3

removal cost claim to the National Pollution Funds Center (NPFC) for $1,883.55 on April 8, 

2022.

In order for a claim to be compensable, inter alia, the removal actions taken by the claimant 

must be directed by the Federal On-Scene Coordinator (FOSC) or determined by the FOSC to be 

consistent with the National Contingency Plan (NCP).10 Based on the location of this incident, 

the FOSC for this incident is the United States Environmental Protection Agency (USEPA).11

There is no evidence in the administrative record that the FOSC was notified of this incident, 

and as such, it did not direct any actions. The NPFC contacted the FOSC to ascertain whether or 

not it considered the claimant’s actions taken to be consistent with the NCP.12 Based on the 

NPFC’s request, the FOSC determined that the incident posed a substantial threat to a navigable 

waterway with an emphasis on the fact that had the actions performed by the Plano Fire 

Department not been taken, a discharge could have occurred while equally acknowledging the 

claimant mobilized, evaluated the incident and demobilized once the threat was mitigated. 

The FOSC acknowledged the actions taken by the claimant were to mobilize to the scene as 

instructed by the NTTA, evaluate the incident scene, respond as needed, and then demobilize 

from the scene once the threat was mitigated. Based on the FOSC’s (1) determination that the 

spill incident posed a substantial threat of discharge to a navigable waterway; (2) confirmation 

statement that the product leaking from the vehicle was oil; (3) determination that the Plano Fire 

Department responded to the incident, secured the source, deployed boom and removed the 

boom upon completion of response; and (4) acknowledgment of the claimant’s presence on 

scene performing mobilization, evaluation, and demobilization once the threat was mitigated and 

then removed, the NPFC is of the belief that this incident has been coordinated with the FOSC 

based on the preponderance of the credible evidence.13 

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

the applicable law and regulations, and after careful consideration has determined that $1,883.55 

is compensable and offers this amount as full and final compensation of the claim.

I. INCIDENT, RESPONSIBLE PARTY AND RECOVERY OPERATIONS:

Incident

On November 20, 2021, the RP, Ms. was traveling westbound in lane #4 on 

the President George Bush Turnpike (PGBT) in Plano, Texas when she received a text message 

on her phone. While she was using her cell phone, she failed to maintain control of her vehicle, 

traveled left on the roadway and drove into the center median and traveled past a barrier wall 

 

10 33 CFR 136.205.

11 See generally, 40 CFR 300.120(a)(2). 

12 See, email from NPFC to FOSC dated June 21, 2022 requesting After-The-Fact FOSC coordination for the 

claimant’s response actions.

13 See, Agreement for Environmental Emergency Response Clean-Up and Hazardous Waste Disposal between North 

Texas Tollway Authority (NTTA) and Lone Star Hazmat Response LLC dated November 2, 2020.

(b) (6) (b) (6)
4

into the space between the westbound and eastbound lanes of the PGBT. The vehicle then 

vaulted off a concrete embankment in a creek that runs underneath the PGBT.14

Responsible Party

In accordance with the Oil Pollution Act of 1990, Ms. , operator the 

vehicle, and Ms. 5, owner of the vehicle, were identified as the responsible 

parties (“Responsible Parties” or “RPs”).16

Recovery Operations

On November 20, 2021, Lone Star arrived on scene and found a 1⁄2 ton GMC Sierra truck 

involved in an accident that had gone off the roadway into a ditch. Prior to Lone Star’s arrival 

on scene, the Plano Fire Department was on scene and had placed boom in the water to prevent 

further migration. The Plano Fire Department also stated that they would take care of removing 

the boom within 24 hours.17 A local wrecker then removed the vehicle from the site; the 

waterway and roadway were then inspected to ensure there was no remaining fluids. Lone Star 

personnel were cleared to depart the scene by NTTA after final inspection of the affected area 

was completed.18 Lone Star’s mobilization, evaluation, and subsequent demobilization were 

performed in accordance with the NTTA environmental service contract that was in effect at the 

time NTTA activated Lone Star. 

II. CLAIMANT AND RP:

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

1990 (OPA)19 require all claims for removal costs or damages must be presented to the 

responsible party before seeking compensation from the NPFC.20 

III. CLAIMANT AND NPFC:

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

may elect to present its claim to the NPFC.21 The Claimant presented its costs to the RP via 

certified mail.

22 The NPFC received a claim for uncompensated removal costs from Lone Star 

dated April 7, 2022 in the amount of $1,883.55.

23

IV. DETERMINATION PROCESS:

 

14 Texas Peace Officer’s Crash Report dated November 20, 2021.

15 The owner of the vehicle is listed as in the Crash Report. 

16 Crash Report.

17 Lone Star Response Summary dated December 8, 2021.

18 Lone Star Response Summary dated December 8, 2021.

19 33 U.S.C. § 2701 et seq.

20 33 CFR 136.103(c)(1).

21 33 CFR 136.103.

22 USPS delivery tracking receipt from Lone Star dated February 2, 2022, that shows delivery to the RP’s residential 

address and signed by 

23 Lone Star claim submission dated April 7, 2022.

(b) (6) (b) (6) (b) (6) (b) (6)
5

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

Liability Trust Fund (OSLTF).24 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.25 The NPFC may rely upon, is not bound by the findings of fact, opinions, 

or conclusions reached by other entities.26 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.27 An RP’s liability 

is strict, joint, and several.28 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.”29 OPA was intended to cure these deficiencies in the 

law. 

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

incident.”30 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.”31

 

24 33 CFR Part 136.

25 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)).

26 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).

27 33 U.S.C. § 2702(a).

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

29 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).

30 33 U.S.C. § 2701(31).

31 33 U.S.C. § 2701(30).
6

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

with the National Contingency Plan (NCP).32 The NPFC has promulgated a comprehensive set of 

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

claims.33 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.34

 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.

(d) That the removal costs were uncompensated and reasonable.35

Based on the location of this incident, the FOSC for this incident is the United States 

Environmental Protection Agency (USEPA).36 There is no evidence in the administrative record 

that the FOSC was notified of this incident, and as such, it did not direct any actions. The NPFC 

contacted the FOSC to ascertain whether or not it considered the actions taken to be consistent 

with the NCP. The FOSC’s evaluation of the incident determined that the vehicle ended up in or 

near the creek and that there was in fact a potential for the release of oil to the stream which 

could ultimately reach the Trinity River through Lake Ray Hubbard, a navigable waterway of the 

United States.37 The FOSC made an after-the-fact FOSC determination that the incident posed a 

substantial threat of discharge to a navigable waterway while simultaneously acknowledging the 

presence of both Lone Star and the Plano Fire Department.38 

Based on the overall available evidence in the record, the NPFC considers this claim to have 

been coordinated with the FOSC and determined to be consistent with the National Contingency 

Plan (NCP) on the basis that (1) the FOSC determined there was a substantial threat of discharge 

of oil to a navigable waterway of the United States; (2) the FOSC acknowledged Lone Star’s 

mobilization to the scene, evaluation of the incident and response, demobilization from the scene 

once the threat was removed;39 and (3) in accordance with Lone Star’s contract with NTTA, 

Lone Star invoiced at the current rate sheet pricing and fulfilled the terms of the service 

 

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

33 33 CFR Part 136.

34 33 CFR 136.105.

35 33 CFR 136.203; 33 CFR 136.205.

36 See generally, 40 CFR 300.120(a)(2). 

37 See, email from the FOSC to NPFC dated July 18, 2022 describing nexus of threat to the waterway and 

acknowledging actions taken by both the claimant and the Plano Fire Department.

38 Id.

39 See, Agreement for Environmental Emergency Response Clean-Up and Hazardous Waste Disposal between North 

Texas Tollway Authority (NTTA) and Lone Star Hazmat Response LLC dated November 2, 2020. NTTA activated 

Lone Star to respond to the incident and in accordance with its response contract terms, Lone Star responded 

immediately, coordinated with both NTTA and the Plano Fire Department personnel. Lone Star provided oversight 

of the response until the vehicle was removed from the ditch area below the PGBT.