CLAIM SUMMARY / DETERMINATION FORM 

Date : 6/14/2010 

Claim Number : 910107-001

Claimant : Miller Environmental Services, Inc. 

Type of Claimant : OSRO 

Type of Claim : Removal Costs 

Claim Manager : 

Amount Requested : $10,014.41

FACTS: 

1. Oil Spill Incident: On November 13, 2009, Miller Environmental Services, Inc. 

(Miller Environmental) responded to a spill incident of tar balls and tar mats discovered 

on the Padre Island National Seashore (PINS). PINS is located on the Gulf of Mexico, a 

navigable waterway of the United States. Initially, the tar balls and tar mats were 

suspected to be from the October 20, 2009 oil spill incident from the vessel Krymsk. The 

Texas General Land Office (TGLO), under the direction of , activated the Tar 

Ball Site Safety Plan from the vessel’s Incident Action Plan (IAP). However, after an oil 

analysis, it was determined that the tar balls and tar mats were not from the vessel 

Krymsk incident therefore the suspected responsible party is unknown. 

2. Description of Removal Activities for this Claim: As contracted under their Basic 

Ordering Agreement (BOA), O’Brien’s Response Management (OOPS) provided on site 

management of the Tar Ball Plan and contacted Miller Environmental to clean up the tar 

balls on the beach, as directed by the Coast Guard. They worked to remove the tar balls 

on November 13, 2009 and November 14, 2009 and completed the clean-up on 

December 9, 2009 when disposal was performed. 

A supervisor was deployed on the first day, as well as the second day, with nine 

technicians for the clean-up. One operator was deployed for the disposal operations. 

3. The Claim: On May 24, 2010, the Claimant submitted a removal cost claim in the 

amount of $10,014.41 to the National Pollution Funds Center (NPFC) for reimbursement 

for their uncompensated response costs. 

The claim consists of the Miller Environmental incident billing summary, work invoice, 

dailies, BOA rate schedule agreed upon by United States Coast Guard MLCLANT and 

Miller Environmental, waste manifest, and invoices for the roll-off box rental. 

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.”

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. Findings:

1. FOSC coordination has been established via the Federal project that was opened for this 

case.. 

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 on time.

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

the claim and determined that the majority 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 as set forth below.

6. The review of the actual costs, invoices and dailies focused on the evaluation of whether 

such costs qualify as “Compensation Allowable” under 33 CFR§ 136.205.

B. Analysis:

The NPFC Claims Manager has reviewed the actual cost invoices and daily work 

documentation 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, and (4) 

whether the costs were adequately documented and reasonable. 

The Claim's Manager's review of the cost documentation revealed charges inconsistent 

with the rate schedule. The claimant will be compensated for removal costs based on the 

rate schedule provided with the rate submission. According the rate schedule (page 8 of 

74), the “rate that results in the lowest aggregate amount shall apply” with regards to 

items that can be billed hourly, daily, weekly or monthly. On Friday, November 13, 

2009, the truck was billed at $150.00 for the 5.5 hours it was used that day. However, at 

the hourly rate of $20.00 per hour, the cost of the truck would have been $110.00. 

Claimant will be compensated at the $20 per hour billing rate. The amount denied for the 

truck is $40.00 

According to the Claimant’s invoice for personnel hours worked on Saturday, November 

14, 2009, Technician (Tech) David Simpson worked 9.5 hours of overtime at the rate of 

$52.50 per hour. However, the rate schedule lists the overtime rate schedule for a 

technician working on an oil spill at $45.00 per hour. The Claimant will be compensated 

for the 9.5 hours work of Tech Simpson at that rate for a total of $427.50. Techs Daniel 

James, Jose Tinoco, Jaime Inocencio, Joel Sandoval, Paul Morales, Andrew Alvarado, 

Brian Clayton and John Deleon were also billed at the overtime rate of $52.50 per hour 

for the 9.0 hours that each of them worked at the incident site. Based on the rate 

schedule, Claimant will be compensated for their work at the $45.00 per hour overtime 

rate. The work for the eight techs will be compensated at $405.00 each, for a total of $3, 

240.00. The total amount denied for the overtime work of all technicians is $611.25.
Claimant’s invoice lists the price for the services of US Ecology Texas, Incorporated (US 

Ecology) for disposal at $1,168.41. The US Ecology invoice lists the actual cost for 

services at $1,016.01. The rate schedule provided does not allow for a 15% mark-up 

($152.40) for subcontractors by the Claimant. Therefore, the Claimant will be 

compensated in the amount of $1,016.01. The $152.40 for the mark-up is denied. 

Based on the NPFC's review, the NPFC determines that the OSLTF will pay $9,210.76 as 

full compensation for the reimbursable removal costs incurred by the Claimant and 

submitted to the NPFC under claim# 910107-001.

C. Determined Amount: 

The NPFC determines that the OSLTF will pay $9,210.76 as full compensation for the 

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

claim# 910107-001. 

AMOUNT: $9,210.76

Claim Supervisor: 

Date of Supervisor’s review: 6/30/10

Supervisor Action: Approved 

Supervisor’s Comments: