3

CLAIM SUMMARY / DETERMINATION1 

Claim Number: UCGP923032-URC001 

Claimant: State of Rhode Island, Department of Environmental Management 

Type of Claimant: State 

Type of Claim: Removal Cost

Claim Manager: 

Amount Requested: $142,532.70 

Action Taken: Offer in the amount of $122,737.23

EXECUTIVE SUMMARY:: 

On November 13, 2021, Reichert Oil delivered home heating oil to a residence on Hartford 

Pike in Foster, Rhode Island.

2

 Four days later on November 17, the homeowner called Reichert 

to report having no heat. A Reichert technician investigated and discovered that the underground 

home heating oil tank was almost empty and presumably had a leak.

3

 A neighbor discovered oil 

in his pond. The oil reached the neighboring property’s pond via underground and then 

aboveground flow of the oil. The pond is fed by Hannah Brook and drains to Windsor Brook,4 a 

navigable water of the United States.5

 

The Rhode Island Department of Environmental Management (“RIDEM” or “Claimant”) 

received a report of an oil release6 and responded to the incident in its capacity as the State On 

Scene Coordinator (SOSC). The SOSC informed the homeowner of his responsibility for the oil 

spill.7

 EPA Region 1 responded as the Federal On-Scene Coordinator (FOSC).8 The 

homeowner and his insurance were unable to pay for the response.9 RIDEM hired Newton B 

Washburn LLC (“OSRO” or “NBW”) to remediate the release.10 The response lasted for 

months, ending August 19, 2022 when NBW demobilized the remaining equipment and 

1

 This determination is written for the sole purpose of adjudicating a claim against the Oil Spill Liability Trust Fund 

(OSLTF). This determination adjudicates whether the claimant is entitled to OSLTF reimbursement of claimed 

removal costs or damages under the Oil Pollution Act of 1990. This determination does not adjudicate any rights or 

defenses any Responsible Party or Guarantor may have or may otherwise be able to raise in any future litigation or 

administrative actions, to include a lawsuit or other action initiated by the United States to recover the costs 

associated this incident. After a claim has been paid, the OSLTF becomes subrogated to all of the claimant’s rights 

under 33 U.S.C. § 2715. When seeking to recover from a Responsible Party or a Guarantor any amounts paid to 

reimburse a claim, the OSLTF relies on the claimant’s rights to establish liability. If a Responsible Party or 

Guarantor has any right to a defense to liability, those rights can be asserted against the OSLTF. Thus, this 

determination does not affect any rights held by a Responsible Party or a Guarantor. 2 See, RIDEM Emergency Response Report dated November 18, 2021, Summary section, pages 2-4 of 4. 3 Id.

4 Email from EPA Region 1 to NPFC dated October 31, 2023.

5 See, December 16, 2021 Memo to File email for Oil Release at from USEPA Region 1 to 

RIDEM. 6 See, RIDEM call log # 21-21220 dated November 18, 2021. 7 See, RIDEM Emergency Response Report dated November 18, 2021, Summary section, page 3 of 4. 8 See, December 16, 2021 Memo to File email for Oil Release at from USEPA Region 1 to 

RIDEM. 9 See, RIDEM Emergency Response Report dated November 18, 2021, 11/22/21 entry, page 3 of 4. 10 See, RIDEM state contract with with Newton B Washburn LLC dated 9/7/21 for the response period of 10/1/21-

9/30/24 providing hazardous and petroleum related services. 

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

5

NBW responded on November 18, 2021 and placed boom and absorbent pads in the pond.24 

Over the next month, NBW monitored and replaced absorbents as needed.25 The UST was 

removed from the ground on December 3, 2021.26 Oil was frequently pumped out of the septic 

tank through March 2022.27 The final backfilling, removal of steel plates, seed-spreading, 

demobilization and closing of the site work occurred on August 19, 2022.28 

II. NPFC AND RP: 

The NPFC issued an RP Notification letter dated August 29, 2023 to . An 

RP Notification letter notifies the RP that a claim was presented to the NPFC that is seeking 

reimbursement of uncompensated removal costs or damages incurred as a result of the incident 

in which the recipient is the identified or suspected RP.29 

III. CLAIMANT AND NPFC:

 On August 23, 2023, the NPFC received RIDEM’s claim in a timely manner via letter dated 

August 3, 2023. RIDEM seeks reimbursement of $142,532.70 for removal costs paid to the Oil 

Spill Response Contractor, Newton B. Washburn, LLC. The claim was properly presented to the 

NPFC as the state may present a claim for removal costs directly to the OSLTF without first 

presenting it to the RP.30 

IV. DETERMINATION PROCESS:

 The NPFC utilizes an informal process when adjudicating claims against the Oil Spill 

Liability Trust Fund (OSLTF).31 As a result, 5 U.S.C. § 555(e) requires the NPFC to provide a 

brief statement explaining its decision. This determination is issued to satisfy that requirement.

 When adjudicating claims against the OSLTF, the NPFC acts as the finder of fact. In this 

role, the NPFC considers all relevant evidence, including evidence provided by claimants and 

evidence obtained independently by the NPFC, and weighs its probative value when determining 

the facts of the claim.32 The NPFC may rely upon, is not bound by the findings of fact, opinions, 

or conclusions reached by other entities.33 If there is conflicting evidence in the record, the 

24 RIDEM Emergency Response Report 2021-496 provided with initial claim. 25 Timeline provided with initial claim. 26 Id. 27 Id. 28 NBW work order page 20 dated August 19, 2022, citing removing plates, backfilling ruts, spreading seed and 

closing the site.

29 RP Notification Letter dated August 29, 2023. 30 33 U.S.C. §2713(b)(1)(c). 31 33 CFR Part 136. 32 See, e.g., Boquet Oyster House, Inc. v. United States, 74 ERC 2004, 2011 WL 5187292, (E.D. La. 2011), “[T]he 

Fifth Circuit specifically recognized that an agency has discretion to credit one expert's report over another when 

experts express conflicting views.” (Citing, Medina County v. Surface Transp. Bd., 602 F.3d 687, 699 (5th Cir. 

2010)). 33 See, e.g., Use of Reports of Marine Casualty in Claims Process by National Pollution Funds Center, 71 Fed. Reg. 

60553 (October 13, 2006) and Use of Reports of Marine Casualty in Claims Process by National Pollution Funds 

Center 72 Fed. Reg. 17574 (concluding that NPFC may consider marine casualty reports but is not bound by them).

(b) (6)
6

NPFC makes a determination as to what evidence is more credible or deserves greater weight, 

and makes its determination based on the preponderance of the credible evidence.

V. DISCUSSION: 

 An RP 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.34 An RP’s liability 

is strict, joint, and several.35 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.”36 OPA was intended to cure these deficiencies in the 

law. 

 OPA provides a mechanism for compensating parties who have incurred removal costs 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.”37 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.”38 

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

with the National Contingency Plan (NCP).39 The NPFC has promulgated a comprehensive set 

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

claims.40 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.41

 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 FOSC or determined by the FOSC to be 

consistent with the National Contingency Plan.42

34 33 U.S.C. § 2702(a). 35 See, H.R. Rep. No 101-653, at 102 (1990), reprinted in 1990 U.S.C.C.A.N. 779, 780. 36 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). 37 33 U.S.C. § 2701(31). 38 33 U.S.C. § 2701(30). 39 See generally, 33 U.S.C. § 2712 (a) (4); 33 U.S.C. § 2713; and 33 CFR Part 136. 40 33 CFR Part 136. 41 33 CFR 136.105. 42 The FOSC confirmed that NBW’s actions consistent with the National Contingency Plan. See, Email from EPA 

Region 1 to NPFC dated October 31, 2023.
7

(d) That the removal costs were uncompensated and reasonable.43

After adjudication of the claim and the related costs, the NPFC has determined that the 

amount of compensable removal costs is $122,737.23 while $19,795.47 is deemed noncompensable as detailed in the spreadsheet enclosed with this determination.44 Examples of 

reasons for denial of costs or reduction of amounts allowed are summarized below. 

1. Numerous line items on each NBW invoice provided were charged at rates above 

those provided in the NBW pricing sheet submitted by the claimant. The NPFC 

reduced all the line items to the rates in the NBW pricing sheet, resulting in denials of 

the differences in charged amounts over the amounts calculated using the pricing sheet 

rates. The total amount denied for this category is $10,699.6045 and broken down 

below by invoice number: 

 6464 – Rate reduction denials for this invoice total $4,549.40

 6492 – Rate reduction denials for this invoice total $741.20 

 6647 – Rate reduction denials for this invoice total $1,991.00 

 6723 – Rate reduction denials for this invoice total $898.00 

 6800 - Rate reduction denials for this invoice total $2,520.00 

2. Several line items were not itemized on the daily work orders that listed personnel, 

equipment and supplies utilized each day. These line items were denied. The total 

amount denied for this category is $928.5046 and broken down below by invoice 

number: 

 6464 – Items not on daily total $246.00 

 6723 – Items not on daily total $682.50 

3. Some line items such as work hours or number of supplies used, were invoiced at a 

higher number or amount, than what were listed on the daily work orders. The NPFC 

reduced the allowed amount to the amount documented on the daily work orders. The 

total amount denied for this category is $85.0247 and broken down below by invoice 

number: 

 6464 – Daily count adjustment total $85.02 

4. Certain third-party purchases (e.g., backfill) were denied because the claimant was 

unable to provide receipts, invoices or other documentation to support the amounts 

43 33 CFR 136.203; 33 CFR 136.205. 44 See, Enclosure (3) NPFC Summary of Costs spreadsheet. 45 Id. 46 See, Enclosure (3) NPFC Summary of Costs spreadsheet. 47 Id.