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CLAIM SUMMARY / DETERMINATION FORM

Claim Number : 915009-0001 

Claimant : State of Washington Department of Ecology 

Type of Claimant : State

Type of Claim : Removal Costs

Claim Manager : 

Amount Requested: $95,823.92 

THE CLAIMANT AND THE CLAIM:

On October 23, 2014, the State of Washington Department of Ecology (WA DOE or Claimant) 

presented a claim to the Oil Spill Liability Trust Fund (OSLTF or the Fund) seeking $95,823.92 

for removal costs associated with removing oil from the tug NORTHERN RETRIEVER. 

BACKGROUND:

The NORTHERN RETRIEVER has a long history with the Washington Department of Natural 

Resources (DNR), the State of Washington’s administrative agency responsible for protecting 

the environment and natural resources, and responsible for the state’s Derelict Vessel Removal 

Program. For 15 years beginning in 1993, , owner of the tugboat, NORTHERN 

RETRIEVER, illegally anchored the vessel over state-owned aquatic lands in Grays Harbor, near 

the mouth of the Chehalis River, a navigable water of the United States. In 2004, the DNR 

notified that the vessel was trespassing over state-owned aquatic lands and needed 

to be moved.1

 On May 16, 2008, the City of Hoquiam, WA, declared the Tug NORTHERN 

RETRIEVER abandoned2

 and on June 16, 2008, it took custody of the vessel.3 On August, 28, 

2008, the City of Hoquiam transferred custody of the NORTHERN RETRIEVER to DNR. 

On January 21, 2009, DNR requested pollution removal assistance from the WA DOE. The WA 

DOE, under state law, enforces state and federal environmental laws and responds to oil and 

hazardous material spills. On January 22, 2009, the WA DOE determined that the NORTHERN 

RETRIEVER was a risk of sinking and discharging oil and hazardous materials into Grays 

Harbor.4 On February 3, 2009, Global Diving & Salvage removed approximately 60,000 gallons 

of oil and oily water from the tanks and bilges of the Tug.5

 The vessel was later scrapped in 

accordance with the state’s Derelict Vessel Removal Program.

ANALYSIS: 

As a fact finder during the adjudication of a claim, the NPFC considers all relevant evidence, 

whether provided by the Claimant or obtained independently by the NPFC, and weighs its 

 

1 v. City of Hoquiam, 170 Wash.App. 811, 287 P.3d 619 (2012) 2 See Revised Code of Washington (RCW) 79.100.010 for the definition of abandoned.

3 See State of Washington Grays Harbor Superior Court Summary Judgment vs. the City of 

Hoquiam and WA DNR” dated November 16, 2009, submitted by WA DOE at the request of the NPFC dated 

January 15, 2015. 4 See State of WA Order for Reimbursement of Expenses, No. 7118 dated September 16, 2009, submitted by WA 

DOE at the request of the NPFC dated January 15, 2015.

5 See NPFC Optional OSLTF Form submitted by WA DOE dated October 14, 2014.
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probative value when determining the facts of the claim. If there is conflicting evidence the 

NPFC will make a determination as to what evidence is more credible or deserves greater 

weight. 

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,6 the costs to 

prevent, minimize, or mitigate oil pollution from an incident”. 33 USC § 2701(31). The Oil 

Pollution Act of 1990 and its implementing regulations contain specific requirements that must 

be satisfied before the OSLTF is available to pay a removal cost claim. First, an incident as 

defined by OPA must have occurred. An incident is defined as “any occurrence or series of 

occurrences having the same origin, involving one or more vessels, facilities, or any combination 

thereof, resulting in the discharge or substantial threat of discharge of oil.” 33 U.S.C. §2701(14). 

Second, the Federal On-Scene Coordinator (FOSC) must either direct the response or determine 

that the removal actions taken were consistent with the National Contingency Plan. 33 C.F.R. 

§§136.203 and 136.205. 

In this claim, the record contains conflicting evidence with regard to whether the vessel posed a 

substantial threat of discharging oil. FOSCs, not state agencies, have been delegated the 

authority to determine whether a substantial threat of a discharge exists and requires a pollution 

response.7 On June 27, 2008, at the request of the City of Hoquiam8 and the DNR,

9 USCG 

Sector Portland personnel boarded the NORTHERN RETRIEVER to inspect it and determine

the risk of pollution from the vessel. The Coast Guard Federal On-Scene Coordinator’s 

Representative (FOSCR) and another CG member inspected the vessel and determined that it 

was not discharging oil and did not pose a substantial threat of discharging oil into the navigable 

waterway; thus, no oil pollution cleanup was necessary. 10 Via a June 30, 2008 email from 

MSTC to the City of Hoquiam and DNR, MSTC informed them that the 

vessel was determined not to be a substantial threat to the environment and CG Sector Portland 

would not be initiating a pollution cleanup at that time. 

DNR then commissioned two surveys of the vessel several months after the FOSCR made his 

determination. On September 16, 2008, DNR contracted Ms. , AMS, of Michel & 

Christen Marine Surveyors, Inc., to conduct a survey of the NORTHERN RETRIEVER. In her 

survey, she reported water leaking through the hull plating near and along the turn of the bilge 

and in the engine room near the starboard sea chest. Her opinion was that the vessel presented a 

significant danger to the environment, surrounding infrastructure and to herself and should be 

removed from the water as soon as possible.11 Then, on January 6, 2009, DNR contracted 

 

6 The NPFC has defined a substantial threat of a discharge to include “situations in which most likely oil will spill 

unless someone tries to stop it.” http://www.uscg.mil/npfc/glossary.asp

7 40 C.F.R. §§300.100, 300.120 and 300.130. See also, NPFC Technical Operating Procedures Chapter 2 – Roles 

and Responsibilities in Determining Removal.

8 See June 27, 2008 email from (City of Hoquiam Police Chief) to DNR found within email exchange 

ending on June 30, 2008, and including MSTC , CG Sector Portland. 9 See email from , WA DNR to MST3 , USCG Sector Portland dated June 24, 2008. 10 See emails from MST1 to NPFC dated May 14, 2015 and from MSTC , CG Sector Portland to 

the City of Hoquiam and WA DNR dated June 30, 2008. In his email, MST1 , who boarded the vessel as the 

Pollution Investigator and Federal On-Scene Coordinator’s Representative (FOSCR) recalled that the vessel had no 

appreciable list or taking on of water, no pollution was observed, and there was nothing to lead him to deem the 

vessel an immediate pollution threat. 11 See Michel & Christen Marine Surveyors, Inc, Report of Survey dated September 24, 2008, p.11.
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Ballard Diving & Salvage to conduct an underwater hull survey of the tug. In their hull survey, 

they reported that the vessel had a 10" long fracture in the hull plating at the keel near the stern 

of the vessel and a 4 – 5-foot long by 5- 6 inch-wide crack traveling transversely across the keel. 

Ballard Diving & Salvage recommended that all hull fractures be repaired with temporary steel 

patches before attempting to move the vessel.

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It appears that DNR made the decision to request WA DOE to “conduct an immediate pollution 

removal operation” after the September 16, 2008, marine survey performed by Michel &

Christen Marine Surveyors, Inc., and the January 6, 2009, Ballard Marine dive survey which 

revealed ruptures in the vessel’s hull.13 Despite these surveys, the evidence does not show that 

the oil on board was actually discharging or posed a substantial threat of discharging oil outside 

the vessel. The marine survey and dive survey commissioned by DNR were performed about 

three months and six months after the CG inspection, respectively, but still showed no discharge 

of oil or oil at immediate risk of discharging. The record shows that water was slowly entering 

the hull, but nothing was leaking out and there is no indication that oil was sheening from the 

vessel.14 As Claimant stated, WA DOE “hired Global Diving & Salvage to install temporary 

patches on the hull and conduct a thorough pollution removal operation to eliminate the threat of 

a major oil spill should the vessel sink before DNR could have the vessel demolished.”15 Thus, 

Claimant admits that the vessel did not pose a substantial threat of discharging oil into the water 

at that point in time. The evidence does not show what would have happened had the vessel 

been left alone.

Given the FOSC’s authority to make such determinations and the FOSCR’s determination that 

the vessel was not discharging and did not pose a substantial threat of discharging oil at the time, 

the NPFC finds that the evidence in the record as to the CG investigators’ findings is more 

probative credible evidence that the vessel did not pose a substantial threat of discharge. 

Further, because the actions performed relating to the vessel and the costs incurred were not at 

the direction of the FOSC or determined by the FOSC to be consistent with the NCP, the costs 

cannot be reimbursed from the OSLTF. 33 C.F.R. §§136.203 and 136.205. The requirement to 

have FOSC direction or his determination of consistency with the NCP before costs may be paid 

from the OSLTF was confirmed in Gatlin Oil Co. v. United States, 169 F.3d 207, 213 (4th Cir. 

1999)(the response actions taken by Gatlin at the direction of the State were not reimbursable 

from the Fund because the FOSC had not directed Gatlin to follow state directives and had not 

determined that the actions were consistent with the NCP). 

NPFC Conclusion

The actions taken by WA DOE in response to the NORTHERN RETRIEVER did not result from 

a discharge or substantial threat of a discharge of oil to navigable waters; thus, an OPA-incident 

had not occurred.16 Additionally, the actions were not directed by the FOSC and the FOSC did 

 12 See Ballard Diving & Salvage, Inc Hull Survey dated January 6, 2009. 13 Claimant’s Oil Spill Liability Trust Fund Modified Claim Form, p. 2. 14 The record contains no indication that anyone reported to the National Response Center that there was a discharge 

from the vessel. 15 Claimant’s Oil Spill Liability Trust Fund Modified Claim Form, p. 2. 16 Had this claim been the result of an OPA-incident, NPFC would further determine whether the Claimant State was 

owner/operator and, thus, the responsible party for said incident. OPA provides that a State or a unit of state or local 

government that acquired ownership or control of a vessel involuntarily through seizure or law enforcement activity, 
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not determine that the actions were consistent with the NCP. Therefore, the Claimant has not 

shown that the claimed costs were a result of an OPA incident and the Fund is not available for 

reimbursement. The claim is denied in its entirety.

 

Claim Supervisor: 

Date of Supervisor’s Review: October 6, 2015 

Supervisor Action: Denial approved 

Supervisor’s Comments: 

 

 

bankruptcy, tax delinquency, abandonment, or “other circumstances in which the government involuntarily acquires 

title by virtue of its function as a sovereign” is not an “owner or operator.” 33 USC §2701 (26)(B)(i). However, this

exclusion does not apply when the State or local government causes or contributes to the vessel’s discharge or 

substantial threat of the discharge of oil into or upon the navigable waters of the United States. 33 USC §2701 

(26)(A)(v). When the State or local government has custody of a vessel and causes or contributes to the discharge or 

substantial threat of a discharge of oil while the vessel is under its custody and removal actions are necessary, the 

State or local government is responsible for the discharge and liable for the removal costs associated with the 

removal actions. Should Claimant seek reconsideration and demonstrate that its costs resulted from an OPA 

incident, the State would have to provide evidence of the timing and cause of the incident and show that the State 

and/or government entity did not cause or contribute to the incident.