CLAIM SUMMARY / DETERMINATION FORM

Date : 9/10/2010 

Claim Number : N08057-022 

Claimant : United States Environmental Services, LLC

Type of Claimant : OSRO

Type of Claim : Removal Costs

Claim Manager : 

Amount Requested : $593,894.00 

I. Facts 

On the morning of July 23, 2008, the tank barge DM 932 sank as a result of a collision with M/T/ 

TINTOMARA and discharged oil into the Mississippi River, a navigable waterway of the United 

States.

II. Responsible Party

American Commercial Lines LLC (ACL) owned the barge at the time of the incident and is a 

responsible party under the Oil Pollution Act (OPA). 

III. The Claimant and the Claim 

Pursuant to a contract with ACL, Claimant, United States Environmental Services LLC (USES), 

provided emergency response services 1

 from July 23-27, 2008, associated with ACL’s discharge 

of oil to the Mississippi River. Claimant subsequently subcontracted with Lawson Environmental 

Service L.L.C. to provide additional response services. ACL made partial payments to USES for 

invoices in the amounts of $4,057,619.272, however, ACL did not pay all removal costs 

presented by Claimant.3

 This claim represents the uncompensated removal costs not paid by 

ACL. 

On May 7, 2009, submitted a removal cost claim to the National Pollution Funds Center (NPFC), 

for reimbursement of their uncompensated removal costs in the amount of $583,254.85 for the 

time period of July 28, 2008 through August 3, 2008. The NPFC sent the Responsible Party 

(RP) notification letter, dated May 14, 2009, to Ms. , ACL – General Counsel and 

Mr. of Nicoletti, Hornig & Sweeney, ACL – External Counsel.4

 ACL 

acknowledged receipt of the invoices that are subject of this claim by way of ACL’s Financial 

Audit. (See Enclosure 1 – ACL audit with NPFC recon adjudication incorporated). 

During the incident, the Claimant provided response resources and services under its contract 

with ACL, Agreement to Conduct Emergency Response Services, dated July 23, 2008, and 

executed by ACL on July 29, 2008 (Agreement). Claimant provided its published rate schedule 

to ACL.5 The services provided by the Claimant were acknowledged by ACL designated Zone 

Managers, who acted as the Qualified Individual(s) (QI) representatives for ACL in various 

zones on given dates. Specifically, the Claimant submitted daily sheets to the respective Zone 

Manager(s) which listed the labor and materials/equipment provided by the Claimant for each 

 

1 See, Claim Form, signed by Mr. , dated April 22, 2009, Attachment E, Agreement to Conduct

 Emergency Response Services, signed by Mr. on July 29, 2008. 2 See, USES spreadsheet dated January 6, 2009 to the NPFC which identifies a payment made to USES by ACL. 3 See, USES Invoice No. 080140122 Summary for dates July 28 through July 27August 3, 2008. 4 See, NPFC letter, to ACL; re: Claim No. N08057-022, dated May 14, 2009 5 Standard USES Rate Schedule dated July 1, 2008, Version 4.01LA.

(b) (6) (b) (6) (b) (6) (b) (6) (b) (6)
day of the response in a specific zone location. The Zone Managers approved the materials, 

equipment and labor identified on each daily by signing the document.6

 Beneath each 

signature, the Zone Manager made the notation “subject to audit.” 

IV. Request for Reconsideration

On September 10, 2010, USES requested reconsideration of their claim based on the fact that the 

NPFC had taken double deductions on Lawson Environmental Services (LES) line items for 

which USES had previously made ‘agreed to adjustments’ that were already deducted on the 

Summary sheet of the NPFC audit spreadsheet and had also denied 30% on LES items that were 

not part of the agreed to adjustments which constituted double deductions erroneously. 

V. The Audits

ACL prepared a Financial Audit for USES invoices, providing line by line itemization for 

materials, equipment and personnel submitted for payment by USES and payments made to 

USES by ACL. Upon request by the NPFC, ACL provided the Audit to the Claims Manager. 

The NPFC found that ACL auditors focused on whether the paperwork was complete as 

determined by their standards, whether the costs were properly supported in accordance with 

their standards, and whether the costs were operationally reasonable and necessary according to 

their standards. Based on the invoices and the audit, it is clear the ACL did not pay their invoices 

within 30 days. 

 

VI. Applicable Law

The Oil Spill Liability Trust Fund (OSLTF), which is administered by the NPFC, is available, 

pursuant to 33 USC §§ 2712(a)(4) and 2713 of OPA and the OSLTF claims adjudication 

regulations at 33 CFR Part 136, to pay claims for uncompensated removal costs that are 

determined to be consistent with the National Contingency Plan (NCP) and uncompensated 

damages. Removal costs are defined as “the costs of removal that are incurred after a discharge 

of oil has occurred or, in any case in which there is a substantial threat of a discharge of oil, the 

costs to prevent, minimize, or mitigate oil pollution from such an incident.” 33 USC § 2701(31). 

Under 33 CFR § 136.105(b) each claim must be in writing, for a sum certain for each category of 

uncompensated damages or removal costs resulting from an incident. In addition, under 33 CFR 

Part 136, the claimant bears the burden to prove the removal actions were reasonable in response 

to the scope of the oil spill incident, and the NPFC has the authority and responsibility to 

perform a reasonableness determination. Specifically, under 33 CFR § 136.203, “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 [Federal On-Scene Coordinator] to be 

consistent with the National Contingency Plan or were directed by the FOSC.”

Under 33 CFR § 136.205, “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 

 

6 One responsibility of ACL Zone Managers was to confirm that the materials, equipment and services billed on 

each day for a certain period of time and at a given location have in fact been provided and accounted for.
circumstances, removal activities for which costs are being claimed must have been coordinated 

with the FOSC.” (Emphasis added). 

DETERMINATION OF LOSS: 

A. Overview:

 

1. The removal actions were coordinated with the FOSC as evidenced by Incident Action Plans 

and United States Coast Guard (USCG) Pollution Reports. 

2. The incident involved the discharge and continuing substantial threat of discharge of “oil” as 

defined in OPA 90, 33 U.S.C. § 2701(23), to navigable waters. 

3. In accordance with 33 CFR § 136.105(e)(12), the claimant has certified that it has filed no 

suit in court for the claimed uncompensated removal costs. 

4. The claim was timely submitted in accordance with OPA.

5. USES presented its removal costs to the RP more than 90 days prior to the submission of the 

claim to the NPFC. The NPFC also made presentment of costs to the RP and the RP has 

provided a complete copy of their Audit of the response costs presented. 

6. The NPFC Claims Manager has thoroughly reviewed all documentation submitted with the 

claim and determined that the majority of all removal costs presented were for actions in 

accordance with the NCP and that the costs for these actions were indeed reasonable and 

allowable under OPA and 33 CFR § 136.205 with the exception of denied costs itemized in 

the attached Summary of Vendors spreadsheet: (See, Enclosure 1 – ACL audit which 

incorporates NPFC adjudication). 

B. Analysis and Reconsideration:

USES states in its claim that all costs claimed are for uncompensated removal costs incurred 

for this incident for the time period of July 28, 2008 through August 3, 2008. The Claimant 

represents that all costs paid by the Claimant are compensable removal costs, payable by the 

OSLTF as presented by the Claimant.

The NPFC Claims Manager reviewed the Claimant’s actual cost invoices and dailies to 

confirm that the Claimant had incurred all costs claimed and that the costs were adequately 

documented and reasonable. As noted above, ACL appointed Zone Managers who acted as 

Qualified Individual(s) (QI) representatives for ACL in various response zones on specific 

days. The NPFC Claims Manager determined, that the response activities performed by the 

Claimant were signed off by the designated Zone Managers on the dailies provided by USES 

and by ACL’s Audit. 

The Claims Manager also confirmed that the removal costs were: compensable “removal 

actions” under OPA and the claims regulations at 33 CFR Part 136 (e.g., actions to prevent, 

minimize, mitigate the effects of the incident); (2) incurred as a result of these actions; (3) 

incurred for removal actions were determined by the FOSC to be consistent with the NCP or 

directed by the FOSC. The Claims Manager reviewed the Pollution Reports and Incident 

Action Plans (IAPs) to corroborate actions that were taking place in the field at any given 

point in time and were utilized as part of the adjudication process. The Claims Manager also 

cross referenced claim submission information to the USCG’s database of files that were 

associated with this oil spill incident and provided to the NPFC by USCG Sector New 

Orleans via tape. 

 

The NPFC also reviewed the detailed comments in ACL’s Financial Audit. The NPFC 

approved certain costs which were adequately documented by the Claimant, USES, yet 
denied by ACL in its Financial Audit. Such costs were approved over ACL’s denial in the 

Financial Audit because these costs had been approved by designated Zone Manager(s) for 

ACL when these representative(s) signed the Claimant’s daily sheets. Because the services 

and materials/equipment listed on the daily sheets were provided pursuant to a contract with 

specified rates, NPFC further finds that USES has satisfied its burden of showing that the 

amounts claimed were reasonable and necessary.7

At the time ACL performed their initial audit of the USES invoice, any amounts approved by 

ACL during their audit were compensated at 100% per line item. Upon review of USES’ 

claim the Claims Manager determined that USES had only reimbursed their subcontractor, 

Lawson Environmental Service, at a 70% reimbursement rate. Thus, when the NPFC 

adjudicated this claim, the NPFC requested that USES identify all line items for Lawson 

Environmental resources that were part of the USES invoice. 

Any Lawson line item denied by ACL that the NPFC determined compensable, was 

approved at 70% of those costs as incurred by USES. To complete the administrative record 

in this claim and to clarify identification of the 30% overpayment of Lawson claims and the 

NPFC approval of uncompensated removal costs for which the Claimant is entitled, the 

NPFC created a column on the ACL audit labeled “NPFC identified overpayment by ACL 

for Lawson line items,” and an “NPFC Approved” column. 

As referenced in the columns, the unsubstantiated costs are as follows:

7/28/08 – labor denied in the amount of $ 0.00 

7/28/08 – mat/equip denied in the amount of $ 0.00 

7/29/08 – labor denied in the amount of $ 1,566.00 

7/29/08 – mat/equip denied in the amount of $ 5,115.00 

7/30/08 – labor denied in the amount of $ 108.00 

7/30/08 – mat/equip denied in the amount of $ 8,515.00 

7/31/08 – labor denied in the amount of $ 958.00 

7/31/08 – mat/equip denied in the amount of $ 2,362.50 

8/01/08 – labor denied in the amount of $ 1,428.00 

8/01/08 – mat/equip denied in the amount of $ 0.00 

8/02/08 - labor denied in the amount of $ 1,404.00 

8/02/08 - mat/equip denied in the amount of $ 800.00 

8/03/08 - labor denied in the amount of $ 943.50 

8/03/08 - mat/equip denied in the amount of $ 1,800.00 

Total denied amount for N08057-022: $25,000.00 

During the NPFC’s adjudication on reconsideration, the NPFC removed the denied amounts 

it had previously entered for the LES line items as these were items already denied by ACL 

which constituted double deductions and the USES agreed to adjustments were denied twice 

in error by the NPFC as those amounts had already been deducted as identified on the NPFC 

audit summary sheet which resulted in double reductions taken by the NPFC for those items 

as well. Additionally, the NPFC had adjudicated the markup line item inserted by ACL 

which the NPFC should not have addressed at all since the LES invoice contained the 

markup within it and was addressed individually by line within the audit. In summary, the 

 

7 NPFC’s policy is if there is a written agreement between the two parties then we deem those costs reasonable and 

compensable.
NPFC has approved $593,894.00 in OPA compensable costs. All amounts in excess of 

$593,894.00 are deemed denied. 

On this basis, the NPFC Claims Manager hereby determines that the Claimant did in fact 

incur $593,894.00 of uncompensated removal costs that are supported by the record and that 

this amount is payable by the OSLTF as full compensation for the reimbursable removal 

costs incurred by the Claimant and submitted to the NPFC under claim# N08057-022. 

 Determined Amount:

The NPFC hereby determines that the OSLTF will pay $593,894.00 as full compensation for 

the reimbursable removal costs incurred by the Claimant and submitted to the NPFC under 

claim # N08057-022. All costs claimed are for charges paid for by the Claimant for removal 

actions as that term is defined in OPA and, are compensable removal costs, payable by the 

OSLTF as presented by the Claimant. 

Claim Supervisor: 

Date of Supervisor’s Review: 

Supervisor Action: 

Supervisor’s Comments: 

(b) (6)