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CLAIM SUMMARY / DETERMINATION 

Claim Number: S18010-0004

Claimant: Oregon Department Of Environmental Quality

Type of Claimant: STATE

Type of Claim: Removal Costs

Claim Manager: 

Amount Requested: $13,652.36

FACTS: 

A. Oil Spill Incident: At 1400 on January 18, 2018, the Oregon Department of 

Environmental Quality (DEQ) “received a report of a sheen originating under a pier next 

to the Cannery Pier Hotel.”1 The Cannery Pier Hotel is located along the Columbia 

River, a navigable waterway of the United States, in Astoria, Oregon. US Coast Guard 

Sector Columbia responded to the oil spill site, reporting a “sheen on the Columbia River 

was a half mile long and lighter bands were observed for 2 to 3 miles downstream.”2 

Oregon DEQ responded as the environmental unit lead and coordinated with NOAA 

(SSC), Washington Department of Ecology, the City of Astoria, and Port of Astoria.

B. Description of removal actions performed: On January 20, 2018, Oregon DEQ 

responded to the oil spill site and found that a tank beneath the pier located at the 

Cannery Hotel was the most likely source of the discharge and determined that no 

drinking water intakes were impacted. DEQ personnel then monitored the deployment of 

surface washing agents as well as other cleanup techniques, reviewed and approved a 

draft salvage plan for the removal of the damaged tank including the deconstruction of 

the pier, provided review for permitting for pier deconstruction, and provided shoreline 

and wildlife assessments/observations for further cleanup operations.3

CLAIM AND CLAIMANTS:

This Claim for uncompensated removal costs was presented to the National Pollution

Funds Center (NPFC) on August 2, 2018, by Mr. of Oregon DEQ 

(Claimant). The Claimant is specifically seeking uncompensated removal costs in the 

amount of $13,652.36, asserting that Cannery Pier Hotel failed to pay them for their 

removal costs. 

Specifically, Oregon DEQ billed the responsible party (RP), Cannery Pier Hotel LLC 

(Cannery Pier Hotel), for the costs associated with its removal actions, totaling 

$13,652.36. The costs include $8,621.69 in Land Quality Indirect Costs, $4,185.29 in 

Personal Services, and $845.38 in Agency Indirect Costs. Cannery Pier Hotel responded 

to Oregon DEQ through its attorney, , Esq. (Mr. ) of Schwabe 

Williamson & Wyatt via a letter dated March 6, 2018. On behalf of Cannery Pier Hotel, 

Mr. r stated, “Cannery Pier Hotel does not have the resources to pay for all the 

 

1 See, Oregon DEQ Incident Status Summary dated January 18, 2018.

2 See, Oregon DEQ Pollution / Situation Report January 18, 2018. 

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Id.

(b) (6)
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claims and costs incurred related to the oil spill. It has sought assistance from the Oil 

Spill Liability Trust Fund regarding immediate payment on claims and costs related to 

the oil spill.”4 

The NPFC sent an RP Notification Letter, dated August 3, 2018, to Cannery Pier Hotel.5 

To date, no communication has been received by the NPFC as of the writing of this 

Determination Package. 

As evidence for its claim, the Claimant submitted numerous documents associated with 

its response to the oil spill incident. The documents include: DEQ Invoice # HSRAF18-

3662 dated July 19, 2018; Optional OSLTF Claim Form dated July 23, 2018; DEQ 

Pollution / Situation Report dated January 18, 2018; State of Oregon Resources At Risk 

Summary dated January 19, 2018; DEQ Detailed Incident Reports dated January 18, 

2018, through January 24, 2018; USCG National Response Center (NRC) Report # 

1202688 dated January 18, 2018; ICS Incident Briefing dated January 19, 2018; Oregon 

Emergency Response System (OERS) report dated January 18, 2018; DEQ Time 

Reporting Daily Logs for January 18, 2018, through February 1, 2018; DEQ Cost 

Recovery Accounting Schedule Invoice for Project # S23400-00, totaling $13,652.36; 

Letter from Schwalbe Williamson & Hyatt to DEQ dated March 6, 2018; and DEQ OSC 

Unit Log dated January 18, 2018, through January 31, 2018.

Additional Information: The NPFC identified deficiencies with the claim and 

requested the following information by email dated August 8, 2018: salary information 

for all personnel, including hourly rates and associated job descriptions; pre-enforcement 

documentation and a description of all enforcement efforts; a description of costs 

associated with public information and how they relate to the removal of oil; a detailed 

breakdown of all indirect costs and the indirect rate calculation.

By email dated August 23, 2018, the claimant submitted numerous documents in 

response to the NPFC’s request for additional information. The documents include: 

undated Microsoft Word document including typed responses to additional information 

request; DEQ Waste Management and Cleanup Program Indirect Cost Rate Methodology 

dated March 16, 2001; several documents including FY10 & 11 Land Quality Indirect 

Cost Rates; undated document titled Invoicing for Cleanup Costs; DEQ Pre-Enforcement 

Notice to Cannery Pier Hotel dated May 21, 2018. 

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).

 

4 See, letter from Esq. to Department of Environmental Quality dated March 6, 2018. 

5 See, RP notification letter dated August 3, 2018.

(b) (6)
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"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]. 

33 U.S.C. §2713(d) provides that “If a claim is presented in accordance with this section, 

including a claim for interim, short-term damages representing less than the full amount 

of damages to which the claimant ultimately may be entitled, and full and adequate 

compensation is unavailable, a claim for the uncompensated damages and removal costs 

may be presented to the Fund.” 

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 
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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. Findings of Fact:

1. MST3 , as the USCG Sector Columbia Federal On-Scene Coordinator 

(FOSC) for this incident, oversaw the removal actions and determined that the actions 

undertaken by Oregon DEQ were consistent with the National Contingency Plan 

(NCP). 33 U.S.C. § 2702(b)(1)(B) and 2712 (a)(4);

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 within the six year statute of limitations. 33 U.S.C. § 

2712(h)(1);

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

with the claim and determined which of 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. NPFC 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. 

With respect to the $8,621.69 in LQD Indirect Costs and $845.38 in Agency Indirect 

Costs, the NPFC notes that typically, the “indirect costs” are based on a percentage 

calculation, as determined by the Department of Commerce or an independent agency in 

some cases, to cover general administrative and overhead expenses for agencies. It is 

important to note that indirect rate calculations based on a percentage are typically 

affilialiated with the old OMB Circular A-87 that has since become 2 CFR 225. That 

program is for agencies that are under contract with the government or affiliated with a 

grant program. With that being said, claimants to the Fund are not under contract with 

the NPFC nor is our program a grant program; therefore, calculating indirect expenses 

based on percentage calculations is not, in and of itself, OPA compensable.

In this claim, the claimant failed to break down its actual agency expenses in order to 

establish the actual indirect amount; therefore, substantiation of indirect cost has not been 

provided nor is it supported by the record using actual expenses, rent, utlity bills, payroll, 
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etc. and is, therefore, denied as unsubstantiated. The NPFC denies the $8,621.69 in LQD 

Indirect Costs and $845.38 in Agency Indirect Costs, for a total of $9,467.07.

With regard to the $4,185.29 in Personal Services, the NPFC has confirmed that the rates 

charged by the Claimant are in accordance with the published rates at the time services 

were rendered and the work performed was for the response to the oil spill incident.

Based on the Federal On-Scene Coordinator’s (FOSC’s) direction and oversight, the 

response has been determined to be reasonable, necessary and performed in accordance 

with the NCP and as such, the state’s personnel costs are likewise approved.

The NPFC hereby determines that the OSLTF will pay $4,185.29 as full compensation 

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

under claim # N15019-0001. 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 Claimant.

AMOUNT: $4,185.29

Claim Supervisor: 

Date of Supervisor’s review: 9/19/18

Supervisor Action: Approved

Supervisor’s Comments: