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OPA Claims
Claims
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Chapter 7: OPA Claims
This chapter explains the procedures for designation, advertising, and filing claims for removal costs or damages resulting from oil spills. Download Entire Chapter 1.7 MB PDF Introduction 75 KB PDF Interim Claims Regulations 100 KB PDF Claimant's Guide 170 KB PDF OSRO FAQs 350 KB PDF Description Download entire chapter. Cover, table of contents. Includes regulations for filing claims for removal costs or damages resulting from oil spills (33 CFR 136); Notice of Designation requirements for a written notice to the source of an oil discharge (136 CFR 305); and the advertisement section, which describes the need for advertisements to potential claimants (136 CFR 309). Guidance for anyone who has suffered a loss due to an oil spill. It describes compensation available from the Oil Spill Liability Trust Fund (OSLTF) and the process of submitting a claim. Includes Optional OSLTF Claim Form). Frequently Asked Questions (FAQs) from Oil Spill Response Organizations (OSROs) on submitting claims for uncompensated oil spill removal costs to the National Pollution Funds Center and suggestions to make the claim preparation process easier and the approval processes quicker. Guidance for responsible parties (RPs) on how to submit a claim for reimbursement of Oil Pollution Act of 1990 (OPA) removal costs and damages that asserts either an affirmative defense or an entitlement to a limit on liability.
Responsible Party Claim Submission Guidance 400 KB PDF
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Oil Pollution Act of 1990
Interim Claims Regulations
The enclosed is the body of the text that was supplied to the Federal Register by Commandant.
October 28, 1992
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List of Subjects 33 CFR Part 135 Advertising, Claims, Continental shelf, Oil pollution. 33 CFR Part 136 Administration practice and procedure, Claims, Oil pollution. 33 CFR Part 137 Claims, Harbors, Insurance, Oil pollution, Reporting and recordkeeping requirements, Vessels. For the reasons set out in the preamble, the Coast Guard amends 33 CFR Parts 135, 136, and 137 as follows: PART 135 - OFFSHORE OIL POLLUTION COMPENSATION FUND 1. The authority citation for Part 135 is revised to read as follows: Authority: 33 U.S.C. 2701-2719; E.O. 12777, 56 FR 54757; 49 CFR 1.46. 2. The heading for Subpart D is revised to read as follows: Subpart D - Notification of Pollution Incidents Subpart D [Amended] 3. In Subpart D, remove the undesignated section headings "Notification", "Designation", and "Advertisement". § 135.301 [Removed] 4. Section 135.301, Purpose, is removed. § 135.303 [Amended] 5. In § 135.303, remove Paragraphs (a)(l) and (a)(2) and redesignate paragraph (a)(3) as an undesignated paragraph. § 135.309 through 135.319 [Removed] 6. 7. Sections 135.309 through 135.319 are removed. Part 136 and its authority citation arc revised to read as follows:
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PART 136 - OIL SPILL LIABILITY TRUST FUND; CLAIMS PROCEDURES; DESIGNATION OF SOURCE; AND ADVERTISEMENT Subpart A - General Sec. 136.1 136.3 136.5 136.7 136.9 Purpose and applicability.
Information.
Definitions.
Foreign claimants.
Falsification of claims.
Subpart B - General Procedure 136.101 Time limitation on claims.
136.103 Order of presentment.
136.105 General requirements for a claim.
136.107 Subrogated claims.
136.109 Removal costs and multiple items of damages.
136.111 Insurance.
136.113 Other compensation.
136.115 Settlement and notice to claimant.
Subpart C - Procedure for Particular Claims REMOVAL COSTS
136.201 Authorized claimants.
136.203 Proof
136.205 Compensation allowable.
NATURAL RESOURCES
136.207 Authorized claimants.
136.209 Proof.
136.211 Compensation allowable.
REAL OR PERSONAL PROPERTY
136.213 Authorized claimants.
136.215 Proof.
136.217 Compensation allowable.
SUBSISTENCE USE
136.219 Authorized claimants.
136.221 Proof.
136.223 Compensation allowable.
GOVERNMENT REVENUES
136.225 Authorized claimants.
136.227 Proof.
136.229 Compensation allowable.
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PROFITS AND EARNING CAPACITY
136.231 Authorized claimants.
136.233 Proof.
136.235 Compensation allowable.
GOVERNMENT PUBLIC SERVICES
136.237 Authorized claimants.
136.239 Proof.
136.241 Compensation allowable.
Subpart D - Designation of Source and Advertisement GENERAL 136.301 Purpose.
136.303 Definitions.
DESIGNATION OF SOURCE
136.305 Notice of designation.
163.307 Denial of designation.
ADVERTISEMENT 136.309 Advertisement determinations.
136.311 Types of advertisement.
136.313 Content of advertisement.
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AUTHORITY: 33 US.C. 2713,2714; E.O. 12777,(56 FR 54757); 49 CFR 1.46. Subpart A - General § 136.1 Purpose and applicability. (a) This part prescribes regulations for -(1) Presentation, filing, processing, settlement, and adjudication of claims authorized to be presented to the Oil Spill Liability Trust Fund (the Fund) under section 1013 of the Oil Pollution Act of 1990 (the Act) (33 US.C. 2713) for certain uncompensated removal costs or uncompensated damages resulting from the discharge, or substantial threat of discharge, of oil from a vessel or facility into or upon the navigable waters, adjoining shorelines, or the exclusive economic zone; (2) Designation of the source of the incident, notification to the responsible party of the designation, and advertisement of the designation and claims procedures; and (3) Other related matters. (b) This part applies to claims resulting from incidents occurring after August 18, 1990. (c) Nothing in this part -(1) Preempts the authority of any State or political subdivision thereof from imposing any additional liability or requirements with respect to -(i) The discharge of oil or other pollution by oil within such State; or (ii) Any removal activities in connection with such a discharge; or (2) Affects or modifies in any way the obligations or liabilities of any person under the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.) or State law, including common law; or (3) Affects the authority of any State -(i) To establish, or to continue in effect, a fund any purpose of which is to pay for costs or damages arising out of, or directly resulting from, oil pollution or the substantial threat of oil pollution; or (ii) To require any person to contribute to such a fund; or (4) Affects the authority of the United States or any State or political subdivision thereof to impose additional liability or additional requirements relating to a discharge, or substantial threat of a discharge, of oil. § 136.3 Information. Anyone desiring to file a claim against the Fund may obtain general information on the procedure for filing a claim from the Director, National Pollution Funds Center, Suite 1000, 4200 Wilson Boulevard, Arlington, Virginia 22203-1804, (202) 493-6830. § 136.5 Definitions. (a) As used in this part, the following terms have the same meaning as set forth in sections 1001 and 1007(c) of the Act (33 U.S.C. 2701 and 2707(c)): "claim", "claimant", "damages", "discharge", "exclusive economic zone", "facility", "foreign claimant", "foreign offshore unit", "Fund', "guarantor", "incident", "National Contingency Plan", "natural resources", "navigable waters", "offshore", "facility", "oil", "onshore facility", "owner or operator", "Person", "removal costs", "responsible party'', "State", "United States", and "vessel". (b) As used in this part "Act means Title I of the Oil Pollution Act of 1990 (Pub.L. 101-380; 33 U.S.C 2701 through 2719).
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"Director, NPFC" means the person in charge of the U.S. Coast Guard National Pollution
Funds Center or that person's authorized representative.
'FOSC' means the Federal On-Scene Coordinator designated under the National
Contingency Plan or that person's authorized representative.
"NPFC" means the U.S. Coast Guard National Pollution Funds Center, Suite 1000, 4200
Wilson Boulevard, Arlington, Virginia 22203-1804.
§ 136.7 Foreign claimants. In addition to other applicable limitations on presenting claims to the Fund, claims by foreign claimants to recover removal costs or damages may be presented only when the requirements of section 1007 of the Act (33 U.S.C. 2707) are met. § 136.9 Falsification of claims. Persons submitting false claims or making false statements in connection with claims under this part may be subject to prosecution under Federal law, including but not limited to 18 U.S.C. 287 and 1001. In addition, persons submitting written documentation in support of claims under this part which they know, or should know, is false or omits a material fact may be subject to a civil penalty of up to $5,000 for each claim. If any payment is made on the claim, the claimant may also be subject to an assessment of up to twice the amount claimed. These civil sanctions may be imposed under the Program Fraud Civil Remedies Act, 31 U.S.C. 3801-3812, as implemented in 49 CFR Part 31. Subpart B - General Procedure § 136.101 Time limitations on claims. (a) Except as provided under section 1012(h)(3) of the Act (33 U.S.C. 2712(h)(3)) (minors and incompetents), the Fund will consider a claim only if presented in writing to the Director, NPFC, within the following time limits: (1) For damages, within three years after -(i) The date on which the injury and its connection with the incident in question were reasonably discoverable with the exercise of due care. (ii)In the case of natural resources damages under section 1002(b)(2)A) of the Act (33 U.S.C. 2702(b)(2)(A)), the date under paragraph (a)(1)(i) of this section, or within three years from the date of completion of the natural resources damage assessment under section 1006(c) of the Act (33 U.S.C. 2706(c)), whichever is later. (2) For removal costs, within six years after the date of completion of all removal actions for the incident. As used in this paragraph, "date of completion of all removal actions" is defined as the actual date of completion of all removal actions for the incident or the date the FOSC determines that the removal actions which form the basis for the costs being claimed are complete, whichever is earlier. (b)Unless the Director, NPFC, directs in writing that the claim be submitted elsewhere, a claim is deemed presented on the date the claim is actually received at the National Pollution Funds Center, Suite 1000, 4200 Wilson Boulevard, Arlington, Virginia 22203-1804. If the Director, NPFC, directs that the claim be presented elsewhere, the claim is deemed presented on the date the claim is actually received at the address in the Commander's directive. § 136.103 Order of Presentment. (a) Except as provided in paragraph (b) of this section, all claims for removal costs or damages must be presented first to the responsible party or guarantor of the source designated under § 136-305.
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(b) Claims for removal costs or damages may be presented first to the Fund only -(1) By any claimant, if the Director, NPFC, has advertised, or otherwise notified claimants in writing, in accordance with § 136.309(c); (2) By a responsible party who may assert a claim under section 1008 of the Act (33 U.S.C. 2708); (3) By the Governor of a State for removal costs incurred by that State; or (4) By a United States claimant in a case where a foreign offshore unit has discharged oil causing damage for which the Fund is liable under section 1012(a) of the Act (33 U.S.C. 2712(a)). (c) If a claim is presented in accordance with paragraph (a) of this section and -(1) Each person to whom the claim is presented denies all liability for the claim; or (2) The claim is not settled by any person by payment within 90 days after the date upon which (A) the claim was presented, or (B) advertising was begun pursuant to § 136.309(d), whichever is later, the claimant may elect to commence an action in court against the responsible party or guarantor or to present the claim to the Fund. (d) No claim of a person against the Fund will be approved or certified for payment during the pendency of an action by the person in court to recover costs which are the subject of the claim. § 136.105 General requirements for a claim. (a) The claimant bears the burden of providing all evidence, information, and documentation deemed necessary by the Director, NPFC, to support the claim. (b) Each claim must be in writing for a sum certain for compensation for each category of uncompensated damages or removal costs (as described in Subpart C of this part) resulting from an incident. If at any time during the pendency of a claim against the Fund the claimant receives any compensation for the claimed amounts, the claimant shall immediately amend the claim. (c) Each claim must be signed in ink by the claimant certifying to the best of the claimant's knowledge and belief that the claim accurately reflects all material facts. (d) In addition to the other requirements of this section, any claim presented by a legal representative of the claimant must also be signed by the legal representative and (1) Be presented in the name of the claimant; (2) Show the title or legal capacity of the representative; and (3) Provide proof of authority to act for the claimant. (e) Each claim must include at least the following, as applicable.: (1) The full name, street and mailing addresses of residence and business, and telephone numbers of the claimant. (2) The date, time, and place of the incident giving rise to the claim. (3) The identity of the vessel, facility, or other entity causing or suspected to have caused the removal costs or damages claimed and the basis for such identity or belief. (4) A general description of the nature and extent of the impact of the incident, the costs associated with removal actions, and damages claimed, by category as delineated in Subpart C of this part, including, for any property, equipment, or similar item damaged, the full name, street and mailing address, and telephone number of the actual owner, if other than the claimant. (5) An explanation of how and when the removal costs or damages were caused by, or resulted from, an incident. (6) Evidence to support the claim. (7) A description of the actions taken by the claimant, or other person on the claimant's behalf, to avoid or minimize removal costs or damages claimed.
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(8) The reasonable costs incurred by the claimant in assessing the damages claimed. This includes the reasonable costs of estimating the damages claimed, but not attorney’s fees or other administrative costs associated with preparation of the claim. (9) To the extent known or reasonably identifiable by the claimant, the full name, street and mailing address, and telephone number of each witness to the incident, to the discharge, or to the removal costs or damages claimed, along with a brief description of that person's knowledge. (10) A copy of written communications and the substance of verbal communications, if any, between the claimant and the responsible party or guarantor of the source designated under ' § 136.305 and a statement indicating that the claim was presented to the responsible party or guarantor, the date it was presented, that it was denied or remains not settled and, if known, the reason why it was denied or remains not settled. (11) If the claimant has insurance which may cover the removal costs or damages claimed, the information required under § 136.111. (12) A statement by the claimant that no action has been commenced in court against the responsible party or guarantor of the source designated under § 136-305 or, if an action has been commenced, a statement identifying the claimant's attorney and the attorney’s address and phone number, the civil action number, and the court in which the action is pending. (13) In the discretion of the Director, NPFC, any other information deemed relevant and necessary to properly process the claim for payment. § 136.107 Subrogated claims. (a) The claims of subrogate (e.g., insured) and subrogee (e.g., insurer) for removal costs and damages arising out of the same incident should be presented together and must be signed by all claimants. (b) A fully subrogated claim is payable only to the subrogee.
(c) A subrogee must support a claim in the same manner as any other claimant.
§ 136.109 Removal costs and multiple items of damages. (a) A claimant must specify all of the claimant's known removal costs or damages arising out of a single incident when submitting a claim. (b) Removal costs and each separate category of damages (as described in Subpart C of this part) must be separately listed with a sum certain attributed to each type and category listed. (c) At the sole discretion of the Director, NPFC, removal costs and each separate category of damages may be treated separately for settlement purposes. § 136.111 Insurance. (a) A claimant shall provide the following information concerning any insurance which may cover the removal costs or damages for which compensation is claimed: (1) The name and address of each insurer. (2) The kind and amount of coverage. (3) The policy number. (4) Whether a claim has been or will be presented to an insurer and, if so, the amount of the claim and the name of the insurer. (5) Whether any insurer has paid the claim in full or in part or has indicated whether or not payment will be made. (b) If requested by the Director, NPFC, the claimant shall provide a copy of the following material:
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(1) All insurance policies or indemnification agreements. (2) All written communications, and a summary of all oral communications, with any insurer or indemnifier. (c) A claimant shall advise the Director, NPFC, of any changes in the information provided under this section. § 136.113 Other compensation. A claimant must include an accounting, including the source and value, of all other compensation received, applied for, or potentially available as a consequence of the incident out of which the claim arises including, but not limited to, monetary payments, goods or services, or other benefits. § 136.115 Settlement and notice to claimant. (a) Payment in full, or acceptance by the claimant of an offer of settlement by the Fund, is final and conclusive for all purposes and, upon payment, constitutes a release of the Fund for the claim. In addition, acceptance of any compensation from the Fund precludes the claimant from filing any subsequent action against any person to recover costs or damages which are the subject of the compensated claim. Acceptance of any compensation also constitutes an agreement by the claimant to assign to the Fund any rights, claims, and causes of action the claimant has against any person for the costs and damages which are the subject of the compensated claims and to cooperate reasonably with the Fund in any claim or action by the Fund against any person to recover the amounts paid by the Fund. The cooperation shall include, but is not limited to, immediately reimbursing the Fund for any compensation received from any other source for the same costs and damages and providing any documentation, evidence, testimony, and other support, as may be necessary for the Fund to recover from any person. (b) Claimant's failure to accept an offer of settlement within 60 days after the date the offer was mailed to the claimant automatically voids the offer. The Director, NPFC, reserves the right to revoke an offer at any time. (c) A claimant will be notified in writing sent by certified or registered mail whenever a claim against the Fund is denied. The failure of the Director, NPFC, to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim. (d) The Director, NPFC, upon written request of the claimant or of a person duly authorized to act on the claimant's behalf, reconsiders any claim denied. The request for reconsideration must be in writing and include the factual or legal grounds for the relief requested, providing any additional support for the claim. The request must be received by the Director, NPFC, within 60 days after the date the denial was mailed to the claimant or within 30 days after receipt of the denial by the claimant, whichever date is earlier. Reconsideration may only be requested once for each claim denied. The Director, NPFC will provide the claimant seeking reconsideration with written notification of the decision within 90 days after receipt of the request for reconsideration. This written decision is final. The failure of the Director, NPFC, to make final disposition of a reconsideration within 90 days after it is received shall, at the option of the claimant any time thereafter, be deemed a final denial of the reconsideration. Subpart C - Procedures for Particular Claims REMOVAL COSTS § 136.201 Authorized claimants. A claim for removal costs may be presented by any claimant.
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§ 136.203 Proof. In addition to the requirements of Subparts A and B of this part, 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. § 136.205 Compensation allowable. 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. NATURAL RESOURCES § 136.207 Authorized claimants. (a) Claims for uncompensated natural resource damages may be presented by an appropriate natural resources trustee. However, in order to facilitate the processing of these claims with respect to a single incident where multiple trustees are involved and to prevent double recovery, the affected trustees should select a lead administrative trustee who will present consolidated claims on behalf of the trustees. (b) A trustee may present a claim for the reasonable cost of assessing natural resources damages separately from a claim for the cost of developing and implementing plans for the restoration, rehabilitation, replacement, or acquisition of the equivalent of the natural resources damaged. § 136.209 Proof. In addition to the requirements of Subparts A and B of this part, a trustee must do the following: (a) Submit the assessment and restoration plans which form the basis of the claim. (b) Provide documented costs and cost estimates for the claim. Final cost estimates for conducting damage assessments or implementing a restoration plan may form the basis for a claim against the Fund for an uncompensated natural resources damage claim. (c) Identify all trustees who may be potential claimants for the same natural resources damaged. (d) Certify the accuracy and integrity of any claim submitted to the Fund, and certify that any actions taken or proposed were or will be conducted in accordance with the Act and consistent with all applicable laws and regulations. (e) Certify whether the assessment was conducted in accordance with applicable provisions of the natural resources damage assessments regulations promulgated under section 1006(e)(l) of the Act (33 U.S.C. 2706(e)(1)). Identify any other or additional damage assessment regulations or methodology utilized. (f) Certify that, to the best of the trustee's knowledge and belief, no other trustee has the right to present a claim for the same natural resources damages and that payment of any subpart of the claim presented would not constitute a double recovery for the same natural resources damages.
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§ 136.211 Compensation allowable. (a) The amount of compensation allowable is the reasonable cost of assessing damages, and the cost of restoring, rehabilitating, replacing, or acquiring the equivalent of the damaged natural resources. (b) In addition to any other provision of law respecting the use of sums recovered for natural resources damages, trustees shall reimburse the Fund for any amounts received from the Fund in excess of that amount required to accomplish the activities for which the claim was paid. REAL OR PERSONAL PROPERTY § 136.213 Authorized claimants. (a) A claim for injury to, or economic losses resulting from the destruction of, real or personal property may be presented only by a claimant either owning or leasing the property. (b) Any claim for loss of profits or impairment of earned capacity due to injury to, destruction of, or loss of real or personal property must be included as subpart of the claim under this section and must include the proof required under § 136.233. § 136.215 Proof. (a) In addition to the requirements of Subparts A and B of this part, a claimant must establish -(1) An ownership or leasehold interest in the property; (2) That the property was injured or destroyed; (3) The cost of repair or replacement; and (4) The value of the property both before and after injury occurred. (b) In addition, for each claim for economic loss resulting from destruction of real or personal property, the claimant must establish -(1) That the property was not available for use and, if it had been, the value of that use; (2) Whether or not substitute property was available and, if used, the costs thereof; and (3) That the economic loss claimed was incurred as the result of the injury to or destruction of the property. § 136.217 Compensation allowable. (a) The amount of compensation allowable for damaged property is the lesser of -(1) Actual or estimated net cost of repairs necessary to restore the property to substantially the same condition which existed immediately before the damage; (2) The difference between value of the property before and after the damage; or (3) The replacement value. (b) Compensation for economic loss resulting from the destruction of real or personal property may be allowed in an amount equal to the reasonable costs actually incurred for use of substitute commercial property or, if substitute commercial property was not reasonably available, in an amount equal to the net economic loss which resulted from not having use of the property. When substitute commercial property was reasonably available, but not used, allowable compensation for loss of use is limited to the cost of the substitute commercial property, or the property lost, whichever is less. Compensation for loss of use of noncommercial property is not allowable. (c) Compensation for a claim for loss of profits or impairment of earnings capacity under § 136.213(b) is limited to that allowable under § 136.235.
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SUBSISTENCE USE § 136.219 Authorized claimants. (a) A claim for loss of subsistence use of natural resources may be presented only by a claimant who actually uses, for subsistence, the natural resources which have been injured destroyed, or lost, without regard to the ownership or management of the resources. (b) A claim for loss of profits or impairment of earning capacity due to loss of subsistence use of natural resources must be included as part of the claim under this section and must include the proof required under § 136.233. § 136.221 Proof. In addition to the requirements of Subparts A and B of this part, a claimant must provide (a) The identification of each specific natural resource for which compensation for loss of subsistence use is claimed; (b) A description of the actual subsistence use made of each specific natural resource by the claimant; (c) A description of how and to what extent the claimant's subsistence use was affected by the injury to or loss of each specific natural resource; (d) A description of each effort made by the claimant to mitigate the claimant's loss of subsistence use; and (e) A description of each alternative source or means of subsistence available to the claimant during the period of time for which loss of subsistence is claimed, and any compensation available to the claimant for loss of subsistence. § 136.223 Compensation allowable. (a) The amount of compensation allowable is the reasonable replacement cost of the subsistence loss suffered by the claimant if, during the period of time for which the loss of subsistence is claimed, there was no alternative source or means of subsistence available. (b) The amount of compensation allowable under paragraph (a) of this section must be reduced by -(1) All compensation made available to the claimant to compensate for subsistence loss; (2) All income which was derived by utilizing the time which otherwise would have been used to obtain natural resources for subsistence use; and (3) Overheads or other normal expenses of subsistence use not incurred as a result of the incident. (c) Compensation for a claim for loss of profits or impairment of earning capacity under ' § 136.219(b) is limited to that allowable under § 136.235. GOVERNMENT REVENUES § 136.225 Authorized claimants. A claim for net loss of revenue due to the injury, destruction, or loss of real property, personal property, or natural resources may be presented only by an appropriate claimant sustaining the loss. As used in this section and § 136.227, "revenue" means taxes, royalties, rents, fees, and net profit shares. § 136.227 Proof. In addition to the requirements of Subparts A and B, a claimant must establish -(a) The identification and description of the economic loss for which compensation is claimed, including the applicable authority, property affected, method of assessment, rate, and method and dates of collection;
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(b) That the loss of revenue was due to the injury to, destruction of, or loss of real or personal property or natural resources; (c) The total assessment or revenue collected for comparable revenue periods; and (d) The net loss of revenue. § 136.229 Compensation allowable. The amount of compensation allowable is the total net revenue actually lost. PROFITS AND EARNING CAPACITY § 136-231 Authorized claimants. (a) A claim for loss of profits or impairment of earning capacity due to the injury to, destruction of, or loss of real or personal property or natural resources may be presented by a claimant sustaining the loss or impairment. The claimant need not be the owner of the damaged property or resources to recover for lost profits or income. (b) A claim for loss of profits or impairment of earning capacity that also involves a claim for injury to, or economic losses resulting from destruction of, real or personal property must be claimed under § 136.213. (c) A claim for loss of profits or impairment of earning capacity that also involves a claim for loss of subsistence use of natural resources must be claimed under § 136.219. § 136.233 Proof. In addition to the requirements of Subparts A and B of this part, a claimant must establish the following-(a) That real or personal property or natural resources have been injured, destroyed, or lost. (b) That the claimant's income was reduced as a consequence of injury to, destruction of, or loss of the property or natural resources, and the amount of that reduction. (c) The amount of the claimant's profits or earnings in comparable periods and during the period when the claimed loss or impairment was suffered, as established by income tax returns, financial statements, and similar documents. In addition, comparative figures for profits or earnings for the same or similar activities outside of the area affected by the incident also must be established. (d) Whether alternative employment or business was available and undertaken and, if so, the amount of income received. All income that a claimant receives as a result of the incident must be clearly indicated and any saved overhead and other normal expenses not incurred as a result of the incident must be established. § 136-235 Compensation allowable. The amount of compensation allowable is limited to the actual net reduction or loss of earnings or profits suffered. Calculations for net reductions or losses must clearly reflect adjustments for -(a) All income resulting from the incident;
(b) All income from alternative employment or business undertaken;
(c) Potential income from alternative employment or business not undertaken, but reasonably
available; (d) Any saved overhead or normal expenses not incurred as a result of the incident; and (e) State, local, and Federal taxes.
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GOVERNMENT PUBLIC SERVICES § 136.237 Authorized claimants. A claim for net costs of providing increased or additional public services during or after removal activities, including protection from fire, safety, or health hazards, caused by a discharge of oil may be presented only by a State or a political subdivision of a State incurring the costs. § 136.239 Proof. In addition to the requirements of Subparts A and B of this part, a claimant must establish-(a) The nature of the specific public services provided and the need for those services; (b) That the services occurred during or after removal activities; (c) That the services were provided as a result of a discharge of oil and would not otherwise have been provided; and (d) The net cost for the services and the methods used to compute those costs. § 136.241 Compensation allowable. The amount of compensation allowable is the net cost of the increased or additional service provided by the State or political subdivision. Subpart D - Designation of Source and Advertisement GENERAL § 136.301 Purpose. This subpart prescribes the requirements concerning designation of the source or sources of the discharge or threat of discharge and advertisement of these designations, including the procedures by which claims may be presented to the responsible party or guarantor. § 136.303 Definitions. As used in this subpart -"Advertisement" means the dissemination of information, including but not limited to paid advertisements, that are reasonably calculated to advise the public how to present a claim. "Designated source" means a source designated under § 136.305. DESIGNATION OF SOURCE § 136.305 Notice of designation. (a) When information of an incident is received, the source or sources of the discharge or threat are designated, where possible and appropriate. If the designated source is a vessel or facility, the responsible party and the guarantor, if known, are notified by telephone, telefax, or other rapid means of that designation. The designation will be confirmed by a written Notice of Designation. (b) A Notice of Designation normally contains, to the extent known -(1) The name of the vessel or facility designated as the source; (2) The location, date, and time of the incident; (3) The type and quantity of oil involved; (4) The date of the designation; (5) The procedures for accepting or denying the designation; and (6) The name, address, telephone number, and, if available, telefax number of the responsible Federal official to whom further communication regarding the incident, advertisement of the incident or denial of designation should be directed.
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§ 136.307 Denial of designation. (a) Within five days after receiving a Notice of Designation under § 136.305, the responsible party or guarantor may deny the designation. (b) A denial of designation must -(1) Be in writing; (2) Identify the Notice of Designation; (3) Give the reasons for the denial and provide a copy of all supporting documents; and (4) Be submitted to the official named in the Notice of Designation. (c) A denial is deemed received on the date the denial is actually received by the official named in the Notice of Designation. ADVERTISEMENT § 136.309 Advertisement determinations. (a) The Director, NPFC, determines for each incident the type, geographic scope, frequency, and duration of advertisement required. (b) In making the determination specified in paragraph (a) of this section, the Director, NPFC may consider -(1) The nature and extent of economic losses that have occurred or are likely to occur, (2) The potential claimants who are likely to incur economic losses; (3) The geographical area that is or will likely be affected; (4) The most effective method of reasonably notifying potential claimants of the designation and procedures of submitting claims; and (5) Relevant information or recommendations, if any, submitted by, or on behalf of, the responsible party or guarantor of the designated source. (c) The Director, NPFC, provides the specific requirements for advertisement for each incident to the responsible party or guarantor of the designated source. (d) If a responsible party or guarantor has not denied designation in accordance with § 136.307, the party or guarantor shall advertise, in accordance with the requirements of this subpart, the designation and the procedures by which claims may be presented. The advertisement must begin not later than 15 days after the date of the designation made under § 136.305. (e) If there is no designation under § 136.305, if the source of the discharge or threat is a public vessel, or if the responsible party and guarantor of the source designated have denied the designation or failed to meet the requirements for advertisement in this section, the Director, NPFC, may advertise procedures for presenting claims. § 136.311 Types of advertisement. Advertisement required by the Director, NPFC, will normally include one or more of the following: (a) Paid advertisements in a newspaper or newspapers having general circulation in the area designated by the Director, NPFC. (b) Notice posted in marinas, marine supply stores, bait and tackle shops, and other appropriate business establishments or public facilities in the area designated by the Director, NPFC. (c) News releases to newspapers, radio stations, television stations, and cable services having general circulation in the area designated by the Director, NPFC. (d) Other means approved by the Director, NPFC, under the circumstances of each case.
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§ 136.313 Content of advertisement. Each advertisement required by this subpart may be required to contain the following information or to indicate where this information may be contained: (a) Location, date, and time of the incident.
(b) Geographical area affected, as determined by the FOSC or Director, NPFC.
(c) Type and quantity of oil involved.
(d) Name or other description of the source designated by the FOSC or Director, NPFC.
(e) Name of the responsible party and guarantor of the designated source.
(f) Name, address, telephone number, office hours, and work days of the person or persons to
whom claims are to be presented and from whom claim information can be obtained. (g) The procedures by which a claim may be presented. (h) Other information required by the Director, NPFC, under the circumstances of each case. PART 137 - DEEPWATER PORT LIABILITY FUND 8. The authority citation for Part 137 continues to read as follows: Authority: 33 U.S.C. 1509(a), 1512(a), 1517(j)(1); 49 CFR 1.46. Subpart F [Removed and Reserved] 9. Dated:
In Part 137, Subpart F, Claims Procedures, is removed and reserved.
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Daniel F. Sheehan, Director
National Pollution Funds Center
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Claimant’s Guide
for
Submitting
Oil Spill Liability Trust Fund
Claims
A Compliance Guide
April 2003
Claimant’s Guide
A Compliance Guide for Submitting Claims Under the Oil Pollution Act of 1990
U.S. Coast Guard National Pollution Funds Center 4200 Wilson Boulevard, Suite 1000 Arlington, VA 22203-1804
April 2003
Record of Changes Change # CH-1 Description Updated information on claims for loss of subsistence use of natural resources Effective Date 3/18/2005
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Updated claims email and Internet addresses
3/28/2006
Table of Contents PART I - INTRODUCTION ........................................................................................................ 1 How to Use This Guide ............................................................................................................ 1 PART II - GENERAL INFORMATION .................................................................................... 2 Background .............................................................................................................................. 2 What Claims may be Submitted? ............................................................................................. 2 Who is Eligible to Submit a Claim?......................................................................................... 3 Lawsuits ................................................................................................................................... 3 Insurance .................................................................................................................................. 3 Double Payments...................................................................................................................... 3 Mitigation ................................................................................................................................. 3 False Claims ............................................................................................................................. 3 PART III - GENERAL CLAIM REQUIREMENTS................................................................. 4 Do You Qualify? ...................................................................................................................... 4 Where Do I Submit a Claim? ................................................................................................... 4 What You Need to Submit to the NPFC .................................................................................. 4 Claim Format............................................................................................................................ 5 Time Limits .............................................................................................................................. 6 The Adjudication Process......................................................................................................... 6 PART IV - SPECIFIC CLAIM REQUIREMENTS .................................................................. 7 A. Removal Costs.................................................................................................................... 8 B. Real or Personal Property Damages ................................................................................... 9 C. Loss of Profits and Earning Capacity ............................................................................... 10 D. Loss of Government Revenue .......................................................................................... 12 E. Cost of Increased Public Services..................................................................................... 13 F. Loss of Subsistence Use of Natural Resources ................................................................. 14 G. Natural Resource Damages .............................................................................................. 15 H. Claims by a Responsible Party (RP) ................................................................................ 16 KEY DEFINITIONS ................................................................................................................... 17 ACRONYM LIST........................................................................................................................ 18 PRIVACY ACT STATEMENT ................................................................................................. 19 OPTIONAL OSLTF CLAIM FORM — INSTRUCTIONS ................................................... 19
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PART I - INTRODUCTION How to Use This Guide If you believe you have uncompensated removal costs or damages resulting from an oil spill to the navigable waters or the threat of an oil spill to the navigable waters, you may be entitled to compensation from the Oil Spill Liability Trust Fund (OSLTF). The National Pollution Funds Center (NPFC) created this guide to assist you in determining whether you have damages that may be covered and, if so, how to properly submit a claim. This guide is intended to assist individuals and small entities (e.g., small businesses, not-for-profit organizations, and small governmental jurisdictions) with submitting a claim or claims to the NPFC. This guide also provides assistance to states and larger entities. This guide is divided into four parts: “Introduction,” “General Information,” “General Claim Requirements,” and “Specific Claim Requirements.” To help determine whether you are eligible, Part II (pages 2-3) provides background information on the NPFC, OSLTF, the Oil Pollution Act (OPA), the types of claims that can be submitted, and who is eligible to submit claims. To help you learn about the submission process, deadlines, etc., Part III (pages 4-6) addresses information that is applicable to submission of all claims, regardless of claim type. Format, time limits, and the adjudication process are discussed in this section. To learn about specific proof and supporting information for different claim types, Part IV (pages 7-16) addresses the specific requirements for each claim type and lists additional information that may be required to process your claim. General Claim Requirements also apply. Key Definitions and an Acronym List can be found on pages 17 and 18, respectively. A Privacy Act Statement and instructions for the optional claim form can be found on page 19. A copy of the Optional OSLTF Claim Form is inserted with the guide. Additional information may be obtained from the NPFC Web site: www.uscg.mil/npfc This guide is intended to help claimants submit a claim against the OSLTF. IT IS NOT A LEGAL REFERENCE. The Oil Pollution Act of 1990 (OPA) (33 U.S.C. 2701 et. seq.) is the law that established the OSLTF and covers incidents involving oil spills. Claimants should consult the claims regulations in 33 CFR Part 136 to address legal and regulatory issues. If there is a conflict between this guide and OPA or the regulations at 33 CFR Part 136 the statute and regulations prevail. If any claims-related questions are not answered by this guide or if you do not have internet access, you may contact the NPFC in writing, by phone, fax, or email:
National Pollution Funds Center Claims Adjudication Division 4200 Wilson Boulevard, Suite 1000 Arlington, Virginia 22203-1804 Telephone: (800) 280-7118 Fax: (202) 493-6937 or (202) 493-6938 Claims-related email questions can be sent to the NPFC: arl-pf-npfcclaimsinfo@uscg.mil
Normal business hours are weekdays from 7:30 a.m. to 4:00 p.m. eastern time. 1 CH-2
PART II - GENERAL INFORMATION Background OPA dictates that the spiller (responsible party or RP) pay compensation for certain removal costs or damages suffered as a result of an oil spill. The types of costs or damages covered under OPA are listed on page 2, under "What Claims may be Submitted?" The OSLTF was established to provide— • Funds for Federal cleanup • Funds to assess and restore damaged natural resources • Compensation to claimants for certain removal costs and damages resulting from an oil spill incident • Cost recovery from responsible parties for costs and damages paid from the OSLTF The USCG, through the NPFC, manages the OSLTF by— • Disbursing funds for Federal cleanup • Monitoring the sources and uses of funds • Adjudicating claims submitted to the OSLTF for payment • Pursuing reimbursement from the RP for costs and damages paid by the OSLTF After the NPFC evaluates your claim, a determination is made to accept or deny all or part of your claim. You will have 60 days to accept or reject the claim determination. If you accept the claim determination, then the NPFC will process the payment of the amount offered. If you reject the claim determination, you can request reconsideration of your claim and provide additional information. On reconsideration, the NPFC may re-evaluate your entire claim, based on the new information/documentation that you provide. What Claims may be Submitted? OPA incidents involve a discharge or substantial threat of a discharge of oil from a vessel or facility into or on the navigable waters of the U.S., adjoining shoreline, or the exclusive economic zone. Claim types allowed under OPA include— • Removal Costs (see page 8) • Real or Personal Property Damage (see page 9) • Loss of Profits and Earning Capacity (see page 10) • Loss of Government Revenue (see page 12) • Cost of Increased Public Services (see page 13) • Subsistence Loss (see page 14) • Natural Resource Damage (see page 15) Under certain conditions, OPA also allows an RP to submit a claim to the NPFC for removal costs and damages paid by the RP (see page 16).
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Who is Eligible to Submit a Claim? A claimant can be— • An individual • A corporation, partnership, or association • The United States government • Federal, state, foreign, or Indian tribe trustee • States, the District of Columbia, municipalities, and political subdivisions of States • The Commonwealth of Puerto Rico, Guam, American Samoa, the U.S. Virgin Islands, the Commonwealth of the Northern Marianas Islands, and any other territory or possession of the United States • Certain foreign claimants, in accordance with Section 1007 of OPA (33 U.S.C. 2707) • An RP who establishes entitlement to a defense to liability or limitation of liability in accordance with Section 1008 of OPA (33 U.S.C. 2708) Lawsuits The NPFC cannot evaluate, decide, or pay any claim that is part of a court case, including a class action suit, to recover the costs or damages in your claim. Insurance Claimants are not required to have insurance for OPA removal costs or damages. If you do have insurance that may cover the removal cost or damage, you are not required to use it, but you must report that you have it. Double Payments If a removal cost or damage claim has already been paid, no other claim for the same removal costs or damages can be paid from the OSLTF. For example, if a removal contractor accepts payment from the OSLTF for his removal costs, but then fails to pay his subcontractor, the subcontractor cannot be paid from the OSLTF for the same removal activity. Mitigation The Coast Guard considers that each claimant has a responsibility to make reasonable efforts to mitigate—that is, to avoid or minimize—the losses from an oil spill incident. Additional expenses related to avoiding or minimizing losses by a claimant can be included in the claim as additional expenses. The claimed amount of a direct loss will be adjusted for extra expenses and/or income related to avoidance/minimization efforts. False Claims If you submit a false claim you can be subject to civil and criminal prosecution under Federal law (18 U.S.C. 287 and 1001; 31 U.S.C. 3729).
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PART III - GENERAL CLAIM REQUIREMENTS Do You Qualify? To qualify as an OPA claim, the following must be true: • The incident (events surrounding the spill or threat of a spill) must have occurred on or after August 18, 1990. • The incident involved the discharge, or substantial threat of discharge, of oil. (OPA expressly exempts discharges from public vessels, such as a U.S. Naval vessel; from an onshore facility subject to the Trans-Alaska Pipeline Authorization Act; and from discharges permitted by Federal, state, or local permit.) • The discharge or substantial threat of a discharge was into or upon the navigable waters of the U.S., their adjoining shorelines, or the Exclusive Economic Zone of the United States. A spill that impacts or potentially impacts ground water but not the navigable waters of the U.S. is not an OPA spill. • The cost or damage is a type covered by OPA (see listing of claim types on page 2). Where Do I Submit a Claim? You must first submit the claim to the RP— • Unless you fall under one of the exceptions noted in the following text, you must always first submit your claim to the RP or its insurer. (This guide does not address procedures for submitting claims to the RP. The RP must establish and advertise those procedures.) • Your submission to the RP should state that you are filing a claim under Section 2713(a) of the Oil Pollution Act. Simply submitting an invoice or a bill to the RP is not sufficient unless the bill or invoice clearly states that it is a claim under OPA. The exceptions for sending your claim directly to the NPFC rather than submitting it first to the RP are— • The NPFC advertises or notifies claimants to submit claims directly to the NPFC. • An RP asserting a claim under Section 1008 of OPA (33 U.S.C. 2708). • A Governor of a State submitting for removal costs incurred by the State. • A U.S. claimant suffers removal costs or damages from oil pollution from a foreign offshore unit. After submitting your claim to the RP can you submit the claim to the NPFC? • Yes. If the RP or its insurer denies your claim or does not pay within 90 days of the date you presented your claim to them or the RP’s advertising began (whichever is later), you can submit your claim to the NPFC. What You Need to Submit to the NPFC • You must provide the NPFC with the information, documentation, and evidence needed to support your claim. If more information is needed, the NPFC will ask you for it. To make the process as quick as possible on your behalf, submit complete and detailed supporting information with your claim. Receipt of incomplete information is the most common cause for delay in processing claims! 4
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You will be reimbursed for reasonable removal costs and damages covered under OPA, including the reasonable cost of assessing you damage. For example, you can be reimbursed the costs of an accountant's assessing your business losses, but you will not be reimbursed for the accountant’s costs of assisting you in preparing the claim. Businesses should identify, when appropriate, any "Confidential Business Information" included with your claim and provide the reason(s) you consider the information to be confidential. Under Federal law the government may be required to release documents to the general public.
(NOTE: Detailed information needed for each claim category is included in Part IV.)
Claim Format There is no required format for OSLTF claims. You must, however, support your claim with evidence, information, and documentation; an optional claim form and instructions are included with this guide and may be used as an aid. You do not need a lawyer to file a claim. You will not be compensated for any attorney's fees if you use a lawyer to assist in preparing or filing a claim. Claims must be made in writing; we cannot accept verbal claims. Claims must follow the requirements for a claim (33 CFR 136.105), including the following information: • Type and amount of damages for each type of claim • Total amount claimed • Your full name, street and mailing address(es), and telephone numbers for your home and business • Time, date, and geographic location of the oil spill; identification of the navigable water impacted; and an explanation of how the oil impacted the water • Identify the vessel, facility, or person causing or suspected of causing the spill, if possible, and include an explanation of why you suspect the vessel, facility, or person to have caused the spill • A general description of the impact of the spill, including the removal costs or damages claimed by category • Explanation of how the damage happened, the location, and the date and time (this may/may not be the same as the location, date, or time of the spill) • Descriptions of actions taken to minimize or avoid damages • Costs of assessing the damage (do not include attorney's fees or other costs for claim preparation or filing) • Name, street and mailing address(es), and telephone numbers of any witnesses and a brief description of what the witness knows • Copies of any written communications and content of any verbal communications with the RP, including any claims submitted to the RP • Information on any attempts to submit claims to the person or company responsible for the oil pollution • Information on any insurance claim made for removal costs or damages • Any compensation you have received for removal costs or damages from the spill 5
• • •
Statement that no action has been taken in court or, if action has been taken, the status of the pending court case Certification statement of the accuracy of the claim to the best of your knowledge and belief Your signature and, if applicable, your legal representative's signature
If necessary, the NPFC may ask you for additional information. Time Limits Claims for Damages: Damage claims must be made within three (3) years after the date on which the damage and its connection with the spill was reasonably discoverable with the exercise of due care. The only exception is for natural resource damage claims – see the Natural Resource Damage Funding Guidelines link in Section G of Part IV. Claims for Removal Costs: A removal cost claim must be made within six (6) years after the date of completion of all removal actions for the incident. NPFC considers the claim as "presented" on the day it is received. The Adjudication Process The NPFC processes claims in the order received. The NPFC reviews the claim to see if all the information is included. If additional information is needed, the NPFC will request that you forward the information. If the information requested is not received within 90 days, NPFC will complete adjudication of the claim with the information it has. This may result in a reduction of possible compensation or denial of the claim. Once the NPFC sends you a claim determination, you must accept or reject the offer within 60 days— • If you accept, you must sign a release. • If you take no action within 60 days, the offer to pay will be voided and the claim closed. • If you reject the offer, you may provide additional information and ask NPFC to reconsider your claim. This may start an entirely new review process. Another claim determination will be made as a result of reconsideration and this determination on reconsideration becomes final agency action. “Reconsideration” is not “negotiation.” Claims are paid in the order that they are approved. Payment normally takes 30 days after the NPFC receives your signed release.
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PART IV - SPECIFIC CLAIM REQUIREMENTS Sections A through H address the specific requirements for each category of claim and lists additional information above that listed in the General Claims Requirements that may be required to process your claim. If any claims-related questions are not answered by this guide or if you do not have internet access, you may contact the NPFC in writing, by phone, fax, or e-mail:
National Pollution Funds Center Claims Adjudication Division United States Coast Guard 4200 Wilson Boulevard, Suite 1000 Arlington, Virginia 22203-1804 Telephone: Fax: (800) 280-7118 (202) 493-6937 or (202) 493-6938
Claims-related email questions can be sent to the NPFC:
arl-pf-npfcclaimsinfo@uscg.mil
Normal business hours are weekdays from 7:30 a.m. to 4:00 p.m. eastern time.
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A. Removal Costs Removal Costs: “Removal Costs” means 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 such an incident. Example of a Typical Claim: You own waterfront property where a boat and dock were oiled from an OPA incident. You notified the National Response Center of the incident, discussed it with the FOSC, and hired a local contractor to remove the oil. You may have a claim for the cost of the contractor used to remove the oil from your property. Eligible Claimant: Anyone incurring removal costs. What you Must Prove: In addition to the information required in Part III, you must provide information that is specific to removal cost claims to prove that— • Necessary actions were taken to prevent or reduce the effects of the spill. • Removal costs resulted from these actions. • Actions taken were reasonable and consistent with the National Contingency Plan. Examples of Supporting Information: Evidence of Spill: • FOSC report • Information on EPA or USCG notification • Newspaper reports describing the spill • Witness(es) statement(s) General Information: • Detailed description of actions • Dates on which work was performed • Analysis of spill substance • Map of area • Pictures of area, damage, and spill Costs: • • • • • • • Receipts, invoices, or similar records with description of work How rates were determined and any comparison of rates Daily records of personnel costs including details on labor rates, hours, travel, and transportation Daily records of equipment costs including description and use Signed disposal manifests and proof of payment for disposal Payroll verification of hourly rate at the time of spill Verification of standard equipment rates for equipment used
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B. Real or Personal Property Damages Real or Personal Property Damages: “Real or Personal Property Damages” means damages for injury to, or economic losses resulting from destruction of, real or personal property.
(NOTE: Injury to real or personal property does not include personal injury!)
Example of a Typical Claim: You own a recreational boat or waterfront property that was oiled by an OPA incident. You may have a claim for the cost of restoring your property to its pre-spill condition. Eligible Claimant: Person or entity who owns or leases the property. You Must Provide Information Showing: • Your ownership or leasehold interest in the property • That property was injured or destroyed • Value of property both before and after injury • Cost of repair or replacement of the property If you lost money, show: • The property was not usable because of the oil spill • The value of your property before and after the spill • Whether or not substitute property was available, and, if you did use substitute property, what the costs were • How you lost money from the damage to the property Examples of Documentation to Support Claim: Evidence of Spill: • FOSC report • Information on EPA or USCG notification • Newspaper reports describing the spill • Witness(es) statement(s) General Information: • Copy of title, deed, lease, or license to property in your name • Pictures or videotape of property and/or damage • Maps or legal documents showing the location of the property within the spill area • If you sold the property, professional property appraisals for the value of the property prior to and after the spill, actual selling price of the property, and evidence connecting the depressed selling price to the oil spill rather than to other economic or real property factors • Copies of bills paid for repair of damage or two estimates showing activities and costs to repair the damage • Any expenses or money lost while the property was unavailable because of spill damage • Lease or rental agreement of any substitute property used
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C. Loss of Profits and Earning Capacity Loss of Profits and Earning Capacity: “Loss of profits and earning capacity” means damages equal to the loss of profits or impairment of earning capacity due to the injury, destruction, or loss of real property, personal property, or natural resources. You do not have to own the damaged property or resources to submit a claim under this category. Example of a Typical Claim: You lease a commercial charter boat that was trapped in port when the Coast Guard closed the river to remove oil. You may have a claim for lost profits or earnings during the time the river was officially closed. The recreational fishermen whose trip was cancelled would not have a loss of profits or earnings. Eligible Claimant: Anyone with loss of profits or income. You Must Provide Information Showing: • Property or natural resources that were damaged, destroyed or lost, resulting in your loss • Your income was reduced due to the damage or loss of the property or natural resources and how much it was reduced • Amount of profits and earnings in similar time periods • If alternative employment or business was available, what, if any, income was received from it • Savings to overhead and other normal expenses not paid as a result of the spill (e.g., commuting costs, utility fees) Examples of Documentation to Support Claim: Evidence of Spill: • FOSC report • Information on EPA or USCG notification • Newspaper reports describing the spill • Photos of damaged property (before and after the spill) General Information for Employee Claims: • Statement on how the spill caused a loss in income • Affidavit from your employer on the impact on your work or income due to the spill and if the company will be filing a claim for lost profits • Copies of pay stubs, receipts, etc., from before, during, and after the spill • Personnel records from your employer before, during, and after the spill, showing employment • Description of efforts to reduce your loss, including job search • Copies of any job-hunting expenses (e.g., travel costs) • Signed copies of income tax returns and schedules for at least two years prior to spill • Details of employment expenses not paid during period being claimed (e.g., commuting costs) • Copies of pay stubs, etc., from alternative employment during time of spill
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General Information for Claims by Businesses: • Description and documentation of business losses due to spill • Copies of letters of business cancellations caused by the spill damage • Maps or descriptions of the area showing the business location and the spill impact area • Financial statements for at least two years prior to spill and from the year of the spill • Signed copies of income tax returns and schedules for at least three years prior to spill • Details on efforts to mitigate losses or why no efforts were taken • Statement from you or witnesses on how the spill led to loss of income or earning capacity; explain any earnings anomalies • For hotels, daily and monthly occupancy information for two years prior to spill and the year of the spill General Information on Claims by Fishing or Marine Charters: • • • • • • • • • • Description of business losses caused by the spill Evidence that vessel(s) were in the area impacted by the spill and were unable to carry on their business due to the spill Maps or descriptions of the area showing business location within spill area Statement from you or witnesses on how the spill caused the loss of income; explain any earnings anomalies Signed copies of income tax returns and schedules for at least three years prior to spill Details on expenses not paid out during period being claimed (e.g., wages) Booking records for three years prior to spill and year of spill List of charter rates, including any services the business specializes in (e.g., sport fishing) Copies of any logs relating to boating activities for the year prior to and the year of the spill Registration documents for the vessel(s), copies of business license, vessel license, fishing license, captain's license
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D. Loss of Government Revenue Loss of Government Revenue: Damages equal to the net loss of taxes, royalties, rents, fees, or net profit shares due to the injury, destruction, or loss of real property, personal property, or natural resources. Example of a Typical Claim: A city charges fees for parking at a lot near a public beach. The beach is closed while an oil spill is being cleaned. The city may have a claim for loss of revenue during the beach closure. Eligible Claimant: Federal government, a State, or a political subdivision of a State. You Must Provide Information Showing: • That the loss of revenue was caused by the injury to, destruction of, or loss of real or personal property or natural resources caused by the discharge • The amount, identity, and description of the revenue loss for which compensation is claimed, including the applicable authority for collecting the revenue, method of assessment, applicable rate, and dates of collection or periods of loss • Expenditures saved because revenue was not collected • The total assessment or revenue collected and related expenditures for comparable revenue periods, typically covering two years Examples of Documentation to Support Claim: Evidence of Spill: • FOSC report • Information on EPA or USCG notification • Newspaper reports describing the spill • Witness(es) statement(s) General Information: • Description of what revenues were impacted and how the spill caused a loss of revenues • Copies of statutes, regulations, ordinances, etc., outlining applicable authority to raise such revenues, property affected, method of assessment, rate of assessment, and method and dates of collection of assessment • Government financial reports showing total assessment or revenue collected for comparable periods, typically covering two years • Details of any expenses not paid out by government during the period being claimed • Details and explanation of net loss of revenue
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E. Cost of Increased Public Services Cost of Increased Public Services: “Cost of Increased Public Services” are damages for net costs of providing increased or additional public services during or after removal activities, including protection from fire, safety, or health hazards, caused by a discharge of oil or directly attributable to response to the oil spill incident. Example of a Typical Claim: You are the manager of a coastal town that must provide emergency traffic control in the vicinity of an OPA incident. The town may have a claim for the costs of providing those emergency services. Eligible Claimant: State or political subdivision of a State. You Must Provide Information Showing: • Justification for the public services provided, including documentation of what specific services were provided and showing their relationship to the spill • When services were provided (during or after the removal activities) • Services were in addition to services normally provided • Net cost for the services and the methods used to compute those costs Examples of Documentation to Support Claim: Evidence of Spill: • FOSC report • Information on EPA or USCG notification • Newspaper reports describing the spill • Witness(es) statement(s) General Information: • Reports showing the increased public services were required and if the services were due to fire, health, or safety hazards • Detailed description of what increased services were necessary and why, including a distinction between removal activities, safety acts, and law enforcement acts, and if the increase was actually incurred or if normal resources were diverted for use • Daily reports on the activities of the government personnel and equipment involved Government Labor and Equipment Rates: • Payroll verification of the government hourly rate at the time • Verification of the standard government equipment rates for any equipment claimed • Signed and dated records of the spill including hourly rates for labor and equipment • Explanation as to whether rates are fully loaded or not and formulas used; states should provide rates under OMB Circular A-87 • Certification that rates used reflected actual costs incurred and did not include punitive damages or fees
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F. Loss of Subsistence Use of Natural Resources Loss of Subsistence Use of Natural Resources: “Loss of Subsistence Use of Natural Resources” means damages for loss of subsistence use of natural resources which have been injured, destroyed, or lost, without regard to the ownership or management of the resources. Example of a Typical Claim: You are an individual or family that subsists on natural resources from a river that has been polluted from an OPA incident. You may submit a claim for the cost of mitigating your loss of subsistence use of natural resources via the commercial market, additional cost of traveling to another location, or other similar methods. Eligible Claimant: Anyone who experiences a loss of subsistence use of natural resources as the result of an OPA incident. Guidelines: The Loss of Subsistence Use Claim Guidelines & Forms is an NPFC publication that provides detailed information on and forms specific for submitting claims for loss of subsistence, which can be unique from other types of claims. You can find the latest version of this document from NPFC’s Web site at www.uscg.mil/npfc/Claims/claims_docs.htm. For additional assistance, contact: Kristina.N.Morsell@uscg.mil (800) 280-7118 or (202) 493- 6860
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G. Natural Resource Damages Natural Resource Damages: Damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing the damage. Example of a Typical Claim: You are the designated trustee agency for a state wildlife refuge that is oiled from an OPA incident. As trustee, you may have a claim for natural resource damages to cover the costs of assessing injuries and restoring the refuge to its pre-spill condition. Eligible Claimant: Federal, state, foreign and Indian tribal trustees. NRD Guidelines: Natural Resource Damage claims are often unique. A separate Natural Resource Damage Funding Guidelines publication is available on the NPFC Web page: www.uscg.mil/npfc/NRD/ You may also call the NPFC’s toll-free number with claims questions: (800) 280-7118
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H. Claims by a Responsible Party (RP) Claims by a Responsible Party: OPA Section 1008 (33 U.S.C. 2708) provides that an RP may assert a claim for removal costs and damages only if the RP demonstrates that the RP is entitled to a defense to liability under Section 1003 or to a limitation of liability under Section 1004. Example of a Typical Claim: You are the owner of a recreational boat that sank after being hit by another vessel. Your vessel caused a gasoline and motor oil spill. If you can prove that the incident was caused solely by the other vessel, you may have a claim for amounts you paid for oil removal costs and damages. RP Claims Must Show the Following: • Documentation addressing each element of the complete defense to liability (33 U.S.C. 2703) or limitation of liability (33 U.S.C. 2704), as applicable • That other claimants paid by the RP had presented their claims within OPA's time limits • That the RP presented its claim to the NPFC within three years of the date the paid claims were presented to the RP • Removal costs and damages for which compensation is requested are included under OPA (33 U.S.C. 2708) • That individual claims paid meet the applicable regulatory requirements for claims against the OSLTF • If the claim is for costs in excess of your limit of liability you must disclose— > All costs and paid claims (not just those exceeding the limit of liability) and > How those costs and paid claims meet OPA requirements The NPFC will first evaluate your entitlement to the defense to liability or limitation of liability claimed before taking further action. You will be notified of this determination. If your entitlement to the limitation of liability or complete defense to liability is upheld, the NPFC will measure the uncompensated removal costs and damages in accordance with the claims regulations for each claim type. If the claim is for costs in excess of your limit of liability, the NPFC will measure the total acceptable costs for the incident and will deduct the limit of liability amount from the measurement.
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KEY DEFINITIONS Damages. OPA damages means damages to natural resources, to real or personal property, for loss of
subsistence use of natural resources, for loss of governmental revenues, for loss of profits or earning capacity, and for increased or additional public services. These damages are specified in Section 1002(b) of OPA and are amplified in Section IV of this guide.
Discharge. Any emission (other than natural seepage), intentional or unintentional, and includes, but is not limited to spilling, leaking, pumping, pouring, emitting, or dumping. Guarantor. Any person who provides evidence of financial responsibility for an RP under OPA. Natural Resources. Land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and
other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States (including the resources of the exclusive economic zone), any State or local government or Indian tribe, or any foreign government.
Oil. Oil of any kind or in any form, including petroleum, fuel oil, sludge, oil refuse, and oil mixed with
wastes other than dredged spoil, but does not include any substance which is specifically listed or designated as a hazardous substance under subparagraphs (A) through (F) of Section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. 9601) and which is subject to the provisions of that Act [42 U.S.C. §9601 et seq.].
Oil Spill. An occurrence or series of occurrences having the same origin, involving one or more vessels, facilities, or any combination thereof, resulting in the discharge or substantial threat of discharge of oil into or upon navigable waters of the United States, adjoining shorelines, or the exclusive economic zone (e.g., oil spill in coastal waters from a tanker). A spill that impacts ground water, but not the navigable waters of the U.S., is not an OPA spill. Removal Costs. 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 such an incident.
Responsible Party.
In the case of a vessel, any person owning, operating, or demise chartering the vessel; In the case of an onshore facility (other than a pipeline), any person owning or operating the facility, except a Federal agency, State, municipality, commission, or political subdivision of a State, or any interstate body, that as the owner transfers possession and right to use the property to another person by lease, assignment, or permit; In the case of an offshore facility (other than a pipeline or a deepwater port licensed under the Deepwater Port Act of 1974 (33 U.S.C. 1501 et seq.)), the lessee or permittee of the area in which the facility is located or the holder of a right of use and easement granted under applicable State law or the Outer Continental Shelf Lands Act (43 U.S.C. 1301-1356) for the area in which the facility is located (if the holder is a different person than the lessee or permittee), except a Federal agency, State, municipality, commission, or political subdivision of a State, or any interstate body, that as owner transfers possession and right to use the property to another person by lease, assignment, or permit; In the case of a deepwater port licensed under the Deepwater Port Act of 1974 (33 U.S.C. 1501-1524), the licensee; In the case of a pipeline, any person owning or operating the pipeline; and, In the case of an abandoned vessel, onshore facility, deepwater port, pipeline, or offshore facility, the persons who would have been responsible parties immediately prior to the abandonment of the vessel or facility.
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ACRONYM LIST
CFR EPA FOSC NPFC OPA
Code of Federal Regulations Environmental Protection Agency Federal On-Scene Coordinator (either U.S. Coast Guard or EPA) National Pollution Funds Center Oil Pollution Act of 1990 (also known as 33 U.S.C. 2701 et. seq.) Oil Spill Liability Trust Fund Responsible Party United States Code United States Coast Guard
OSLTF RP U.S.C. USCG
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PRIVACY ACT STATEMENT
AUTHORITY: 33 U.S.C. 2713. PRINCIPAL PURPOSE: To aid the Coast Guard in adjudicating claims for reimbursement of removal costs and damages from oil spills when the Responsible Party has not paid. ROUTINE USES: Information on reimbursements may be provided to the Internal Revenue Service for tax purposes and may be provided to the Department of Justice for litigation against the Responsible Party. DISCLOSURE: Decision to submit a claim is voluntary; but, if proper information is not furnished by the claimant, the Government may be unable to evaluate or pay a claim.
This information applies to all claims against the Oil Spill Liability Trust Fund, whether or not the Optional OSLTF Claim Form is used.
OPTIONAL OSLTF CLAIM FORM — INSTRUCTIONS Please provide all information, evidence, and documentation that supports the removal costs and/or damage(s) claimed. Use additional sheets or pages, as necessary, to provide information, evidence, and documentation. The following numbered paragraphs correspond to the numbers on the optional claim form: 1. 2. Complete name, street, city, state, ZIP and phone number of the claimant (party that incurred damage and is seeking reimbursement). If known, provide the following incident information on the oil spill or threat of oil spill causing or suspected of causing the removal costs and/or damage(s) claimed: • • • 3. 4. 5. 6. 7. The identity of the vessel, facility or entity causing or suspected of causing the incident. Describe the geographic area and waterway directly affected by the oil spill or threat of oil spill. Briefly describe any known information regarding the occurrence of the oil spill or threat of oil spill.
Indicate the amounts by the type of claim(s) being submitted. Provide the total amount claimed. Indicate if claimant has had any communication (written or verbal) with the entity causing or suspected of causing the damage(s) claimed. Has the claimant or the claimant’s legal representative submitted the claim(s) to the entity causing or suspected of causing the damage claimed? If yes, include the date submitted. If claim was submitted to the responsible party, indicate any response (written or verbal) or any payment you have received. Provide the date the claim was submitted. Indicate if the claimant is pursing a claim(s) against the responsible party by legal representation in a court of law. If yes, provide all information that will enable us to contact your legal representative and identify your case. * * At the bottom of the first page of the form, please initial and date the page. * 19 *
8.
Indicate if claimant is pursuing payment from an insurance carrier for costs that are included in the claim. If yes, provide all information that will enable us to contact the insurer and identify the claimant’s policy. Provide detailed information, evidence, and documentation that describes the extent of the damage(s) claimed. Attach copies, if necessary, of all pertinent information. Provide any information, evidence, and documentation that will help describe how the oil spill, or threat of oil spill, caused the removal costs and/or damage(s) claimed. Provide any information, evidence, and documentation that describe the actions of the claimant or any other person on the claimant’s behalf to reduce or avoid the damage(s) claimed. Provide the name, address and telephone number (if known) of any witness to the damage(s) claimed. On a separate page provide a summary of each witness's knowledge of the damage(s) claimed or the incident causing or suspected of causing the damage(s) claimed. If you provide additional documents, please list them here or on a separate piece of paper. If the claimant is an individual, that person must sign the claim. If the claimant is a corporation, an officer of the company must sign the claim. All signatures must be in ink to be valid. If the claim is presented by a legal representative, that legal representative must also sign the claim. Provide the complete address and phone number of that legal representative.
9. 10. 11.
12.
13. 14.
15.
Submit your claim, with any necessary information, evidence, and documentation to: Director (ca) National Pollution Funds Center 4200 Wilson Blvd., Suite 1000 Arlington, VA 22203-1804 Claims for Natural Resource Damages or for Loss of Subsistence Use of Natural Resources may be addressed to “Director (cn)” . We recommend that you keep the Privacy Act Statement and a copy of the claim for your files.
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Department of Homeland Security U.S. Coast Guard National Pollution Funds Center 4200 Wilson Boulevard, Suite 1000 Arlington, VA 22203-1804
Optional OSLTF Claim Form
CG NPFC-CA1 (Rev. April 03)
PURPOSE: This form may be used for submitting claims to the U.S. Coast Guard, National Pollution Funds Center, for potential compensation from the Oil Spill Liability Trust Fund for uncompensated removal costs or damages resulting from an incident under the Oil Pollution Act of 1990 (OPA). You may use your own version of this form. PLEASE PRINT OR TYPE: 1. Claimant Information: Name: Address: _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ Home Tel. #: Fax Number: 2. Incident Information: Date: ____________________________ ____________________________ Work Tel. #: _____________________________ E-mail: _________________________________
Time: ______________ NRC Report #:_________________
Name of vessel or facility causing damage: ____________________________________________________________________ Geographic location of incident: ____________________________________________________________________________ Brief description of the incident: ____________________________________________________________________________ _______________________________________________________________________________________________________ _______________________________________________________________________________________________________ _______________________________________________________________________________________________________ 3. Type(s) of claim(s) and total amount for costs and damage(s) claimed: $_____________ Subsistence Use $_____________ Natural Resources $_____________ Profits & Earning Capacity $ ____________ Government Revenues $ _______________ Removal Costs $ _______________ Public Services $ _______________ Real or Personal Property
$_______________________________ Total Amount Claimed 4. Has claimant communicated with the responsible party? 5. Has the claim been submitted to the responsible party? No No Yes Yes Date Submitted: _____________________
6. If the claim has been submitted to the responsible party, what action has the responsible party taken? No Action Denied Other – Explain:
_______________________________________________________________________________________________________ _______________________________________________________________________________________________________ 7. Has claimant commenced an action in court to recover costs which are the subject of the claim? No Yes If yes, provide the name, address, phone number of your attorney, the court in which action is
pending and the civil action number: _________________________________________________________________________ _______________________________________________________________________________________________________ _______________________________________________________________________________________________________ _______________________________________________________________________________________________________
CG NPFC-CA1 (APR 03) Previous edition can be used
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Initials/Date:
/
Optional OSLTF Claim Form
CG NPFC-CA1
8. Has claimant submitted or planned to submit the loss to an insurer? No Yes Please provide the name, address, and phone number of your insurer, the policy number, and explain any compensation received: _______________________________________________________________________________________________________ _______________________________________________________________________________________________________ 9. Description of the nature and extent of damages claimed (Attach additional information as necessary): _________________ _______________________________________________________________________________________________________ _______________________________________________________________________________________________________ 10. Description of how the incident caused the damage: __________________________________________________________ _______________________________________________________________________________________________________ _______________________________________________________________________________________________________ 11. Description of actions taken by claimant/representative to avoid or minimize damages: ____________________________ _______________________________________________________________________________________________________ _______________________________________________________________________________________________________ 12. Witnesses: Name: _____________________________________________ Tel. No.: __________________________________________ Address: _______________________________________________________________________________________________ ______________________________________________________________________________________________ Name: _____________________________________________ Tel. No.: __________________________________________ Address: _______________________________________________________________________________________________ ______________________________________________________________________________________________ 13. List Documents or Attachments (Attach additional information as necessary): a. ____________________________________________________________________________________________________ b. ____________________________________________________________________________________________________ c. ____________________________________________________________________________________________________ d. ____________________________________________________________________________________________________ e. ____________________________________________________________________________________________________ I, the undersigned, agree that upon acceptance of any compensation from the Fund, I will cooperate fully with the United States in any claim or action by the United States to recover the compensation. The cooperation shall include, but is not limited to, immediately reimbursing to the Fund any compensation received from any other source for the same costs and/or damages and, providing any documentation, evidence, testimony, and other support, as may be necessary for the Fund to recover such compensation. I, the undersigned, certify that, to the best of my knowledge and belief, the information contained in this claim represents all material facts and is true. I understand that misrepresentation of facts is subject to prosecution under Federal law (including but not limited to 18 U.S.C. 287 & 1001 and 31 U.S.C. 3729).
14. _________________________________________________ Claimant’s Signature Date Printed Name of Signer:
15._______________________________________________ Legal Representative Date Title/Legal Capacity:
CG NPFC-CA1 (APR 03) Previous edition can be used
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NPFC Claims Process Frequently Asked Questions
from
Oil Spill Response Organizations (OSROs)
NOVEMBER 2005
RECORD OF CHANGES Change # CH-1 Description Updated claims email addresses Effective Date 3/28/2006
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TABLE OF CONTENTS 1. Introduction................................................................................................................................... 1 A. Purpose of Document.......................................................................................................... 1 B. Oil Pollution Act of 1990.................................................................................................... 1 C. National Pollution Funds Center......................................................................................... 1 D. Oil Spill Removal Organizations ........................................................................................ 1 E. F. Claims Regulations ............................................................................................................. 1 Claimant’s Guide and Claimant’s Form ............................................................................. 1
2. How is reimbursement through the claims process different from payment through a contract or BOA?.......................................................................................................................... 2 3. What do I need to include when submitting a claim to the NPFC? ......................................... 3 A. Submitting a Claim -- Written Documentation Required. .................................................. 3 B. Submitting a Claim -- Optional Claims Form..................................................................... 3 C. Submitting a Claim -- Cost Documentation........................................................................ 4 D. Submitting a Claim -- Incident Information ....................................................................... 5 4. Why must I submit my claim to the RP first?............................................................................ 6 5. What does “order of presentment” of a claim mean? ............................................................... 6 6. Can I ever submit a claim to the NPFC first? ............................................................................ 6 7. How much time do I have to submit a claim to the NPFC?...................................................... 6 8. How does the NPFC review my claim? ....................................................................................... 7 9. I have just received my determination and don’t agree with it. What options do I have? ... 7 10. What does NPFC consider “uncompensated reasonable removal costs”? .............................. 8 A. Necessary Actions and Level of Effort ................................................................................ 8 B. Uncompensated “Incurred” Costs......................................................................................... 9 C. Some Examples .................................................................................................................... 9 11. What does “consistent with the NCP” mean? .......................................................................... 10 12. Who is responsible for paying me? For whom am I working?.............................................. 11 13. What can I do to protect myself?............................................................................................... 11 A. What To Do When a Spill Occurs .................................................................................... 11 B. Problems That May Arise During a Response.................................................................. 12 C. How To Improve Success in the Claims Process.............................................................. 13 14. Where can I find additional information?................................................................................ 14
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1.
Introduction
A. Purpose of Document This document is designed to help Oil Spill Removal Organizations (OSROs) better understand how to submit a claim for uncompensated removal costs to the National Pollution Funds Center (NPFC). This document also provides suggestions to make the claim preparation process easier and the approval processes quicker. It serves as a supplement to the Claimant’s Guide for Submitting OSLTF Claims, which contains more detailed information on submitting any type of claim. This OSRO FAQ document and the Claimant’s Guide are available from NPFC’s Claims webpage at www.uscg.mil/npfc/claims. B. Oil Pollution Act of 1990 The Oil Pollution Act (OPA) established a national Oil Spill Liability Trust Fund (OSLTF), which funds cleanup activities and provides compensation for damages from oil spills. The law also allows organizations, such as OSROs, that have helped clean up a spill but haven’t received payment for their expenses to submit a claim for reimbursement from the OSLTF. C. National Pollution Funds Center The Coast Guard established the National Pollution Funds Center (NPFC) to administer the OSLTF. Three of the NPFC’s major missions in support of oil spill response include: • • • Provide funding for Federal On-Scene Coordinator (FOSC) removal activities for oil spills covered under OPA. Recover from responsible parties (RPs) the costs expended by the FOSC as well as the claims paid by the NPFC for an OPA oil spill incident. Pay claims for uncompensated removal costs and damages for an OPA incident.
D. Oil Spill Removal Organizations Oil Spill Removal Organizations (OSROs) often work as direct contractors to the FOSC; in these cases, the OSROs are paid from the OSLTF according to the terms of their contracts with the Federal government. However, OSROs may also work for the party responsible for the spill; but if the RP doesn’t reimburse the OSRO, the OSRO may submit a claim to the NPFC for reimbursement from the OSLTF. In the latter instance, the OSRO’s claim is processed and approved in accordance with claims regulations. E. Claims Regulations The regulations governing submittal and approval of claims under OPA are found at 33 C.F.R. §136. The complete regulations can be downloaded from the NPFC Laws and Regulations webpage, www.uscg.mil/npfc/laws_and_regulations.htm. F. Claimant’s Guide and Claimant’s Form For more detailed information on submitting both damage and removal cost claims, see the Claimant’s guide for Submitting OSLTF Claims, which is available at www.uscg.mil/npfc/claims. The document also includes the Optional OSLTF Claim Form.
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2. How is reimbursement through the claims process different from payment through a contract or BOA? Being reimbursed for oil spill removal costs through the OPA claims process is different in several respects from being paid through a contract or Basic Ordering Agreement (BOA) with an FOSC. The table below lists some of the main differences. Contract/BOA with FOSC Funding Source/Statutory Authority Terms and Conditions OSLTF Emergency Fund; OPA Sec.1012 (a)(1) As stated in contract or BOA OPA Claims Process OSLTF Principal Fund; OPA Sec.1012 (a)(4); Sec. 1013 As authorized in OPA Sec. 1012 and 1013, and described in Claims Regulations 33 C.F.R. §136 Only for uncompensated, reasonable removal costs for actions determined by the FOSC to be consistent with the National Contingency Plan (NCP) or actions directed by the FOSC
OSRO is Paid
According to prices listed in contract or BOA
When working for an RP, OSROs typically utilize a published price list of commercial rates. When working for an FOSC under a BOA delivery order, OSROs use negotiated rates, which are included as part of the BOA. In each of these instances, except for some possible differences on level of effort or documentation, OSROs will be paid the rates that are invoiced. If an RP does not pay or pays only a portion of the invoice, OSROs may take legal action against the RP for a breech of contract or under OPA if the RP does not pay its presented OPA claim. In addition to the previous options, there is another compensation option available. Under OPA, OSROs may present a claim to the NPFC for uncompensated reasonable removal costs. This claims process is like a safety net to provide an alternative to taking legal action or taking no action and absorbing losses. However, the claims process is distinctly different from a contractual arrangement with an RP or even with the FOSC under the BOA process. With the claims process, there are no contractual agreements and there are no “agreed to” rates for resources. The NPFC is authorized to reimburse claimants for uncompensated reasonable removal costs only.
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3.
What do I need to include when submitting a claim to the NPFC?
The information you need to provide with your claim is discussed in the General Requirements section of the Claims Procedures Regulations, 33 C.F.R. §136, and in Part III of the Claimant’s Guide for Submitting OSLTF Claims. The regulations require three areas of evidence for approving a claim: 1. Proof that an OPA incident occurred, and that the actions taken were necessary to mitigate the effects of the incident, 2. Proof that the removal costs were reasonable and were incurred as a result of those actions, and 3. Proof that the actions taken were determined by the Federal OnScene Coordinator (FOSC) to be consistent with the National Contingency Plan (NCP) or were directed by the FOSC. By completing the Optional OSLTF Claim Form (or providing analogous information) and providing the cost documentation and incident information described below, OSROs will generally meet these requirements. A. Submitting a Claim -- Written Documentation Required. Claims must be submitted in writing, and the claimant bears the burden of proving their claim. The NPFC cannot accept verbal communication as part of the claims record. We require a written record on anything the claimant would like us to consider on its claim. In the end, claims must be supported with evidence, information, and documentation to prove a claim of uncompensated, reasonable removal costs. B. Submitting a Claim -- Optional Claims Form. To simplify the claim submittal process, use the Optional OSLTF Claim Form (CG NPFC–CA1), located in the back of the Claimant's Guide for Submitting OSLTF Claims found at www.uscg.mil/npfc/claims and carefully follow the instructions in the guide for filling out this claim form. Properly completing the claim form provides the NPFC with much of the basic information it needs to adjudicate a claim. If you prefer not to use the form, you may submit another document as long as it contains the same information as that required in the form. In addition to the information provided in the claim form, submit the cost documentation and incident information listed on the following pages to support a removal claim. Obtaining Documents All regulations, documents, and forms are available on the NPFC Web site at www.uscg.mil/npfc/claims See the Additional Information section at the end of this document for more information on contacting the NPFC or requesting paper copies.
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C. Submitting a Claim -- Cost Documentation. Type of Cost Documentation Invoices Description Copies of invoices originally submitted to the Responsible Party (RP) or the party that hired your company to respond to the incident. Ensure invoices meet the requirements of a properly presented claim under OPA. Any cover letters or other correspondence with this party regarding invoices is also helpful. Provide a copy of any contracts or work agreements entered into with the party that hired your company. Also provide a copy of the applicable rate schedule that was in place for the particular response you are seeking compensation for. If your invoices are not broken out by daily costs, provide copies of invoice summary sheets that show, on a day-to-day basis, how your invoiced amount was determined. Copies of all worksheets, filled out daily, onsite, and signed by your company’s representative and a representative of the party that hired your company. These worksheets should list all personnel, equipment, materials, and subcontractors utilized during the response for each day and must indicate the date and location where the work was performed and the arrival and departure times for all personnel and equipment. If you hired subcontractor services during the spill response and your company has paid for those services, provide copies of the subcontractors’ invoices and proof of your payment of those invoices.
• • •
Invoice Summaries Daily Worksheets
Subcontractor Costs
If the subcontractors provided personnel, equipment, and materials, provide the same level of support detail noted in the items above. If the subcontractor provided only equipment and/or materials, provide sufficient detail to properly identify the equipment, hours of operation, and applicable rates. Receipts for materials purchased during the response should be dated and should clearly identify the materials purchased, number of units purchased, and price per unit. If not clearly indicated on the receipt or invoice, provide proof that these costs have been paid (i.e., proof of payment).
Waste Disposal Costs
Provide copies of Waste Manifests, invoices for costs related to the disposal of waste resulting from the cleanup (e.g., sampling) and proof of your payment of those costs. Also provide verification of refunds/credits whenever recycling is involved as a result of a disposal action.
Carefully review all cost documentation before submitting your claim. NPFC’s claims manager must carefully verify the sum certain (the total amount you are claiming) against these documents. Any discrepancies found at this level result in unwanted delays as the claims manager must determine the reason for the discrepancy and will likely need to request additional information or clarification from you before moving forward with the adjudication of your claim.
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D. Submitting a Claim -- Incident Information Type of Information Incident Description & OSRO Response Actions Description Provide a description of the incident and your response actions, including dates and times of discovery, notifications, and the activation of your company to respond. Explain why the level of effort reflected in your daily worksheets was necessary; depending on the circumstances, this explanation may need to be detailed, especially if unusual procedures or costs are involved. Identify on-scene representatives for the various parties involved. Sometimes pictures and maps can be helpful in demonstrating the special circumstances of an incident and your response actions. Provide information that identifies the RP or the party (facility, vessel, etc.) that activated your company to respond to the incident and provide the details of that activation (date, time, what was requested, contact information, etc.).
•
RP Information
If the party that activated your company to respond was a vessel, provide information regarding the vessel’s owners, operators, agents, and applicable insurers (e.g., P&I Club, Local Correspondents, H&M Underwriters). Identify the person or persons who were providing the management oversight and supervision of your response actions. Provide, with as much detail as possible, the contact information and latest billing address(es) you are aware of for the RP. The NPFC must contact the RP when the claim package arrives, and we need the best possible contact information. Often when we notify the RP that we are reviewing the claim, the RP decides to pay the claim, which is the best result for all concerned. Your diligence in this area may result in an even speedier resolution of your claim.
• •
FOSC, State, and Other Agency Reports
If available to you, provide copies of any agency reports, such as Pollution Reports (POLREPS) or Situation Reports (SITREPS) that help describe the incident and the response actions taken.
•
If samples were taken and analyzed, provide the results of the sample analysis and information to identify who took the samples. This greatly assists us in determining the composition of the product you removed, a claim threshold issue we must address prior to making a determination on your claim. If such reports are not available, provide information identifying any agency representatives that were notified or responded to the incident.
•
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4.
Why must I submit my claim to the RP first?
The Oil Pollution Act requires that all claims for removal costs be presented first to the responsible party (RP). OPA then states that if a claim is properly presented and each person to whom the claim is presented denies all liability for the claim, or if the claim is not settled by payment within 90 days after the date upon which the claim was presented, you may either:
• •
Commence action in court against the responsible party or Present the claim to the Fund (i.e., submit the claim to the NPFC). What does “order of presentment” of a claim mean?
5.
The regulation at 33 C.F.R. §136.103 lists the order and timing for submitting a claim to the RP and the NPFC. In almost all cases, claims must be submitted to the RP first before submitting it to NPFC (see the FAQ below for exceptions). When the NPFC receives a claim, the claims manager will again send a request for payment to the RP; but it is still the responsibility of the claimant to present the claim first. If the claimant has not submitted the claim to the RP, the NPFC will ask them to do so before adjudicating the claim. Before you can submit the claim to the NPFC, the regulations require you to wait 90 days after submitting your claim to the RP or until the RP responds and denies your request, whichever is earlier. 6. Can I ever submit a claim to the NPFC first?
The only time an OSRO may submit a claim directly to the NPFC without first presenting it to the RP is when the NPFC advertises for claims or notifies claimants to submit claims directly to the NPFC. This may occur when the RP is not identified and the spill is designated a “mystery spill” or when the RP denies liability for claims. 7. How much time do I have to submit a claim to the NPFC?
You must present a removal cost claim to the NPFC within six years of the date of completion of all removal actions for the incident. The NPFC considers the claim as "presented" on the day it is received at the NPFC. The FOSC determines the incident’s date of completion of all removal actions. If the FOSC was not onscene and did not make such a determination, then you must provide sufficient information so the claims manager can determine the date that cleanup was completed. The more information you provide in this regard, the quicker the claims manager will be able to review the circumstances and make a determination.
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8.
How does the NPFC review my claim?
The NPFC assigns your claim to a claims manager who specializes in removal actions and removal cost claims. Generally, the claims manager follows the steps below. 1. The claims manager reviews the claim to verify that the claim is related to an OPA incident, and that all documentation is complete. 2. The claims manager sends you a letter acknowledging that the NPFC received the claim. 3. The claims manager also sends a letter notifying the RP that you have submitted a claim for a certain dollar amount and offering the RP an opportunity to provide information regarding the claim. 4. If additional information is needed, the claims manager will inform you (usually by letter but sometimes via phone or email) of what specific information is needed to adjudicate the claim. Typically, the claims manager initiates a dialogue to address specific concerns.
•
If the information requested is not received in a reasonable time frame, usually within 60 days, the NPFC completes adjudication of the claim with the information it has on hand. This may be detrimental to you as it can result in a partial payment or denial of the claim. Adjudicates the claim; Decides whether the claim should be approved, denied in part, or denied as presented; and determines the amount of reimbursement, if any, that should be authorized.
5. Upon receiving all information you provide, the claims manager:
• •
6. NPFC’s Removal Claims Branch Chief then reviews and makes a decision to approve or require further information regarding the claims manager’s determination. 7. Larger or more complex claims may require a further review by NPFC and Coast Guard legal staff. 8. The NPFC sends you a notice of the determination. 9. I have just received my determination and don’t agree with it. What options do I have?
Once the NPFC sends you a claim determination, you must accept or reject the offer within 60 days. The determination is NOT a negotiable item; however, if you find minor errors (i.e., a math error), please bring this to our attention early. If you accept the determination, you must sign the release the NPFC includes with the determination. If you take no action within 60 days, the offer to pay is void and the claim is denied. If your claim is denied, in whole or in part, or you want to reject the offer, you may provide additional information supporting the area where you are seeking a re-evaluation and ask NPFC to “reconsider” your claim. As part of your reconsideration package, you should provide:
• •
Any documentation that was not previously provided, Any new evidence to support your claim, and/or
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•
Your explanation with supporting documentation on the particular issue(s) on which you disagree with the NPFC’s determination.
Your request for reconsideration of your claim may start an entirely new review process. When the process is complete the NPFC extends another, the claim’s final determination, as a result of your request for reconsideration. The NPFC’s reconsideration determination is not negotiable and is considered a final agency action and you cannot request a second reconsideration. 10. What does NPFC consider “uncompensated reasonable removal costs”?
The law (OPA Section 1013 (d), 33 C.F.R §136.205), requires the NPFC to reimburse claimants only for “uncompensated reasonable removal costs.” What this means is that with the claims process, there are no contractual agreements and there are no “agreed to” rates for resources that it is bound by or has to honor. Given this, the NPFC determines what the reasonable removal costs were; which may or may not be the same as the rates you charge through your contractual agreements. Be sure to always include the applicable rate schedule with your claim submission to the NPFC for consideration in support of your invoicing. A. Necessary Actions and Level of Effort Another part of NPFC’s reasonableness determination involves the “level of effort” required to clean up the oil spill. You must establish that the “actions taken were necessary” and were determined by the FOSC to be consistent with the National Contingency Plan (NCP). For example, would a response that cost $200K and included 50 workers for a solid week seem reasonable for a 5-gallon spill? Not likely; but there may be mitigating circumstances that justify such an expense. In such a situation, you should provide additional information/documentation/evidence to explain, justify, and support these costs; then perhaps reasonableness can be established. The NPFC has a staff of claims managers who have extensive oil spill response expertise, with Federal and industry experience or extensive claims adjusting expertise. These are the folks who make the reasonableness determination, and whenever deemed necessary can obtain additional resources and expertise as required to evaluate a claim. If you find that you disagree with NPFC’s reasonableness determination on level of effort or costs, please consider the following: Reviewing the documentation that you provided in your claim and assessing whether or not the information you provided was enough to explain why the costs were reasonable to someone unfamiliar with the situation at hand? Did you provide information that explained and supported that the level of effort expended was necessary? Did you ascertain what documentation is missing or needs further explanation?
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These questions will help you in engaging the claims reconsideration process in a way that may shed light on what wasn’t presented before and therefore needs to be provided. As this becomes evident, the reconsideration process is sped up and hopefully together we can bridge the gap between your expectation and our determination.
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B. Uncompensated “Incurred” Costs Whenever submitting a claim, you must also prove that you have actually incurred the removal costs that you are claiming. The NPFC requires you to provide Proof of Payment for subcontractors, service providers, and miscellaneous purchases of materials. Your claim submission should include this information. Otherwise, we will need to request additional information which will only delay the adjudication of your claim further. Subcontractors: Sometimes a prime contractor submits a removal cost claim to the NPFC that includes costs incurred by a subcontractor. If the prime contractor has not paid the subcontractor for its services, the prime has not incurred the cost and therefore cannot submit those costs as a part of its claim. In these situations, the NPFC either requires the prime to pay the subcontractor before considering those costs or makes the subcontractor’s costs into a separate claim that can be submitted by the subcontractor. C. Some Examples Situation As a prime contractor, you hire a subcontractor during a response and submit those costs as part of your claim to the NPFC. However, you have not paid the subcontractor, waiting instead to be paid yourself first. The RP has made a partial payment but still owes you for services provided. Determination To submit a removal cost claim to the NPFC, you must have incurred costs associated with the oil spill response. These costs may include your own company’s costs for labor, equipment, and materials, as well as costs for resources supplied by a subcontractor. If you have not paid the subcontractor, then your company does not have an uncompensated removal cost for that particular subcontractor’s work. Until you pay the subcontractor, you are not out any money—and you don’t have an uncompensated cost. In cases where the RP has made a partial payment but does not pay you for the remainder of the bill, you may seek reimbursement from NPFC for the remainder. However, the claims manager must ask you to provide documentation for all your costs related to the response, not just the unpaid portion. Why? Because the claims manager is responsible for determining that the costs incurred throughout the response are reasonable. Once you have provided this documentation and the claims manager has made a determination concerning the reasonable costs of the response, the claims manager subtracts whatever partial payment you have already received from that amount. The situation of most concern to subcontractors is when the RP does pay the prime contractor and then the prime does not pay the sub’s bills. Unfortunately, in this particular instance, you, the subcontractor, cannot use the NPFC claims process. Why? Because the cost of the cleanup (i.e., the prime’s costs as presented to the RP) has been paid by the RP. The NPFC cannot make payment for activities that have already been paid; as this is an unfortunate contractual dispute between you and the prime, and where there is no recourse through the NPFC claims process.
The RP has paid the prime contractor’s invoice but the prime contractor has not paid you, a subcontractor invoiced through the prime.
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11.
What does “consistent with the NCP” mean?
The NCP is the National Contingency Plan, Federal Regulation 40 C.F.R. §300. It outlines approved procedures and removal activities when responding to an oil and/or hazardous substance spill/release. OPA claims procedures require that all removal activities be consistent with the NCP. When you are working for the FOSC under a BOA, the FOSC ensures all activities are consistent with the NCP. This is usually true also when you are working for a state under a BOA. The Federal or state On-Scene Coordinator outlines the approved removal activities and resources. When you are not working for the FOSC, it is your responsibility to obtain the FOSC’s determination that the actions taken were consistent with the NCP. Early communication with the FOSC is encouraged and strongly recommended. The NCP identifies four phases of response operations for oil discharges: I II III IV Discovery and Notification Preliminary Assessment and Initiation of Action Containment, Countermeasures, Cleanup, and Disposal Documentation and Costs Recovery The RP or spiller and the person in charge of a vessel or facility are required to notify the National Response Center FOSC (1-800-424-8802) upon the discovery of an oil discharge. Notification can also be made directly to the FOSC Response activities must be completed with the coordination of the FOSC and as outlined in the vessel- or facility-approved response plan. The Responsible Party (owner/operator of the source of discharge) must be identified, when applicable.
The NPFC claims manager must verify consistency with the following NCP requirements. Notification
Coordination RP Identification
Removal activities must be outlined and approved by the NCP and/or directed by the Approved Methodologies FOSC. Disposal Recovered oil must be properly sampled (laboratory oil sample analysis) and disposal conducted in accordance with applicable Federal and state laws.
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12.
Who is responsible for paying me? For whom am I working?
Whether working directly for the FOSC, or submitting a claim to the NPFC, OSROs often believe that they are working for the Coast Guard. However, that is not the case. The emergency portion of the OSLTF is available to the FOSC when hiring you under a BOA, but different OPA statutes, rules and regulations apply when you present a claim to the NPFC. In the latter case, any reimbursements come from the principal portion of the OSLTF, whose statutory authorities and regulations are different from the Emergency Fund. Working with or alongside the FOSC during an oil spill response does not necessarily equate to working for the FOSC. During a response to larger oil spills, a Unified Command post is normally established. The Unified Command involves the FOSC, state OSC, and the RP, which may have hired you. The FOSC may direct the RP to provide resources and then monitor the removal activities, but you are still working under a contract with the RP. When you are working directly for the FOSC, the pre-negotiated BOA rates apply for all equipment and labor, and you submit your invoices to the FOSC under the terms of the BOA contract. Obtaining a BOA If you don’t have an existing BOA with the Coast Guard, you may contact its Maintenance and Logistics Command (MLC) on either coast.
Atlantic (MLC LANT Gulf (MLC LANT) Pacific (MLC PAC) Pamela Barker Michelle Blake Mike Leonard 757/6284128, 757/6284110 510/4375942 PBarker@MLCA.uscg.mil
MBlake@MLCA.uscg.mil
MLeonard@D11.uscg.mil
The FOSC may also hire the state OSC to run the oil spill response. The state in turn may then hire you. In this case, the state is responsible for paying you. 13. What can I do to protect myself?
Whether working for an FOSC under a BOA delivery order or for an RP under a commercial contract, you want to be paid the full amount of your invoices. Typically, if you experience problems with receiving payment, you should pursue contract remedies. The NPFC claims process allows only for reimbursement for uncompensated and reasonable removal costs incurred; unfortunately, this does not always match the full amount of any invoice you may have sent to the RP. Unlike the contracting process when working for the FOSC or the RP, the claims adjudication process is not a negotiation - you must prove your claim. Failure to do so may cause your claim to be denied in whole or in part. Listed below are some suggestions that might help you avoid common problems. A. What to Do When a Spill Occurs
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Require the RP to place a deposit or advance of funds. Based on your experience with the company, the company’s financial status, etc, make a conscious business decision on whether or not the RP is “good for the total cost of the cleanup.”
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If the spill cleanup effort will be lengthy, negotiate with the RP for periodic payments for work completed. Advise the FOSC if payment from the RP becomes questionable. Question the FOSC if the FOSC tells you to “just do the work and submit a claim.” Understand that when you are working for the RP, taking any direction from the FOSC does not constitute a delivery order or contract with the FOSC. Keep daily records of activities (e.g., daily worksheets) that show level of effort and personnel and equipment on scene at a response, including whether the equipment is being used or on standby. Have your dailies signed by the RP’s representative who is managing your work. If directions from the RP are unclear, obtain clarification. Remember: activities that are inconsistent with the NCP may not be reimbursed. Make sure the FOSC knows. Understand that the NPFC cannot blindly accept contract rates and is not bound by any contract you have with the RP. Similarly, the NPFC is not bound by the rates within any BOA delivery order that you have with the FOSC. Some generally accepted contract items, such as using hourly rates exclusively when a daily rate is clearly warranted, might not be considered reasonable uncompensated removal costs under the claims regulations. Make sure the FOSC clearly knows your actual capability to respond to different size spills in different locations.
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B. Problems That May Arise During a Response
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Directions from the FOSC may appear to be direct tasking to the OSRO. Remember who hired you; resolve any apparent inconsistencies through communication with the RP and the FOSC. Response efforts may go beyond what an FOSC would consider “consistent with the NCP.” This may include directions from an RP or a state OSC that are in conformance with state law but which exceed what the FOSC would require. Be clear as to where the line is, since anything inconsistent with the NCP is not compensable by the NPFC. The RP may also desire to do additional work that goes beyond removal of oil from navigable waters and adjoining shorelines or actions to prevent or mitigate a substantial threat of discharge to navigable waters and adjoining shorelines. Consistency with NCP becomes an even larger issue when this is the case. The FOSC may be in a “monitoring” mode and may not indicate what or when actions go beyond what is required. The “how clean is clean” determination may not be clear unless you communicate with the FOSC. If the FOSC never shows up, the issues of reasonableness and consistency with the NCP will require “after-the-fact” coordination with the FOSC. To avoid this, communicate with the FOSC during the response. In the absence of any FOSC input, the NPFC must rely on documentation provided in the claim to determine consistency with the NCP and the reasonableness of your claimed costs for uncompensated removal costs incurred. If no sampling is done to identify the RP, the likelihood that the RP may refuse to pay you may rise. FOSC/SOSC may take samples. While sampling is part of the proper disposal process, unless there are source samples to compare to, the identification of the RP may be difficult.
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C. How to Improve Success in the Claims Process
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Always document your activities and level of effort, and provide explanation of why actions were necessary or required. Provide documentation to support actions taken. Maintain an accurate record of personnel and equipment utilized as they are used. “Dailies” are the best form of documentation. Verify your accounting. Daily worksheets, daily invoice summaries, and final invoices must match up and support each other. Claimed amount or “sum certain” of claim should match the final invoice total, unless an explanation is provided. Provide documentation to support costs claimed. Provide a complete claim file. Include your written demand for a sum certain to the RP clearly expressed as a claim for uncompensated removal costs incurred for which the RP is liable under OPA. Your invoices as a demand for payment under a contract with the RP are not sufficient. (The NPFC claims manager will be communicating with the RP regarding your claimed costs.) Obtain FOSC coordination at the time of your response and document it. If this is not done, request the FOSC to review your response “after the fact.” Remember that a determination of substantial threat can be made only by the FOSC and that the FOSC is not expected to evaluate your rates but should provide input on your level of effort and activities. Make sure you present your invoice to the RP right away. Provide reasonable documentation that you have done so when you submit your claim.
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14.
Where can I find additional information?
In addition to removal claims, the NPFC makes available claim requirements for OPA damages that include: • • • • • • Real or personal property damages, Loss of profits and earning capacity, Loss of government revenue, Costs of increased public services, Loss of subsistence use of natural resources, and Natural resource damages. National Pollution Funds Center Claims Adjudication Division 4200 Wilson Blvd., Suite 1000 Arlington, Va. 22203-1804 1-800-280-7118 NPFC Claims Web www.uscg.mil/npfc/claims Available for Download: • 1-202-493-6937 or 1-202-493-6938 arl-pf-npfcclaimsinfo@uscg.mil • • Claimant's Guide for Submitting OSLTF Claims Optional OSLTF Claim Form OSRO FAQs
Information on the claims adjudication process is available through any of the avenues listed below. NPFC Mailing Address NPFC Claims Phone NPFC Claims Fax Numbers NPFC Claims Email After Business Hours Removal Claims Natural Resource Damages
Command Duty Officer Pager 1-800-759-7243 PIN 2073906
Donna M. Hellberg 202/493-6839 Donna.M.Hellberg@uscg.mil Jim Hoff 202/493-6865 James.G.Hoff@uscg.mil
Damages Claims
Augusto “Augie” Rios 202/493-6845 Augusto.C.Rios@uscg.mil
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NPFC Claims Process Responsible Party Claim Submission Guidance
JANUARY 2007
National Pollution Funds Center
Responsible Party Claim Submission Guidance TABLE OF CONTENTS
I. INTRODUCTION.................................................................................................................................................................1 A. B. C. D. E. F. PURPOSE OF DOCUMENT ................................................................................................................................................1 OIL POLLUTION ACT OF 1990.........................................................................................................................................1 NATIONAL POLLUTION FUNDS CENTER .........................................................................................................................1 RESPONSIBLE PARTY ......................................................................................................................................................2 CLAIMS REGULATIONS ...................................................................................................................................................2 CLAIMANT’S GUIDE AND CLAIM FORM ..........................................................................................................................2
II. TYPES OF RESPONSIBLE PARTY (RP) CLAIMS ......................................................................................................3 A. B. ENTITLEMENT TO A DEFENSE TO LIABILITY ...................................................................................................................3 ENTITLEMENT TO LIMIT LIABILITY ................................................................................................................................4
III. RP CLAIMS SUBMISSION REQUIREMENTS............................................................................................................5 A. B. C. D. 1. 2. 3. 4. 5. 6. STANDARD OF REVIEW...................................................................................................................................................5 REQUIRED INFORMATION ...............................................................................................................................................5 CLAIMS PROCESS ...........................................................................................................................................................5 EVIDENCE AND DOCUMENTATION..................................................................................................................................6 General Incident Documentation..............................................................................................................................6 Vessel Specific Information: .....................................................................................................................................7 Facility Specific Information ....................................................................................................................................7 Crew or Personnel Specific information...................................................................................................................8 Incident/Circumstances/Situational Documentation ................................................................................................8 Other Supporting Documentation.............................................................................................................................8
IV. DOCUMENTATION OF REMOVAL COSTS AND DAMAGES ................................................................................9 A. 1. 2. 3. B. 1. 2. 3. 4. 5. 6. 7. REMOVAL COST DOCUMENTATION ................................................................................................................................9 Recommended Documentation Organization ...........................................................................................................9 Spill Management Team (SMT) Documentation.....................................................................................................10 Types of Costs That Are Frequent Problem Areas Due to Lack of Substantiation/Justification ............................10 DAMAGE CLAIM DOCUMENTATION..............................................................................................................................11 General Guidance...................................................................................................................................................11 Damage to Real or Personal Property ...................................................................................................................11 Loss of Profits and Earning Capacity.....................................................................................................................12 Increased Cost of Public Services ..........................................................................................................................12 Loss of Government Revenue..................................................................................................................................13 Loss of Subsistence Use of Natural Resources .......................................................................................................13 Natural Resource Damages ....................................................................................................................................13
V. OTHER FREQUENTLY ENCOUNTERED DIFFICULTIES IN ADJUDICATING RP CLAIMS..........................14 A. B. C. D. LACK OF ORGANIZED DOCUMENTATION ADEQUATELY EXPLAINING THE NATURE OF THE ACTIVITIES AND RECONCILING THE COSTS IN AN UNDERSTANDABLE FORMAT .....................................................................................14 PURPOSE OF THE REMOVAL ACTIVITY .........................................................................................................................14 PENDING LITIGATION ...................................................................................................................................................14 SETTLEMENTS, AGREEMENTS, AND DISMISSAL WITH PREJUDICE.................................................................................14
FOR MORE INFORMATION...............................................................................................................................................15
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National Pollution Funds Center I. Introduction A. Purpose of Document
Responsible Party Claim Submission Guidance
This document provides assistance to Responsible Parties (RPs) on how to submit a claim for reimbursement of Oil Pollution Act of 1990 (OPA) removal costs and damages that asserts either an affirmative defense or an entitlement to a limit on liability (33 USC 2708, 33 USC 2703). It provides suggestions and best practices that have proven effective for RPs and answers many of the questions that typically come up with first-time RP claimants. Our ultimate goal is to make your claim preparation process easier and reduce the time it takes us to adjudicate your claim. This document serves as a supplement to the Claimant’s Guide for Submitting OSLTF Claims, which contains more detailed information on submitting different types of claims and is available through the NPFC’s Claims page at www.uscg.mil/npfc/claims/. It is important to note that this document has been prepared as an aid in submitting claims. Nothing contained within this document establishes new rights or requirements under OPA and the implementing regulations. In the event of conflict between this document and statute, regulation, or agency policy, the statute, regulation, or agency policy will govern. B. Oil Pollution Act of 1990 Our guiding statute is OPA, which established and provides for the use of the Oil Spill Liability Trust Fund (OSLTF) to pay for federal oil cleanup activities and compensate third party claims for removal costs and OPA defined damages from oil spills. Claimants must ensure that claim submissions are made in a timely fashion. The statute has deadlines that must be adhered to by claimants: • • Claims for removal costs must be presented within six years after the date of completion of all removal actions for that incident. Claims for damages must be presented within three years after the damage was reasonably discoverable with the exercise of due care. Claims for natural resource damages (NRD) may be submitted within three years from the date of completion of the NRD assessment under the damage assessment regulations at 15 CFR Part 990.
C. National Pollution Funds Center The Coast Guard established the National Pollution Funds Center (NPFC) to administer the OSLTF. Three of the NPFC’s major missions in support of oil spill response include: 1. Provide funding for Federal On-Scene Coordinator (FOSC) removal activities for oil spills covered under OPA. 2. Recover from RPs the costs expended by the FOSC as well as the claims paid by the NPFC for an OPA oil spill incident. 3. Pay claims for uncompensated removal costs and damages for an OPA incident.
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National Pollution Funds Center D. Responsible Party
Responsible Party Claim Submission Guidance
Pursuant to the provisions of OPA, an RP is strictly liable for all costs incurred and damages suffered as a result of an oil pollution incident (33 USC 2702). An RP may limit its liability or establish a complete defense to liability if it can meet the requirements set forth in 33 USC 2703 or 2704. As with all claimants presenting claims to the OSLTF, RPs bear the burden of proving all elements of their claims (33 CFR 136.105(a)). Under 33 USC 2708, “The responsible party for a vessel or facility from which oil is discharged, or which poses the substantial threat of a discharge of oil, may assert a claim for removal costs and damages under section 2713 of this title only if the responsible party demonstrates that-(1) the responsible party is entitled to a defense to liability under section 2703 of this title; or (2) the responsible party is entitled to a limitation of liability under section 2704 of this title.” E. Claims Regulations The regulations governing submittal and approval of claims under OPA are found at 33 C.F.R. §136. The complete set of regulations can be downloaded from the NPFC Laws and Regulations Web page, www.uscg.mil/npfc/laws_and_regulations.htm. F. Claimant’s Guide and Claim Form For more detailed information on submitting both uncompensated damage and removal cost claims, see the Claimant’s Guide for Submitting OSLTF Claims, which is available at www.uscg.mil/npfc/claims/. The document also includes the Optional OSLTF Claim Form.
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National Pollution Funds Center
Responsible Party Claim Submission Guidance
II. Types of Responsible Party (RP) Claims There are two types of claims that may be presented by RPs to the Fund: (1) An entitlement to a defense of liability and (2) An entitlement to limit liability. In both types of claims, the RP is seeking reimbursement for removal costs and damages incurred. A. Entitlement to a Defense to Liability 33 USC 2703 provides that: A responsible party is not liable for removal costs or damages . . . if the responsible party establishes by a preponderance of the evidence, that the discharge or the substantial threat of a discharge of oil and the resulting damages or removal costs were solely caused by:”
(1) an act of God;
[OPA, in 33 USC 2701, defines an act of God as: “an unanticipated grave natural disaster or other natural phenomenon of exceptional, inevitable, and irresistible character the effects of which could not have been prevented or avoided by the exercise of due care or foresight.”]
(2) an act of war; [Such an act can be described as a hostile act of violence by one state or sovereign against
another state or sovereign.]
(3) [sole fault of a third party.]
[OPA states in 33USC 2703 that this is “an act or omission of a third party, other than an employee or agent of the responsible party or a third party whose act or omission occurs in connection with any contractual relationship with the responsible party . . . if the responsible party establishes by a preponderance of the evidence, that the responsible party-(A) exercised due care with respect to the oil . . . taking into consideration the characteristics of the oil and in light of all the relevant facts and circumstances; and (B) took precautions against foreseeable acts or omissions of any such third party and the foreseeable consequences of those acts or omissions.”] However, 33 USC 2703(b) states that: [A defense to liability] does not apply with respect to a responsible party who fails or refuses to-(1) report the incident as required by law if the responsible party knows or has reason to know of the incident; (2) to provide all reasonable cooperation and assistance requested by a responsible official in connection with removal activities; or (3) without sufficient cause, to comply with an order issued under subsection (c) or (e) of section 1321 of this title or the Intervention on the High Seas Act (33 U.S.C. 1471 et seq.)
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National Pollution Funds Center B. Entitlement to Limit Liability
Responsible Party Claim Submission Guidance
A responsible party may limit its liability and recover removal costs and damages incurred by the responsible party to the extent that incurred costs asserted under 33 USC 2713 exceed the amount of total liability of the responsible party as determined under 33 USC 2702. An RP is not entitled to limit its liability if the incident was proximately caused by: • • Gross negligence or willful misconduct on the part of the RP; or The violation of an applicable Federal safety, construction, or operating regulation by the responsible party, an agent or employee of the responsible party, or a person acting pursuant to a contractual relationship with the responsible party (except where the sole contractual arrangement arises in connection with carriage by a common carrier by rail); To report the incident as required by law and the responsible party knows or has reason to know of the incident; To provide all reasonable cooperation and assistance requested by a responsible official in connection with removal activities; or Without sufficient cause, to comply with an order issued under 33 U.S.C. 1321 (c) or (e) or the Intervention on the High Seas Act (33 U.S.C. 1471 et seq.) Gross Negligence. Negligence is a failure to exercise the degree of care, which a person of ordinary caution and prudence would exercise under the circumstances. A greater degree of care is required when the circumstances present a greater apparent risk. Negligence is “gross” when there is an extreme departure from the care required under the circumstances or a failure to exercise even slight care. Willful Misconduct. An act, intentionally done, with knowledge that the performance will probably result in injury, or done in such a way as to allow an inference of a reckless disregard of the probable consequences.
Or if the responsible party fails or refuses: • • •
The NPFC uses the following definitions when relevant to adjudicating RP claims: •
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National Pollution Funds Center
Responsible Party Claim Submission Guidance
III. RP Claims Submission Requirements A. Standard of Review NPFC uses a preponderance of the evidence standard in adjudicating all claims. The claims regulations provide that claimants bear the burden of proving all elements of claims (33 CFR 136). B. Required Information The NPFC requires all information necessary to fully understand the situation and circumstances that lead up to and caused the release. The regulations provide some basic guidelines concerning required information, but basically the claimant must present anything and everything necessary for the NPFC to fully understand the situation, circumstances and events leading up to and through the incident and release in order to make a reasonable determination as to the cause(s) and contributing factors of the incident and release. C. Claims Process Every incident and every claim is different, so it is difficult to provide specific or exact timelines and interactions a claimant can anticipate or expect from the NPFC. Similarly, it is difficult to set out specific types of information and documentation that will be required in every claim or type of claim. However, the NPFC does follow a process when receiving and adjudicating claims, which is described below and is provided to assist in the management of expectations during the process. Once a claim is received from an RP, it is duly date stamped, then reviewed and assigned to a claims manager. The claims manager will acknowledge receipt and possibly request additional information that he/she has determined on first review to be necessary. The claims manager will then include the claim in his/her portfolio of other claims and begin the process of fully reviewing the submitted claim information. This full review will likely include peer and supervisory feedback and interaction and will most likely result in a follow up request for information or documentation. In the case of entitlement to limit liability claims, the NPFC uses a two-phase process. The entitlement is adjudicated first; and, once it is established, the NPFC proceeds with the review of cost data to determine the OPA-compensable amount. After a determination to uphold an entitlement is issued, a different claims manager may be assigned the claim in order to determine the OPA compensability of the removal costs and damages paid and incurred and to determine ultimate compensation the RP is entitled to receive. Following this process may result in several claims for compensation being generated as the NPFC may split costs to hasten adjudication. For example, third party damage claims may be lumped as one claim while removal costs are reviewed by a different claims manager. Each separate resulting claim will have its own adjudication, determination, and reconsideration process, which may require additional information. In some cases, the NPFC may be able to work an initial review of costs and damages concurrently with the entitlement, but that is dependent upon the availability of information. Also when adjudicating removal costs and damages, the NPFC may opt to issue interim or partial payments. Again, this is dependent on the information and documentation provided to support the claimed costs.
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National Pollution Funds Center
Responsible Party Claim Submission Guidance
Once the claims manager reaches a determination he/she obtains supervisory concurrence and issues a determination. Once the determination is issued, the claimant (RP in this case) may accept the outcome or request that it be reconsidered by submitting in writing a request for reconsideration which includes the factual or legal grounds for the request. Requests for reconsideration must be submitted within 60 days of when the determination is mailed (33 CFR 136.115). The reconsideration process is the internal agency appeal process, and there is no further administrative process when it is complete. Claims are processed as information is received and can be analyzed. Workload has to be managed and to that end, any claim in which the RP’s claimed costs are pending in court, is set aside and not acted on, pending the litigation outcome. Depending upon actions by the court, an RP can end up being precluded from consideration by the NPFC because the costs are eventually compensated in full or in part, are settled, or potential responsible parties are released. The NPFC may hold a timely submitted claim in abeyance, which means that it has been received and the statute of limitations has been tolled. No work or action will be taken on the claim until such time that the litigation is resolved or it becomes clear to the NPFC that it may proceed with adjudication, as no claimed costs are the subject of pending litigation. OPA’s basic premise is that polluters should pay. Using this as a guiding principle, it is very important to us that we seek to protect the ability for the OSLTF to pursue any ultimate RP for recovery. This includes protecting the subrogable rights of any claimant to rightfully pursue someone else who may be responsible (33 USC 2712). D. Evidence and Documentation This will vary based upon the facility and or vessel, and the facts of the incident, but a partial list of the types of documentation that have been required in the past is provided below. It is very helpful if the documents are carefully organized, tabbed in binders, and outlined with a table of contents that describes documents contained in each binder. 1. General Incident Documentation • • • • • • Coast Guard Marine Casualty Investigations (per Federal Regulation Notice USCG – 200625843, published Friday, 13 October 2006) Report of Incident (CG Form 2692) Police reports Internal company analysis and reports of the incident Insurance reports, Hull and Machinery Underwriters, reports to P&I on incident Copies of applicable insurance policies that were in place at the time of the incident (include summary of oral communications with insurance companies and copies of all written communications with insurance companies) P&I report NTSB or governmental agency report investigating the incident or circumstances surrounding the incident Any report of survey or investigation conducted by any claimant regarding this incident such as hull underwriters, etc.
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National Pollution Funds Center • Independently contracted studies or analyses
Responsible Party Claim Submission Guidance
2. Vessel Specific Information: • • • • • • • • • Vessel logs Shipboard and/or company operating procedures and checklists that were in place at the time of the incident Engine tape (analogous to the "black box" on trailer trucks) Course recorders All manuals or documents onboard the vessel at the time of the incident that relate to the navigation and/or transiting procedures to be used by the crew Local navigation information, including established depths, charted depths, survey data, and local pilot history Depth recorder history of the waterway for the specific date, time of day, and location Copies of all written directives from owners and master to crew on operating procedures and requirements All manuals or documents onboard the vessel at the time of the incident that direct the navigation and/or transiting procedures to be used by the crew
3. Facility Specific Information • • • Facility Response Plan (FRP) or Spill Prevention, Control and Countermeasure Plan (SPCC) Measures in place and evidence about the security at the location of the incident Industry standards that govern the particular industry involved, including construction standards (such as applicable American Petroleum Institute standards, or State Local Standards or Federal Agency standards and requirements, or the Mineral Management Service requirements for offshore facilities and pipelines) and any and all corporate or company standards, requirements, and recommendations Published precautions and safety and engineering safety practices Facility Response Training Plan Incident history for facility (all incidents of releases or threats of releases reported internally or required reporting to agencies within Federal, State, and local governments) History of inspections and drills, including local and corporate records as well as those provided to different governmental agencies Engineering inspections with regard to valves, pipelines, tanks, pumps, and structures All manuals or documents onboard the facility at the time of the incident that direct the operation of the facility
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National Pollution Funds Center 4. Crew or Personnel Specific information • • • • • • Crew list or shift list
Responsible Party Claim Submission Guidance
List of people on watch and position to which assigned, as well as watch/rest schedule in preceding 24 hours Licenses, qualifications, and training for personnel involved Witness list (any and all people that had or could have impact on incident or actually observed circumstances leading up to the incident) Drug test results Statements and affidavits from personnel on scene at the time of the release
5. Incident/Circumstances/Situational Documentation • • • • • • • Weather forecasts Data buoy readings Coast Guard broadcast notices to mariners “Coast Pilots” or other sailing or shipping guidance for the geographical area where incident occurred Sailing directions and recommendations for the area Harbor regulations Marine advisories in place at the time of the incident
6. Other Supporting Documentation • • • Copies and supporting documentation regarding any other litigation in which the RP is involved resulting from the incident Contracts designating counsel or representation regarding the claim and other actions Certificates of Financial Responsibility (COFRs) for vessels involved in the incident
Although the information provided above is detailed, it is not exhaustive; and, depending on the facts of the incident and all facts and circumstances taken as a whole, additional and other types of evidence may be requested and required by the NPFC. The purpose of this document is to provide guidance to RPs when contemplating submitting a claim to the NPFC.
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IV. Documentation of Removal Costs and Damages This section of this document assumes that an RP has successfully asserted its defense or has been granted an entitlement to limit its liability, and that it is now ready to submit a claim for its costs and damages to the OSLTF. A. Removal Cost Documentation The following is a list of the removal cost documentation required. • • • • • • • • • • • Invoices Daily work logs Rental invoices, agreements and receipts for special purchases Proofs of payment Disposal manifests/records Sample analysis reports Signed Incident Action Plans Photographs of all equipment/on-scene removal activity Separate listing of personnel receiving Per Diem Hotel receipts Itemized receipts for any and all incidental expenses such as airfare, meals, etc. (Ensure all receipts can be clearly cross-referenced to or for the person or people with which they are associated. In large removal cost claims, we are finding that a well organized submission greatly assists our ability to provide a more timely review.)
1. Recommended Documentation Organization In large removal cost claims, we are finding that a well organized submission greatly assists our ability to provide a more timely review. You may want to consider submitting your claim in either a tabbed binder or an accordion folder broken out by vendor(s). We recommend this format for ease of review, and also so that consideration can be given to interim payments by vendor during the adjudication process if required. Example of Recommended Binder Organization Binder 1 Tab A – Company X Zone NJ 1 Zone PA 3 Tab B – Company Y Zone DE 1 Zone NJ 10 Tab C – Company Z 9
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Preferably, each tab will have all invoices in date order by zone for that particular vendor. The vendor should invoice its costs in accordance with zone activity. If that is not possible, the daily work logs should indicate the zone area being worked. This will make it easier for our office to cross-reference the activity to the applicable Incident Action Plans (IAPs). In the event the daily work logs also do not indicate the zone, please provide that level of detail separately to assist in expediting the adjudication process. Behind each separate invoice, provide all associated paperwork to validate the invoiced amount (i.e., daily logs, applicable receipts, explanations, underlying invoices for products or services the vendor obtained from a secondary source (i.e., port-a-let rental, roll-off box rental with associated pickup and delivery charges, specialty equipment a vendor may have rented). In the event there are multiple pickup and delivery charges for items such as roll-off boxes and the reason is a change in staging location etc., please provide an explanation so the Claims Manager understands what was happening in the field. Behind each invoice provide a copy of the proof of payment for that invoice. Note that if the invoice was paid by wire transfer, an itemization must be attached to the copy of the wire transfer specifying what invoices and amounts were covered by that wire transfer. If check copies are provided, a copy of the front and back of the check that coincides with the associated invoice is requested. 2. Spill Management Team (SMT) Documentation • • • Ensure there are daily activity sheets that provide start and stop times for each member of the spill management team. Ensure there is a description of duties performed daily on all members. Provide copies of all documentation of SMT review of contractor invoices that explain/outline any and all costs reduced, denied or adjusted.
3. Types of Costs That Are Frequent Problem Areas Due to Lack of Substantiation/Justification • Scope of work or level-of-effort issues. Not all of the actions taken as a result of incidents are meant to remove or respond to the oil threat. Hull salvage, cargo offload, bottom surveys, and site remediation, while desirable by all parties (RP and spill responders), may not be OPA compensable. Additionally, these costs may be compensated through other avenues. Salvage operations. When a vessel casualty occurs, oil pollution removal or mitigation activities that are payable from the OSLTF may be occurring alongside other activities for other purposes (e.g., navigation safety, salvage and safety of life and property at sea). In such mixed circumstances, the NPFC looks to the principal purpose of activities to determine qualifying oil removal costs. Movie rental and miscellaneous costs included in hotel bills. Detailed explanations that directly link the expenses to the removal activities must be provided in order to substantiate the cost(s). For example, if a hotel conference room and audio visual equipment were rented to train local residents in shoreline response, this purpose must be demonstrated in the documentation, and also must be corroborated by the Federal On Scene Coordinator. Miscellaneous meal expenses that cannot be associated with particular individuals. Receipts for food expenses in general and especially meal expenses that cannot be associated with particular individuals are not compensated without further details that directly link the
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Responsible Party Claim Submission Guidance
expenses to the removal activities. Group meals and catered meals can be documented through several different approaches, from sign-in sheets to contracts for meals delivered to sites. • • Car wash expenses. Car wash expenses for rented or privately owned vehicles are not considered response related unless the reason is tied to the pollution response. Administrative, legal, and P & I correspondent costs. These costs need detailed documentation substantiating that the underlying activity supports and furthers oil removal consistent with the National Contingency Plan (NCP). Per Diem Expenses. In a large response with numerous contractors, when requesting per diem, please ensure it is clear by vendor, the individual dates, names of individuals, and amount of per diem requested on a daily basis. If the vendor’s invoice and daily work logs do not clearly delineate this, please ensure your submission has an adequate breakdown and itemization so these costs can be evaluated in an expeditious manner. Lodging expenses. This is a very confusing area in claim submissions when the response is extremely large and extends over a lengthy period of time and when responders are working shifts with numerous individuals cycling in and out of rooms, and the hotel bill only identifies one party. If this appears to be an issue in your anticipated removal cost claim, you must provide a detailed report on who was in what room, on what days, so the associated hotel bills coincide with what you are claiming. It is the responsibility of the claimant to submit this information in an orderly and discernable fashion in order to consider these costs. Also, if room rates are very expensive, you should provide detailed justification for “high end” rooms (e.g., if they are the only available rooms, you must provide supporting documentation).
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B. Damage Claim Documentation Only those damages expressly described in OPA are compensable from the Fund. Damages claimed must be measurable and must result from the discharge or substantial threat of discharge of oil to navigable waters, the adjoining shorelines or the exclusive economic zone. The following is a list of supporting documentation that may assist in presenting and providing the damage suffered. The types of documentation/information normally requested are sub-categorized below by the type of damage claim, but much of the documentation is useful across the various damage claim types. 1. General Guidance • • • At a minimum provide all evidence/documentation relied on to fix the sum certain of the claim. Include pictures as much as possible to document the damage and/or include contemporaneous newspaper articles that support the damage being claimed. Document how the damage resulted from the discharge or substantial threat of discharge of oil.
2. Damage to Real or Personal Property • Pictures are “worth a thousand words,” for example, when a marina requests compensation for cleaned and or repaired piers or docks. Pictures documenting conditions before and after a spill are also very useful. Quotes or estimates for repair, cleaning or replacement from local sources.
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National Pollution Funds Center •
Responsible Party Claim Submission Guidance
Removal activities may result in compensable damage, but require more evidence to demonstrate the connection to the oil. Again, pictures, or written statements, and/or affidavits from responders provide this link. An example is the need for the incident response personnel to reach the site by creating an access through a private landowner’s property. The damage to that property, which was a direct consequence of the access needed for response crews, is an OPA compensable damage. The cost to return conditions to their undamaged state may also be treated as a removal cost.
3. Loss of Profits and Earning Capacity • • • • • • • • • Financial reports (annual, monthly, seasonal, etc.) may be of use in determining the validity of the compensation to be reimbursed. Copies of contracts for committed business dealings impacted. Business financial statements, customer affidavits, receipts, invoices, charter party, etc. A quantification of damage claimed with accountant’s analysis and comparable business performance from other years, similar seasons, etc. Analyses, reports, newspaper articles. Mitigation of the damage (how you attempted to minimize the impact). For fisheries, documentation of the actual impact of the oil on the fishery over an appropriate period of time. For fisheries, state and local geographical closure histories for an appropriate period of time. For local businesses, the full picture of the impact. While hotels on a beach may lose tourist bookings, a large response typically offsets the loss, as the personnel responding often place strains on lodging and other accommodations.
4. Increased Cost of Public Services • This type of claim addresses "Damages for net costs of providing increased or additional public services during or after removal activities, including protection from fire, safety or health hazards, caused by a discharge of oil, [which shall be recoverable] by a State, or a political subdivision of a State" (33 CFR 136.237); this is not intended to pay for a "shuffling of the deck cards" with the personnel already on duty at the time of the incident. Provide a list of the people assigned to the regular shift, which is not compensable, and supplement it with the additional personnel called on to respond and who incurred overtime pay. Describe the duties performed and/or materials used along with the location(s) to which the personnel was/were deployed. Provide names and titles of authorizing supervisors. Any government agency that incurs and pays differential pay (overtime, time and a half, double time, triple time) must substantiate such payments with a copy of the labor contract where the applicable circumstances are spelled out as well as the methodology that effects such payments.
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National Pollution Funds Center 5. Loss of Government Revenue •
Responsible Party Claim Submission Guidance
These typically involve beach resorts and the like, where access fees are charged to the public. They may also involve concession stands that are operated by the local government or which pay royalties to operate in the affected beach or, in some cases, reduced tax income. Description of revenue lost. Analysis and historic documentation of revenue for comparable time period. Documentation that shows direct causation to the incident. Documentation on the saved expenses (utilities, salaries, etc.).
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6. Loss of Subsistence Use of Natural Resources • Claimants must establish a pattern of past use of natural resources for the purpose of subsistence. This may be done through the inclusion of objective affidavits, witness statements, and/or other documentation. Documentation of personal income and means may be required. More information is available on the NPFC’s Web site at www.uscg.mil/NPFC/Claims/subsistence_use_claims.htm.
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7. Natural Resource Damages • For specific guidance, please see www.uscg.mil/NPFC/NRD/.
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V. Other Frequently Encountered Difficulties in Adjudicating RP Claims A. Lack of Organized Documentation Adequately Explaining the Nature of the Activities and Reconciling the Costs in an Understandable Format The Fund must be provided enough information to make a determination. The Fund needs to understand all circumstances surrounding an incident and the condition and operation of the vessel or facility and assigned personnel leading up to, during, and immediately following the incident. B. Purpose of the Removal Activity Often salvage activities are conducted for other than removing the threat of oil. Often legal representatives are working on more issues than just removal activities. C. Pending Litigation A claimant has the choice to pursue compensation through either the courts or the Fund, but not both. If pursuing through the Fund, the Fund must be able to ultimately pursue recovery from others responsible. Litigation in process that does or could be interpreted to involve the OPA compensable costs included in a claim submission can preclude adjudication and will preclude payment of claims. D. Settlements, Agreements, and Dismissal with Prejudice Releases, covenants not to sue and dismissals with prejudice indicate that the costs have been considered and settled. The Federal Government must be provided subrogable rights in exchange for compensation.
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For More Information NPFC Web Site NPFC Mailing Address www.uscg.mil/npfc Director (Ca) National Pollution Funds Center 4200 Wilson Blvd., Suite 1000 Arlington, Va. 22203-1804 Tom Morrison Thomas.S.Morrison@uscg.mil 202-493-6831 Augie Rios Augusto.C.Rios@uscg.mil 202-493-6845 Donna Hellberg Donna.M.Hellberg@uscg.mil 202-493-6839 Jim Hoff James.G.Hoff@uscg.mil 202-493-6865
Chief, Claims Adjudication Division Chief, Damages Claims Branch Chief, Removal Claims Branch Chief, Natural Resource Damage Claims Division
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