

Kenova claimed $1,798.20 in water costs and supported its claim with a receipt dated 

January 15, 2018.38 Kenova stated that its customers were under a boil water advisory during and 

after the incident, and claimed that not all customers maintained water service during the spill..39

These costs constituted the distribution of bottled water directly to its verified customers who 

were affected by the water shutdown. As such, Kenova supports the water costs in this claim and 

the NPFC approves these costs, totaling $1,798.20. 

D. Misc. Supply Costs 

Kenova claimed $595.41 in miscellaneous costs, supported by a written statement claiming 

the need for two kerosene heaters to keep the temporary water pumps, which pumped water into 

the clear well, from freezing. Two heaters were purchased totaling $439.98. Kenova supports its 

heater costs by providing evidence of temperatures well below freezing on January 13, 2018 and 

January 14, 2018. As such, the documentation provided, supports the Claimant’s explanation that 

the heaters were purchased to keep the water pumps from freezing. Therefore, the NPFC finds 

these heater costs compensable in the amount of $439.98. Claimant did not explain nor produce 

supporting documentation for the remaining $155.43 of claimed costs. As such, the NPFC must 

deny this remaining amount. 

E. Fuel Costs

 

35 Letter from Claimant, Exhibit 2 citing Department of Public Safety Time Reports. 36 Letter from Claimant, Exhibit 3 citing City of Kenova Current Earnings Report for January 1, 2018 to January 31, 

2018.

37 Email from NPFC to claimant dated September 4, 2019, and summary of phone conversation on the same date. 38 Original Claim Submission Exhibit C (receipt dated January 15, 2018). 39 Letter from Claimant to NPFC dated October 23, 2019. 
9

Kenova claimed $1,330.37 in fuel costs and, provided a Fuel Log Consumption Report for 

January 10, 2018 through January 15, 201840 and corresponding receipts for kerosene, totaling 

$203.49. Claimant also provided a Gasoline Log which cites 400.80 gallons of gasoline usage 

and 120 gallons of diesel fuel usage.41 Costs for gasoline were submitted as $2.08 per gallon, 

totaling $834.08, and costs for diesel fuel were submitted as $2.44 per gallon, totaling $292.80. 

The totals of gasoline and diesel fuel were cited on the Fuel Log Consumption report as totaling 

$1,126.88. 

In support of these costs, Claimant provided a written statement stating all kerosene fuel 

costs totaling $203.49 were used to maintain kerosene heaters where water would otherwise 

freeze during the process of transferring water to the clear well. Additionally, the claimant 

submitted an affidavit that stated that all diesel and gasoline costs totaling $1,126.88 were 

directly related to activities in support of response and recovery activities directly related to the 

incident between January 10, 2018 and January 15, 2018.42 As such, the NPFC approves the 

kerosene, gasoline and diesel fuel costs, totaling $1,330.37. 

F. Legal Costs 

Clamaints original submission claimed $6,100.00 in legal costs supported by an invoice from 

the law firm of Bellomy, Turner & Bartram, L.C.43 On October 23, 2019, the Claimant withdrew

legal expenses in the amount of $2,000.00, lowering their claimed legal expenses from $6,100.00 

to $4,100.00.44 The NPFC requested documention to support what activities counsel performed

in support of the oil spill incident. In response, Kenova submitted a letter from the law firm

identifying daily legal services provided to the claimant relating to the incident and documenting 

a total of 19.6 hours of legal services at $250.00 per hour, for a total of $4,900.00.45 The

Claimant explained that the claimed legal services were for research of specific laws, regulations 

and statutes; research into governmental agency notification requirements; preparation for 

meetings; meetings and conferences regarding the incident; site visits of the water plant; 

discussions with water department employees and review of invoices whose purchases are 

related to the spill.46

Claimant did not provide an explanation as to why the costs totaling $4,100.00 do not match 

the $4,900.00 noted in its revised claim amount. Upon review of the descriptions cited in the 

letter signed by , the NPFC finds these costs compensable, with the exception of the 

6.2 hours claimed on January 11, 2018 which 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.” 

 

40 Original Claim Submission Exhibit C citing Fuel Log Consumption Report dated January 10, 2018 through 

January 15, 2018.

41 Original Claim Submission Exhibit C citing City of Kenova Gasoline Log. 42 Letter from Claimant to NPFC dated October 23, 2019 which specifically details how the fuel was used. 43 Original Claim Submission Exhibit C citing Invoice #9849 dated July 12, 2018. 44 Letter from Claimant to NPFC dated October 23, 2019. 45 Letter from Bellomy, Turner & Bartram, L.C. to claimant dated October 2, 2019. 46 Id.