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CLAIM SUMMARY / DETERMINATION FORM

Claim Number : E13505-0002 

Claimant : Sunpro, Inc. 

Type of Claimant : Corporate 

Type of Claim : Removal Costs

Claim Manager : 

Amount Requested: $1,884,341.92 

FACTS: 

A. Oil Spill Incident: 

On January 31, 2013, approximately 20,000 gallons of crude oil, drilling mud, and brine were 

discharged from D&L Energy, Inc. portable storage tanks into a storm sewer, which emptied into 

an unnamed tributary and into the Mahoning River, a navigable water of the United States. The 

discharge coated the banks, vegetation, overbanks and sediment in the unnamed tributary and 

created pools of oil on the Mahoning River. D & L Energy, Inc. is the responsible party for this 

incident. The state Ohio Environmental Protection Agency (OEPA) was notified of the discharge 

and they investigated the report and further notified the United States Environmental Protection 

Agency (USEPA) in its capacity as the Federal On-Scene Coordinator (FOSC).1

 

B. Description of removal actions performed: 

Under an Order by Consent for Compliance under Section 311 of the Clean Water Act issued by 

the EPA FOSC,2 D & L Energy, Inc assumed responsibility for the oil spill and hired the 

claimant, Sunpro, Inc. (Sunpro) to conduct pollution removal activities and to provide 

consultation and oversight of the response. Removal activities involved dividing the unnamed 

tributary into sections and included the power washing of substrates, the excavation of oil 

contaminated soil ranging from 1’- 4’ in depth from one section of the unnamed tributary and the 

removal of oil from an oil-contaminated stream bed and bank from a different section of the 

unnamed tributary.3

In addition, residual oil was removed from the storm sewer by pressure washers and vacuums 

trucks. The storm drain was inspected with a GoPro video camera and video, which was 

provided to both the EPA FOSC and OEPA for final inspection and approval. Sorbent material 

was routinely monitored and replaced from the mouth of the storm drain, the unnamed tributary 

and the Mahoning River. Overflow and underflow dams were installed as temporary 

containment in the unnamed tributary and a turbidity curtain and 2 sections of hard boom were 

placed in the Mahoning River to suspend any liquid material being discharged from the sewer 

drain or unnamed tributary.4

 

1 See D & L Energy, Inc Emergency Response Activities Final Report dated August 16, 2013.

2 See Order by Consent for Compliance under Section 311 of the Clean Water Act issued by the EPA FOSC dated 

February 26, 2013. 3 See D & L Energy, Inc Emergency Response Activities Final Report dated August 16, 2013.

4 Id. 
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Overall, the cleanup of the sewer drain, unnamed tributary and the Mahoning River, involved the 

collection and disposal of approximately 5,000 gallons of oil, 195,000 gallons of oily water mix, 

629 cubic tons of oil contaminated soil, and 110 cubic tons of oily sediment, all of which were 

disposed of properly. The cleanup was deemed complete by the EPA FOSC on March 21, 

2013.5 Sunpro continued working through March, as it had a significant amount of equipment to 

remove and decontaminate. It completed on-site work by April 15, 2013.6 

THE CLAIMANT AND THE CLAIM:

On May 8, 2015, Sunpro, Inc. submitted a removal cost claim associated with the cleanup of the 

D & L Energy, Inc oil spill to the Oil Spill Liability Trust Fund (OSLTF or the Fund) in the 

amount of $1,884,341.92, asserting that D & L Energy, Inc. failed to pay them for a portion of 

their removal costs, legal and administrative fees. 

Specifically, Sunpro billed D & L Energy, Inc weekly for all of the costs associated with its 

removal actions, totaling $1,972,009.07 over eight (8) invoices. D & L Energy, Inc. paid Sunpro 

for invoice 23259 in February 2015 (totaling $1,174.70) and part of invoice 23259 (totaling 

$175,000.00) before failing to pay the remaining invoices. D&L Energy, Inc. filed Chapter 11 

bankruptcy on April 16, 2013 in the Bankruptcy Court, Northern District of Ohio, Youngstown 

Division (Case No. 13-40813); the case was converted to a Chapter 7 Bankruptcy on March 25, 

2015. On October 11, 2013, Sunpro filed a proof of claim in the bankruptcy proceeding in the 

amount of $2,194,020.92. The amount included on-site cleanup work, as well as administrative 

and legal costs related to the collection of the debt and interest owed it by the RP. On February 

27, 2015, Judge ordered the amount reduced to $1,879,790.53.7

APPLICABLE LAW: 

Under the Oil Pollution Act of 1990 (OPA 90), each responsible party for a vessel or facility 

from which oil is discharged, or which poses the substantial threat of a discharge of oil, into or 

upon the navigable waters or adjoining shorelines, is liable for the removal costs and damages 

that result from such incident. 33 U.S.C. § 2702(a). 

"Oil" is defined in relevant part, at 33 USC § 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”. 

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 USC § 2701(31). 

 

5 See EPA POLREP VI (Final) dated December 12, 2013.

6 See Email from Mr. Sunpro, to , NPFC, dated 7/14/2015. 7 See Agreed Order Resolving Debtors Objection to the Allowance of Proof of Claim Number 98, dated February 

27, 2015.
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Removal costs include any removal costs incurred by any person for acts taken by the person 

which are consistent with the National Contingency Plan. 33 USC § 2702(b)(1)(B). 

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

pursuant to 33 USC §§ 2712(a)(4) and 2713 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 and uncompensated damages. 

Payment of any claim or obligation by the Fund under this Act shall be subject to the United 

States Government acquiring by subrogation all rights of the claimant or State to recover from 

the responsible party. 33 U.S.C. § 2712(f). 

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

NPFC, all evidence, information, and documentation deemed necessary by the Director, NPFC, 

to support the claim. 

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 

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 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. Findings of Fact: 

1. Mr. , as the EPA Region V Federal On-Scene Coordinator (FOSC) for 

this incident, oversaw the removal actions and determined that the actions undertaken 

by Sunpro, Inc. were consistent with the NCP. 33 U.S.C. §§ 2702(b)(1)(B) and 

2712(a)(4).

2. The incident involved the discharge of “oil” as defined in OPA 90, 33 U.S.C. §2701 to 

“navigable waters.”

3. Sunpro, Inc filed a proof of claim in the D&L Energy, Inc. bankruptcy proceedings, 

United States Bankruptcy Court, Northern District Ohio, Youngstown Division, dated 
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October 11, 2013; in the amount of $2,194,020.92 (Claim No. 98). The Court ordered 

that the claim shall be allowed as a general unsecured claim in the reduced amount of 

$1,888,128.03 on February 27, 2015. The Chapter 11 proceedings were converted to 

Chapter 7 proceedings in March 2015. 

4. The claim was submitted within the six year period of limitations for removal costs 

claims. 33 U.S.C.§2712(h)(1).

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

claim and determined which of the costs claimed were associated with removal actions in 

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

allowable under OPA and 33 CFR § 136.205.

`

B. NPFC Analysis:

The NPFC CA reviewed the actual cost invoices and dailies 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 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 National Contingency Plan or directed by the FOSC, and (4) whether 

the costs were adequately documented and reasonable. 

As noted above D & L Energy, Inc, paid one of the eight invoices (Invoice # 23259) presented 

by Sunpro, as well as a partial payment for another (Invoice # 22264REV); The NPFC claims 

manager reviewed the costs paid in these invoices and the claimed costs associated with the 

seven unpaid invoices to ensure that there would not be duplicate payments made by the Fund. 

The NPFC reviewed the Sunpro rate schedules in place at the time the services were provided; 

the NPFC based its adjudication of these costs on the rate schedules. Based on its review the 

NPFC determined that most of the claimed costs are reimbursable from the Fund and were 

actions taken to minimize and mitigate the effects of the incident and that those actions were 

reasonable and necessary and were directed by the FOSC. Upon review of the information 

provided by the Claimant, the NPFC has determined that the payable costs were billed in 

accordance with the rate schedule and/or contractual agreements in place at the time the services 

were rendered, unless otherwise indicated below, and are determined by the FOSC to be 

consistent with the National Contingency Plan (NCP).

General Categories of denied removal costs total $5,184.78:

1. Lack of documentation to support actual pollution removal activities of Sunpro, 

Inc./third-party personnel billed as on-scene;

2. Missing or illegible receipts; and

3. Math errors when calculating invoice/claim totals.

The NPFC also denies the legal fees incurred by Sunpro, Inc. in support of its legal interests in 

the bankruptcy proceedings in the amount of $78,449.10 and administrative costs totaling 
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10,058.45 because legal fees and administrative costs are not OPA removal costs that may be 

paid from the Fund when their primary purpose is something other than removing oil. 

The NPFC has not itemized the denied costs in this Claim Summary Determination but has 

attached the summary of costs spreadsheet created by the NPFC for each invoice. This 

spreadsheet reflects each item billed, claimed, paid, denied and the reason for each denial.

Based on the foregoing, the NPFC hereby determines that the OSLTF will offer $1,790,649.59 as 

full compensation for the reimbursable removal costs incurred by the claimant and submitted to 

the NPFC under claim # E13505-0002. All reimbursable costs are for charges paid 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. $93,692.33 in claimed costs are denied. 

Please see the attached summary of costs spreadsheet for a complete description of any and all 

approved/denied costs.

In order for the Fund to pay these removal costs to Sunpro, the United States Government must 

acquire all rights of Sunpro by subrogation. Sunpro will execute an Assignment of Claim, 

authorizing the United States, on behalf of the Coast Guard, to file a Notice of Transfer pursuant 

to Fed.R. Bankr. Pro. 3001(e) with respect to Claim No. 98 in the above-mentioned D & L 

Energy bankruptcy proceedings and waiving its right to raise any objection to the transfer of the 

claim and its right to receive notice pursuant to Fed.R. Bankr. Pro.3001(e). 

C. Determined Amount: $1,790,649.59 

Claim Supervisor: 

Date of Supervisor’s Review: 10/29/15 

Supervisor Action: Approved 

Supervisor’s Comments: