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CLAIM SUMMARY / DETERMINATION 

Claim Numbers: N18023-0005 and N18023-0006 

Claimant: City of Kenova 

Type of Claimant: Local Government 

Type of Claims: Public Services 

Claim Manager: 

Amount Requested: $135,412.03 (N18023-0005) and $15,535.44 (N18023-0006) 

Action Taken: Offer in the Amount of $149,867.45 

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 (“Kenova” or “Claimant”) 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 and purchased its water service in bulk, 

increasing its costs to maintain these public services as a result. The NPFC has thoroughly 

reviewed all documentation submitted with the claims, analyzed the applicable law and 

regulations, and after careful consideration, has determined that $149,867.45 of the requested 

$150,947.454

 is compensable and offers this amount as full and final compensation of these 

claims.5

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 

Kenova, West Virginia.6

 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 

 

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 Original claim submissions (N18023-0005 for $135,412.03 and N18023-0006 for $15,535.44) received by the 

NPFC on February 13, 2019. The claimant later amended its sum certain for claim N18023-0005 to $135,412.01 via 

email dated May 28, 2019.

5 33 CFR 136.115.

6 Marine Safety Unit Huntington Administrative Order IMD-001 dated December 5, 2017. 
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the Order, the GATE CITY sank at its mooring and discharged oil into the Big Sandy River.7 

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

Public Services Damages 

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

January 10 through January 15, 2018.11 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.12

To ensure its commercial and residential customers maintained water service, the City of 

Kenova outsourced and purchased water in bulk from the City of Ashland, KY (via water line), 

the City of Lavalette, WV (through a bypass), and West Virginia American Water (via Ace 

Services trucks)

13 to keep the clear well14 at the plant full.15 

II. CLAIMANT AND RP:

 

7 SITREP-POL One. 8 See, H.R. Rep. No 101-653, at 102 (1990), reprinted in 1990 U.S.C.C.A.N. 779, 780. 9 Notice of Designation letters to Western Rivers Assets dated January 17, 2018, River Marine Enterprises dated 

August 3, 2018, and Gate City Transportation dated August 3, 2018. 

10 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. 11 Kenova Volunteer Fire Department Spill Report dated January 29, 2018. 12 Claim Explanation Letter dated March 29, 2019. 13 The West Virginia American Water Invoice makes up the entirety of NPFC Claim # N18023-0006. 14 A clear well is a component of a municipal drinking water purification system. It refers to the final storage stage 

in the system, following the filtration and disinfection stages. 15 Claim Explanation Letter dated March 29, 2019.
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Absent limited circumstances, the Federal Regulations implementing the OPA16 require all 

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

from the NPFC.17

The claimant initially presented its claims to Western River Assets, LLC on February 15, 

2018 and February 21, 2018.18 However, at the time it submitted its claim to the NPFC, Kenova

had yet to present to River Marine Enterprises. On January 2, 2019, the claimant presented its 

costs to River Marine Enterprises.19 After the regulatory ninety-day waiting period had elapsed, 

the NPFC began adjudicating the claim which included personnel, equipment, and materials in 

the amount of $150,947.47.

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.20 The initial claims to the NPFC came in without 

confirmation that the claimed costs were presented to River Marine Enterprises. As a result, the 

NPFC notified the claimant that it could not adjudicate the claims until proper presentment was 

made to each of the RPs. Claimant’s counsel confirmed River Marine Enterprises received the 

claimed costs on January 2, 201921 and as of April 2, 2019, had not settled the claim. At that 

point the NPFC determined that claims were properly presented to each of the RPs, and the it 

began adjudicating Kenova’s claimed costs.

22

The claims were received by the NPFC as two distinct set of costs presented to the RP. 

After further review of the claims, it became apparent that these costs are for the same type of 

OPA damage (Public Services) and, therefore, the NPFC has combined both costs into one 

determination herein.

23

The City of Kenova broke down its claims via the following invoicing/municipal costs:24

1. City of Ashland: The City of Ashland provides water to a neighboring service 

area. The cities of Ashland and Kenova maintain a water line that connects the 

two water systems in case of a water emergency. The costs are the result of the 

City of Ashland invoicing the City of Kenova for water Kenova purchased from 

Ashland. 

 16 33 U.S.C. § 2701 et seq. 17 33 CFR 136.103. 18 Cover Letters dated February 15, 2108 for $135,412.03 and February 21, 2018 for $15,535.44. 19 Letter to River Marine Enterprises dated December 31, 2018. 20 33 CFR 136.103. 21 Email from claimant’s counsel dated June 11, 2019 with attached signed certified mail receipt card. 22 Original claim submissions (N18023-0005 for $135,412.03 and N18023-0006 for $15,535.44) received by the 

NPFC on February 13, 2019. The claimant later amended its sum certain for claim N18023-0005 to $135,412.01 via 

email dated May 28, 2019.

23 33 CFR 136.109(a). 24 See the Summary of Costs spreadsheet as an enclosure to this determination for a further breakdown of claimed 

costs. In addition, the city included an invoice for bottled water it purchased for its firefighters who responded to the 

incident. Although this is not a public services damage, it can be compensable under OPA as a removal or response. 

In the interest of efficiency, the NPFC adjudicated this cost in this determination and found it to be compensable. 
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2. Kenova Volunteer Fire Department (VFD) (to include Ceredo, Prichard and 

England Hill VFDs): Services/Assistance provided to the Kenova Water Plant 

from January 11th through January 14th, 2018. These VFDs provided engines to

transfer water, including pumping water from tanker trucks with potable water 

that could go straight into the water system for use.

The City of Kenova also requested the VFDs assist with water sampling on the 

river, around the intakes and also to document through photographs anything that 

might be a contaminate that would affect the water intake at the water plant. 

3. Ace Services: The City hired Ace Services to haul water to the city water plant.

4. Perfection Rubber & Supply Company: The City purchased fittings and related 

items needed to hook up pumps to offload water from tanker trucks into the 

Kenova water plant’s clear well, which would not been necessary but for the spill. 

5. Service Pump and Supply: The pump was rented for the purpose of offloading 

water from tanker trucks into the city’s clear well, which would not have been 

necessary but for the spill.

6. CI Thornburg, Inc: The invoices were for carbon, a tank, a mixer, a pump, and 

related supplies used to pump carbon into the water system after the spill. They 

also included covered fittings purchased to hook up additional pumps to offload 

water into the clear well. The city was required to do this to satisfy West Virginia 

Division of Health requirements before the water plant could be brought back on 

line.

7. Lavalette Public Service District: During the incident, the Lavalette Public 

Service District provided water and related services to the City of Kenova. It did 

this by putting in a bypass pump from their system to Kenova’s system to help 

pump water to Kenova’s customers in areas near them.

8. WV American Water Company: West Virginia American Water provided water 

for the City. They hired Ace Services tanker trucks to haul the water to the City’s 

clear well so that water services could be maintained.

IV. DETERMINATION PROCESS:

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

Liability Trust Fund (OSLTF).25 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 

 25 33 CFR Part 136.
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the facts of the claim.26 The NPFC may rely upon, is not bound by the findings of fact, opinions, 

or conclusions reached by other entities.27 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.28 A responsible 

party’s liability is strict, joint, and several.29 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.”30 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.”31

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

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 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; 

 26 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). 27 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). 28 33 U.S.C. § 2702(a). 29 See, H.R. Rep. No. 101-653, at 102 (1990), reprinted in 1990 U.S.C.C.A.N. 779, 780. 30 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). 31 33 U.S.C. § 2702(2)(f). 32 See generally, 33 U.S.C. § 2712 (a)(4); 33 U.S.C. § 2713; and 33 CFR Part 136. 33 33 CFR Part 136. 34 33 CFR 136.105.
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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.35

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

the City of Kenova and submitted herein are compensable additional public services costs 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, affidavits, signed statements, rate schedules, 

salaries, proofs of payment, and FOSC statements.

 The amount of compensable costs for claim N18023-0005 is $134,332.01, while $1,080.00

was deemed not compensable for the following reasons:

1. Kenova Volunteer Fire Department Invoice dated January 13, 2018 – The NPFC 

denied a total of $705.00 as follows:

The Kenova Volunteer Fire Department invoiced five sections of 2.5” x 50’

hose and one section of 3” x 50’ hose that were claimed to be damaged beyond 

use. Each hose was invoiced at $235.00 for a total cost of $1,410.00. However,

initially, the city did notdepreciate the value of used hoses.Upon inquiry, the 

Kenova Volunteer Fire Department provided a signed statement which 

estimated the value of each of the claimed fire hoses (pre-spill) to be $117.50. 

Therefore, the NPFC approved the pre-spill value of the hoses; which results in 

a denial of $117.50 per hose ($235.00 - $117.50 = $117.50). Therefore, the 

NPFC denies $705.00 in claimed hose costs. (See the attached Summary of 

Costs spreadsheet).

2. Lavalette Public Service District Invoice 48458 dated 1/19/18 – The NPFC denied a 

total of $375.00 (the full cost of the invoice) as follows:

The Lavalette Public Service District invoiced one section of 1.75” x 50’ hose 

and two sections of 2.5” x 50’ hose that was claimed to be damaged beyond use 

for a total cost of $375.00. However, Lavalette did not depreciate the value of 

the used hose. Upon inquiry, the Lavalette Public Service District, provided a 

signed affidavit which stated that it was unknown when the fire hoses were 

purchased or what their useful life might be. As such, no pre-spill value was 

provided. Therefore, the NPFC denies this $375.00 invoice in full. (See the 

attached Summary of Costs spreadsheet).

The NPFC approves all of the $15,535.44 costs for claim N18023-0006. 

Overall denied costs: $1,080.00

VII. CONCLUSION:

 35 33 CFR 136.239.
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Based on a comprehensive review of the record, the applicable law and regulations, and for 

the reasons outlined above, Kenova’s request for additional public services is approved in the 

amount of $149,867.45.

 This determination is a settlement offer;

36 the claimant has 60 days in which to accept this 

offer. Failure to do so automatically voids the offer.37 The NPFC reserves the right to revoke a 

settlement offer at any time prior to acceptance.38 Moreover, this settlement offer is based upon 

the unique facts giving rise to this claim and is not precedential.

 

Claim Supervisor:

 

Date of Supervisor’s review: 9/20/2019

Supervisor Action: Offer Approved

 

 

36 Payment in full, or acceptance by the claimant of an offer of settlement by the Fund, is final and conclusive for all 

purposes and, upon payment, constitutes a release of the Fund for the claim. In addition, acceptance of any 

compensation from the Fund precludes the claimant from filing any subsequent action against any person to recover 

costs or damages which are the subject of the uncompensated claim. Acceptance of any compensation also 

constitutes an agreement by the claimant to assign to the Fund any rights, claims, and causes of action the claimant 

has against any person for the costs and damages which are the subject of the compensated claims and to cooperate 

reasonably with the Fund in any claim or action by the Fund against any person to recover the amounts paid by the 

Fund. The cooperation shall include, but is not limited to, immediately reimbursing the Fund for any compensation 

received from any other source for the same costs and damages and providing any documentation, evidence, 

testimony, and other support, as may be necessary for the Fund to recover from any person. 33 CFR § 136.115(a).

37 33 CFR § 136.115(b). 38 33 CFR § 136.115(b).