3 

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. FOSC coordination has been established under the Federal Project by way of Incident Action 

Plans and United States Coast Guard (USCG) Pollution Reports under Federal Project 

Number N08057. 

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 no suit has been filed 

in court for the claimed uncompensated removal costs. 

4. The claim was submitted on time.

5. Presentment of costs to the RP was made by the Claimant ES&H, prior to the submission of 

the claim. The NPFC also made presentment of costs to the RP for which the RP responded 

with a copy of their complete audit for this claimant.

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 (See, Enclosure 1 – ACL audit which 

incorporates the NPFC audit). 

B. Analysis:

NPFC CA reviewed the actual signed damaged containment boom tracking logs and boom 

release forms to confirm that the claimant had incurred all costs claimed. The review 

focused on: (1) whether the actions taken 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) 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 NCP 

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

reasonable.

The Claimant ES&H stated that all costs claimed are for uncompensated removal costs 

incurred by the claimant for this incident for the time period of July 23, 2008 through August 

27, 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 Claims Manager has confirmed that the response activities performed by the claimant 

were signed off by a designated Manager on behalf of the RP. 

As detailed in Enclosure (1), the NPFC reviewed the detailed comments in the Financial 

Audit performed by ACL’s auditor. The NPFC approved costs which were adequately 

documented by the Claimant on the signed reports, despite the fact that the same costs were 

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 Manager(s) for ACL 

when these representative(s) signed the claimant’s damaged containment boom and boom 
4 

release forms. The NPFC further finds that ES&H has satisfied its burden of showing that 

the amounts claimed were reasonable and necessary. As a result, NPFC finds and approves 

that these costs are eligible for payment under OPA.

ACL’s audit denied 1100 feet of boom at a rate of $7.00 per foot totaling $7,700.00 of 

deductions. The auditors note states the signed release document by ES&H representative 

states 1,100 feet received in acceptable condition. The NPFC found this deduction to be in 

error. The boom release form dated August 19, 2008 clearly shows “damaged not 

repairable” on the line “owner ES&H”. This form differs from some of the other forms, 

which have a separate line for noting “damaged beyond repair” boom, but nonetheless, it is 

clearly noted that this boom was damaged and not repairable. All other boom was approved 

by the RP in the audit. 

During the review of Enclosure (1), the NPFC created “NPFC Denied” and “NPFC 

Approved” columns within the ACL audit summary page so that a line by line comparison 

and determination could be made and easily identified. The first column, labeled “NPFC 

Denied”, includes the total denied costs for each line item, which is then computed at the 

bottom of each daily sheet and carried forward to the summary spreadsheet totals. The 

second column, labeled “NPFC Approved” includes the amounts which are adjudicated and 

determined as approved by the NPFC. 

The NPFC requested that the Claimant ES&H provide the age of the boom deemed 

“damaged beyond repair” in this invoice. This was required since the booms age needed to be 

established in order to determine its depreciated value. 

The Claimant ES&H provided a letter dated October 27, 2009, concerning the 13,900 feet of 

18 inch containment boom Rhodes Environmental sold to ES&H. The letter states the 

expected shelf life of new containment boom provided by Rhodes Environmental is three to 

five years if stored in a warehouse and two to three years if stored outdoors.10 An additional 

letter dated January 4, 2010 was provided concerning the 11,800 feet of 18 inch containment 

boom Complete Environmental Products, Inc. sold to ES&H. This letter states the expected 

shelf life of new containment boom provided by Complete Environmental Products, Inc. is 

three to five years if stored in a warehouse and two years if stored outdoors.11

In an email dated December 4, 2009, ES&H attached invoices for new boom purchased from 

Rhodes Environmental and Complete Environmental Products, Inc. totaling 25,700 feet of 18 

inch boom. The email states that this boom was bought and utilized for response activities 

during the DM 932 incident.12

On December 18, 2009, , Vice President of ES&H, provided an email in 

response to several questions the NPFC asked in an email dated December 4, 2009.13 The 

responses to this email show that there is no accurate way to determine the exact age of the 

boom ES&H provided for this incident. Records were not kept as to how long the 25,700 feet 

of new boom was stored in warehouses at the purchasing site, or how old the 56,500 feet of 

boom provided by day two of the incident was. 

 

10 See, ES&H letter dated October 27, 2009. 11 See, ES&H letter dated January 4, 2010. 12 See, ES&H email dated December 4, 2009. 13 See, ES&H email dated December 18, 2009.

(b) (6)
5 

However, upon review of the “Damaged Containment Boom Tracking Log” provided in the 

claim, the NPFC found that 3,300 feet of the 6700 feet of claimed boom “damaged beyond 

repair” was signed off by an ACL Zone Manager as being in Venice (Zone S). This, coupled 

with the July 25-26, 2009 signed dailies showing shipments of containment boom arriving in 

Zone A and then large increases in boom quantities down river (while Zone A quantities 

remained the same), lead the NPFC to find it reasonable that the 25,700 feet of new boom 

purchased for this incident was deployed or in standby in zones downriver from Zone A. 

The NPFC further finds it reasonable that 3,300 feet of the 6700 feet of claimed boom 

“damaged beyond repair” was the new boom purchased for this incident. The NPFC took 

into account the expected shelf life of this boom as provided by both manufacturers as being 

three to five years if stored in a warehouse. Additionally, the NPFC contacted Mr. 

 of Rhodes Environmental and Mr. of Complete Environmental 

Products, Inc. to obtain general stock rotation time for warehouse stored boom. Mr. 

and Mr. both stated that all new boom was warehouse stored and depending on 

demand, was rotated immediately or at the latest by one year. Taking all this into account, the 

NPFC finds it reasonable that 3,300 feet of the claimed 6700 feet of boom was bought new 

and stored one year or less at the warehouse. The NPFC depreciates this amount of boom 

25% or $5,775.00. The NPFC came to this depreciation by taking the average warehouse 

shelf life of three to five years – in this case four years and deducting one year (assuming 

maximum storage in the warehouse before rotation took place). No other depreciation was 

deducted since the boom was utilized immediately. The NPFC therefore approves 

$17,325.00 in depreciated boom costs for this 3,300 feet of the claimed 6700 feet of boom 

(3300 x 7.00 a foot = $23,100.00 / .75 = $17,325.00). 

For the remaining 3400 feet of boom, the NPFC applies a 50% depreciation or $11,900.00. 

The NPFC came to this depreciation by looking at a combination of this boom being bought 

new, being stored outdoors or already used in the water on other spills. Because there is no 

identified way to determine how old this boom is, the NPFC finds it reasonable that this 

boom was in serviceable condition when being deployed for service in this incident. At that 

point, if it was all new, we would apply a maximum 25% depreciation for maximum 

warehouse shelf time (considering rotation as discussed above). Additionally, at the other 

extreme, if the boom was used in service on several spills, the NPFC would depreciate the 

boom at a much higher rate. Because it is unknown what the booms age was, the NPFC finds 

50% depreciation reasonable. The NPFC therefore approves $11,900.00 in depreciated boom 

costs for this 3,400 feet of the claimed 6700 feet of boom (3400 x 7.00 a foot = $23,800.00 / 

.50 = $11,900.00). 

Accordingly, the NPFC has determined that the Claimant ES&H has $29,225.00 in 

uncompensated removal costs for this claim ($17,325.00 + $11,900.00). 

On this basis, the Claims Manager hereby determines that the claimant did in fact incur 

$29,225.00 of uncompensated removal costs and that this amount is properly payable by the 

OSLTF as full compensation for the reimbursable removal costs incurred by the claimant and 

submitted to the NPFC under claim # N08057-053 in accordance with 33 CFR 136.203 & 

205. 

 

C. Determined Amount: 

The NPFC hereby determines that the OSLTF will pay $29,225.00 as full compensation for 

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

# N08057-053. All costs claimed are for charges paid for by the Claimant for removal 

(b) (6) (b) (6)

(b) (6)

(b) (6)
6 

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 Comments:

(b) (6)