ACL as agreed by way of the Claimant’s published rate schedule. It is important to note that the 

NPFC received this audit when the auditor for ACL responded to the NPFC’s first RP 

notification letter by way of submitting its audit results and the accompanying documentation.

For the audit, the NPFC found that ACL auditors focused on whether the paperwork was 

complete as determined by its standards, whether the costs were properly supported in 

accordance with its standards, and whether the costs were operationally reasonable and necessary 

according to its standards. The ACL auditors used the reduced negotiated rates based upon 

prompt payment provisions and provided ES&H a partial payment on September 17, 2008. (See 

above.) However, because ACL did not make full payment on Invoice 1-18175, the subject of 

this Claim, ES&H submitted its invoices to the NPFC in accordance with its published rate 

schedule. All revised invoices which reflected the original published rate schedule pricing had 

been presented to ACL as required by regulation.15

During the audit of ES&H’s Invoice 1-18175, ACL denied ES&H’s costs with little or no 

explanation, reason, or standard in support of the denied costs. The NPFC requested clarification 

of certain denial categories to understand the rationale used by ACL auditors, but ACL failed to 

provide an answer responsive to our questions.16

V. APPLICABLE LAW

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

pursuant to 33 USC §§ 2712(a)(4) and 2713 of OPA 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 (NCP) 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 such an incident”. 33 USC § 

2701(31).

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 Part 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 [Federal On-Scene Coordinator] to be 

consistent with the National Contingency Plan or were directed by the FOSC.”

Under 33 CFR. § 136.205, “[t]he 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 

 

15 See, email from ES&H, dated April 30, 2009.

16 See, NPFC email to ACL dated March 3, 2009.
exceptional circumstances, removal activities for which costs are being claimed must have been 

coordinated with the FOSC.” [Emphasis added].

VI. DETERMINATION OF UNCOMPENSATED REMOVAL COSTS:

A. Overview:

1. FOSC coordination has been established under the Federal Project by way of Incident Action 

Plans (IAP) and United States Coast Guard (USCG) Pollution Reports under Federal Project 

Number N08057.

2. The incident involved the discharge and continuing substantial threat of 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 ES&H has certified no suit has 

been filed in court for the claimed uncompensated removal costs.

4. The claim was submitted on time.

5. Presentment of costs to the RP was made by the Claimant ES&H, prior to the submission of 

the claim. The NPFC also made presentment of costs to the RP for which the RP responded 

with a copy of its complete audit for the Claimant.

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

claim and determined that the majority of all 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 with the exception of denied costs itemized in 

the attached ES&H Audit Report for Invoice # 1-18175: (See, Enclosure (1) – ACL audit 

which incorporates the NPFC audit.).

B. Analysis:

The NPFC 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 Part 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.

The Claimant ES&H stated that all costs claimed are for uncompensated removal costs 

incurred by the Claimant for this incident for the time period of August 13, 2008 through 

August 19, 2008. The Claimant represents that all costs paid by the Claimant are 

compensable removal costs, payable by the OSLTF as presented by the Claimant.

The NPFC Claims Manager has confirmed that the response activities performed by the 

Claimant were signed off by the designated Zone Managers on behalf of the RP and the 

Unified Command in the dailies provided by ES&H and by ACL with its audit. While the 

Incident Action Plans (IAPs) are helpful in corroborating actions that were taking place in the 

field at any given point in time and were utilized as part of the adjudication process, it is 

important to note that every action taken during a response is not fully captured in IAP’s or 

Pollution Reports. The NPFC Claims Manager also cross referenced claim submission 

information to the USCG’s database of files that were associated with this oil spill incident 

and were provided to the NPFC by USCG Sector New Orleans via tape.

As detailed in Enclosure (1), the NPFC reviewed the detailed comments in the Financial 

Audit performed by ACL’s auditor. The NPFC denied ES&H claimed costs that lacked 
documentation. We approved costs which the Claimant adequately documented on the 

signed daily reports. Such costs were approved over ACL’s denial in the Financial Audit 

because these costs had been approved by designated Zone Manager(s) for ACL when these 

representative(s) signed the Claimants’ daily sheets. One of the main purposes of a Spill 

Management Team such as the appointed Zone Managers for ACL was to confirm the goods 

and services billed on a given day, at a given location, for a given time period, were provided 

and accounted for. Moreover, because the services and materials/equipment listed on the 

daily sheets were provided pursuant to a published rate schedule, the NPFC further finds that 

ES&H has satisfied its burden of showing that the amounts claimed were reasonable and 

necessary. As a result, NPFC finds and approves that these costs are eligible for payment 

under OPA. 

Despite the numerous costs denied by ACL’s auditors for personnel who worked in excess of 

restricted hours, the NPFC approved all costs that were signed/approved by the ACL 

designated Zone Manager(s), unless reduced hours were noted on the signed daily. 

Moreover, the NPFC obtained a statement from the FOSC, CAPT Lincoln Stroh which 

clarified that the restricted hours were “suggested” for the purpose of heat stress and safety 

concerns, but the monitoring and determination of actual work hours resided with the Zone 

Manager(s) and its sign offs on the dailies.17

During the review of Enclosure (1), the NPFC created “NPFC Denied/Denial” and “NPFC 

Approved” columns within the ACL audit summary page and on each of the daily sheets of 

the spreadsheet so that we could make a easily identified line-by-line comparison and 

determination. The first column, labeled “NPFC Denied/Denial”, includes the total denied 

costs for each line item, which is then totaled at the bottom of each daily sheet and carried 

forward to the summary spreadsheet totals. The second column, labeled “NPFC Approved” 

includes the amounts which were adjudicated and approved by the NPFC. The itemized 

breakdown of denied costs is addressed in the attached ACL audit identified as Enclosure 1. 

The overall NPFC denial summary is as follows: 

ES&H Invoice # 1-18175 – 8/13/08 – denied amount of $ 9,304.50 

ES&H Invoice # 1-18175 – 8/14/08 – denied amount of $ 1,059.96 

ES&H Invoice # 1-18175 – 8/15/08 – denied amount of $ 687.20 

ES&H Invoice # 1-18175 – 8/16/08 – denied amount of $ 4,032.79 

ES&H Invoice # 1-18175 – 8/17/08 – denied amount of $ 10,934.78 

ES&H Invoice # 1-18175 – 8/18/08 – denied amount of $ 4,953.75 

ES&H Invoice # 1-18175 – 8//19/08 – denied amount of $ 4,638.81

 Total denied amount: $35,611.79

The Claimant ES&H documented that ACL had paid them $2,134,402.52. ACL sent this 

payment to ES&H on September 17, 2008.18

Accordingly, the NPFC has determined that the Claimant ES&H has $634,891.57 in 

uncompensated removal costs for this claim. The NPFC arrived at that amount as follows: 

The Claimant ES&H submitted this claim to the NPFC with a revised invoice total (cost + 

20% in some instances) of $2,804,905.88. The RP, ACL paid $2,134,402.52 of these costs, 

 

17 See, FOSC Memorandum, Capt. , dated 07/23/08, regarding restricted hours. 

18 See, Bates ES&H 000586 Payment Authorization Form. 
leaving an outstanding balance of $670,503.36. ES&H reduced this amount by deducting 

two equipment invoices on 8/16/08 ($1,576.44 and $23.10), bringing their sum certain into 

the Fund as $668,903.82. While answering the RP audit, the NPFC placed these two costs in 

the “denied” column, so they are included in the total denied amount above. The NPFC 

found additional deductions of $1,502.50 on August 13, 2008 Labor, Zone A, $1,340.00 on 

August 16, 2008 Labor, Zone A, $488.00 on August 18, 2008 Labor, Zone Support and 

$471.50 on August 19, 2008 Labor, Zone A, for a total of $3,802.00 that were not identified 

by either the ACL auditor or the Claimant. The outstanding balance $670,503.36 plus the 

additional deductions totaling $3,802.00 brings the total amount of costs adjudicated by the 

NPFC to $674,305.36. Although the $3,802.00 in additional deductions found by the NPFC 

was included in the denied cost breakdown above, these costs were not deducted from the 

Claimants sum certain. Since the RP shows these deductions as an authorized payment and 

made payment on them, the NPFC further deducts it from the NPFC approved costs. 

The NPFC also noted a $2,659.98 non-compensable error while adjudicating the claim. This 

cost is over and above the costs ES&H came into the Fund for as well as additional costs the 

Fund found while adjudicating the claim. The NPFC presented this additional cost to the 

Claimant, ES&H for review. ES&H attached a letter to the NPFC via an email dated 

November 12, 2009 stating they “accept the cost difference”.19

 The NPFC denied total costs 

of $35,611.79. Breakdown for the denied costs are as follows: $13,319.00 in total denied 

labor costs and $22,292.79 in total equipment costs. See Enclosure (1) audit spreadsheet for 

details. 

Accordingly, the $420,186.69 found as uncompensated removal costs minus the $3,802.00 

deduction found by the NPFC but paid by the RP, minus the $2,659.98 non-compensable 

error equals $413,724.71. 

On this basis, the NPFC Claims Manager has found that the Claimant did in fact incur 

$413,724.71 of uncompensated removal costs and that this amount is properly payable by the 

OSLTF as full compensation for the reimbursable removal costs incurred by the Claimant 

and submitted to the NPFC under claim # N08057-049 in accordance with 33 CFR 136.203 

and 136.205. 

Lastly, it is important to note that $221,166.86 of the approved costs by ACL auditors as 

corroborated in the Audit by the RP to the NPFC remains unpaid as of the date of this 

determination and was therefore added to the NPFC’s uncompensated removal cost 

determination giving the Claimant a total due of $634,891.57. 

C. Determined Amount: 

The NPFC hereby determines that the OSLTF will pay $634,891.57 as full compensation for 

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

claim # N08057-049. 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. 

Claim Supervisor: 

Date of Supervisor’s review: 

 

19 See, ES&H email dated November 12, 2009 with attachment.