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BP Business Economic Loss Claim Appeal 2017-364: Retailer and Repairer of Oil and Gas Tanks and Pumps Not Prevented From Recovery By Exhibit 17’s Oil and Gas Business Exclusion

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The following is an Appeal Panel Decision issued pursuant to Section 6 of the BP Deepwater Horizon Economic & Property Damages Settlement Agreement and the Rules Governing the BP Appeals Process. Links may have been added to assist the reader. The original decision may be found here, as well as a glossary of BP Settlement terms


BP assails the Program’s BEL award in the amount (pre-RTP) of $253,457.22 to a N.Ft. Myers, Fl (Zone D) retailer and repairer of gasoline tanks and pumps. In its memorandum, BP relies upon the provisions of Exhibit 17 and Section 2.2.4.5 of the Settlement Agreement excluding businesses in the Oil and Gas industry. In
support of this Claimant’s exclusion, BP points to website references where Claimant reports that part of its operation includes repairs to “petroleum storage and dispensing equipment,” and “removal and demolition of existing systems, above-ground and underground storage tank systems…” It points as an example to one job
where Claimant purportedly engaged in a pipeline project in Naples,Fl. BP argues that Exhibit 17 includes within excluded Oil and Gas businesses entities that deal with “storage tanks and piping systems,” and that the Administrator failed to look into the details of such similarly described operations in Claimant’s website. Lastly, BP questions the granting of a NAICS Code (423120-Motor Vehicle Supplies and New Parts Merchant Wholesaler) to Claimant whose operations are not of that nature. It makes a final proposal of $0 or an alternative remand to look in detail at Claimant’s primary operations to determine if it is in the Oil and Gas business.
Claimant responds that its primary operation is to install and service gasoline pumps and storage tanks at gas stations, convenience stores and emergency generator locations. It asserts that the exclusion of businesses in the Oil and Gas industry pertains to entities engaged in the drilling, piping, extraction or refining of petroleum
products, activities that are far beyond its scope. It explains that its “pipeline project” in Naples, Fl referred to by BP involved a retail dockside gas station that sells fuel to recreational boaters, a far cry from the assumptions made by BP. Its final proposal is the amount granted to it by the Program.
In a close decision, this panelist feels compelled to apply the claimant-friendly spirit of the Agreement to affirm the Program’s actions. Policy 480v2 requires the selection of a NAICS code that most accurately describes a Claimant’s primary business activities. While this panelist tends to agree with BP that NAICS code 423120 does not fit Claimant’s operations like the proverbial glove, neither does any other NAICS code either cited by BP or found by this panelist. A de novo review of the record indicates that Claimant is primarily an installer and servicer of gas station equipment. Such an operation, whatever its NAICS code, should not be stretched to place it within the ambit and obvious intent of the Oil and Gas business exclusion of the Agreement. Accordingly, Claimant’s proposal, seeking the affirmation of the Program’s actions, must be chosen in this baseball appeal.
No reasonable basis exists to remand this matter.

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