CLAIM SUMMARY / DETERMINATION FORM

Claim Number : 911085-0001 

Claimant : Phoenix Pollution Control & Environmental Services, Inc 

Type of Claimant : OSRO

Type of Claim : Removal Costs 

Claim Manager : 

Amount Requested : $101,427.67 

FACTS: 

On September 14, 2008, Phoenix Pollution Control (Phoenix) reported that they were 

hired by Galveston Bay Biodiesel LP to transport and dispose of oily water and 

wastewater after Hurricane Ike. The Claimant failed to provide any details about where 

the alleged oil product was stored when they arrived to perform disposal and transport. 

The Claimant also failed to explain how this service was associated with a discharge or 

substantial threat of discharge into a navigable waterway. 

THE CLAIM AND CLAIMANT: 

On June 2, 2011, Phoenix presented a claim for costs they incurred associated with the 

September 14 2008 response to Galveston Bay Biodiesel LP facility. Phoenix is seeking 

reimbursement of $101,427.67. 

Phoenix submitted copies of the following: cover letter dated 4/25/11; an OSLTF 

Optional Claim Form, Phoenix invoice # 2709 in the amount of $50,280.49. It is 

important to note that this particular Phoenix invoice spans a time period of 10/29/09 

through 12/4/09 although the OSLTF Claim Form gives a date of incident of 9/14/08. 

The Claimant also provided a copy of Phoenix invoice # 2666 in the amount of 

$51,144.18 which was for disposal as well and covers the time period of 9/14/09 through 

10/14/09. The Claimant also provided a copy of Petro-Tech Environmental invoice # 

12017 which states oily water (presumable transport), Petro-Tech Environmental invoice 

# 12022 for oily water, Petro-Tech Environmental invoice # 12029 for oily water, 

miscellaneous Bills of Lading, weigh scale tickets, shipping orders, Clean Coast 

Technologies invoice # 28154 for 80 bundles of oil pads, Phoenix invoice # 2667 for 

$31,769.29 for misc vac truck services and weight tickets spanning the time period of 

9/9/09 through 10/21/09, Phoenix invoice # 2700 in the amount of $25,391.10 for 

miscellaneous wash out charges and vac truck charges for the period of 10/29/09 through 

12/21/09, Gulf Coast Vacuum Service invoice # 108817 for in plant work and disposal of 

waste water for 9/9/09, Gulf Coast Vacuum Service invoice # 108818 for in plant work 

and disposal of waste water for 9/9/09, Gulf Coast Vacuum Service invoice # 108819 for 

service on 9/9/09, Gulf Coast Vacuum Service invoice # 108821 for service on 9/9/09, 

Gulf Coast Vacuum Service invoice # 108862 for serve on 9/14/09, Gulf Coast Vacuum 

Service invoice # 108863 for services on 9/14/09, Gulf Coast Vacuum Service invoice # 

108864 for services on 9/14/09, Gulf Coast Vacuum Service invoice # 108865 for 

services on 9/14/09, Gulf Coast Vacuum Service invoice # 108866 for services on 

9/14/09, Gulf Coast Vacuum Service invoice # 108867 for services on 9/14/09, Gulf 

Coast Vacuum Service invoice # 108868 for services on 9/14/09, and several other Gulf 

Coast Vacuum Service invoices for services ranging from 9/14/09 through 10/21/09. 
APPLICABLE LAW: 

"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”.

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. 

Claims for removal costs or damages may be presented first to the Fund by the Governor 

of a State for removal costs incurred by that State. 33 USC § 2713(b)(C).

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. Overview:

1. No FOSC coordination has been provided for the Claimant responding to an OPA 

event.

2. The National Response Center (NRC) was not notified of this incident pursuant to 

the National Contingency Plan (NCP).

3. No evidence has been provided to indicate the spilled product was oil or that it 

discharged or threatened to discharge into a navigable waterway.
4. The claim was submitted within the six year statute of limitations. 33 U.S.C. § 

2712(h)(1)

5. A Responsible Party was identified by the Claimant for this incident. 33 U.S.C. § 

2701(32).

6. In accordance with 33 CFR § 136.105(e)(12), the claimant has certified that they 

filed an action in the Bankruptcy case of the RP which was finalized by the 

Bankruptcy Court on February 1, 2012..

7. The NPFC Claims Manager has thoroughly reviewed all documentation submitted 

with the claim and determined that the removal costs presented were not for 

actions in accordance with the NCP, or whether the costs for these actions were 

reasonable and allowable under OPA and 33 CFR § 136.205.

B. Analysis:

The NPFC made an initial request for additional information to the Claimant via email 

twice in June 2011 in order to get a full understanding regarding the court action the 

Claimant indicated on the OSLTF Claim Form presented. Again in July 2011, the NPFC 

sent another email to Claimant Counsel with a copy to the Claimant advising that the 

NPFC still had not received requested information. Again on February 22, 2012, the 

NPFC notified the Claimant Counsel and Claimant via email that the NPFC has still not 

received anything since the last communications in July 2011. The NPFC then advised 

the Claimant that if no response was made by the last day of February 2012, the claims 

would be adjudicated based on the information the NPFC presently had. On February 28, 

2012, the NPFC notified the Claimant and Claimant Counsel that the package of court 

documents associated with the RP bankruptcy was received.

Upon review of the bankruptcy documents provided to the NPFC, the NPFC was able to 

confirm the bankruptcy case is closed. The Liquidating Trustee filed a motion to reopen 

the case because of pending IRS issues; the court denied the motion stating that the 

parties to the trust have remedies for reimbursement outside the bankruptcy court 

therefore the Claimant would have to establish that it has not filed or won’t file an action 

outside of the bankruptcy case should the Claimant decide to request reconsideration.

The NPFC reviewed the actual cost invoices and dailies to determine that the Claimant 

incurred all costs claimed. The focus was 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 

consistent with the NCP or directed by the FOSC, and (4) whether the costs were 

adequately documented and reasonable.

The NPFC performed a complete review of the information provided. The Claimant has 

not demonstrated that they were responding to an oil pollution incident that substantially 

threatened a navigable waterway of the US. The Claimant only stated on the OSLTF 

Claim Form that they were called to transport and dispose of oily water and waste water 

after Hurricane Ike. The Claimant has provided no details regarding the specifics 

associated with the voluminous amount of invoices associated with disposal that span 

dates of service from September 2009 through December 2009 which is the following 

year after the date of the alleged incident the Claimant indicated on the OSLTF Claim 

Form. Additionally, the Claimant’s submission contains minimal details regarding 

anything about the various costs they are requesting reimbursement for. The Claimant 

has not met the burden to even prove there was an OPA event or how the product 
recovered by the Claimant was an OPA oil as opposed to a possible mixed substance 

since no sample analysis was provided to identify the product.

Upon further review of the claim submission, the Claimant has failed to provide the 

following documentation needed in order to make a proper adjudication of this claim:

1- The Claimant has failed to provide evidence that the incident was reported to the 

National Response Center (NRC) in accordance with the National Contingency Plan 

(NCP);

2- The Claimant has failed to provide any details as to who called Phoenix to the site to 

perform response actions, was an agreement executed or was Phoenix identified as 

the cleanup contractor under a facility response plan and if so, the Claimant has not 

provided any of the contracts/agreements etc associated with that contractual 

relationship;

3- The Claimant has not provided its rate schedule that governs the rates it charged to 

Galveston Bay Biodiesel for its own personnel/materials/equipment nor has the 

Claimant provide any agreements/ rate schedules or contracts it has with its affiliated 

subcontractor that also responded on this incident;

4- The Claimant has not provided proof of payment for the costs billed to Phoenix by its 

subcontractor that demonstrates it has the subrogable rights to submit their costs to 

the NPFC;

5- The Claimant has not demonstrated that the actions they undertook were determined 

by the Federal On Scene Coordinator (FOSC) to be consistent with the NCP pursuant 

to the governing claims regulations. The FOSC in this case would be either the 

United States Coast Guard (USCG) or the United States Environmental Protection 

Agency (USEPA);

6- The Claimant did not provide sample analysis to evidence that the product spilled was 

an OPA oil.

Based on the information provided by the Claimant, the NPFC has determined this claim 

is denied because (1) the Claimant failed to demonstrate the incident was reported to the 

National Response Center (NRC) pursuant to the National Contingency Plan (NCP), (2) 

the Claimant has failed to provide sufficient details and information regarding the 

incident and ensuing response, (3) the Claimant has failed to demonstrate that the product 

was an OPA oil, (4) the Claimant has failed to provide sufficient supporting 

documentation for this claim as identified above, (5) the Claimant has failed to provide 

proof of payment to its subcontractor, (6) the Claimant has failed to demonstrate that the 

actions undertaken were directed by the FOSC and determined to be consistent with the 

NCP, and (7) the Claimant has failed to demonstrate that the incident posed a substantial 

threat of discharge into a navigable waterway.

It is also important to note that this particular claim submission is in such disarray with a 

multitude of invoices that do not appear to be associated with the incident reported on the 

OSLTF Claim Form or even that any single one of these invoices are for the same 

possible incident. It actually appears that the Claimant bundled many invoices associated 

with services for Galveston Bay Biodiesel and submitted them for compensation without 

proper explanation, identification or order. This particular claim submission is extremely 

poorly put together and the burden is not on the NPFC to try to figure what this pile of 

documentation actually means or represents.

Should the Claimant decide to request reconsideration of this claim, the Claimant will 

need to provide documentary evidence from the FOSC that the actions undertaken by the 
Claimant were in response to an oil pollution event that actually substantially threatened 

or discharged into a navigable waterway of the US and the Claimant will need to address 

each of the identified deficiencies above. The Claimant will also need to provide a 

response to the lingering issue identified above that is associated with the RP’s 

bankruptcy. 

Based on the foregoing, this claim is denied. 

Claim Supervisor: 

Date of Supervisor’s review: 5/3/12 

Supervisor Action: Denial approved 

Supervisor’s Comments: