CLAIM SUMMARY / DETERMINATION FORM

Date : 7/14/2010 

Claim Number : N08057-022 

Claimant : United States Environmental Services, LLC

Type of Claimant : OSRO

Type of Claim : Removal Costs

Claim Manager : 

Amount Requested : $583,254.85 

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, the Claimant, United States Environmental Services LLC, 

(USES), provided response services1

 from July 28, 2008 through August 3, 20082, associated 

with the DM 932 discharge of oil into the Mississippi River. The Claimant subsequently 

subcontracted with Lawson Environmental Service L.L.C. to provide additional response 

services. ACL made one payment to USES in the amount of $4,057,619.27;3

 however, ACL did 

not pay all removal costs presented by the Claimant.4 This claim represents the uncompensated 

removal costs not paid by ACL. 

On May 7, 2009 USES 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) a notification letter dated May 14, 2010, to Ms. , ACL – General 

Counsel and Mr. of Nicoletti, Hornig & Sweeney, ACL – External Counsel.5

 

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

Financial Audit. (See Enclosure 1—ACL audit). 

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

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

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

ACL.6

 

1 See, Claim Form, signed by Mr. , dated May 6, 2009, Attachment E, Agreement to Conduct 

Emergency Response Services, signed by Mr. on July 29, 2008. 2 See, 33 CFR §136.105(b). 3 See, USES spreadsheet dated January 6, 2009 to the NPFC which identifies a payment made to USES by ACL 4 See, USES Invoices No. 80140122 Summary for dates July 28, 2008 through August 3, 2008. 5 See, NPFC letter, to ACL, re: Claim No. N08057-022, dated May 14, 2009. 6 Standard USES Rate Schedule dated July 1, 2008, Version 4.01LA

(b) (6) (b) (6) (b) (6) (b) (6) (b) (6)
The services provided by the Claimant were acknowledged by ACL’s designated Zone 

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

throughout the removal response. 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 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.7 Beneath 

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

IV. Audit

ACL prepared a financial audit for USES invoices, providing a line by line itemization of 

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

USES by ACL. Upon request, ACL provided a copy of this audit to the NPFC. The NPFC 

found that ACL’s auditors focused on whether the costs were properly supported, operationally 

reasonable and necessary in accordance with ACL’s standards. Based upon the invoices and the 

audit, it is clear that ACL did not pay the USES invoices within the 30 days timeframe set forth 

in the July 29, 2008 Agreement. 

V. 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). 

"Oil" is defined in relevant part, at 33 U.S.C. § 2701(23), to mean “oil of any kind or in any 

form, including petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other than 

dredged spoil”. 

“Navigable waters” means “the waters of the United States, including the territorial sea”. 33 

U.S.C. § 2701(21) 

“Remove" or "removal" means “containment and removal of oil or a hazardous substance from 

water and shorelines or the taking of other actions as may be necessary to minimize or mitigate 

damage to the public health or welfare, including, but not limited to, fish, shellfish, wildlife, and 

public and private property, shorelines, and beaches”. 33 U.S.C. 2701(30). 

“Removal costs” are defined as “the costs of removal that are incurred after a discharge of oil has 

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

prevent, minimize, or mitigate oil pollution from an incident”. 33 U.S.C. 2701(31). 

Under 33 U.S.C. §2713(b)(2) and 33 CFR 136.103(d) no claim against the OSLTF may be 

approved or certified for payment during the pendency of an action by the claimant in court to 

recover the same costs that are the subject of the claim. See also, 33 U.S.C. §2713(c) and 33 

CFR 136.103(c)(2) [claimant election]. 

 

7 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.
Under 33 CFR 136.101(a)(2), 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: (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.

Under 33 CFR 136.105(a) and 136.105(e)(6), the claimant bears the burden of providing all 

evidence, information, and documentation deemed necessary by the Director, NPFC, to support 

the claim. 

Under 33 CFR §§ 136.105(b) and (e)(12) each claim must be in writing, for a sum certain for 

each category of uncompensated damages or removal costs resulting from an incident and the 

claimant has certified no suit has been filed in court for the claimed uncompensated removal 

costs. In addition, under 33 CFR Part 136, the claimant bears the burden to prove that the 

removal actions were reasonable in response to the scope of the oil spill incident. 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 

circumstances, removal activities for which costs are being claimed must have been coordinated 

with the FOSC.” (Emphasis added). 

VI. DETERMINATION OF LOSS: 

A. Overview:

1. The removal actions were coordinated with 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 to “navigable waters” CITE. 

3. In accordance with 33 CFR § 136.105(e)(12), the claimant has certified no suit has been 

filed in court for the claimed uncompensated removal costs. 

4. In accordance with 33 CFR § 136.101(a)(2), the claim was submitted on time. 

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 notified the RP of the claim submission and the RP 

has provided a copy of their audit of USES’ response costs 

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

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

accordance with the NCP and reasonable and allowable under the OPA and 33 CFR § 

136.203 & 205 with the exception of denied costs itemized in the attached spreadsheet: 
(See, Enclosure 2 – ACL audit which incorporates the results of the NPFC’s 

adjudication). 

B. Analysis:

USES claims that all claimed costs are for uncompensated removal costs incurred for this 

incident for the time period of July 28, 2008 through August 3, 2008 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 whether the Claimant had incurred these costs and whether these costs were 

adequately documented and reasonable. As noted above, ACL appointed Zone Managers 

who acted as Qualified Individual (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 acknowledged by the designated Zone Managers on the dailies 

provided by USES and by ACL’s audit. 

The Claims Manager reviewed the actual cost invoices and dailies to confirm that the 

Claimant had incurred the costs claimed. The review focused on: (1) whether the actions 

taken were compensable “removal actions” under OPA and the claims regulations at 33 CFR 

Part136 (e.g., actions to prevent, minimize, mitigate the effects of the incident); (2) whether 

the costs were incurred as a result of these actions; (3) whether the actions taken were 

determined by the FOSC, to be consistent with the National Contingency Plan, 33 CFR Part 

300 or as directed by the FOSC, and (4) whether the costs were adequately documented and 

reasonable. 

During the adjudication, the Claims Manager reviewed the Pollution Reports and Incident 

Action Plans (IAPs) which corroborated that the claimed actions had taken place in the field. 

The NPFC also reviewed the comments contained in ACL’s financial audit. Although ACL 

denied certain costs, the NPFC approved these costs where adequately documented by USES. 

Given that ACL’s Zone Managers acknowledged and verified personnel, equipment and 

services rendered each day, as evidenced by their signed “dailies” and corroborated by other 

documentation, the NPFC determines that these actions were compensable removal actions 

under OPA. Moreover, because the services and materials/equipment listed on the daily 

sheets were provided pursuant to a contract with specified rates, agreed upon in advance of 

the incident by the parties, the NPFC further finds that USES has satisfied its burden of 

showing that the approved amounts claimed were adequately documented and reasonable. 

During review of USES’ claim, the NPFC Claims Manager determined that USES had only 

reimbursed their subcontractor, Lawson Environmental, at a 70% of the invoiced amount. 

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. The NPFC 

then denied 30% of all Lawson costs that the NPFC determined to be OPA compensable 

because the Claimant had not paid those costs to Lawson thus they are not uncompensated 

costs under the OPA. 

In order to address the discrepancies in this claim, the NPFC created a column within the 

ACL audit entitled “NPFC identified overpayment made by ACL on LES items”. It is clear 

from the spreadsheet that when ACL performed its financial audit of the USES invoice, the 

Claimant failed to identify that it had not paid 100% of each Lawson item as invoiced. This 

resulted in an overpayment by ACL to USES for ACL approved Lawson charges. 
NPFC denied the following costs as identified in the ACL audit: 

 

7/28/08 – Labor Denied in the amount of $16,075.60 

7/28/08 – Mat/equip Denied in the amount of $ 6,799.00 

7/29/08 – Labor Denied in the amount of $32,351.10 

7/29/08 – Mat/equip Denied in the amount of $ 3,885.00 

7/29/08 – Labor and Equip ADJ Denied $ 342.00 

7/30/08 – Labor Denied in the amount of $28,791.00 

7/30/08 – Mat/equip Denied in the amount of $ 6,838.53 

7/31/08 – Labor Denied in the amount of $33,579.50 

7/31/08 – Mat/equip Denied in the amount of $ 4,438.50 

8/01/08 – Labor Denied in the amount of $29,021.80 

8/01/08 – Mat/equip Denied in the amount of $ 2,001.00 

8/02/08 – Labor Denied in the amount of $28,178.40 

8/02/08 – Mat/equip Denied in the amount of $ 5,043.50 

8/03/08 – Labor Denied in the amount of $44,100.30 

8/03/08 – Mat/equip Denied in the amount of $ 2,494.50 

8/03/08 – Labor and Equip ADJ Denied $ 3,150.00 

Total Denied Amount for N08057-022: $247,089.73 

Lastly, during the adjudication, the NPFC identified six formula errors made by ACL during 

their audit which resulted in a $94,473.50 difference on ACL approved costs. The following is a 

summary of the ACL formula errors that were corrected during the NPFC audit:

7/29/08 – Mat/equip changed from $138,054.00 to $173, 644.00 = 

 Difference = $35,590.00 

7/30/08 – Mat/equip changed from $170,251.56 to $173,866.56 = 

 Difference = $3,615.00 

7/31/08 – Mat/equip changed from $162,032.50 to $177,487.50 = 

 Difference = $15,455.00 

8/01/08 – Mat/equip changed from $183,027.50 to $186,312.50 = 

 Difference = $3,285.00 

8/02/08 –Mat/equip changed from $150,087.50 to $193,665.00 = 

 Difference = $43,577.50 

8/03/08 – Mat/equip changed from $181,495.00 to $174,446.00 = 

 Difference of Credit ($7,049.00) 

It is important to note that while the NPFC identified a 30% overpayment by ACL to USES 

on certain Lawson charges, the NPFC has not offset these payments against the documented 

but uncompensated amounts owed to the Claimant.8

VII. Determined Amount:

 

8 See, Enclosure 2 – ACL audit which incorporates the results of the NPFC’s adjudication.
The NPFC Claims Manager hereby determines that the Claimant incurred $336,165.12 of 

uncompensated OPA compensable removal costs that are supported by the evidence. This 

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

incurred by the Claimant and adjudicated by the NPFC under claim# N08057-022. 

Claim Supervisor: 

Date of Supervisor’s review: 7/15/10 

Supervisor Action: Approved 

Supervisor’s Comments: 

(b) (6)