CLAIM SUMMARY / DETERMINATION FORM

Date : 2/3/2009 

Claim Number : S05014-001 

Claimant : ConocoPhillips Company

Type of Claimant : Corporate (US)

Type of Claim : Removal Costs 

Claim Manager : 

Amount Requested : $112,551.45 

FACTS: 

1. Oil Spill Incident: On Monday January 17, 2005 at approximately 2220, the tug boat 

NA HOKU approached the ConocoPhillips Refinery dock with the empty tank barge 

NOHO HELE under tow. The tug shortened tow, made up to the port side of the NOHO 

HELE and brought the starboard side of the barge to the pier at 2305. At 0045 on 

January 18, 2005, the barge began loading approximately 54,000 barrels of diesel. At 

approximately 0630, the cargo loading was stopped when diesel was discovered in the 

water. The diesel on the barge was then pumped back to the facility and inspection of the 

hull revealed a hole through which the diesel had leaked. The leak was stopped at 

approximately 0830. An investigation revealed that the tug’s fendering system had 

punched a hole in the barge when the tug made up to it prior to approaching the dock. 

(Note that all times stated above are in Pacific Standard Time).

2. Description of actions performed as reported by the claimant: On January 18, 2005, 

the spill was reported at approximately 6:35am. The claimant notified the NRC via 

report # 747479. The claimant notified the USCG, the Washington Department of 

Ecology, and its respective response contractor, Clean Sound Cooperative. The leak 

from the NOHO HELE was stopped at approximately 9:15. Transfer of incident 

command to the Responsible Party, Sirius Maritime, was identified on the ICS 202 

Objectives sheet as of 1300 hrs on January 18, 2005. Until the transfer took place, the 

claimant states various personnel, as well as the Clean Sound Cooperative crews 

(ConocoPhillips’ contractor), worked diligently to contain and begin cleanup of the spill. 

The cleanup was handled by various Ferndale employees and contract personnel who 

were on site and available.

The claimant contends that the first and primary concern they had was to minimize any 

hazard. Individuals were immediately mobilized in the area to deploy boom to contain 

the spill as quickly as possible, to begin cleaning up the fuel from the water, and to assess 

potential impacts to the local environment. Containment boom was used to prevent fuel 

from escaping; absorbent material was used to collect fuel from the water’s surface. 

Search for and tracking of the diesel was handled by helicopter and from the shore. 

In summary, the claimant reports that the efforts associated with this incident involved 

103 people, 2500 feet of boom, three oil skimmers, nine work boats and three 

helicopters.1 The claimant has provided several ICS forms generated by different people 

who articulate details of the incident from the author of the ICS Form’s perspective 

therefore not every ICS form provides the same detail or fact set with respect to 

 

1 See, ConocoPhillips letter dated October 18, 2005 to Edward F. Travers & Associates, Inc.

(b) (6)
chronology. The NPFC has decided to provide the Chronology as written by 

, Claimant’s Public Information Officer (PIO).2

 It is as follows:

0635: NOHO HELE notified dock of sheen in water 

0655: diesel spill at dock 

0700: barge has deployed sausage boom; response team deployed (3 people on 3 boats 

with a total of a dozen responders 

0740: notified Clean Sound Cooperative (claimant contractor) 

0755: Conoco’s oil spill boat, Raider, on scene and encapsulating barge with boom; 

NOHO HELE has not officially taken responsibility; plan is to pump tank off and 

isolate barge

0820: Claimant contractor, Clean Sound, has 4 vessels enroute to scene – first boat to 

arrive by 0920 

0900: barge compartment #2 has been pumped below leak; estimated volume is 60-

gallons; estimated time of arrival of helicopter is 0915; security is on standby; 

barge owner, Sirius Maritime is enroute

1105: no divers deployed; of Sirius Maritime announced he would be 

taking over with more help on the way; SOSC on scene; Clean Sound has 3 boats 

on site with 2 more enroute; WSMC helicopter is overhead (RP contractor’s 

helicopter) under direction of Clean Sound (claimant contractor); no shoreline 

impact per Clean Sound 

1355: there was a 12:45 overflight Lummie Bay – nothing south approaching shoreline; 

streamers headed toward Cherry Pt dock and near Pt. Whitehorn, not recoverable; 

there may be shoreline impacts 1⁄2 way to Pt. Whitehorn 

1400: Sirius Maritime, USCG, WSMC, Conoco attended UC meeting; 

 I. Form UC, identify positions, transition plan 

 a. of WSMC (RP contractor) assumes IC role 

 b. will hand over positions under WSMC’s control 

 1. will support any open roles 

 2. Conoco has sent people home to prep for next shift 

c. would like to review current objectives & modify without updated 

field info

 1. use 202 as guide to talk about tomorrow 

 II. Review objectives by , pending SCAT update 

a. WSMC has its own helicopter – little need for others going forward 

except for tomorrow morning / 4am high tide) 

b. temporary repairs to be handled by Sirius in conjunction with USCG

c. check to see is CANADA notified by USCG 

d. unable to confirm exactly what BP deployed 

e. discussion of deployment of GRPs 

 1. may not be necessary but resources are available if needed

f. continue with visual assessments 

g. delete obj. OPS16 4500ft of boom 

h. no need for further open water skimmings 

i. need to work logistics of disposal plan 

j. post flyer north and south of Conoco as well s door to door 

k. Polaris working on shoreline assessment as well 

l. two lummie reps working shoreline assessment as well

m. clean hull of Polar Endeavor 

n. claim # assigned; working with RP’s finance to transition 

o. get JIC’s communication plan, USCG agreed to talking points only – no 

press release

 

2 See, Exhibit B of claimant submission, ICS-214 forms (b) (6)

(b) (6) (b) (6) (b) (6) (b) (6) (b) (6)
 III. Where to go from here per 

 a. drop skimming 

 b. complete in-progress obj. and stand down 

 1. clean up is done 

 2. org. should not completely stand down yet, per 

 a. no more logistics support from Conoco needed 

3. NRC will handle remaining boom (2 boats) containment around 

dock and barge 

 c. WSMC has other off site assistance

 d. maintain planning & ops 

 e. extend operational period under WSMC until noon tomorrow 

f. field ops continue until further notice – 1500 adjourn – note * barge to 

discharge at 1700 

3. Description of actions performed as reported by Sirius Maritime (RP): On January 

18, 2005 at approximately 0630 the oil spill occurred at the ConocoPhillips Ferndale 

Refinery. The Sirius Maritime tank barge, NOHO HELE, was loading cargo at the 

Ferndale Refinery. During the transfer, the person-in-charge from Sirius Maritime 

discovered the spill and immediately stopped all loading. Sirius made notifications to the 

NRC via report # 747487, the RP also notified the USCG who was the Federal On Scene 

Coordinator (FOSC), Washington Department of Ecology who was the State On Scene 

Coordinator (SOSC), and their contractor of record, Washington State Maritime 

Cooperative (WSMC). 

By 0700, Sirius Maritime (RP) and the crew of its attending tug, the NA HOKU, were 

well into the response effort. Sirius Maritime promptly notified ConocoPhillips that the 

response would be fully handled by them (including WSMC, Global Diving & Salvage 

and other contractors). Sirius Maritime states they informed Conoco that their 

participation was not necessary. The Sirius Maritime crew and contractors deployed 

boom and absorbent pads to contain and retrieve the spilled fuel. They inspected the 

barge and determined the source of the leak. Within two hours from onset, at 

approximately 0830, the source had been found and the leak stopped. By approximately 

1900, all recoverable amounts of oil had been retrieved by the Sirius Maritime crew and 

contractors. At 2030, response resources were demobilized and at 2250, the barge 

departed from the facility.

Sirius Maritime’s chronology of the incident is as follows3

: 

1/18/05 

0640: tankerman called out the Master and crew of the attending tug 

0648: the terminal shutdown loading ops; source of the oil could still not be determined 

0700: the tug master contacted Sirius Maritime’s QI and informed him of situation; the 

QI began notifications to WSMC, USCG as FOSC, and Washington Department of 

Ecology as SOSC

0705: the tug crew began deploying sorbent boom in the vicinity of the #2P cargo tank 

where there appeared to be a concentration of oil 

0712: the tug/barge crew began deploying the onboard containment boom and deployed 

the barge’s skiff. After deploying the skiff and making a thorough examination of 

the hull of the barge, a 3⁄4” crack was observed in the #2P tank just at or under the 

waterline

 

3 See, Sirius Maritime’s Memorandum dated March 16, 2005

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

1040: ConocoPhillips and Clean Sound Cooperative deploy boom 

1500: RP representation in the Unified Command shifts from Conoco to Sirius 

1930: Secure Command Post 

1/19/05 

0730: Reopen Command Post 

1030: Secure Incident response activities 

In addition to the above provided Chronology from to the NPFC is 

also the USCG’s Polrep 1 and Final which shows the following timeline5

: 

1/18/05 

0715: MSO received report from NRC of a discharge of diesel at the ConocoPhillips 

Refinery in Ferndale, WA

0745: Pollution Investigators depart MSO 

0945: Pollution Investigators arrive on scene and are briefed. While taking on diesel, the 

person in charge of the NOHO HELE noticed a sheen in the water. 

ConocoPhillips conducted an initial response and placed boom around the barge 

and the Polar Endeavor. The barge immediately started transferring fuel back to 

the refinery. As the barge’s hull rose above the water line, the person in charge 

noticed a hole. Geographic Response Plans NPS-12 and NPS-13 implemented and 

being maintained.

1000: Overflight conducted, observed minimal sheen and no shoreline impact. 

1030: Pollution Investigators board the barge. Observed the damage to the hull of the 

NOHO HELE and informed the RP that all of the fuel on the barge had to be off 

loaded and the clean up complete before the barge could depart. 

1200: USCG, WADOE, RP set up unified command. ConocoPhillips transferred 

responsibility of the clean up to Sirius Maritime.

1230: Pollution Investigators conduct overflight and observe minimal sheen and no 

shoreline impact.

1345: MSO Chief arrives on scene and takes over duties as FOSCR. 

1400: Overflight conducted no sheen outside boom or shoreline impact observed.

1530: Pollution Investigators depart scene. 

1800: Pulled GRPS NPS-12 and NPS-13 due to lack of oil and worsening weather 

conditions. 

2200: T/B NOHO HELE departs ConocoPhillips Refinery enroute to Pier 3, Bellingham, 

WA. Unable to moor due to weather. 

1/19/05 

0830: Overflight conducted, no sheen or shoreline impact visible. 

0945: SCAT teams deploy 

1030: SCAT teams find no shoreline impact and secures. 

1130: T/B NOHO HELE moors to Pier 3, Bellingham, WA for further repairs. 

CASE CLOSED

5. Description of actions performed as reported by WADOE6(SOSC): WADOE 

personnel arrived on site at the Ferndale Refinery on January 18, 2005 and filled 

positions within the ICS, and undertook initial investigative actions. 

 

5 See, USCG Polrep 1 and Final 

6 See, Investigation Findings dated 8 June 2005 as reported by Washington Department of Ecology (WADOE)

(b) (6) (b) (6)
WADOE’s chronology as referenced in their Investigative Findings report dated 8 June 

20057 is as follows:

1/17/05 

2220: The tug boat NA HOKU approached the ConocoPhillips refinery dock with the 

empty tank barge NOHO HELE under tow. The NA HOKU shortened up the tow 

and then made up to the NOHO HELE’s port side. 

2305: The first line from the NOHO HELE was on the dock. 

2320: The NOHO HELE was made all fast at the ConocoPhillips dock. 

1/18/05 

0010: The Declaration of Inspection (DOI) was completed and signed by barge Person in 

Charge (PIC) and terminal PIC.

0045: ConocoPhillips commenced loading 54,000 barrels of diesel to the barge. The 

cargo plan was to load the barge to the load marks and transport the diesel to 

Tacoma.

0045-0630: The cargo transfer procedures were going according to the tankerman’s plan. 

0700: The tug master contacted Sirius Maritime QI and informed him of the situation. 

The Sirius Maritime QI began notifications to Washington State Maritime 

Cooperative (WSMC), the U.S.Coast Guard, their OSRO, and the Washington 

State Emergency Management Division.

0710: The tug crew began deploying sorbent boom in the vicinity of #2P cargo tank 

where there appeared to be a concentration of oil. 

0712: The tug/barge crew began deploying the onboard containment boom with the 

barge’s response skiff. The skiff was used to inspect the barge hull to try to 

discover the source of the leak. A 3⁄4” crack was discovered in the hull at the 

waterline between frame 11 and 12, about 71/2 feet below the main deck on the 

port side in the #2P cargo tank. 

0730: Additional boom was deployed in the water and absorbent pads used to retrieve 

spilled diesel.

0735: The barge began pumping diesel back to the facility. 

0830: The leak was stopped. 

1900: Cleanup of all amounts of oil determined recoverable was completed.

2110: The barge discharge was complete.

2250: The barge departed for Bellingham and repairs. 

6. The Claim: On December 28, 2007 ConocoPhillips (COP) submitted a removal cost 

claim to the National Pollution Funds Center (NPFC), for reimbursement of their 

uncompensated removal costs in the amount of $112,551.45 for the services and 

materials they state they provided in response to the NOHO HELE oil spill at their 

refinery dock from January 18, 2005 through January 19, 2005. The invoices, which are 

the subject of this claim, were sent by the claimant to Sirius Maritime. Sirius Maritime 

has denied payment to the claimant as they state the services provided were excessive and 

unnecessary. This claim consists of proof of presentment, copies of the invoicing, 

disposal manifests, CG MISLE case information, NRC report, ICS Forms, and news 

articles, press releases and information statements. The review of the actual cost 

invoicing and dailies 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 

 

7 id
incurred as a result of these actions; (3) whether the actions taken were consistent with 

the NCP or directed by the FOSC, and (4) whether the costs were adequately 

documented. 

4. Initial Determination and Reconsideration Request: NPFC’s original determination 

of $35,878.24 was completed and emailed to the claimant on 05 November 2008, with 

disallowances for costs that were missing supporting documentation or unsubstantiated, 

some costs were determined to be excessive in nature, non-OPA compensable, and some 

costs were denied because the claimant failed to meet their burden in substantiating costs.

 

The NPFC received the Claimant’s request for reconsideration letter on 29 December 

2008 via email and hard copy. The Claimant’s assertions in support of reconsideration 

consist of the following: 

1. Cedar’s Restaurant and Lounge (food expenses) in the amount of $1,494.80 

– the clamant states that they ordered the food for responders earlier in the day 

and just because the Incident Command transferred over to the Responsible 

Party later in the afternoon, they didn’t feel it was in the best interest of the 

responders or the overall spill to cancel food that was being provided for the 

benefit of the workers. 

2. Clean Sound Cooperative Labor in the amount of $15,894.00 – the claimant 

states that while the transition of the response changed over to the Responsible 

Party around 3pm on the afternoon of January 18, 2005 and while they would 

have liked to stand down, such a stand down is not a switch that is or should be 

immediate and by denying the costs after 3pm, the NPFC penalizes the 

claimant for not simply “walking away” from the spill response activities 

precisely at 3pm.

3. ConocoPhillips’ labor in the amount of $36,791.66 – the claimant states that 

their justification for the 421 man hours billed is that the response actions were 

appropriate in time and scope and consistent with the National Contingency 

Plan (NCP). The claimant further states with respect to the documenting of 

hourly rates for each employee in the response, they provided that 

documentation as part of their initial claim and is provided again under 

reconsideration. Lastly, the claimant states with respect to providing the 

description of work for each employee billed in the EOC, they respond by 

stating that its responding employees fulfilled the respective job functions as 

described in the United States Coast Guard Field Operations Guide. 

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 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. The FOSC generated Polrep 1 and Final regarding the incident highlights and the FOSCR has 

provided an undated written statement to the NPFC. 

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 on time.

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

initial claim, the request for reconsideration and has determined that some of 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 and 

directed by the FOSC. 

B. Reconsideration Determination:

NPFC CA has reviewed the documentation provided by the claimant on reconsideration 

under cover dated 24 December 2008. The NPFC has performed a de novo review upon 

reconsideration. The NPFC has determined that the new arguments presented on 

reconsideration for the Cedar Restaurant and Lounge meal expenses provided by the 

claimant, is reasonable, appropriate under the circumstances, properly documented, and in 

the best interest of the spill response and workers on site. The NPFC has cross referenced 

invoicing paid for by the Responsible Party to ensure there was no duplication of meal 

expenses paid by them. The NPFC has determined $1,494.80 is compensable under 

reconsideration. 

The NPFC has determined that the new arguments presented on reconsideration for the Clean 

Sound Cooperative personnel costs in the amount of $15,984.00 on January 18, 2005 are 

determined compensable. The NPFC has cross referenced the daily field log of personnel 

with start and stop times to the FOSC and SOSC’s chronology timeline and has determined 

that the hours billed for the personnel is confirmed and validated and therefore deemed to be 

reasonable and necessary.

The NPFC has carefully weighed all the evidence submitted by ConocoPhillips and its new 

argument in support of the $36,791.66 claimed for labor costs during the incident. 

Notwithstanding ConocoPhillips’ contentions to the contrary, the NPFC has determined that 

ConocoPhillips has failed to meet its burden of proving that these costs should be reimbursed 

from the OSLTF. Based upon the evidence submitted by ConocoPhillips, it’s impossible to 

determine whether these employees were paid for oil spill response services or some other 

service provided by the employee. Also, the evidence submitted by ConocoPhillips failed to 

explain with any specificity what its employees were actually doing during the response. In 

an effort to cure the problems associated with this part of the claim, the NPFC requested that 

ConocoPhillips provide evidence of the hourly rate paid to each employee and an explanation 

of why the 421+ man hours were reasonable in light of this specific incident. Although 

ConocoPhillips provided some evidence of the employees’ hourly rates, it did not explain 

how the claimed rates were calculated because ConocoPhillips did not want to disclose the 

salary information of its employees. Without some explanation of how the hourly rates were 

calculated, the NPFC cannot determine whether these rates were paid for oil spill response 

services or some other service provided by the employees. More importantly, 

ConocoPhillips failed to produce a detailed explanation of what its employees were actually 

doing during the response. Instead, the claimant identified the positions filled by each 

individual and then referred the NPFC to the duties for each position as set forth in the Field 

Operations Guide without explaining what each employee actually did during the response. 

In light of the specific circumstances of this incident, the claimant’s evidence fails to 

establish that these costs were reasonable as required by 33 CFR 136.205. As a result, the 

ConocoPhillips labor remains unsubstantiated and remains denied. 

On that basis, the Claims Manager hereby determines that the claimant did in fact incur 

$53,357.04 of uncompensated removal costs and that the amount is properly payable by the 
OSLTF as full compensation for the reimbursable removal costs incurred by the claimant and 

submitted to the NPFC under claim # S05014-001. The claimant states that all costs claimed 

are for uncompensated removal costs incurred by the claimant for this incident. The claimant 

represents that all costs paid by the claimant are compensable removal costs, payable by the 

OSLTF as presented by the claimant.

C. Conclusion:

The NPFC hereby determines that the OSLTF will pay $53,357.04 as full compensation for 

the reimbursable removal costs incurred by the claimant and submitted to the NPFC under 

claim # S05014-001. The NPFC has 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 by the FOSC, to be consistent with the NCP or directed by the FOSC, and 

(4) whether the costs were adequately documented and reasonable. All costs claimed are for 

charges paid for by the claimant for removal actions as the term is defined in OPA, and, are 

compensable removal costs, payable by the OSLTF as presented by the claimant.

AMOUNT: $53,357.04 

Claim Supervisor: Thomas Morrison

Date of Supervisor’s review: 

Supervisor Action: 

Supervisor’s Comments: