4

 Lewis Environmental presented costs to Universal Machine Co. for $35,427.29 on January 7, 

2019, and Universal paid the costs totaling $35,427.29, on January 9, 2019.20 Lewis presented its 

additional costs totaling $67,174.04 on January 8, 2019, January 15, 2019 and January 16, 

2019.21 Universal refuses to pay any further costs as Universal feels they are being wrongfully 

cited as the RP by Lewis.22

 Lewis Environmental presented an authorization contract with their claim submission, signed 

by Lewis Environmental’s Vice President and Universal’s owner,23 which they believe cites 

Universal as the RP. Although this document reflects a contractual business agreement between 

the two parties, it does not identify a responsible party (RP) for the spill as defined by the Oil 

Pollution Act of 1990.24 As of today, Universal is not identified by the FOSCR as the definitive 

RP.25

III. CLAIMANT AND NPFC:

 When a RP has not settled a claim after 90 days of receipt, a claimant may elect to present its 

claim to the NPFC.26 On May 14, 2019, the NPFC received a claim for uncompensated removal 

costs from Lewis Environmental dated May 3, 2019. The costs presented to the NPFC are in the 

amount of $67,174.04. The claim to the NPFC consists of labor, equipment, materials, personal 

protective equipment and fuel surcharges. Specifically, the claim contains $35,917.28 for Invoice 

46422, $8,609.76 for Invoice 46444 and $22,647.00 for Invoice 46470; totaling $67,174.04.27 

 The items cited on the daily work reports matched the costs submitted. Lewis Environmental 

stated that additional costs had been paid by Universal. However, verification of the payment 

provided by Universal, and costs associated with the payment were not provided with the 

original submission. In support of their claim, Lewis Environmental provided proof of payment 

from Universal in the amount of $35,427.29,28 and additional labor, equipment, materials, 

personal protective equipment and fuel surcharges in the amount of $35,427.29 for Invoice 

46385.29 The Claimant has chosen not to present the additional $35,427.29 found on Invoice 

46385 as these costs are paid and as such, are not OPA compensable. 

 Furthermore, the NPFC requested copies of any federal agency or private entity test results 

associated with samples collected from the scene of the oil spill incident, including but not 

limited to the results of samples collected by Lewis Environmental, Inc., as well as a copy of any 

tests and/or probes of the UST's owned by Universal Machine, Co. that are cited in the orginial 

claim submission as the source of the spill. Lewis Environmental responded with the soil sample 

 

20 Universal Machine Co. of Pottstown Check #4886, dated January 9, 2019. 

21 Lewis Environmental, Inc. claim submission received May 14, 2019. 

22 Phone Conversation between Attorney , Universal’s Legal Represenative, and Claims Manager 

, NPFC, dated May 21, 2019. 

23 Lewis Customer Work Authorization Agreement signed January 4, 2019. 

24 33 U.S.C. § 2701(32). 

25 Phone Conversation between FOSCR , EPA, and Claims Manager , NPFC, dated 

May 21, 2019. 

26 33 CFR 136.103. 

27 Lewis Environmental, Inc. claim submission received May 14, 2019. 

28 Universal Machine Co. of Pottstown Check #4886, dated January 9, 2019. 

29 Invoice 46385 dated January 8, 2019. 
5

testing results of soils surrounding Dresher Creek and lab results correspondent with the 

substance being leaked into Dresher Creek,30 but was unable to provide the NPFC with any tests 

or probes of the UST’s owned by Universal.31

IV. DETERMINATION PROCESS: 

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

Liability Trust Fund (OSLTF).32 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.33 The NPFC may rely upon, is not bound by the findings of fact, opinions, 

or conclusions reached by other entities.34 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: 

A responsible party 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.35 A 

responsible party’s liability is strict, joint, and several.36 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.”37 OPA was intended to cure these 

deficiencies in the law. 

 OPA provides a mechanism for compensating parties who have incurred removal cost where 

the responsible party has failed to do so. 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 

 

30 Aquaterra Soil Sample Location report dated January 9, 2019, and Pace Analytical National Center for Testing & 

Innovation report dated January 11, 2019. 

31 Email from Vice President , Lewis Environmental, to Claims Manager , NPFC, 

dated May 22, 2019. 

32 33 CFR Part 136. 

33 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). 

34 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). 

35 33 U.S.C. § 2702(a). 

36 See, H.R. Rep. No. 101-653, at 102 (1990), reprinted in 1990 U.S.C.C.A.N. 779, 780. 

37 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

from an incident.”38 The term “remove” or “removal” means “containment and removal of oil 

[...] from water and shorelines or the taking of other actions as may be necessary to minimize or 

mitigate damage to the public health or welfare, including, but not limited to fish, shellfish, 

wildlife, and public and private property, shorelines, and beaches.”39

The NPFC is authorized to pay claims for uncompensated removal costs that are consistent 

with the National Contingency Plan.40 The NPFC has promulgated a comprehensive set of 

regulations governing the presentment, filing, processing, settling, and adjudicating such 

claims.41 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.42 

Before reimbursement can be authorized for uncompensated removal costs, the claimant 

must demonstrate by a preponderance of the evidence: 

(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 directed by the FOSC or determined by the FOSC to be 

consistent with the National Contingency Plan.43 

(d) That the removal costs were uncompensated and reasonable.44 

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

by Lewis Environmental, Inc. and submitted to the NPFC are compensable removal costs based 

on the supporting documentation provided. The NPFC determined that the OPA compensable 

approved costs invoiced were billed in accordance with the contracted rates between the parties, 

including all third party services. All costs approved for payment were verified as being 

invoiced at the appropriate rate sheet pricing, including but not limited to, all third party 

expenses.45 All approved costs are supported by adequate documentation which included 

invoices and proofs of payment. 

 The amount of compensable costs is $66,860.29 while $313.75 is deemed non OPA 

compensable for the following reasons: 46

1. The costs related to Lewis Environmental’s Project Manager, , for Monday, 

1/14/2019 and Monday, 1/7/2019 are denied because the start and finish times specified 

 

38 33 U.S.C. § 2701(31). 

39 33 U.S.C. § 2701(30). 

40 See generally, 33 U.S.C. § 2712 (a)(4); 33 U.S.C. § 2713; and 33 CFR Part 136. 

41 33 CFR Part 136. 

42 33 CFR 136.105. 

43 The FOSC was not assigned to this incident until after Lewis Environmental’s cleanup was completed. To ensure 

that Lewis Environmental met its burden with respect to this factor, the NPFC coordinated with the regional office 

of the U.S. Environmental Protection Agency which serves as FOSC for this incident, and would have been the 

FOSC for the dates Lewis Environmental responded if one were assigned. After analyzing the spill and the actions 

taken by Lewis Environmental, the EPA opined that the actions taken were consistent with the National 

Contingency Plan. We Agree. 

44 33 CFR 136.203; 33 CFR 136.205. 

45 Lewis Environmental, Inc. Rate Schedule revised January 2019. 

46 Enclosure 3 to this determination provides a detailed analysis of these costs.