4

February 2, 2017 and the spill was estimated to have affected four (4) wetland areas and one (1) 

culvert area that covered approximately ten (10) acres.7

Background: On November 9, 2017, the NPFC received a removal cost claim from A&M for 

reimbursement of uncompensated removal costs. Included in A&M’s claim were subcontractor 

costs associated with work performed by WorkBox, LLC (WorkBox). A&M hired WorkBox as a 

subcontractor on March 1, 2017 to provide disposal, distribution and sanitation equipment 

relative to the oil spill response.8

 Costs claimed by A&M for duties performed by WorkBox 

remained unpaid by the OSRO. The NPFC informed A&M that all costs unpaid by Claimant 

could not be approved for payment by the OSLTF. A&M notified the NPFC that all costs unpaid 

to WorkBox were a result of the RP ceasing payment to A&M, and the OSRO lacking the funds 

to pay WorkBox. 

On March 13, 2018, the NPFC issued a letter to WorkBox notifying them that the RP has ceased 

payment to A&M, and that all remaining unpaid costs performed by WorkBox in association to 

the oil spill removal should be submitted to Metairie Energy Corporation.9

 The NPFC informed 

WorkBox that they can submit their costs to the NPFC if the RP does not respond within 90 days 

of their claim submission, or if the RP outright denies the claim. WorkBox submitted their claim 

to the RP on February 16, 2018, and the RP has since issued no response to WorkBox.10

The Claim: On July 2, 2018, the NPFC received a removal costs claim from WorkBox for 

reimbursement of its remaining uncompensated removal costs for equipment expenses and 

energy, environment and compliance surcharges in the total unpaid amount of $2,154.45.11

 

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). 

"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 

 

7 See Incident Action Plan for the period of 1/31/17 – 2/1/17. 8 See WorkBox, LLC and A&M Associates, Inc. customer agreement document dated March 3, 2017.

9 See WorkBox, LLC notification letter dated March 13, 2018.

10 See Email containing Phone Conversation with dated July 11, 2018. 11 See Claim E17607-0004 submitted on July 2, 2018.
5

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 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. Overview: 

1. USEPA representative’s and served as the Federal OnScene Coordinator’s (FOSC) for this incident and they determined that the actions 

undertaken by all parties were consistent with the NCP for the payment of uncompensated 

removal cost claims and is consistent with the provisions of sections 1002(b)(1)(B) and 

1012(a)(4) of OPA, 33 U.S.C § 2702(b)(1)(B) and 2712(a)(4); 

2. This incident involved the discharge of “oil” as defined in OPA 90, 33 U.S.C. § 2701(23), to 

navigable waters. To establish the substance as an “oil”, the NPFC relied heavily on the