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CLAIM SUMMARY / DETERMINATION 

Claim Number: 916046-0001 

Claimant: Watchtower Defense, Inc.

Type of Claimant: OSRO 

Type of Claim: Removal Costs 

Claim Manager: 

Amount Requested: $88,379.01 

FACTS: 

Oil Spill Incident: On November 29, 2015, a vehicle struck a fuel dispenser attached to The Old 

Timer gas station in Medina, Texas, resulting in an estimated 507 gallons of petroleum 

discharging into the surrounding soil and roadway.1 The Medina Volunteer Fire Department 

(MVFD) was dispatched to the scene and manually shut off the damaged fuel dispenser. MVFD 

personnel diverted the discharged fuel to a nearby drainage system to the Medina River, a 

navigable waterway of the United States.

2

 In addition to the MVFD, the Texas Department of 

Transportation and the Texas Department of Environmental Quality also responded to the spill 

incident. The owner of The Old Timer, (Ms. ), hired Watchtower Defense 

to conduct pollution removal activities. (Mr. ), United States 

Environmental Protection Agency Region 6 in his capacity as the Federal On Scene Coordinator 

(FOSC) for the incident, provided after the fact FOSC concurrence.3 

Description of Removal Activities for this Claimant: On November 29, 2015, Watchtower 

Defense responded at the request of Ms. further containing and removing the discharged 

fuel.4 In addition to supplying personnel and equipment, Watchtower Defense hired multiple 

vendors to assist its pollution removal activities, which included two separate oil spill removal 

organizations (OSROs), SWS Environmental Services (SWS) and A Clean Environment (ACE). 

Watchtower Defense responded to the fuel discharge site from November 29, 2015, through 

January 8, 2016, placing absorbent materials, removing contaminated soil and water, and 

conducting remediation efforts. Specifically, both sections of the highway’s shoulder and the 

adjacent ditch were removed due to impacted soil.5 The recovered petroleum contaminated soil 

was properly disposed of at Waste Management, San Antonio, Texas.6 The petroleum 

contaminated water was properly disposed of at Alamo 1 Petroleum Exchange, San Antonio, 

Texas.7 

Responsible Party: Ms. is the owner of The Old Timer gas station. Maxey Energy 

Company, owned and operated by , is the owner and operator of the damaged fuel 

 

1 See email from Mr. , Watchtower Defense to Mr. , NPFC dated April 27, 2016. 2 See letter dated April 11, 2016, from Mr. , Watchtower Defense to Mr. , NPFC. 3 See email from Mr. USEPA to Mr. , NPFC dated June 7, 2016. 4 See Work Authorization Form dated November 29, 2015.

5 See Optional OSLTF form dated April 11, 2016, submitted by Watchtower Defense Inc.

6 See Waste Management Certificates of Disposal dated December 29 - 30, 2015. 7 See Alamo 1 Petroleum Exchange invoice number 15250AP dated December 1, 2015.
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dispenser.8 Watchtower Defense made presentment of the costs associated with this claim to 

Ms. on January 18, 2016.9 In response, The Old Timer paid Watchtower Defense a total 

of $10,000, the maximum amount available on its insurance policy, for the claimed pollution 

removal activities.

10 On April 20, 2016, Ms. was issued an RP notification letter by the 

NPFC notifying her of the pending claim from Watchtower Defense.11 In response to this letter, 

Ms. contacted the NPFC by phone, stating that The Old Timer’s contract with 

Watchtower Defense was signed “under duress” and that she believes the owner of the pumps, 

, to be a responsible party.12 Subsequent to the NPFC’s issuance of the April 20, 

2016, RP notification letter, Ms. obtained legal representation from The Nunley Firm. 

The Nunley Firm contacted the NPFC by letter dated May 11, 2016, asserting that Maxey 

Energy Company is the sole owner of the above-described damaged fuel dispenser and “Pursuant 

to the contractual agreement with Maxey Energy Company, neither nor Old 

Timer have any responsibility associated with the gas pump or the maintenance and operation of 

the gas pump.”13 By email dated May 12, 2016, the NPFC issued an RP notification letter to 

, notifying him of the pending claim with Watchtower Defense.

14 Mr. , by 

letter from his legal counsel dated June 3, 2016, denied responsibility for the claimed spill 

incident.15

The Claim: On April 19, 2016, Watchtower Defense submitted a removal cost claim to the 

National Pollution Funds Center (NPFC) for reimbursement of its uncompensated removal costs 

totaling $88,379.01.16 As evidence for its claim, Watchtower Defense submitted numerous 

invoices, daily worksheets, and proof of payment documents. Subsequently, the NPFC issued a 

request for additional information to Mr. on May 10, 2016, requesting additional 

documentation supporting the claimed costs for Watchtower Defense personnel and equipment, 

rate schedules “for multiple third party vendors”, and proof of payment documentation for the 

analytical testing conducted by San Antonio Testing Laboratory.17 Mr. submitted several 

new documents via emails dated May 11, 2016, and May 16, 2016, including time sheets for 

Watchtower Defense personnel and equipment, rate schedules for SWS Environmental Services, 

and invoices and proof of payment information for San Antonio Testing Laboratory. 

In response to the received additional information, the NPFC submitted a second request for 

additional information via email dated June 22, 2016, requesting clarification on several pieces 

of evidence previously submitted.18 Mr. responded to this request by email dated June 22, 

 

8 See letter from Mr. The Nunley Firm to Mr. , NPFC dated May 11, 

2016.

9 See letter from Mr. , Watchtower Defense to Ms. , The Old Timer dated January 18, 

2016.

10 See Optional OSLTF form dated April 11, 2016, submitted by Watchtower Defense Inc. 11 See RP notification letter issued by the NPFC to Ms. dated April 20, 2016. 12 See notes taken from telephone conversation between Ms. , The Old Timer and Mr. 

 NPFC dated April 26, 2016.

See letter from Mr. The Nunley Firm to Mr. , NPFC dated May 11, 

2016.

14 See RP notification letter issued by the NPFC to Mr. dated May 12, 2016. 15 See letter from Ms. , Esq. to Mr. , NPFC dated June 3, 2016. 16 See Optional OSLTF form dated April 11, 2016, submitted by Watchtower Defense Inc. 17 See email from Mr. , NPFC to Mr. , Watchtower Defense, Inc. dated May 10, 

2016.

18 See email from Mr. , NPFC to Mr. , Watchtower Defense, Inc. dated June 22, 

2016.
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2016, providing a detailed response to the NPFC’s request, to include the submission of both 

2015 and 2016 Watchtower Defense rate schedules.19

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 

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 

 

19 See email from Mr. , Watchtower Defense, to Mr. , NPFC dated June 22, 2016.
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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 Region 6, as the Federal On-Scene Coordinator (FOSC) 

for this incident, determined that the actions undertaken by Watchtower Defense were 

consistent with the NCP20 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. The incident involved the discharge of “oil” as defined in OPA 90, 33 U.S.C. § 

2701(23), to navigable waters; 

3. In accordance with 33 CFR § 136.105(e)(12), the claimant has certified no suit has 

been filed in court for the claimed uncompensated removal costs; 

4. The claim was submitted within the six year statute of limitations. 33 U.S.C. § 2712(h)(1);

5. The NPFC Claims Manager has thoroughly reviewed all documentation submitted 

with the claim and determined that the removal costs presented were for actions in 

accordance with the NCP and that the costs for these actions were indeed reasonable 

and allowable under OPA and 33 CFR § 136.205. 

B. Analysis: 

NPFC CA reviewed the actual cost invoices and dailies to confirm that the claimant had incurred 

all costs claimed. The review focused on: (1) whether the actions taken were compensable 

“removal actions” under OPA and the claims regulations at 33 CFR 136 (e.g., actions to prevent, 

minimize, mitigate the effects of the incident); (2) whether the costs were incurred as a result of 

these actions; (3) whether the actions taken were determined to be consistent with the NCP, and 

(4) whether the costs were adequately documented and reasonable. 

The NPFC has determined that the majority of the costs incurred by the Claimant for this 

incident were reasonable and necessary in order to mitigate the effects of the incident. Upon 

 

20 See email from Mr. , USEPA to Mr. , NPFC dated June 7, 2016.
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review of the information provided by the Claimant, the NPFC has determined that the payable 

costs were billed in accordance with the rate schedule(s) in place at the time the services were 

rendered by all vendors and were determined by the FOSC to be consistent with the NCP. Costs 

denied by the NPFC include21

: 

• the replacement of the damaged baker tank listed on the December 30, 2015, SWS 

Environmental Services invoice, to include the additional associated markup; 

• A Clean Environment per diems; several miscellaneous items not listed on the rate sheet, 

to include barrier/caution tape, duct tape, orange construction fence, fence posts, and 

marker paint; and 

• excess Watchtower Defense personnel hourly rate charges. 

In addition to the aforementioned denied costs, the tax claimed for the daily worksheets provided 

by SWS Environmental Services is approved for the percentage of the approved costs only which 

therefore results in the denial of $59.30. Lastly, the NPFC has determined that $2,845.15 in 

claimed costs by Watchtower Defense are not adequately described in either the Watchtower 

invoices or in the associated responses to the NPFC’s multiple requests for additional 

information. Based on the foregoing, the NPFC is unable to properly identify and adjudicate any 

particular claimed item, personnel, or equipment cost that is affiliated with the $2,845.15 and as 

such, that amount is denied as unsubtantiated. 

The NPFC therefore determines that the OSLTF will pay $82,086.84 as full compensation for the 

reimbursable removal costs incurred by the Claimant and submitted to the NPFC under claim # 

9160046-0001. All costs claimed are for charges paid for by the Claimant for removal actions as 

that term is defined in OPA and, are compensable removal costs, payable by the OSLTF as 

presented by the Claimant. 

AMOUNT: $82,086.84 

 

Claim Supervisor: 

Date of Supervisor’s review: 7/7/16

Supervisor Action: Approved 

Supervisor’s Comments: 

 

21 See, Enclosure (1) Summary of Costs Spreadsheet