3

adjudicated, the Commission exonerated Ms. for all response costs related to the 

incident.7 By doing so, the Commission extinguished rights the Fund would have had against the 

RP by subrogation. Since the claimant was unable to provide all of its subrogation rights against 

the RP, the NPFC was prohibited by law from paying the claim and as such, the claim was 

denied.8 The NPFC’s initial determination is hereby incorporated by reference.9 

II. REQUEST FOR RECONSIDERATION: 

The regulations implementing OPA require requests for reconsideration of an initial 

determination to be in writing and include the factual or legal grounds for the relief requested, 

along with any additional support for the claim.10 The claimant has the burden of providing all 

evidence, information, and documentation deemed necessary by the Director, NPFC, to support 

the claim.11 When analyzing a request for reconsideration, the NPFC performs a de novo review 

of the entire claim submission, including new information provided by the Claimant in support 

of its request for reconsideration. The written decision by the NPFC is final.12

On April 1, 2019, the Claimant timely requested reconsideration of the NPFC’s initial 

determination.13 In support of its request for reconsideration, the Claimant, inter alia, provided a 

letter explaining that it had exonerated Ms. based on a misunderstanding of its 

obligations under the statutes and regulations governing claims under the Oil Pollution Act

(OPA). The letter explained that March 13, 2019, Morgan County voted unanimously to rescind

the exoneration for Ms. and issued a letter to Ms. notifying her of its 

decision.14 The claimant provided this letter to the NPFC.15 As a courtesy, the NPFC sent a letter

via certified mail to Ms. that captured the history of the claim and notified her that, 

as the responsible party, she may be financially responsible for this incident.16 Ms 

acknowledged receipt of the letter on April 17, 2019.17

a. ANALYSIS OF THE REQUEST FOR RECONSIDERATION: 

The NPFC has reviewed the reconsideration request and documentation provided by the 

claimant. In particular, the NPFC has determined that the Commission’s decision to rescind the 

exoneration previously provided to Ms is sufficient evidence that it now retains all

rights of recovery against her and, as such, can subrogate those rights to the United States in 

 

documentation and third party receipts, proofs of pament, photos, Miller rate schedule and Morgan County 

documentation in support of its agency charges.

7 Morgan County letter dated November 7, 2018.

8 See, 33 U.S.C. 2712(f). See also, 33 U.S.C. 2715(a). Accord, Kenan Transp. Co. v. U.S. Coast Guard, 211 

Fed.Appx. 902, 904 (11th Cir. 2006); Rick Franklin Corp. v U.S. Dep’t of Homeland Security, 2008 WL 337978 (D. 

Or. 2008).

9 2019 03 06 NPFC Claim Determination to Morgan County Commission.

10 33 C.F.R. 136.115(d). 

11 33 C.F.R. 136.105(a).

12 Id. 13 Morgan County Claim Submission dated October 4, 2018.

14 2019 03 13 Letter from Morgan County to Ms. rescinding exoneration.

15 Id. 16 NPFC RP Notification letter dated April 9, 2019.

17 Signed U.S. Postal Service domestic return receipt dated April 17, 2019.
4

accordance with OPA.18 Since it has now preserved all of its rights against the responsible party, 

the Commission is now eligible to seek recovery of its uncompensated removal costs for the 

incident.19

b. ANALYSIS OF THE COMPENSABLE REMOVABLE COSTS

A responsible party 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.20 A 

responsible party’s liability is strict, joint, and several.21 When enacting 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.”22 OPA was intended to cure these 

deficiencies in the law.

OPA provides a mechanism for compensating parties who have incurred removal cost where 

the responsible party has failed to do so. 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.”23 The term “remove” or “removal” means “containment and removal of oil 

[...] from water and shorelines or the taking of other actions as may be necessary to minimize or 

mitigate damage to the public health or welfare, including, but not limited to fish, shellfish, 

wildlife, and public and private property, shorelines, and beaches.”24

The NPFC is authorized to pay claims for uncompensated removal costs that are consistent 

with the National Contingency Plan.25 The NPFC has promulgated a comprehensive set of 

regulations governing the presentment, filing, processing, settling, and adjudicating such 

claims.26 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.27

The Oil Spill Liability Trust Fund is available to the President for the payment of claims for 

uncompensated removal costs that are determined to be consistent with the National Contingency 

Plan (NCP).28 OPA defines “removal costs”as “the costs of removal that are incurred after a 

 18 This decision is contingent on the NPFC receiving the release agreement found at the end of this determination 

attesting to this ability properly executed by the claimant. 

19 See, 33 U.S.C. 2712(f). See also, 33 U.S.C. 2715(a). Accord, Kenan Transp. Co. v. U.S. Coast Guard, 211 

Fed.Appx. 902, 904 (11th Cir. 2006); Rick Franklin Corp. v U.S. Dep’t of Homeland Security, 2008 WL 337978 (D. 

Or. 2008).

20 33 U.S.C. § 2702(a). 

21 See, H.R. Rep. No. 101-653, at 102 (1990), reprinted in 1990 U.S.C.C.A.N. 779, 780.

22 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).

23 33 U.S.C. § 2701(31).

24 33 U.S.C. § 2701(30). 

25 See generally, 33 U.S.C. § 2712 (a)(4); 33 U.S.C. § 2713; and 33 CFR Part 136.

26 33 CFR Part 136.

27 33 CFR 136.105.

28 33 U.S.C. § 2712(a)(4).
5

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 such an incident.”29

 The regulations implementing OPA are found at 33 CFR Part 136. In relevant part, those 

regulations state the NPFC is only permitted to compensate claimants for “reasonable removal 

costs of actions taken...”30 The regulations further require that a claimant bear the burden of 

providing all evidence, information, and documentation deemed necessary by the NPFC to 

establish 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...31 

Before reimbursement can be authorized for uncompensated removal costs, the claimant 

must demonstrate by a preponderance of the evidence: 

(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 directed by the Federal On-Scene Coordinator (FOSC) or 

 determined by the FOSC to be consistent with the National Contingency Plan.32 

(d) That the removal costs were uncompensated and reasonable.33 

The NPFC analyzed each of these factors and determined the majority of the costs incurred 

by Morgan County and submitted herein are compensable removal costs based on the supporting 

documentation provided. The NPFC determined that the costs invoiced were billed in accordance 

with the contracted rates between the parties, including all third party services.34 All costs 

approved for payment were verified as being invoiced at the appropriate rate sheet pricing, 

including but not limited to, all third party expenses. All approved costs were supported by 

adequate documentation which included invoices and proofs of payment. 

The amount of compensable costs is $126,255.78 while $2,572.70 was deemed noncompensable for the following reasons:35 

1. Miller invoice # 17-292 charged for personnel time for both a Project Manager and a 

Foreman. The daily field log shows that each of these employees worked on Sunday 

from 8:00am to 10:30am. Miller’s rate schedule allows a double time rate to be 

charged for this work since it is not within the normal work week. Miller invoiced 

these positions at the double time rate but they inadvertently also doubled the number 

of hours worked. This is not permitted within the terms of the rate schedule. As such, 

 

29 33 U.S.C. § 2701(31). 

30 33 CFR 136.205 (emphasis added). 

31 33 CFR 136.105; 33 CFR 136.203.

32 The NPFC coordinated with the U.S. Environmental Protection Agency Federal On Scene Coordinator (FOSC), 

Mr. who was the FOSC for this incident. After analyzing the spill and the actions taken by Morgan 

County and its response contractor, Miller Environmental, on October 25, 2018, the EPA FOSC opined in an email 

to the NPFC that the actions taken were consistent with the National Contigency Plan. We agree. 

33 33 CFR 136.203; 33 CFR 136.205. 

34 Miller Environmental Labor and Equipment Rate Schedule, October 16, 2015.

35 Enclosure 3 to this determination provides a detailed analysis of these costs.