Claim Number: 

Claimant: 

Type of Claimant: 

Type of Claim: 

Claim Manager: 

Amount Requested: 

CLAIM SUMMARY I DETERMINATION 

91 3085-0001 

Environmental Safety & Health Consulting Services 

Corporate 

Removal Cost

$2,902.70 

Facts of the Incident as provided by the Claimant 

The Claimant reports that they were contacted on September 14, 20 I I by Mr, of Graystone 

Construction, who requested the assistance of Environmental Safety & Health Consulting Services 

(ES&H) for the environmental aspect of a salvage project they were going to begin. On September 15, 

20 II , the Claimant states they sent two employees to the location to gather more information. While 

ES&H was at the site location, Mr. provided ES&H the USCG contact information and requested 

they contact the USCG. ES&H contacted the USCG and was informed by the USCG that the local fire 

department had responded to the site location on two separate occasions due to fires which is how the 

USCG originally became involved with Graystone Construction. 

ES&H states they were advised by USCG that they had mobilized to the site some time prior to 

September 14, 20 I I and the USCG recommended that Graystone Construction contract an OSRO to 

assist in the creation of a pollution control plan and to be prepared to deploy any spill control devises 

should the need arise. On September 16, 20 II , ES&H submitted a work/safety plan to USCG for rev iew 

and approval of the upcoming salavage project. USCG notified ES&H a few days later approving the 

plan and requested when a start date was determined that ES&H notify him accordingly. 

ES&H and Graystone Consruction agreed on a start date of September 26, 20 I I. USCG met ES&H at the 

site location on September 26, 20 I I. ES&H deployed 200' of containment boom and provided standby 

personnel and equipment should the need arise.Graystone Construction attempted to remove the vessel 

from the waterway using a crane while both ES&H and USCG were present on scene. All attempts to 

raise the vessel were unsuccessful therefore Graystone Construction postponed the salavage project until 

further notice. 

ES&H's conta inment boom remained in the water per a verbal agreement between Graystone 

Construction and the USCG. On October 23, 20 II , ES&H visited the Graystone Construction site 

location and was informed the salavage project was still on hold. On December 20, 20 II , ES&H decided 

since they had no further contact with Graystone Construction, they wou ld demobilize the containment 

boom from the project. Upon their arrival on site, ES&H noticed the vessel had been removed from the 

water and the salavage/demolition had been completed. 1 

The Claim & the Claimant 

On September II , 20 13, the Claimant, ES&H, presented a removal cost claim to the National Pollution 

Funds Center (NPFC) for its uncompensated removal costs in the amount of $2,902.70. The Claimant's 

invoicing originally totaled $3,402.70 a lthough Graystone Construction made a payment in the amount of 

$500.00 via check # 1485408309 dated August 26, 2013. 

1 See email from ES&H to NPFC dated September 30, 20 13. 

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Under the terms of the Agreement between ES&H and Grays tone Construction, Graystone agreed to pay 

ES&H $ 1.000.00 as a deposit for salvage of the vessel. The Agreement was signed and dated 23 October 

20 II . There is no explanation as to why the Agreement was signed over a month after the work began. 

According to the claim su bmission and under the terms of the Agreement, on September 26, 20 I I, boom 

was deployed and personnel were on stand-by in the event of a pollution incident. 

After an initial review of the claim submission, the NPFC Claims Manager determined additional 

information would be needed in order to properly adjudicate the claim. The NPFC made a request for 

additional information to both the Claimant and to the Coast Guard Unit known to have jurisdiction over 

the incident. 

APPLICABLE LAW: 

Under OPA 90, at 33 USC § 2702(a), responsible parties are liable for removal costs and damages 

resulting from the discharge of oil into navigable waters and adjoining shorelines. as described in Section 

2702(b) ofOPA 90. A responsible party's liability will include ·'removal costs incurred by any person for 

acts taken by the person which are consistent with the National Contingency Plan'·. 33 USC § 

2702(b)( I )(8). 

"Oil " is defined in relevant part. at 33 USC§ 270 1(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"·. 

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

33 USC §§ 27 12(a)( 4) and 27 13 and the OSL TF claims adj udication regulations at 33 CFR Part 136, to 

pay claims for uncompensated removal costs that are determined to be consistent with the National 

Contingency Plan 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 an incident". 

Under 33 USC §27 13(b)(2) and 33 CFR 136.1 03(d) no claim aga inst the OSL TF 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 ofthe claim. See also. 33 USC §27 13(c) and 33 CFR 136.103(c)(2) [claimant 

election). 

Under 33 CFR 136. 1 OS( a) and 136.1 05(e)(6), the claimant bears the burden of providing to the NPFC, all 

evidence. information, and documentation deemed necessary by the Director. PFC, to support the claim. 

Under 33 CFR 136. 1 OS(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 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 PFC 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; 

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(c) That the actions taken were determined by the FOSC 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]. 

DETERMINATION OF LOSS: 

A. Overview 

I. FOSC coordination has only been provided in part by Marine Safety Unit Morgan City. Actions 

undettaken on Day One and the use of containment boom has been validated by the Coast Guard 

Unit although all other costs are denied accordingly; 

2. The incident involved the repott of a discharge and/or substantial threat of a discharge of .. oil" as 

defined un OPA 90, 33 USC 270 I (23), to navigable waters; 

3. No Responsible Party has been determined for this incident. 33 USC 270 I (32) 

4. The Claimant has presented all costs to Graystone Construction but was unsuccessful in reaching 

resolution for payment. Graystone made one payment to the Claimant in the amount of $500.00 

on or about August 28, 20 13; 

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

and determined that only some of the remova l costs presented were presented for actions in 

accordance with the NCP, or whether the costs for these costs were reasonable and allowable 

underOPA and 33 CFR 136.205. 

B. Analysis: 

Under 33 CFR 136.1 OS( a) and 136. 1 OS (e)(6). The Claimant bears the burden of providing the NPFC all 

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

NPFC considered all documentation presented by the Claimant. 

NPFC CA reviewed the actual cost invoices and dailies to confirm that the claimant had incurred all costs 

claimed. The review focused on: (I) whether the actions taken were compensable ··removal actions'' 

under OPA and the claims regulations at 33 CFR 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. 

On 26/27 September 20 13, the NPFC contacted both the Claimant and the United States Coast Guard 

Marine Safety Unit Morgan City and requested additional information on the issue of which entity 

ordered the salvage of the vesse l and the rationale for such an action. 

An evidenciary statement provided by the Claimant, ES&l-1, appears to suppott a fi nd ing that the U.S 

Coast Guard was aware of the intended salvage project and as such, approved the site safety work plan 

prior to work being performed. There was no FPN opened and no Activity or Case opened in the Coast 

Guard's MISLE system. 

While the Un ited States Coast Guard was not involved in the salvage project to be undertaken by 

Graystone Construction, the USCG did make the dec ision to approve the work/safety plan prior to the 

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salavage operation in an attempt to ensure a plan was in place to mitigate a discharge or substantial threat 

of a discharge of oil into a navigable waters. The USCG was present during the first day of operations as 

was ES&H in accordance with the safety plan approved by the USCG. 

With respect to a possible responsible party(RP), the NPFC does not have evidence who the vessel in 

question was owned by at the time Graystone Construction dec ided to perform a salvage project in order 

to sell the metal and as such, the NPFC makes no identification of an RP nor has the USCG. 

Upon ftuther review of the detailed invoicing, the NPFC has detenn ined the only costs for which it will 

compensate the Claimant is for Day One, September 26, 20 II in the amount of $1 ,004.80 and the cost 

associated with the containment boom in the amount of $2,500.00. The NPFC then reduced the amount 

payable by $ 1,500.00 for the credit issued by ES&H on the contractor invoicing and also by $500.00 fo r 

the payment made to ES&H by Graystone Construction in August 2013. 

Based on the foregoing, the NPFC hereby determines that the OSLTF will pay $1,504.80 as full 

compensation for the reimbursable removal costs incurred by the Claimant and submitted to the NPFC 

under claim # 9 13085-000 I. All costs claimed are for charges incurred by the Claimant for removal 

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

presented by the Claimant. 

AMOUNT: $1,504.80 

Claim Supervisor: 

Date of Supervisor's review: 10/28113 

Supervisor Action: Approved 

Supervisor's Comments: 

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