Letters of Offers and Decisions

OFFER LETTER

Ottawa, 25 February 2021

SOPF File: 120-822-C1-2

CCG File:

BY EMAIL

 

Senior Director of Incident Management

Response Directorate

Canadian Coast Guard

200 Kent Street (5N177)

Ottawa, Ontario  K1A 0E6

 

 

 

SUMMARY AND OFFER

This letter responds to a submission from the Canadian Coast Guard (the “CCG”) with respect to the accommodation barge WEST ISLAND 395 (the “Vessel”, also identified as the “TASU I” elsewhere in the submission), which was involved in an incident on or about 8 September 2018, at Lina Island, in Haida Gwaii, British Columbia (the “Incident”).

On 1 September 2020, the office of the Administrator of the Ship-source Oil Pollution Fund (the “Fund”) received a submission from the CCG on behalf of the Administrator. The submission advanced claims totaling $64,697.02 for costs and expenses arising from measures taken by the CCG to respond to the Incident.

The submission has been reviewed and a determination with respect to its claims has been made. This letter advances an offer of compensation to the CCG pursuant to sections 105 and 106 of the Marine Liability Act, SC 2001, c 6 (the “MLA”).

The amount of $36,521.88 (the “Offer”), plus statutory interest to be calculated at the time the Offer is paid and in accordance with section 116 of the MLA, is offered with respect to this claim.

The reasons for the Offer are set forth below, along with a description of the CCG’s submission.

 

THE SUBMISSION RECEIVED

The submission includes a summary of the costs and expenses that the CCG claims and some corroborating documents. To the extent that these documents are relevant to the determination, they are reviewed below.

Cost summary

The CCG submission summarizes claimed costs as follows:

Figure 1 – Screen capture of the CCG cost summary

Contract services and travel costs documentation

The contract services portion of the CCG’s submission is supported by six invoices from Eagle Eye Lodging. Those invoices are summarized as follows:^[1]

Figure 2 – Screen capture of claimed contract services summary (names of CCG personnel partially redacted)

Claimed travel costs are supported by 102 pages of documentation, including internal expense reports with financial coding; commercial airline receipts; checked baggage receipts; taxi receipts; a rental car invoice; fuel receipts; BC Ferries receipts; and hotel receipts. These costs are summarized for each of the responding CCG personnel as follows:

Figure 3 – Screen capture of claimed travel costs summary (names of CCG personnel partially redacted)

Additional CCG documentation

Claimed salary costs include 20% markup costs associated with the CCG’s employee benefits plan and are supported by a one-page summary:

Figure 4 – Screen capture of claimed salary costs summary (names of CCG personnel partially redacted)

Claimed overtime costs are supported by personnel-specific time sheets showing that work was completed by around 19:00 on most days of the response operation, with some exceptions. In no instances did work conclude later than 22:30. The overtime time sheets are summarized as follows:

Figure 5 – Screen capture of claimed overtime costs summary (names of CCG personnel partially redacted)

Finally, the claim for administration costs is supported by a single-page document showing how those costs were calculated.

 

CORRESPONDENCE WITH THE CLAIMANT AND SUPPLEMENTARY EVIDENCE

Correspondence with the claimant

On 9 September 2020, the Fund sent the following email inquiry to the CCG Western Region Acting Superintendent of Environmental Response (“ER”):

There appears to be a significant amount of documentation missing from what would normally be expected of a CCG claim of this value. I’ve included the following observations for your consideration;

1.       Beyond references to “Lina Island Grounding” there is no clear indication of vessel involvement other than the file label which indicates “Tasu 1”.

2.       There is no information provided that would indicate the magnitude of the marine pollution threat posed by the Tasu 1 or the circumstances surrounding that threat.

3.       There is no information as to vessel ownership or who represented themselves as the responsible party/polluter to CCG.

4.       It appears that 9 CCG personnel were working in an ICP [Incident Command Post] and 1 other assigned to “on-water” duties; however, there is no information as to where that ICP was located, what the CCG role was or what duties were performed by the CCG personnel.

5.       Costs rolled up under Schedule 2 (contract services) appear to be accommodation costs that would normally appear under Schedule 3 as travel related.

6.       Documentation included under Schedule 4 references “see personnel log” but these logs are not included.

7.       The file does not contain a narrative, SITREP’s, IAP’s [Incident Action Plans], photos, any ICS forms, or daily field sheets.

 

If this information/documentation was inadvertently omitted it may be submitted at the earliest possible opportunity. Please advise this office by September 16th of what action CCG plans to take and provide a date by which this documentation may be expected.

The Acting Superintendent replied to the Fund the same day, stating that the CCG would advise the Fund of its planned course of action by 16 September 2020, as requested. On 18 September 2020, the Acting Superintendent informed the Fund that the requested materials, including a narrative “linking measures/monitoring efforts to costs incurred”, were being compiled.

On 28 September 2020, the CCG provided the Fund with Incident Action Plan (“IAP”) documentation, as well as four standalone photographs. The Acting Superintendent noted that a narrative was forthcoming.

Having received nothing more from the CCG, the Fund followed up on the status of the narrative on 29 October 2020. The Acting Superintendent replied on 3 November 2020, requesting a digital meeting with the Fund, “to walk you through the Narrative”. The Fund responded by email on 4 November 2020, declining the meeting and requesting that the narrative be submitted in writing by 13 November 2020.

The CCG forwarded its narrative to the Fund on 12 November 2020.

The narrative and photographs

According to the narrative provided by the CCG:

At approximately 21:30PDT September 8, 2018, the RCMP detachment in the Village of Queen Charlotte reported a 51m Camp Barge (West Island 395) adrift in Skidegate Inlet close to Jewell Island. The barge would soon become grounded on the Eastern shore of Lina Island, Haida Gwaii (at position 53 13.923N 132 05.246W), and remain there for approximately a month until the next sufficiently high tide to refloat.

Initial assessment of the barge found it had sustained damage and was holed with a 4’ crack in the hull along the forward port side. Estimated volumes of hydrocarbons on board the barge were 18,000 L of marked gasoline and 15,000 L of marine grade diesel. One of the gasoline tanks was determined to be leaking internally, prompting the evacuation of the barge for safety concerns relating to vapours and flammability. Over the course of the initial response periods the hull was confirmed to have sustained several breeches. As the tide cycles rose, fell & moved through the associated void spaces, trace amounts of fuel were flushed out and entered the marine environment. TC’s National Aerial Surveillance Program noted these associated ‘minimal sheening’ events during overflights across several days of the response.

On September 9th CCG Incident Management (IM) established an emergency zone of 0.2 nautical miles extending from all directions around the casualty site. Notship P-1226 refers, and was widely broadcast throughout its duration through September 24th. The zone was monitored with the assistance of the CCGS Gordon Reid and the Sandspit Motor Lifeboat Station. Regional CCG staff were mobilized on September 9th and arrived on scene September 10 – at which point they established an Incident Command Post (ICP) in Queen Charlotte City. A Unified Command was established consisting of Incident Commanders from the CCG, British Columbia Ministry of Environment and Climate Change Strategy (BCMoE), Village of Queen Charlotte, HaiCo as owner, and the Council of the Haida Nation. Throughout the first days of the response, securing the scene, mitigating environmental impacts, and remediation were the recurring priorities of Unified Command. A terrestrial hazmat team GHD was mobilized to conduct an initial risk assessment and would arrive the morning of September 10. Western Canada Marine Response Corporation (WCMRC) was activated under contract with HaiCo, mobilizing local/Island resources. Unified Command established an Environmental Unit (EU) which was led by ECCC, and also constituted of representatives from DFO, BCMOE, the Haida Nation and HaiCo. The Environmental Unit identified the resources and areas at risk. EU recommendations were used to inform initial strategies and tactics for protection booming in sensitive areas proximal to the casualty site. A barge lightering plan was developed, reviewed by Transport Canada and approved by Incident Commanders within UC. The plan included the void spaces and remaining tanks being pumped of hydrocarbons utilizing b-trains aboard an additional barge brought in alongside. Logistical issues related to the remoteness of Haida Gwaii and an overall lack of marine salvage capacity on the coast, meant that the response encountered significant lag times in the arrival of equipment and expertise. The barge was readied for refloat and salvage by way of temporary patch welds after the threat to pollute had diminished. West Island 395 would later be towed across Hecate Strait to Prince Rupert for inspection and thereafter she was towed to Vancouver for haul out on October 22, 2018.

The narrative continues and concludes under the heading “CCG Costs Incurred”:

The Minister’s responsibility to ensure an appropriate response to ship-source marine pollution in Canada has not changed for many years. CCG on scene leadership and direction to responders has been called for in many reports, including TC’s reports to parliament, recent tanker panel reports, and external reports. CCG’s leadership and direction contributes to minimizing pollution damages.

CCG utilizes the Incident Command System (ICS). In ICS, there are key roles that ensure appropriate command and control that are critical, like the incident commander, planning & operations section chiefs, a safety officer, and someone dedicated to maintaining situational awareness to ensure timely information is provided to key decision makers.

In this incident particularly, following CCG’s initial response, the owner was known, willing and able to support the response in various ways. They had hired contractors to mitigate most of the safety threat, as well as contractors to mitigate most of the pollution threat. However, these contractors lacked clear direction, and CCG was needed to provide clear direction through objective-based incident management, enforcement of an emergency zone, and to communicate to responders and the public.

CCG filled specific roles within an integrated management team that included the owner’s representative, local nations members, contractors and subject matter experts from ECCC, DFO & TC. These roles fluctuated throughout the response, but were primarily the Federal Incident Commander (F- IC), Situation Unit Leader and Environmental Unit.

Federal Incident Commander: In relation to measures taken to repair, remedy, minimize or prevent pollution damage from the vessel, these costs incurred were related to providing direction to those building and operationalizing tactical response plans. This position has overall authority and responsibility for conducting incident operations and is responsible for the management of all incident operations at the incident site. Key products: ICS 202

Situation Unit: In relation to CCG monitoring the measures taken by any person or vessel to repair, remedy, minimize or prevent pollution damage from the vessel, these costs incurred can be summarized (in this claim) to those personnel working in the Situation Unit (Situation Unit = Monitoring). This position (and all those who report to the unit) provides an evaluation and interpretation of information gathered from a variety of sources (including weather information and forecasts, computerized models, geographic information system data mapping, remote sensing sources, in-field observers, etc.) that, when communicated to emergency managers and decision makers, can provide a basis for incident management decision making. They observe and check the progress or quality of in field operations through systematic review and consistent communications. Key products: ICS 209 and Situational Briefing

Environmental Unit: In relation to measures taken to repair, remedy, minimize or prevent pollution damage from the vessel, the EU staff are required to identify what damages need to be mitigated, prioritize them, and support mitigation strategies. This unit is responsible for environmental matters associated with the response, including assessment, modeling, surveillance, and environmental monitoring and permitting. During this incident, the EU Environmental Unit provided services related to: sampling; response technologies; trajectory analysis; weather forecast; resources at risk; shoreline cleanup assessment; historical/cultural resources; and, waste disposal. ICS 232 identifies the Resources at Risk (damages being mitigated), which can be viewed in the Incident Action Plans (IAP’s).

The narrative includes several photographs, some of which were also submitted individually, in a larger format:

 

Figures 6 and 7 – Screen captures of a selection of the photographs submitted by the CCG

 

The IAP Documentation

The IAP documentation provided by the CCG was generated by the Unified Command (the “UC”) over 15 days, primarily from 11 September 2018 through 24 September 2018, but also with some forms dated 25 September 2018. It consists of just under 1,000 pages.

The IAP documentation includes, inter alia, the following:

• Various daily Incident Command System (“ICS”) standardized forms, including:
• Incident Objectives (ICS-202);
• Organizational Assignment List (ICS-203);
• Assignment List (ICS-204);
• Communications Plan (ICS-205);
• Medical Plan (ICS-206);
• Organizational Plan (ICS-207);
• Safety Plan (ICS-208);
• General Messages (ICS-213);
• Safety Analysis (ICS-215a);
• Daily Meeting Schedule (ICS-230); and
• Resource at Risk Analysis (ICS-232);
• UC personnel rotation tracking documentation;
• Daily weather forecast documentation and tide charts for Sandspit, British Columbia;
• Air monitoring documentation from GHD, a contractor engaged by the Vessel’s owner;
• Venting plans;
• Sampling, environmental monitoring, and wildlife management plans;
• UC official press release statements;
• Waste management plans;
• Schematics of the Vessel and lightering plans; and
• Demobilization plans.

 

Much of the documentation contained in the IAP package is duplicated, often recurring throughout the period covered. Most of the documentation provided indicates that it was produced by non-CCG members of the UC, and approved by all participants, including the CCG. While many of the included ICS forms were generated and filled in by CCG personnel, these contain little to no detail with respect to the specific tasking of CCG personnel, who are seldom mentioned by name.

The ICS-204 forms provide broad guidance with respect to the operations of the UC and its various members, but any specific tasking detail on these forms tends to apply only to non-CCG assets and personnel. The ICS-204 forms provide detail on the activities of CCG ships such as the CCGS GORDON REID, which maintained and monitored a safety perimeter around the Vessel and remained on standby for ER tasking until at least 21 September 2018, and the CCGS CAPE ST-JAMES, which was kept on standby at a nearby CCG station throughout the UC operation.

The ICS-230 forms provided show steady UC meetings throughout the course of each day of the response operation. No lists of meeting attendees were provided, nor were meeting minutes or clearly identifiable work products from many of the meetings that appear on the schedules. The below example is the meeting schedule for 14 September 2018, as prepared by JD. Eight CCG personnel were on scene that day, out of a total of ten or eleven deployed throughout the operation.

Figure 8 – Screen capture of UC daily meeting schedule for 14 September 2018

Key details and UC operational milestones captured in the IAP documentation, or notable exceptions to the themes detailed above, are as follows:

•         MH originally prepared a “Resources at Risk Summary” (ICS-232) for the Environmental Unit on 12 September 2018, which document was periodically updated throughout the response;

•         Surveillance overflights conducted by Transport Canada detected an estimated 0.3-litre discharge of oils on 12 September 2018 (Proposed Environmental Monitoring Plan dated 13 September 2018);

•         Occasionally, meals for the members of the UC were provided by the owner of the Vessel and the Haida Nation (ICS-213);

•         LD, a paramedic (ICS-208), was on board a safety boat from 14 September 2018 through 18 September 2018 (ICS-204);

•         MH, along with at least four others, including two personnel from the British Columbia Ministry of Environment and Climate Change Strategy (the “BCMOE”), was on board a 30-foot vessel that conducted environmental sampling on 15 September 2018 (ICS-204);

•         The Vessel was officially identified as the WEST ISLAND 395 on 15 September 2018 (ICS-213);

•         The Waste Management Plan dated 15 September 2018 notes that “Minor spills around the salvage site will be managed by the Nucor and CCG”;

•         A barge equipped with “Four dangerous goods rated highway b trains with a total capacity of 160,000 litres” was due to arrive on 16 September 2018, to commence the fuel removal operation (Lina Island Grounding Lightering Plan, Version 3.1);

•         An ICS-213 General Message issued on 17 September 2018 notified all members of the UC that “Any and all paperwork to do with the Lina Island Grounding is to be kept in documentation including any notes, revised forms, maps, etc.”;

•         Lightering Plan Amendment #1, included with the IAP documentation for 22 September 2018, notes that “As of September 20, 2018 the B trains used to recover the impacted wastewater from the casualty [were] at capacity”, and details the procedure for offloading their contents; and

•         An undated Demobilization Plan included with the IAP documentation for 24 and 25 September 2018 states that “All physical documentation shall be turned in to the Documentation Unit. This includes scrap paper notes, notepads ICS Form 214’s. etc. All electronic documentation (photos, reports, plans etc.) shall be emailed to the Documentation Unit […]. Supervisory staff shall contact personnel that were under their direction who have left the incident prior to the promulgation of this plan and request they follow the above procedure.”

 

Apart from the Lightering Plan amendment, the IAP documentation does not provide detail on the progress of the lightering operation, nor does it offer any assessment of the perceived degree of threat posed by the Vessel throughout the response, or of the volume of oil pollutants remaining on board at various stages of lightering.

Following the entries for 17 September 2018, the IAP documentation contains no substantive descriptions of the work done by any CCG personnel, nor of their tasking, save for digital signatures denoting the preparation of some ICS forms.

Other claim submissions received with respect to the Incident

In addition to the subject submission from the CCG, the Fund has received to date two further claim submissions with respect to the Incident. The first of those submissions was received on 14 January 2019, from the entity purporting to be from the owner of the Vessel at the time of the Incident. The second such submission, received on 29 July 2020, came from the BCMOE.

The owner’s submission provided documentation detailing the measures taken by the various contractors it engaged throughout the UC response, including, inter alia, surveyor’s reports, activity logs, and various operational plans.

The BCMOE submission included, inter alia, a narrative with daily entries and ICS-214a (Individual Activity Log) forms for deployed BCMOE personnel, covering specific tasking, activities, and meeting notes for each day of the UC response, often in hourly entries.

One of the BCMOE ICS-214a forms, dated 24 September 2018, notes that the CCG’s JB reported, along with a representative of the owner of the Vessel, that the lightering operation had been completed, an imminent risk of pollution from the Vessel was no longer present, and that the CCG “would direct the works to move in a fashion of picking up gross saturated sock booms/pads and bag them. Once that is completed the threat of a catastrophic release to the environment has been mitigated”. A further entry, dated 25 September 2018 at 14:40, notes that “UC moved into a partial virtual UC. Members of UC who demob’d are CCGs [JB]/ SITL [CS].”

 

DETERMINATIONS AND FINDINGS

The CCG submission presents potentially eligible claims under section 103 of the MLA

The Incident resulted in oil pollution damage suffered, or the threat of such damage, within the territorial seas or internal waters of Canada, as well as in costs and expenses to carry out measures to mitigate further damage. As a result, claims arising from the Incident are potentially eligible for compensation.

The CCG is an eligible claimant for the purposes of section 103 of the MLA.

The submission arrived prior to the limitation periods set out under subsection 103(2) of the MLA.

Some of the claimed costs and expenses arise from what appear to be reasonable measures taken to “prevent, repair, remedy or minimize” oil pollution damage from a ship, as contemplated under Part 6, Division 2 of the MLA, and are therefore potentially eligible for compensation.

Accordingly, the submission presents claims that are potentially eligible for compensation under section 103 of the MLA.

Identification and description of the Vessel

The documentation submitted by the CCG on 1 September 2020 does not identify the Vessel by name, save for a label marked “TASU 1” on the folder enclosing that documentation. A search of Transport Canada records was carried out, and it was determined that no vessel is registered in Canada under that name or under similar variations thereof.

The narrative submitted by the CCG on 12 November 2020 refers to the Vessel as the WEST ISLAND 395. A search of Transport Canada registration records identifies a steel-hulled barge registered under that name, under the official number 323291, of a similar length to that cited in the CCG’s narrative. Furthermore, the IAP documentation states that the Vessel was confirmed on 15 September 2018 to be the one registered under that name and official number.

The additional claim submissions received by the Fund with respect to the Incident also identify the Vessel by both names, though several included documents reference the official number cited above and cite dimensions that match those of the WEST ISLAND 395 (i.e., length of 51.21 metres, breadth of 14.66 metres, and depth of 3.14 metres).

It is therefore concluded that the Vessel was in fact the WEST ISLAND 395.

According to registration records, the Vessel was built in 1965 for apparent use in an industrial capacity. At some later date prior to the Incident, the Vessel was modified to include an accommodation superstructure. The Vessel does not appear to have had propulsion of its own, but rather carried significant quantities of diesel and gasoline in tanks in its hull in order to power its generators and refuel smaller craft.

Findings on the evidence

The facts of the Incident set out by the CCG are generally accepted

The CCG submitted a narrative which sets out some of the material facts of the Incident. This description of events is accepted as generally accurate. While the CCG submission as a whole suffers from significant evidentiary shortcomings, which are discussed below, some of these shortcomings can be offset by inference and evidence presented by the BCMOE as part of its submission to the Fund.

The Vessel posed an oil pollution threat until 24 September 2018

It is accepted that the Incident as described by the CCG involved both an oil discharge with the threat of environmental damage as well as the threat of future discharges. While the actual volume of oils discharged as a result of the Incident was small, the potential for a larger discharge, given the volume of oils on board the Vessel, was real. Further, the implications of such a discharge in the waters around Haida Gwaii were severe. It is accepted that removing the oils from the Vessel in situ was a reasonable course of action in the circumstances.

Complicating the decision to remove the oils from the Vessel in situ were concerns surrounding the flammability of fuel vapours confined within the Vessel’s hull. These concerns are considered credible. Whether or not a fire or explosion within the Vessel might have led to oil pollution damage, it is accepted that these risks had to be properly understood and addressed before the removal of the oils in the Vessel’s tanks could safely begin. This, along with the remote location of the grounding, served to delay and extend the response to the Incident.

The CCG submission does not include a continuing assessment of the pollution threat posed by the Vessel, nor does it present a comprehensive timeline for the UC response. Rather, it is the ICS-214a forms presented by the BCMOE that shed light on these items. As noted above, these forms indicate that when the lightering operation concluded on 24 September 2018, the CCG was of the opinion that the Vessel no longer posed a significant oil pollution threat. All that remained at that point was to collect and bag soiled sorbent materials, an activity apparently carried out by the owner.

In the absence of evidence showing that the CCG had reason to continue its ER deployment following 24 September 2018, it has been determined that that day represented the end of its reasonable active involvement in the UC. In light of this finding, 25 September 2018 is allowed for demobilization. Indeed, it appears that the two CCG personnel who remained on scene at that point did in fact demobilize that day. The available evidence does not explain why their presence continued to 27 September 2018.

The evidence generalizes rather than specifies the CCG’s role in the UC response

As originally submitted, the CCG’s claim did not put forward any description of the Incident itself or of the CCG’s response to same. Had the Fund not already received two claim submissions with respect to the Incident from separate responding entities, the documentation originally submitted by the CCG would have been effectively without meaning altogether.

After several requests for further information, the CCG submitted over 1,000 pages of documents, including a narrative. While this voluminous documentation lends some context to the Incident, and while it offers some explanation of the costing documentation already submitted, and of the CCG’s involvement in a complex, multi-party response, it still falls short of providing the evidence needed to establish all the components of the CCG claim.

The CCG’s supplemental documentation generally fails to identify the actual measures taken by the CCG. It also generally fails to present justification or rationale with respect to the scope of its personnel deployment. The narrative identifies the CCG’s broad operational mandate and its three roles in an ICS-governed response, but it does not explain how the CCG personnel on scene fulfilled this mandate. Some of the most specific information on CCG resource allocation provided pertains to the two CCG ships that were either on scene enforcing an emergency zone around the grounded Vessel or placed on ER standby nearby. But the CCG does not seek compensation for any costs associated with the use of these assets.

Bare assertions contained in an incident narrative drafted long after a response operation are of little evidentiary value unless they are supported by contemporaneous documentation. Here, the CCG narrative asserts that the contractors engaged by the owner of the Vessel “lacked clear direction, and CCG was needed to provide clear direction through objective-based incident management, enforcement of an emergency zone, and to communicate to responders and the public.” Apart from the enforcement of the emergency zone, discussed above, no documentation was presented to illustrate the alleged directorial void nor what specific contributions the CCG made towards filling it.  It does not appear that the CCG issued any formal directions under the Canada Shipping Act, 2001, SC 2001, c 26, for example. The UC correspondence presented does little to establish that the CCG took on the role of coordinator or project manager. Rather, the operation appears to have been a shipowner-led response.

With respect to the absence of evidence as to what concrete measures the CCG took, the CCG might have submitted to the Fund its ICS-214 Activity Log forms, situation reports, or the Personnel & Equipment Daily Logs. Those documents are present in the vast majority of CCG submissions to the Fund, but they were not present here. This was noted in the Fund’s 9 September 2020 email to the CCG.

Notably, the IAP documentation that was provided is clear that all participants in the UC were obliged to preserve all documentation produced in the course of the response, including notes, reports, and ICS-214 forms. If such documentation from the CCG exists, it has not provided it to the Fund. This is detrimental to the CCG’s claim. The importance of specific tasking documentation in support of personnel deployment, which here accounts for the entirety of the costs claimed, cannot be overstated.

Some findings and inferences in the CCG’s favour are possible; others are not

Despite the significant evidentiary shortcomings of the CCG submission, it is concluded that the Incident merited a multi-agency response, and the appropriateness of the CCG’s involvement in that response is not questioned. Rather, the CCG submission’s evidentiary shortcomings affect the determination on what scope of CCG deployment can be considered reasonable. Whether as a result of inference or factual findings based on the evidence available, certain elements of the CCG’s deployment can be considered reasonable (see Appendix for a visual representation of the results of these findings).

First, the staggered on-scene deployment of all three senior (GT-07) ER personnel is considered reasonable, up to and including 25 September 2018. In order of their deployment, these personnel were as follows: TM, PB, and JB. While little to no documentation has been provided in support of the specific activities of these personnel, it is accepted that a UC response of this magnitude would require the leadership and experience that such senior CCG personnel might provide. To the extent that their deployments overlapped, such overlaps are accepted as reasonable and necessary to facilitate effective work hand-offs and travel.

Second, the deployment of LD, who appears to have been stationed primarily on the water in a site safety capacity, is considered reasonable. LD was evidently qualified as both a paramedic and an ER officer. It is understandable that a large-scale response to an oil pollution incident would require dedicated safety personnel and CCG contributions on this front are considered reasonable. Furthermore, it is likely that the CCG would have derived an observational benefit from having one of its trained ER personnel on the water at all times and able to report on the progress of the various streps being taking by the Vessel’s owner and its various contractors. This is central to its monitoring role.

Third, the presence of two CCG personnel on scene at any given time from 11 September 2018 up to and including 25 September 2018 is generally accepted as a reasonable minimum. CS is the only employee whose presence is accepted as a result of this finding.

Finally, based on the various IAP documentation, and in particular the busy daily meeting schedules (see example at Figure 8), all claimed daily hours in the period from 9 September 2018 to 25 September 2018, whether salaried or overtime, are considered reasonable with respect to the personnel discussed above.

The costs associated with the remaining CCG personnel (JD, MW, MH, NB, and SD) are rejected as either unsupported on the evidence or duplicative. Notably, both NB and MH were attached to the Environment Unit. While CCG participation in this UC role is accepted, the evidence provided does not support a finding that it was reasonable to deploy dedicated CCG personnel in this role, particularly in light of the participation of Environment and Climate Change Canada and the BCMOE, both of which had specially qualified personnel on scene. While MH (BI-02) produced a “Resources at Risk” summary early on in his deployment that was evidently used throughout the UC response, this brief, non-technical document alone does not justify the extended on-scene deployment of a Department of a Fisheries and Oceans biological sciences specialist alongside dedicated personnel from other governmental agencies.

 

CLAIM AND OFFER DETAILS

The CCG presented its claimed costs and expenses to the Fund across five schedules, each of which is briefly outlined below.

Under Part 7 of the MLA, the measures taken to respond to an oil pollution incident and the resulting costs must be reasonable in order to be compensable by the Fund. To the extent that reasons are not already set out in this letter, the below explains why certain portions of the CCG’s claim have been allowed while others have been disallowed.

Schedule 2 – Contract Services                                                              Claimed: $3,300.00

As noted above, and as summarized in Figure 2, the CCG’s claim for contract services appears to be comprised of accommodations costs for six of the CCG personnel who travelled to the site of the Incident. These personnel apparently stayed at an Eagle Eye Lodging property in Skidegate, at an all-in cost of $100.00 per night, per individual, for most of the nights that they were on scene.

While it is unclear why the CCG has presented some of its accommodations costs as contract services costs rather than travel costs, this irregularity is not a bar to recovery. Many of the Eagle Eye Lodging costs were associated with employees whose part in the CCG’s response has been accepted. Furthermore, the rates charged by Eagle Eye Lodging were reasonable. As such, a significant portion of the costs claimed under this schedule are accepted. The first exception is with respect to JD and SD, whose presence on scene has not been accepted. The second exception is due to the cutoff date of 25 September 2018, as discussed above. As a result of the cutoff, the accommodations costs associated with CS and JB have been reduced by $200.00 each.

The following table summarizes claimed and allowed Eagle Eye Lodging costs:

Employee	Dates	Nights	Claimed	Allowed
JD	2018-09-11 through 2018-09-15	4	$400.00	$0.00
TM	2018-09-11 through 2018-09-15	4	$400.00	$400.00
PB	2018-09-15 through 2018-09-21	6	$600.00	$600.00
SD	2018-09-15 through 2018-09-21	6	$600.00	$0.00
CS	2018-09-20 through 2018-09-27	7	$700.00	$500.00
JB	2018-09-21 through 2018-09-27	6	$600.00	$400.00
Totals			$3,300.00	$1,900.00

Table 1 – Summary of contract services amounts claimed and allowed

The contract services portion of this claim is allowed in the amount of $1,900.00.

Schedule 3 – Travel                                                                             Claimed: $16,030.50

Only the travel costs of the personnel whose presence on scene is accepted have been considered for compensation. These costs are discussed below.

The CCG claim for travel costs is dominated by airfares for its employees, all of whom flew to Sandspit, Haida Gwaii from Victoria or Vancouver on relatively short notice. The costs for one-way airfares ranged from $399.70 to 491.00, and the CCG paid checked baggage fees for some personnel, as well as flight change fees of $105.00 for some personnel who were evidently kept on scene longer than initially expected. All of these costs are documented with receipts, invoices, and itineraries, as appropriate. All are considered reasonable and are accordingly allowed in full.

Additional claimed travel costs include taxi and ferry fares, modest personal vehicle use allowances and fuel costs, rental car fees, and hotel costs not already captured under Schedule 2. With only minor exceptions, noted below, these costs are satisfactorily documented and reasonable. As such, they are generally allowed in full.

Finally, claimed meals and incidentals costs for each of the CCG personnel on scene range from $199.81 to $594.86. For each employee, these costs are supported only by two coded lump-sum entries on internal CCG costing forms. No daily breakdowns or other explanation is offered. While this evidence is minimal, it is noted that the claimed costs per employee do not exceed the Treasury Board per diem directive rates that were in place at the time of the Incident. For some employees, claimed per diem costs fall far below standard Treasury Board rates, perhaps because some meals were provided by the Vessel’s owner and the Haida Nation. These costs are considered reasonable and are allowed in full.

Only three items under this schedule pose problems that attract reductions: an unsupported and undescribed miscellaneous transportation cost of $98.79 associated with JB; a hotel charge of $113.00 that TM evidently paid for MW, before being reimbursed; and an apparent mathematical error resulting in an excess claim of $1.29 with respect to travel costs associated with LD.

Finally, the CCG submission includes travel cost documentation for an eleventh employee, JG, who does not appear in any other documentation presented but appears to have been on scene from 8 to 10 October 2018. The documentation shows JG’s travel costs totaled $1,570.91, but this amount is not included in the total claimed under this schedule. Because no explanation or other documentation has been provided in support of JG’s presence on scene nearly two weeks after the other CCG personnel had departed, they cannot be accepted as compensable.

The following table summarizes claimed and allowed travel costs:

Employee (Group and Level), Tasking	Claimed	Allowed
PB (GT-07), Unified Command	$1,164.79	$1,164.79
NB (PC-02), Environment Unit	$1,649.96	$0.00
JB (GT-07), Unified Command	$2,980.11	$2,881.32
JD (GT-04), Situation Unit Leader	$1,479.65	$0.00
SD (GT-04), Situation Unit Leader	$1,129.93	$0.00
MH (BI-03), Environment Unit	$2,234.11	$0.00
TM (GT-07), Unified Command	$1,054.86	$941.86
CS (GT-05), Situation Unit Leader	$1,381.25	$1,381.25
MW (GT-04), Situation Unit Leader	$1,226.22	$0.00
LD (GT-04), On-water Operations	$1,729.62	$1,728.33
Totals	$16,030.50	$8,097.55

Table 2 – Summary of travel amounts claimed and allowed

The travel portion of this claim is allowed in the amount of $8,097.55.

Schedule 4 – Salaries ­– Full Time Personnel                                      Claimed: $18,106.95

The amounts sought by the CCG with respect to claimed regular salaries costs are detailed in Figure 4 and in the Appendix. This letter has already set out the general assessment approach with respect to those costs, the results of which are indicated by green highlighting in the Appendix.

It is noteworthy that the CCG has not included the $2,146.50 paid to LD in either its total for this schedule or the global amount it seeks to recover. The default position in this circumstance is that the cost in question will not be considered for compensation unless it appears that the claimant does in fact seek to recover that cost and has merely left it out in error. Here, it is accepted that the CCG most likely intends to recover the salary cost associated with LD, in part because the CCG clearly seeks to recover overtime costs associated with that employee. In any case, the amount allowed with respect to claimed regular salaries does not exceed $18,106.95, which the CCG formally seeks to recover under this schedule.

The following table summarizes claimed and allowed regular salary costs:

Employee (Group and Level), Tasking	Claimed	Allowed
PB (GT-07), Unified Command	$2,466.00	$2,466.00
NB (PC-02), Environment Unit	$1,983.60	$0.00
JB (GT-07), Unified Command	$2,055.00	$1,644.00
JD (GT-04), Situation Unit Leader	$1,533.00	$0.00
SD (GT-04), Situation Unit Leader	$1,839.60	$0.00
MH (BI-03), Environment Unit	$2,511.00	$0.00
TM (GT-07), Unified Command	$2,466.00	$2,466.00
CS (GT-05), Situation Unit Leader	$1,719.75	$1,375.80
MW (GT-04), Situation Unit Leader	$1,533.00	$0.00
LD (GT-04), On-water Operations	$2,146.20	$2,146.20
Totals	$20,253.15	$10,098.00

Table 3 – Summary of regular salaries amounts claimed and allowed

The salaries portion of the submission is allowed in the amount of $10,098.00.

Schedule 5 – Overtime ­– Full Time Personnel                                   Claimed: $26,297.97

The amounts sought by the CCG with respect to claimed overtime costs are detailed in Figure 5 and the Appendix. This letter has already set out the general approach taken with respect to those costs, the results of which are indicated by green highlighting in the Appendix.

It is noted that there may be an issue with the overtime rate claimed for LD. Generally, overtime rates for CCG personnel are the employee’s base hourly rate (excluding the 20% markup for employee benefits plan costs), multiplied by either 1.5 or 2.0. The base hourly rate applied for LD appears to be too low, at $32.08 versus $40.88 with benefits (see Figures 4 and 5). Evidently, either the total overtime amount claimed for this employee is slightly low or the total claimed regular salary amount is slightly high. Because the discrepancy is small, however, no adjustment has been deemed necessary.

The following table summarizes claimed and allowed overtime costs:

Employee (Group and Level), Tasking	Claimed	Allowed
PB (GT-07), Unified Command	$3,846.86	$3,846.86
NB (PC-02), Environment Unit	$2,410.41	$0.00
JB (GT-07), Unified Command	$2,693.94	$2,419.98
JD (GT-04), Situation Unit Leader	$2,401.94	$0.00
SD (GT-04), Situation Unit Leader	$2,947.06	$0.00
MH (BI-03), Environment Unit	$0.00	$0.00
TM (GT-07), Unified Command	$3,938.18	$3,938.18
CS (GT-05), Situation Unit Leader	$2,608.52	$2,551.19
MW (GT-04), Situation Unit Leader	$2,291.21	$0.00
LD (GT-04), On-water Operations	$3,159.88	$3,159.88
Totals	$26,298.00[2]	$15,916.09

Table 4 – Summary of overtime amounts claimed and allowed

The overtime portion of the submission is allowed in the amount of $15,916.09.

Schedule 13 – Administration                                                             Claimed: $961.60

The CCG submission advances a claim for administration costs at a rate of 3.09%, applied against the total of claimed travel and salary costs, less the 20% markup associated with the costs of the employee benefits plan.

The 3.09% rate is generally accepted as reasonable, but a downward adjustment is required in order to account for the reduced amounts accepted with respect to the CCG’s claims for salary and travel costs.

The administration portion of the submission is allowed in the amount of $510.24.

 

OFFER SUMMARY AND CLOSING

The following table summarizes the claimed and allowed expenses:

Schedule	Claimed	Allowed
2 – Contract Services	$3,300.00	$1,900.00
3 ­– Travel	$16,030.50	$8,097.55
4 – Salaries – Full Time Personnel	$18,106.95	$10,098.00
5 – Overtime – Full Time Personnel	$26,297.97	$15,916.09
13 – Administration	$961.60	$510.24
Totals	$64,697.02	$36,521.88

Table 5 – Summary of amounts claimed and allowed

Costs and expenses in the amount of $36,521.88 are accepted and will be paid together with statutory interest calculated at the date of payment if the Offer is accepted.

***

In considering this Offer, please observe the following options and time limits that arise from section 106 of the MLA.

You have 60 days upon receipt of this Offer to notify the undersigned whether you accept it. You may tender your acceptance by any means of communication by 16:30 Eastern Time on the final day allowed. If you accept this Offer, payment will be directed to you without delay.

Alternatively, you have 60 days upon receipt of this Offer to appeal its adequacy to the Federal Court. If you wish to appeal the adequacy of the Offer, pursuant to Rules 335(c), 337, and 338 of the Federal Courts Rules, SOR/98-106 you may do so by filing a Notice of Appeal on Form 337. You must serve it upon the Administrator, who shall be the named Respondent. Pursuant to Rules 317 and 350 of the Federal Courts Rules, you may request a copy of the Certified Tribunal Record.

The MLA provides that if no notification is received by the end of the 60-day period, you will be deemed to have refused the Offer. No further offer will issue.

Finally, where a claimant accepts an offer of compensation, the Administrator becomes subrogated to the claimant’s rights with respect to the subject matter of the claim. The claimant must thereafter cease any effort to recover for its claim, and further it must cooperate with the Fund in its subrogation efforts.

Yours sincerely,

 

 

Mark A.M. Gauthier, B.A., LL.B.

Deputy Administrator, Ship-source Oil Pollution Fund

 

Enclosure: Appendix: Table of Claimed and Allowed Personnel Costs

 

 

 

Employee Information

Units

Date (September 2018)

Totals Claimed

Initials

Group, Level, Hourly Rates[3]

09

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

PB

GT-07   REG:             $54.80 OT:                 $45.66

REG Hours

–

–

–

–

–

7.50

–

–

7.50

7.50

7.50

7.50

7.50

–

–

–

–

–

–

45.00

Total Cost

–

–

–

–

–

$411.00

–

–

$411.00

$411.00

$411.00

$411.00

$411.00

–

–

–

–

–

–

$2,466.00

OT Hours

–

–

–

–

–

6.75

21.00

25.00

10.50

3.00

6.00

6.00

6.00

–

–

–

–

–

–

84.25

Total Cost

–

–

–

–

–

$308.21

$958.86

$1,141.50

$479.43

$136.98

$273.96

$273.96

$273.96

$3,846.86

NB

PC-02   REG:             $44.08 OT:                 $36.73

REG Hours

–

–

7.50

7.50

7.50

7.50

–

–

7.50

7.50

–

–

–

–

–

–

–

–

–

45.00

Total Cost

–

–

$330.60

$330.60

$330.60

$330.60

–

–

$330.60

$330.60

–

–

–

–

–

–

–

–

–

$1,983.60

OT Hours

–

–

5.625

4.500

5.625

4.125

17.250

21.000

3.375

4.125

–

–

–

–

–

–

–

–

–

65.625

Total Cost

–

–

$206.61

$165.29

$206.61

$151.51

$633.59

$771.33

$123.96

$151.51

–

–

–

–

–

–

–

–

–

$2,410.41

JB

GT-07   REG:             $54.80 OT:                 $45.66

REG Hours

–

–

–

–

–

–

–

–

–

–

–

7.50

7.50

–

–

7.50

7.50

7.50

–

37.50

Total Cost

–

–

–

–

–

–

–

–

–

–

–

$411.00

$411.00

–

–

$411.00

$411.00

$411.00

–

$2,055.00

OT Hours

–

–

–

–

–

–

–

–

–

–

–

6.00

3.00

15.00

23.00

3.00

3.00

3.00

3.00

59.00

Total Cost

–

–

–

–

–

–

–

–

–

–

–

$273.96

$136.98

$684.90

$1,050.18

$136.98

$136.98

$136.98

$136.98

$2,693.94

JD

GT-04   REG:             $40.88 OT:                 $34.07

REG Hours

–

7.50

7.50

7.50

7.50

7.50

–

–

–

–

–

–

–

–

–

–

–

–

–

37.50

Total Cost

–

$306.60

$306.60

$306.60

$306.60

$306.60

–

–

–

–

–

–

–

–

–

–

–

–

–

$1,533.00

OT Hours

–

16.75

11.75

9.00

6.75

8.25

18.00

–

–

–

–

–

–

–

–

–

–

–

–

70.50

Total Cost

–

$570.67

$400.32

$306.63

$229.97

$281.09

$613.26

–

–

–

–

–

–

–

–

–

–

–

–

$2,401.94

SD

GT-04   REG:             $40.88 OT:                 $34.07

REG Hours

–

–

–

–

–

7.50

–

–

7.50

7.50

7.50

7.50

7.50

–

–

–

–

–

–

45.00

Total Cost

–

–

–

–

–

$306.60

–

–

$306.60

$306.60

$306.60

$306.60

$306.60

–

–

–

–

–

–

$1,839.60

OT Hours

–

–

–

–

–

7.50

21.00

25.00

9.00

3.00

7.50

6.75

6.75

–

–

–

–

–

–

86.50

Total Cost

–

–

–

–

–

$255.53

$715.47

$851.75

$306.63

$102.21

$255.53

$229.97

$229.97

–

–

–

–

–

–

$2,947.06

MH

BI-03   REG:             $55.80 OT:                 N/A

REG Hours

–

–

7.50

7.50

7.50

7.50

–

–

7.50

7.50

–

–

–

–

–

–

–

–

–

45.00

Total Cost

–

–

$418.50

$418.50

$418.50

$418.50

–

–

$418.50

$418.50

–

–

–

–

–

–

–

–

–

$2,511.00

OT Hours

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

Total Cost

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

TM

GT-07   REG:             $54.80 OT:                 $45.66

REG Hours

–

7.50

7.50

7.50

7.50

7.50

–

–

7.50

–

–

–

–

–

–

–

–

–

–

45.00

Total Cost

–

$411.00

$411.00

$411.00

$411.00

$411.00

–

–

$411.00

–

–

–

–

–

–

–

–

–

–

$2,466.00

OT Hours

19.00

9.75

11.75

9.00

6.75

8.25

11.25

10.50

–

–

–

–

–

–

–

–

–

–

–

86.25

Total Cost

$867.54

$445.19

$536.50

$410.94

$308.20

$376.70

$513.68

$479.43

–

–

–

–

–

–

–

–

–

–

–

$3,938.18

CS

GT-05   REG:             $45.86 OT:                 $38.22

REG Hours

–

–

–

–

–

–

–

–

–

–

–

7.50

7.50

–

–

7.50

7.50

7.50

–

37.50

Total Cost

–

–

–

–

–

–

–

–

–

–

–

343.95

343.95

–

–

343.95

343.95

343.95

–

$1,719.75

OT Hours

–

–

–

–

–

–

–

–

–

–

–

4.50

6.75

21.00

27.00

6.00

1.50

–

1.50

68.25

Total Cost

–

–

–

–

–

–

–

–

–

–

–

$171.99

$257.99

$802.62

$1,031.94

$229.32

$57.33

–

$57.33

$2,608.52

MW

GT-04   REG:             $40.88 OT:                 $34.07

REG Hours

–

7.50

7.50

7.50

7.50

7.50

–

–

–

–

–

–

–

–

–

–

–

–

–

37.50

Total Cost

–

$306.60

$306.60

$306.60

$306.60

$306.60

–

–

–

–

–

–

–

–

–

–

–

–

–

$1,533.00

OT Hours

–

9.75

11.75

9.00

6.75

8.25

21.75

–

–

–

–

–

–

–

–

–

–

–

–

67.25

Total Cost

–

$332.19

$400.32

$306.63

$229.97

$281.08

$741.02

–

–

–

–

–

–

–

–

–

–

–

–

$2,291.21

LD

GT-04   REG:             $40.88 OT:                 $32.08

REG Hours

–

–

7.50

7.50

7.50

7.50

–

–

7.50

7.50

7.50

–

–

–

–

–

–

–

–

52.50

Total Cost

–

–

$306.60

$306.60

$306.60

$306.60

–

–

$306.60

$306.60

$306.60

–

–

–

–

–

–

–

–

$2,146.20

OT Hours

–

–

11.25

6.75

6.75

6.75

18.00

26.00

13.25

4.5

5.25

–

–

–

–

–

–

–

–

98.50

Total Cost

–

–

$360.90

$216.54

$216.54

$216.54

$577.44

$834.08

$425.06

$144.36

$168.42

–

–

–

–

–

–

–

–

$3,159.88