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CLAIM SUMMARY / DETERMINATION 

Claim Number: 916063-0001 

Claimant: ES&H of Dallas, LLC

Type of Claimant: OSRO 

Type of Claim: Removal Costs 

Claim Manager: 

Amount Requested: $194,964.79

FACTS: 

A. Oil Spill Incident: On November 4, 2015, the Rockwall Fire Department responded to 

reports of gasoline present near a creek located in Rockwall, Texas. “According to the Fire 

Department, the product appeared to be coming out of subsurface into the creek from the One 

Stop Express gas station.”1

 Subsequently, on November 5, 2015, the Texas Commission on 

Environmental Quality (TCEQ) conducted an Incident and Modified Compliance Evaluation 

Investigation (CEIMOD) of the One Stop Express. The inspection resulted in the TCEQ 

environmental investigator determining that the underground tank system, consisting of three 

10,000-gallon fiberglass reinforced plastic (FRP) tanks, had not been bolted and sealed properly, 

resulting in a “slow fuel leak for an indeterminate amount of time.”2 Consequently, the slow 

leak of oil from the One Stop Express began discharging oil underground, resulting in the 

leaching of oil into the creek located adjacent to the facility.3 US Environmental Protection 

Agency (EPA) personnel responded to the spill and identified the One Stop Express as the 

responsible party (RP). The State agency, TCEQ, provided oversight of the daily cleanup 

activities.4 ES&H of Dallas, LLC, was hired to act as an oil spill removal organization (OSRO), 

to handle cleanup and response actions for this incident. 

B. Description of response actions performed: On November 4, 2015, ES&H responded to the 

One Stop Express spill site, discovering discharged oil heavily present in the adjacent creek. 

Prior to ES&H’s arrival on-scene, the discharged oil had “traveled approximately 1/4 mile west 

before being contained with absorbent boom by the Rockwall Fire Department.”5 ES&H placed 

additional boom in the creek to prevent oil from entering Lake Ray Hubbard, a navigable 

waterway of the U.S.6 7

 ES&H conducted additional oil removal actions from November 5, 

2015, through December 18, 2015, utilizing vacuum trucks in the collection of over “3000 

gallons of impacted water.”8 Additionally, ES&H coordinated response actions with local, state, 

and federal agencies; positioned sorbent materials; and removed and decontaminated equipment 

and materials.9

 

1 See Texas Commission on Environmental Quality Investigation Report # 1289548 2 Id.

3 See ES&H Incident Report dated November 4, 2014. 4 See email from Mr. US EPA, to Mr. , NPFC, dated September 15, 2016. 5 See ES&H Incident Report dated November 4, 2014. 6 See Texas Commission on Environmental Quality Investigation Report # 1289548. 7 See email from Mr. US EPA, to Mr. , NPFC, dated September 15, 2016. 8 See ES&H Incident Report dated November 4, 2015. 9 Id.
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C. Presentment to the Responsible Party: Notwithstanding the EPA’s initial RP determination, 

Marty Mechanical, Inc. (Marty Mechanical) has been identified as the registered owner of the 

underground storage tank that discharged oil. As a result, Marty Mechanical is a RP for this 

incident. is employed by both Marty Mechanical and One Stop Express, Inc. 

dba One Stop Express. These companies appear to be separate entities.10 ES&H presented its 

costs associated with this claim to Mr. on April 14, 2016, by way of ES&H Invoices 

numbered 8-4606 in the amount of $103,660.49, 8-4678 in the amount of $49,925.90, 8-4758 in 

the amount of $37,126.37, 8-4922 in the amount of $3,310.25, and 8-5237 in the amount of 

$941.78. The ES&H invoices were billed to One Stop Express and shipped to “One Stop 

Express/Marty Mechanical, Inc.”11

On August 3, 2016, NPFC issued a RP Notification Letter to One Stop Express, Attn: 

 that provided notice of the claim filed by ES&H of Dallas, LLC.12 In response to this 

letter, Mr. contacted the NPFC by phone on August 3, 2016, asserting that his 

insurance company was expected to pay the claimed amount. Also, Mr. stated that he 

is currently taking legal action against both the insurance company and the manufacturer of the 

leaking tank.13

During the NPFC’s adjudication of ES&H’s claim, the NPFC determined that the administrative 

record did not clearly show that ES&H properly presented its claim to Marty Mechanical. 

Although Mr. worked for both Marty Mechanical and One Stop Express, the current 

evidence available showed that Marty Mechanical was clearly a RP because it was the registered 

owner of the underground storage tank. In order to ensure that presentment was made to Marty 

Mechanical, ES&H re-issued its invoices and mailed them to Marty Mechanical along with 

correspondence explaining why the invoices had been re-issued. 14 Similarly, on November 16, 

2016, the NPFC sent a RP Notification letter to Marty Mechanical, Inc., Attn: 

Mr. & Mr. . 15 

In addition, by way of a phone conversation on November 29, 2016 between the NPFC and, Mr. 

, he acknowledged receipt of ES&H’s April 14, 2016 invoices. Mr. also 

admitted that Marty Mechanical hired ES&H at the recommendation of TCEQ, the state agency 

on site for this incident.16 In the same phone conversation, Mr. provided the NPFC 

details associated with his recently filed litigation via case # 1-16-0783 filed in the 439th District 

Court in the State of Mississippi on August 8, 2016. The case is entitled Marty Mechanical, LLC 

dba One Stop Express v. All-Tech Fuel Systems & Bennett Pump Company. Additionally, Mr. 

 

10 One Stop Express, Inc. is a Texas Corporation that filed an Assumed Name Certificate to do business as One Stop 

Express. In this company’s filings with the Texas Secretary of State, was identified as the 

President. On July 27, 2012, One Stop Express, Inc. forfeited its corporate existence under Section 171.309 of the 

Texas Tax Code. Marty Mechanical, Inc. is another Texas Corporation that identifies as its 

President. Although NPFC’s research did not show that Marty Mechanical, Inc. has filed an Assumed Name 

Certificate, it’s lawsuit identified the company as “Marty Mechanical, LLC dba One Stop Express”. Also, the Texas 

Commission on Environmental Quality identified the company as “Marty Mechanical, Inc. dba One Stop 46”. 11 See ES&H Invoices numbered 8-4606, 8-4678, 8-4758, 8-4922, and 8-5237. 12 See RP Notification Letter by the NPFC to Mr. dated August 3, 2016. 13 See record of phone conversation between Mr. , RP, and Mr. , NPFC, dated 

August 3, 2016. 

14 See ES&H Invoices numbered 8-4606, 8-4678, 8-4758, 8-4922, and 8-5237 dated November 18, 2016. 15 See RP Notification Letter by the NPFC to Mr. dated November 16, 2016. 16 See email from Mr. , NPFC, to Mr. , RP, dated November 30, 2016.
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 stated that he is denying payment of the ES&H invoices on the basis that: (1) he takes 

issue with the prices charged; (2) his insurance company, Tank Owner Members Insurance 

Company, was obligated to pay for the response services and to date have not done so; and (3) he 

asserts the incident resulted from faulty pump equipment which is why he filed a civil case 

against the manufactureur.

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Based on the foregoing, the RP has acknowledged the costs presented to the NPFC for payment 

and has also denied payment of those costs. 

D. The Claim: On August 1, 2016, ES&H submitted a removal cost claim to the National 

Pollution Funds Center (NPFC) for reimbursement of their uncompensated removal costs 

totaling $194,964.79.18 As evidence for its claim, ES&H submitted numerous invoices, daily 

worksheets, the ES&H Emergency Response Rate Schedule for January 2015, and several emails 

containing correspondence between ES&H and the RP. Subsequent to reviewing these 

documents, the NPFC submitted a request for additional information, requesting documentation 

in which both demonstrates proof of payment by ES&H to all third party contractors and 

ES&H’s terms and conditions for the claimed per diem costs.

Mr. subsequently responded by email dated October 7, 2016, in which included the 

2015 Emergency Response Rate Sheet and One Stop Express Vendor Payments attachment. 

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) of OPA 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)(1)(B). 

"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”. 

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. 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”.

 

17 Id 18 See Optional OSLTF Claim Form dated August July 27, 2016.
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Under 33 USC §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 USC §2713(c) and 33 CFR 

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

33 U.S.C. §2713(d) provides that “If a claim is presented in accordance with this section, 

including a claim for interim, short-term damages representing less than the full amount of 

damages to which the claimant ultimately may be entitled, and full and adequate compensation is 

unavailable, a claim for the uncompensated damages and removal costs may be presented to the 

Fund.” 

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. , USEPA, as the Federal On-Scene Coordinator (FOSC) for this 

incident, determined that the actions undertaken by ES&H were consistent with the 

NCP19 for the payment of uncompensated removal cost claims and is consistent with the 

provisions of sections 1002(b)(1)(B) and 1012(a)(4) of OPA, 33 U.S.C. §§ 2702(b)(1)(B) and 

2712(a)(4);

 

19 See email from Mr. , USEPA to Mr. , NPFC dated September 15, 2016.
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2. The incident involved the 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 within the six year statute of limitations. 33 U.S.C. § 2712(h)(1);

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

with the claim and determined which of the 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. 

B. Analysis: 

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 to be consistent with the NCP, and 

(4) whether the costs were adequately documented and reasonable. 

The NPFC has determined that the majority of the costs incurred by the Claimant in this claim 

submission were reasonable and necessary to mitigate the effects of the incident. 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 in place at the time the services were rendered 

and were determined by the EPA FOSC to be consistent with the NCP.20 Costs denied by the 

NPFC include: undetermined overages for disposal costs totaling $1,978.1821, the $60.0022 in 

additional markup for the delivery of the tractor truck associated with ES&H Invoice #8-4606, 

and the $500.00 in claimed costs associated with the cleaning of the “Frac Tank” associated with 

ES&H Invoice # 8-4922. 

With regard to the costs associated with the cleaning of the Frac Tank, in the October 7, 2016, 

email response to the NPFC’s request for additional information, Mr. stated: 

On Invoice 8-4922 there was a line item listed as “Clean Frac Tank” which is not on our 

published rate sheet. This was on the daily ticket for 1/18/16, if you look at the ticket for 

that day you will also see there were (3) technicians that were billed at $0.00 and there 

were no charges for the PPE utilized or any of the other cleaning equipment utilized to 

clean the frac tank.

This response does not resolve the outstanding deficiency, as the NPFC requires that all items 

claimed be adequately described in the ES&H published rate schedule. The absence of claimed 

costs for separate personnel and equipment contained on the same invoice does not meet this 

requirement. Therefore, we are unable to associate the amount claimed for the cleaning of the 

frac tank with any particular claimed item, personnel, or equipment cost. Additionally, because 

 

20 Id. 21 See Summary of Costs spreadsheets 22 Id.
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the cleaning of frac tank(s) is not identified on the ES&H rate schedule, there is no evidence that 

the RP was given advance notice of such costs prior to being invoiced.

The NPFC therefore determines that the OSLTF will pay $192,426.61 as full compensation for 

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

# 916063-0001. All costs claimed are for charges paid for 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. 

AMOUNT: $192,426.61

 

Claim Supervisor: 

Date of Supervisor’s review: 12/15/2016 

Supervisor Action: Offer Approved

Supervisor’s Comments: