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CLAIM SUMMARY / DETERMINATION 

Claim Number: E16608-0004 

Claimant: American Pollution Control Corporation (AMPOL) 

Type of Claimant: OSRO

Type of Claim: Removal Costs 

Claim Manager: 

Amount Requested: $44,381.45

I. INTRODUCTION:

1. Oil Spill Incident: 

 This claim arises from an oil spill incident that occurred on March 28, 2016 when crude oil 

escaped from above-ground storage tanks (“ASTs”) located at the PSC Industrial Outsourcing (“PSC”) 

site in Jeanerette, Louisiana. The oil traveled through the storm water system downhill, and migrated into 

the Bayou Teche. The spill was estimated to be in the amount of 300 barrels of oil (“bbls”) and affected 

approximately two miles of the bayou, with 15% of the area covered from bank to bank with oil. It was 

declared by the Environmental Protection Agency (“EPA”) to be a major inland spill. The remaining 

sections of the bayou had oil coverage ranging from sheen to large pools of oil.1

 

 PSC hired its facility response contractor, American Pollution Control Corp. (“AMPOL”) to 

provide emergency-spill response and removal services. From March 28th until May 12th, AMPOL, with 

the oversight of the Environmental Protection Agency (“EPA”) and local authorities, conducted 

emergency response and removal activities, and removed a total of 996 barrels2 of oil and oily waste 

water from the Bayou Teche.3

 

2. The Responsible Party. 

 PSC is the responsible party because it owned and operated the above-ground storage tanks from 

which the oil escaped. PSC was founded in 1977, and is headquartered today in Houston Texas. It has a 

nationwide presence and provides a variety of services, including crude oil recovery, facilities 

management, and environmental management, to operators within the U.S. energy infrastructure.4

 

 PSC’s business at the Jeanerette location focuses primarily in salt water injection and crude oil 

salvage from produced water. PSC receives produced water and oil from oil and gas exploration 

operations, and also purchases quantities of crude oil from production companies. The produced water is 

stored within three (3) 10,000-bbl above-ground storage tanks and is injected into the salt water disposal

well. Residual oil is skimmed from the stored water and transferred to one of five crude oil ASTs (two 

(2) 10,000-bbl, three 2,000-bbl) located within the site. Purchased oil is also stored within these crude oil 

ASTs. The ASTs are located within a secondary containment berm. The oil that escaped into the Bayou 

was from a 2,000-bbl AST that contained pure crude oil.

 

1 See EPA POLREP 6 (Final). 2 See EPA POLREP 6 (final), Section 2.1.4, the combination of columns 2 and 3 of the table totals this amount. 3 See EPA POLREPS 1- 6 and Incident Action Plans (IAPs) Initial through 6. 4 See http://pscnow.com/about-psc/our-company.aspx
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The Jeanerette PSC site had an Environmental Protection Agency (“EPA”) Facility Response 

Plan (R6-LA-1487)5 in which AMPOL is the contracted Oil Spill Response Organization (“OSRO”). In 

2007 PSC and AMPOL entered into a general service agreement wherein AMPOL agreed to provide 

project-based services to PSC from time to time and as-needed.6

 It was not until 2016 that PSC engaged 

AMPOL to conduct emergency response services. 

3. The Claim:

AMPOL invoiced PSC for some of its work, which was contained in four separate invoices: 26-

IN, 76-IN, 129-IN, and 287-IN, for a grand total of $168,628.13.7

 Throught its insurance carrier, PSC 

paid a total of $124,246.688 toward these invoices, leaving a shortfall of $44,381.45.9

 

 On July 6, 2017, AMPOL submitted a removal cost claim to the National Pollution Fund Center 

(“NPFC” or “Fund”) for reimbursement of the remaining uncompensated amount for the referenced 

AMPOL invoices. The claim was for its unpaid response personnel, equipment, materials, and third party 

costs.10 The claimant included a variety of supporting evidence, such as receipts, dailies, emails, payment 

summaries both made by PSC and Chubb and received by AMPOL, Incident Action Plan, third-party 

invoices, and the AMPOL 2016 rate schedule of prices for which it based its invoice generation on. 

4. Request for Reconsideration:

On August 4, 2017, the AMPOL contacted the NPFC via email officially request reconsideration 

of the denied costs associated with the BFI vendor invoicing. The NPFC denied a total amount of $827.34 

in invoiced disposal costs and associated taxes and markup based on what originally appeared to be a 

miscalculation on disposal along with missing documented costs. The Claimant officially requested 

reconsideration of the $827.34 in denied costs stating that it failed to produce the second page of the 

invoice provided in its orginal claim submission. The Claimant also provided a copy of the contract 

between BFI and AMPOL whereby the provisions of the contract show that there is a minimum load price 

of $150.00 which explained the confusion on how some of the disposal charges totaled $150.00 per load 

vice the $35.00 per ton price.11

II. FACTS

1. The Spill.

According to PSC, a valve linking a 10,000-bbl crude oil AST to the southernmost 2,000-bbl 

crude oil AST had malfunctioned allowing oil to gravity feed into the smaller and lower AST. The crude 

oil then discharged from the top hatch, overflowed into the secondary containment, and existed through 

an open storm water drain.12 The storm water drain had been opened the morning of the incident to 

release rainwater from a recent rainfall.13 The oil migrated downhill, through a drainage ditch, and 

 5

See EPA POLREP 6 (Final). 6 The contract itself identifies PSC as the “contractor” and AMPOL as the “company.” It is clear that this is a 

typographical error, as the rate schedule attached to the contract references AMPOL as the provider of services.

7 The NPFC claim E16608-0004 as submitted to NPFC covered four invoices: #26-IN, 76-IN, 129-IN, and 287-IN. 8 See Email from PSC to AMPOL cc:NPFC dated September 22, 2016 providing a spreadsheet of payments made by 

Chubb on behalf of PSC for AMPOL invoices. 

9 It is important to note that the AMPOL invoices presented in claim E16608-001 are separate and distinct invoice 

numbers than the AMPOL invoices identified and presented in this claim claim, E16608-0004. The claimant is 

presenting standalone invoices for this incident that are being adjudicated on their individual merits. 10 See claim file. 11 See BFI Invoice pages 1 & 2 and BFI contract with AMPOL. 12 See EPA POLREP 6 (Final). 13 See EPA POLREP 1 – 6 (Final).
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ultimately into the Bayou Teche. The PSC site is located approximately 400 feet north and upgradient of 

the Bayou Teche. The Bayou Teche flows southeast approximately 9.3 miles where it meets the 

Charenton Navigation Canal, which then flows south for eight-miles until it reaches the Gulf of Mexico. 

The Bayou Teche meets the definition of “navigable waters” of the United States (US) as defined in 

Section 502(7) of the Federal Water Pollution Control Action, (FWPCA).14 

2. Response Activities.

 Following the discovery of the oil spill on March 28, 2016, PSC began oil spill response activities 

and engaged AMPOL and other contractors to assist. AMPOL’s work commenced on March 28th and 

focused primarily on deploying boom and containment materials. 

The United States Coast Guard (“USCG”)15 also responded to the incident upon receiving the 

report from the National Response Center (“NRC”).16 The USCG assumed the role of first Federal 

Official on scene until the United States Environmental Protection Agency (“EPA”) could take over. The 

USCG notified the cities of Charenton and Franklin to ensure that they took necessary precaution to 

prevent drinking water intakes from being impacted. The Louisiana State Police (LSP) was on scene and 

issued a shelter in place for residents along Bayou Teche between the upper and lower booms. The City 

of Lafayette’s Hazmat team was on scene and conducted air monitoring. The National Oceanic and 

Atmosphere Administration (NOAA) provided USCG trajectory maps that showed potential downstream 

impacts of the oil. United States Fish and Wildlife (USFW) provided USCG an IPaC Trust Resources 

Report that identified endangered and threatened species that could be impacted. 17

The EPA mobilized to the incident the following day. EPA’s START 3 contractor was also 

mobilized to observe and document the oil spill response activities and assist with the response. A 

transition from first Federal Official to the Federal On Scene Coordinator (FOSC) occurred once USEPA 

arrived on scene. When USEPA arrived, USEPA’s FOSC engaged with the Unified Command which 

included representatives from the USCG, Louisiana Oil Spill Coordinator’s Office (LOSCO), and the 

Responsible Party (RP). Assisting agencies included Louisiana State Police (LSP), Louisiana Department 

of Environmental Quality (LDEQ), Louisiana Department of Wildlife and Fisheries (LDWF), USFWS 

and NOAA.18 A Notice of Federal Interest (NOFI) was issued to PSC on March 30, 2016.

AMPOL personnel excavated impacted soil and vegetation from the spill site, and disposed of the 

oily waste and soil. Other work performed included staffing, equipping cleanup operations, as well as 

managing the operations and maintenance phase.19 Initially, the oil spill response mainly consisted of oil 

containment within the bayou to prevent further migration of the oil. The spilled oil was contained within 

an estimated two-miles of the bayou through deployment of boom at one location upstream and four 

locations downstream of the spill site. However, the complexity of the spill grew, requiring the affected 

areas to be divided into four divisions to facilitate the response and clean up:20

Division A21 was the furthest containment zone downstream of the spill. When small amounts of 

recoverable oil was discovered, AMPOL deployed absorbent material recovery teams to the area and 

applied absorbent boom and pads to the isolated pockets of oil. Response crews only utilized absorbent 

recovery techniques in this Division, no mechanical means were employed.

 14See EPA POLREP 6 (Final). 15 Marine Safety Unit Morgan City 16See EPA POLREP 6 (Final). 17 See EPA POLREP 6 (Final). 18 See EPA POLREP 6 (Final).

19 See Incident Action Plans (IAP) and POLREPs 1 – 6. 20 See EPA POLREP 6 (Final). 21 See EPA POLREP 6 (Final).
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Division B 22 was located upstream and adjacent to Division A. Division B was the most heavily oiled, 

primarily along the northern shoreline. AMPOL worked primarily along the shoreline, conducting 

washing operations, oiled debris collection, and utilizing absorbents to recover oil. Oil that was washed 

from the banks of the bayou was directed towards boomed catch pockets, where drum skimmers removed 

the oil from the water’s surface. Washing operations utilized water that was emitted from an open ended 

(no spray nozzle) hose connected to a pump. The water was used to free oil from the shoreline, debris, 

and vegetation areas. Then the oil was directed toward the collection points. Absorbent boom and pads 

were deployed along both the northern and southern shorelines and adjacent to containment boom. Oiled 

absorbents and debris were collected, bagged, and transported to the PSC dock, where the bags were 

placed into roll-off containers. Absorbents were replaced as necessary throughout the Division. 

Division C23 was located upstream and adjacent to Division B. The oil within the Division was primarily 

located on the northern bank of the bayou, with a minor amount located along the southern shoreline. The 

focus was primarily on the shoreline, conducting washing operations, oiled debris collection, and utilizing 

absorbents to recover oil. Shoreline washing operations were conducted in a similar fashion as previously 

described. Oiled absorbents and debris were collected, bagged, and transported to the PSC dock where 

the bags were placed into roll-off containers. Absorbents were replaced as necessary throughout the 

Division during the operational period. 

Division D24 includes the point of discharge and the furthest upstream containment boom. It was reported 

that very small amounts of visible sheen were present within the Division and very small amounts of 

recoverable oil existed along the shoreline. Absorbent pads were utilized to remove any visible oil. Very 

little oil was reported to be on the water or on the shoreline, however, shoreline activities were conducted 

and were required within Division D.

 Response personnel continued to utilize an excavator to remove contaminated soil from the spill 

pathway. Approximately 512 yards were excavated and placed within 25-yard roll-off boxes or staged on 

plastic sheeting. Ecoserv landfill (29-B waste permitted landfill) in Morgan City, LA was used to dispose 

of the oil impacted soils. The contaminated soil was sent to the waste facility on April 4, 2016. 

Approximately 337 yards of contaminated soil were transported.25

 Oiled absorbent material, oiled vegetation, and oiled debris that were generated during the 

response were taken to Republic Services Colonial Landfill in Sorrento, LA to be disposed of. 

Transportation of staged roll-off boxes began on April 6th and approximately 600 yards of oiled materials 

were disposed of at the facility. 

 

3. The Claim history and Adjudication.

 Early in the adjudication process of the first AMPOL claim presented to the Fund for this incident 

and identified as NPFC Claim # E11608-0001, the NPFC discovered a number of significant problems 

with the claim that reached beyond minor accounting and price reconciliation issues. The resolution of 

these concerns spanned over eight months and required NPFC to issue three requests for additional 

information to PSC and Chubb, along with numerous requests made to AMPOL for additional 

information. Finally, because PSC’s insurer, Chubb, made lump-sum payments based on the results of its 

audits, NPFC determined those audits to be relevant and material, and on numerous occasions requested 

those audits. It first requested them from AMPOL, who claimed it did not have the information. Then, 

 22See EPA POLREP 6 (Final). 23 See EPA POLREP 6 (Final). 24 See EPA POLREP 6 (Final). 25 See EPA POLREP 6 (Final).
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NPFC requested the audits from PSC, who also claimed it did not have/and ostensibly could not get, the 

information. NPFC issued a formal demand for additional information to AMPOL, PSC, and Chubb 

(PSC’s insurer). It was not until March 15, 2017 that Chubb provided, within its 2,000+ pages of 

documentation, the audits. 

After receiving volumes of information for consideration by the Claimant, PSC as the RP, and Chubb as 

the RP’s insurer, during the NPFC adjudication of claim # E16608-0001, the NPFC incorpates any and all 

information from that claim, E16608-0001, by reference into this claim submission as the incident 

specifics, RP and insurer payments, and all communications and information have bearing on the outcome 

of this determination.26

 It is important to note that during the NPFC’s adjudication of the first AMPOL claim associated 

with this incident, E16608-0001, after the NPFC made repeated requests for the RP’s insurers audits to no 

avail, on February 9, 2017, rather than providing the audits, PSC instead requested NPFC to stay the 

adjudication of that claim indefinitely because it had filed a lawsuit against AMPOL in Texas state court, 

the litigation of which involved “a dispute regarding the issues giving rise to AMPOL’s purported 

claim.”27 PSC provided a copy of the complaint, which appeared on its face to be a simple breach of 

contract claim. At the heart of the complaint was PSC’s contention that a 2007 contract provided the 

governing rate schedule for the 2016 clean up.28 Initially NPFC agreed to stay the adjudication, but 

AMPOL objected.29 Given the objection, NPFC informed both PSC and AMPOL that it would continue 

the adjudication process.30

 Due to the ambiguity concerning the rate schedule, the complete inability to determine what was 

paid and what was not paid due to lack of the audit information, and the Texas state-court lawsuit, NPFC 

issued a second request for additional information on February 24, 2017, this time to Chubb, as well as 

AMPOL and PSC.31 The requests required, among other things, the audits Chubb used to support its 

payment determination, including the rate information that formed the basis of its calculations; AMPOL’s 

 

26 See NPFC claim # E16608-0001. 27 See email to NPFC from Mr. (PSC) dated February 9, 2017 in claim E16608-0001. 28 The contract itself was eventually provided to NPFC. The parties names are switched on the contract (AMPOL is 

the “company” and PSC is the “contractor”). The contract indicates that pricing is based on a 2007 “Schedule of 

Rates”, but that the parties could agree in writing to a different rate schedule. 29 Ordinarily when there is a pending lawsuit, both the claimant and the responsible party agree to stay the NPFC 

adjudication. 

30 Indeed, it would appear that PSC’s complaint in Texas court should be dismissed because AMPOL has chosen to 

submit its claim to the Fund and therefore PSC does not have any right to relief other than what is provided by OPA: 

Our inquiry presents the question of whether OPA provides the exclusive source of law for an 

action involving a responsible party’s liability for removal costs governed by OPA. For the 

following reasons, we find that it does, and accordingly we hold that ACL does not have a cause 

of action against the spill responders who exercised their statutory right to file claims with 

the Fund after ACL failed to timely pay their claims. [...]

Nothing in OPA authorizes a responsible party to bring a third-party complaint against a claimant 

that has chosen, under § 2713(c)(2), to submit claims to the Fund after 90 days without payment. 

As the district court noted, such a third-party complaint would risk “avoid[ing] the strict liability 

that OPA places on responsible parties to pay the cleanup and removal costs,” and frustrate the 

statutory scheme and its goal of providing rapid cleanup and claim resolution.

United States v. Am. Commercial Lines, L.L.C., 759 F.3d 420, 424-425 (5th Cir. 2014)(emphasis added).

31 See, February 24, 2017 letters from the NPFC to AMPOL, Chubb and PSC.
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2012/2014 rate schedule; any contracts, releases, or other agreements between PSC and AMPOL; and 

information regarding previous incident responses performed by AMPOL on behalf of PSC since 2007.32 

 On March 9, 2017, by way of email, AMPOL provided its response, but it was minimal and none 

of the information was new.33 PSC also provided its response, but most of the information was the 

same.34 It was not until March 15, 2017, that NPFC finally received the documentary evidence from 

Chubb comprised of 2,000+ pages. Buried within that disclosure were the long-sought audits. Based 

upon receipt of all of this information, NPFC adjudicates the claim as follows.

APPLICABLE LAW:

1. The OPA and Claims Procedure.

 Under the Oil Pollution Act of 1990 (OPA 90), at 33 USC § 2702(a), each responsible party for a 

vessel or facility from which oil is discharged, or that poses the substantial threat of a discharge of oil, 

into or upon the navigable waters or adjoining shorelines or the exclusive economic zone is liable for 

removal costs and damages resulting from the incident, as described in Section 2702(b) of OPA 90. In 

the case of an “onshore facility”, the responsible party is “anyone owning or operating the facility”. 33 

USC §2701(32)(B). A responsible party’s liability includes “removal costs incurred by any person for 

acts taken by the person that are consistent with the National Contingency Plan”. 33 USC § 

2702(b)(1)(B). 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). 

 It is this statutory scheme of the OPA that provides a procedure for submission, consideration, 

and payment of cleanup expenses by the Oil Spill Liability Fund (the “Fund”) when the responsible party 

fails to settle such claims within 90 days. United States v. Am. Commercial Lines, L.L.C., 759 F.3d 420, 

426 (5th Cir. 2014). The Fund, which is administered by the NPFC, is available to pay claims for 

damages and uncompensated removal costs that are determined to be consistent with the National 

Contingency Plan pursuant to 33 USC §§ 2712(a)(4) and 2713, and 33 CFR Part 136, the corresponding 

Fund claims adjudication regulations. All claims for removal costs or damages must (with certain 

exceptions not applicable here) be presented first to the responsible party. 33 USC §2713(a). If the 

responsible party denies liability or does not settle the claim, the claimant may then commence an action 

in court or file a claim against the Fund. Id. at §2713(c), (d). 

Through its authority as a command within the U.S. Coast Guard, the NPFC has promulgated a 

comprehensive set of regulations governing the presentment, filing, processing, settling, and adjudicating 

such claims. 33 USC §2713(e). Title 33 CFR Part 136, Subparts A and B set forth the general 

requirements of presentment and filing and establishes, among other things, that it is the claimant’s 

burden to “provide all evidence, information, and documentation deemed necessary to support the claim”. 

33 CFR 136.105(a),(e)(6); see also Smith Property Holdings, 4411 Connecticut LLC v. U.S., 311 F. Supp. 

2d 69 (D.D.C. 2004). It also establishes that NPFC has the “discretion” to determine whether any other 

information is “relevant and necessary to properly process the claim”. 33 CFR §136.105(e)(13). Subpart 

 32 See, February 24, 2017 letters from the NPFC to AMPOL, Chubb and PSC. 33 See email to NPFC from AMPOL dated March 9, 2017. 34 See PSC document production to NPFC March 2017. 
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C sets forth requirements for particular claims, including those for removal costs. While a claim for 

removal costs may be presented by any claimant (Id. at §136.201), the 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.

33 CFR §136.203. The amount of compensation allowable for removal costs is:

[t]he 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.

33 CFR §136.205 (emphasis added). The claimant has 60 days in which to accept any offer of settlement 

from the Fund; the failure to do so automatically voids the offer. 33 CFR §136.115(b). The NPFC 

reserves the right to revoke a settlement offer at any time prior to acceptance.35

2. The NPFC’s Role in Adjudication of Claims Against the OSLTF

 When adjudicating claims against the Fund, the NPFC utilizes an informal process controlled by 

5 U.S.C. § 555.36 As a result, 5 U.S.C. § 555 (e) requires the NPFC to provide a brief statement 

explaining the basis for a denial. This determination is issued to satisfy that requirement. Because this 

determination is a settlement offer under 33 C.F.R. § 135.115 (b), it will automatically expire 60 days 

after the date it has been mailed to AMPOL. The NPFC reserves the right to revoke this settlement offer 

at any time.37 Moreover, this settlement offer is based upon the unique facts giving rise to this claim and 

should not be viewed as precedent controlling other NPFC claims determinations. 

During the adjudication of claims against the Fund, the NPFC acts as the finder of fact. In this 

role, the NPFC considers all relevant evidence and weighs its probative value when determining the facts 

of the claim. The NPFC’s review of the evidence is de novo, and the NPFC is not bound by the findings 

of fact and conclusions reached by other entities.38 If there is conflicting evidence in the record, the NPFC 

will make a determination as to what evidence is more credible or deserves greater weight, and finds facts 

based on the preponderance of the credible evidence. During the adjudication of this claim, NPFC 

considered over 2,000 pages of documents comprised of invoices, memoranda, correspondence and 

communications related to this spill. 

 In addition to recovering costs against the responsible parties, NPFC’s mission is to compensate 

those who have suffered certain damages or incurred removal costs because of a discharge or a substantial 

threat of a discharge of oil to U.S. navigable waters. Without the Fund, parties whose claims are not paid 

in full by the responsible parties would have no recourse but costly and time-consuming litigation. The 

 35 See, Smith Property Holdings v. United States, 311 F.Supp.2d 69, 83 (D.D.C. 2004). 36 The court in Bean Dredging, LLC v. United States, characterized the informal adjudication process for OSLTF 

claims with the following: “[W]hile the OPA allows responsible parties to present a claim for reimbursement to the 

NPFC, they do not confer upon such parties a right to a formal hearing, a right to present rebuttal evidence or 

argument, or really any procedural rights at all, see 33 U.S.C. §§ 2704, 2708, 2713, an entirely unremarkable fact 

given that Congress’ overarching intent in enacting the OPA was to ‘streamline’ the claims adjudication process ...” 

773 F. Supp. 2d 63, 75 (D.D.C. 2011).

37 See, Smith Property Holdings v. United States, 311 F.Supp.2d 69, 83 (D.D.C. 2004). 38 See, Bean Dredging, LLC v. United States, 699 F. Supp. 2d 118, 128-29 (D.D.C. 2010) (noting that the NPFC 

may consider a marine casualty investigation report but is not bound by it). 
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OPA 90 was intended to streamline federal law so as to provide quick and efficient cleanup of oil spills, 

compensate victims of such spills, and internalize the costs of spills within the petroleum industry. Rice v. 

Harken Expl. Co., 250 F.3d 264, 266 (5th Cir. 2001)(citing Senate Report No. 101–94, reprinted in 1990 

U.S.C.C.A.N. 722, 723).

DETERMINATION OF LOSS: 

A. Overview:

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

that the actions undertaken by AMPOL were consistent with the NCP39 for the payment of 

uncompensated removal costs 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);

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

waters.”

3. The claim was submitted to the Fund within the six year period of limitations for removal costs 

claims. 33 U.S.C. §2712(h)(1).

4. The NPFC Claims Manager thoroughly reviewed all documentation submitted with the claim and 

determined which of the costs claimed were associated with OPA compensable removal actions 

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

OPA and 33 CFR § 136.205.

B. Analysis:

 

1. AMPOL’s 2016 Rate Schedule is Reasonable and Will be Used to Adjudicate the Claim.

The OPA and its implementing regulations control a claimant’s entitlement to OSLTF 

compensation, not a contract between the claimant and the responsible party, or the insurance carrier’s 

position on what rates it is willing to pay. Under 33 CFR 136.203, a claimant should receive OSLTF 

reimbursement for reasonable removal costs for actions determined by the FOSC to be consistent with the 

National Contingency Plan. Although a rate schedule agreed upon by an OSRO and a RP may provide 

some evidence of a reasonable removal cost, the total amount of OSLTF compensation is ultimately 

controlled by the standards in 33 CFR 136.203. When determining whether costs are reasonable under 

33 CFR 136.20, NPFC considers the scope of work, appropriateness of the response tactics undertaken, 

quantity of personnel, materials and equipment deployed, demographics of the spill location, as well as 

the reasonableness of rates used to bill costs. 

NPFC views the facts and circumstances of each case in combination with information available 

as it pertains to general standard industry practices for emergency response contractors, or in this case, the 

Oil Spill Response Organizations (OSROs).40 Whether an OSRO is directly hired by the Coast Guard 

under a Basic Ordering Agreement, or whether hired as a primary response contractor for a responsible 

party, current rate pricing is what is typically used to determine an OSRO’s uncompensated removal costs 

under the OPA. Without evidence that the rate schedule was outrageous, substantially inconsistent with 

market rates in the locality for emergency response, or other dispositive facts that justify using a different 

rate schedule or pricing metric, an OSRO’s most current rate schedule is often deemed the most 

 

39 See POLREPS 1 – 6. 40 See, 33 CFR §§154.1035 and 155.1035. The Coast Guard created the voluntary oil spill removal organization 

(OSRO) classification program so that plan holders could list OSROs in response plans in lieu of providing 

extensive detailed lists of response resources if the organization has been classified by the Coast Guard and their 

capacity has been determined to equal or exceed the response capability needed by the plan holder. 
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reasonable metric for determining uncompensated removal costs. The current rate schedules are used 

because they ordinarily have the most updated pricing schedule for all services, staff, and equipment 

provided during the response. 

In this case, the preponderance of evidence in the administrative record for both AMPOL claims 

identified as E16608-001 and E16608-0004, supports using AMPOL’s 2016 rate schedule. First, this was 

an emergency response incident that occurred in 2016. There is no evidence that the 2016 rate schedule 

itself is inflated or contrary to the current locality, or in any other way unreasonable. Indeed, even 

 agreed, in an email to Chubb, that using the 2016 rate schedule seemed reasonable:

:

[...] I spoke to at AMPOL today and he informed me that AMPOL billed 

PSC at current 2016 rates. It seems reasonable to use current rates as they are what 

AMPOL would charge any customer for these services. We assume that Chubb has 

access to rate data for this sort of work and that you are in a position to evaluate whether 

the rates being charged are in line with market rates.41 

 Chubb’s refusal to use AMPOL’s 2016 rate schedule was not because these rates were out of line 

with “market rates.” Rather, Chubb rejected the 2016 rate schedule citing “PSC’s understanding that 

AMPOL would use 2012 rates, supplemented by the 2014 rates to prepare their billing”.42 

 Second, AMPOL submitted billings based on its 2016 schedule.43 Although 

initially sought to amend the 2007 contract to use a 2012 rate schedule, supplemented by the 2014 

schedule,44 PSC summarily refused and instead instructed AMPOL to “pick a set of rates” and start 

generating invoices.45 Implicit within that instruction was that AMPOL would continue to provide 

emergency response services and not wait for the insurer to sort out the rates.46 AMPOL did so, and now 

has unpaid response costs based on a 2016 rate schedule.

 Based upon the unique facts underlying this second claim, the NPFC determines that AMPOL’s 

reimbursement should be based upon its 2016 rates. The 2016 rate schedule provides a pricing inventory 

for all items used during the response at issue and, with the exception of the items below, this claim’s 

administrative record establishes by a preponderance of the evidence that the 2016 rate schedule should 

be used when determining the total amount of uncompensated removal costs incurred by AMPOL. The 

NPFC reached this conclusion after carefully weighing all of the evidence in the administrative record. 

 

41 See email to (Chubb) from (PSC) dated June 20, 2016 in E16608-0001. 42 See Chubb letter to AMPOL dated July 20, 2016 in E16608-0001. 43 See email to (PSC) from (PSC) dated March 29, 2016 in E16608-0001(“We need a 

daily report from AMPOL on what we have spent with them. [...] The daily report should go to and me 

[...]”). 

44 See email from (AMPOL) to (PSC) dated April 1, 2016 in E16608-0001. 45 See email to of Forefront from (PSC) dated April 7, 2016 in E16608-0001. 46 Although not germane to this decision, it should be noted that AMPOL repeatedly sought payment on its invoices, 

and PSC repeatedly deferred to its insurer to determine those payments. See email to (AMPOL) from 

(PSC) dated April 2, 2016 (stating that PSC “can not [sic] approve the rates without consulting [its] insurance 

carrier”) and email to (AMPOL) from (PSC) dated April 11, 2016, (stating that “the insurance 

company will be responsible for approving the rates and invoices.”), and email to (Chubb) from 

 (PSC) dated June 20, 2016 (stating “we never reached an agreement on this. We told AMPOL that we would 

defer a final determination of the appropriate rates to our insurance carrier.”). 
11

2. Invoice 26-IN – Total Denied $850.80

The total amount of this invoice was $87,357.32 and the evidence shows AMPOL received 

$81,754.60, which left a remaining balance of $5,602.72. In reconciling the invoice with Chubb’s audit 

and the evidence AMPOL submitted, NPFC determined that all of the costs stated therein qualified as 

OPA-compensable removal costs, with the exception of the following:

Subcontractor invoice: Adler Tank invoice # 4181519 – This invoice was for roll top box rentals but 

included three separate entries for repairs billed against AMPOL in the total amount of $850.80 which 

includes associated tax and markup. The NPFC denies these costs as that is the responsibility of the 

vendor and not an OPA compensable response cost.

3. Invoice 76-IN – Total Denied $292.67

 The total amount of this invoice was $23,638.60 and the evidence shows AMPOL received 

$22,270.74, which left a remaining balance of $1,367.86. In reconciling the invoice with Chubb’s audit 

and the evidence AMPOL submitted, NPFC determined that all of the costs stated therein qualified as 

OPA-compensable removal costs, with the exception of the following:

Subcontractor invoice: Gulf Coast Responders, LLC invoice # 3651 – This invoice was for roll off 

box rentals and box washouts along with associated delivery charges but included one separate entry for 

repairs billed against AMPOL in the total amount of $41.75 which includes associated tax and markup. 

The NPFC denies these costs as that is the responsibility of the vendor and not an OPA compensable 

response cost.

Third party invoice: K&J Supplies & Hardware, LLC invoice # 335288 – This invoice was for 12 

gallons of Industrial strength aluminum brightener. The NPFC denies this invoice in its entirety in the 

total amount of $250.92 which includes associated markup as the Claimant has failed to provide evidence 

that the FOSC requested the product be ordered along with a full explanation as to exactly what it was 

used for as it relates to the removal of oil.

4. Invoice 129-IN – Total Denied $1,606.79

The total amount of this invoice was $16,889.22 and the evidence shows that AMPOL received 

$14,709.52, which left a remaining balance of $2,179.70. In reconciling the invoice with Chubb’s audit 

and the evidence AMPOL submitted, NPFC determined that all of the costs stated therein qualified as 

OPA-compensable removal costs, with the exception of the following:

Third party invoice: Telcom Rental, LLC invoice # 12877 – This invoice was for the purchase of lost 

rental equipment. This invoice is denied in its entirety as it is the responsibility of the contractor and not 

the NPFC for lost rental equipment and as such the invoice and associated tax and markup are alos denied 

as this is not an OPA compensable response cost.

NPFC Determination on Reconsideration for Invoice 287-IN

5. Invoice 287-IN – Total Denied $2,068.03

The NPFC orginially determined that $2,895.37 was denied under this invoice. On August 4, 2017, the 

Claimant requested reconsideration of the denied costs in the total amountof $827.34 associated with BFI 

Colonial Landfill. On reconsideration, the Claimant provided the second page of the BFI invoice that had 

not been previously provided along with the contract between BFI and AMPOL which contained contract 
12

provisions that each disposal load would be invoiced at $150.00 minimum and as such, all loads that 

amounted to less than $150.00 when calculating disposal rate of $35.00 per ton, the price per load was 

invoiced at $150.00, explaining the price difference. Based on the new information and second pageof the 

invoice, the NPFC has overturned its original denied amountof $827.34 resulting in an overall increased 

offer for this AMPOL invoice.

The total amount of this invoice was $40,742.99 and the evidence shows that AMPOL received 

$5,511.82, which left a remaining balance of $35,231.17. In reconciling the invoice with Chubb’s audit 

and the evidence AMPOL submitted, NPFC determined that all of the costs stated therein qualified as 

OPA-compensable removal costs, with the exception of the following:

Subcontractor invoice: Adler Tank invoice # 4187706 – This invoice was for roll top box rentals and 

berm rental but included two separate entries for repairs billed against AMPOL in the total amount of 

$723.39 which includes associated tax and markup. The NPFC denies these costs as repairs are the 

responsibility of the vendor and not an OPA compensable response cost.

Subcontractor invoice: Adler Tank invoice # 4187452 – This invoice was for roll top box rentals but 

included one separate entry for repairs billed against AMPOL in the total amount of $159.39 which 

includes associated tax and markup. The NPFC denies these costs as repairs are the responsibility of the 

vendor and not an OPA compensable response cost.

Subcontractor invoice: Ingraham Services, LLC invoice # 120 – This invoice was for emergency 

response technicians and associated fuel tickets. The NPFC denies all fuel ticket costs in the total amount 

of $464.50 which includes tax and associated markup as the claimant and vendor failed to provide an 

itemization of each fuel ticket along with proof of payment for the fuel purchased and as such, these costs 

are denied as not supported by proper documentation.

TOTAL AMOUNT DENIED: $4,818.2947

 Based on the foregoing and new information provided on reconsideration, the NPFC hereby 

determines that the OSLTF will offer $39,563.16 as full compensation for the reimbursable removal costs 

incurred by AMPOL and submitted to the NPFC under claim # E16608-0004. All reimbursable costs are 

for charges paid by AMPOL for removal actions as that term is defined in OPA and are compensable 

removal costs by the OSLTF as presented by AMPOL. 

RECONSIDERATION AMOUNT: $39,563.16

 

Claim Supervisor: 

Date of Supervisor’s review: 8/4/17

Supervisor Action: Reconsideration Approved

 

47 See Enclosure (1) NPFC Summary of Costs on recon spreadsheet.