Claim Number: 

Claimant: 

Type of Claimant: 

Type of Claim: 

Claim Manager: 

Amount Requested: 

FACTS: 

CLAIM SUMMARY /DETERMINATION 

913032-0001 

Tom River Municipal Utilities Authority 

Local Government 

Removal Costs 

$71,471.06 

1. Oil Spill Incident: On September 13, 2009, United States Coast Guard Station Barnegat Light 

(Coast Guard) received a report from the New Jersey Department of Environmental Protection 

(NJDEP) of an unknown sheen, about 100 feet, that was on Toms River, a navigable wateiway 

of the United States.1 The NJDEP cut back all the bmsh to the edge of the river. They 

discovered that the source of the sheen was from a 1,000 gallon heating oil tank that was 

partially buried in a swampy area on the property of the Claimant, Toms River Municipal 

Utilities Authority (TRMUA), a public water treatment facility located 100 yards from the 

wate1way. The sounding of the tank dete~mined that 500 gallons of#2 diesel fuel was still in 

the tank. The Coast Guard noted that the tank may have been bulldozed during the renovation 

of the property in the 1950's? The Coast Guard deployed boom at the incident site, but later 

pulled the boom and left it by the tank. TRMUA was notified by the New Jersey Department 

of Environmental Protection (NJDEP) of the incident and issued TRMUA a Field Directive to 

pump out the remaining fuel in the tank, remove the tank, and clean-up the contaminated area 

of spill.3 The United Stales Coast Guard Sector Delaware Bay (Sector Delaware Bay) became 

the Incident Commander, but the NJDEP took the lead in overseeing the clean-np by TRMUA, 

the designated responsible party (RP). TRMUA infonned the Coast Guard that they would be 

hiring Budget Boat Towing & Salvage, Incorporated (Bndget Boat) for the clean-up. Northstar 

Marine, Incorporated (Northstar Marine) was also hired by TRMUA for the clean-up. 

2. Description of Removal Activities for this Claimant: On September 13, 2009, Budget Boat and 

Northstar Marine provided clean-up services, under the direction ofNJDEP. Budget Boat was 

scheduled to decontaniinate the boom that was deployed by the Coast Guard that was left near 

the tank, and then return the boom to their station. Budget Boat arrived at the incident site and 

deployed a Field Foreman, a Site Safety Supervisor, HazMat certified teclmicians, vehicles, 

vessels, spill response trailers, an oil boom trailer, containment boom, and absorbent pads and 

sweep. Northstar Marine's deployment of resources included a supervisor, an equipment 

operator, vac truck, and a vehicle for the clean-up operations. On September 15,2009, Sector 

Delaware Bay's Maritime All-Hazards Response Team (MAHR) reported that the NJDEP 

instructed Budget Boat to also flush the shoreline to speed up the dissipation of the discharge. 

By September 16, 2009, MAHR reported that a minimal sheen was observed within the 

boomed area, and they were discussing boom retrieval with NJDEP. Sector Delaware Bay 

reported the clean-up was almost complete on September 18,2009. By September 21,2009, 

99% of the discharge had been collected, and the NIDEP shmtened the 1,000 feet of boom 

initially deployed, due to the minimal sheen present. And on September 24, 2009, the MAHR 

Team repmted that the clean-up was completed and that the boom had been retrieved. 

1

See National Response Report #917679, dated September 13, 2009. 

2 U.S. Coast Guard MlSLE Case Report for Case #474203, dated September 13, 2009. 

3 U.S. Coast Guard Sector Delaware Bay Investigator Statement Form , dated September 28, 

2009. 

3 
3. Tlze Claim: On February 12, 2013, the TRMUA (Claimant) submitted a removal cost claim to 

the National Pollution Funds Center (NPFC) for reimbursement of $71,471.06 for costs 

incuned due to the oil spill response. On their Optional OSLTF Claim Form, TRMUA 

described the entity that caused the damage as an "abandoned oil tank of unknown origin" that 

was located on the bank of the Toms River4 

The Claimant included in their claim submission a copy ofNJDEP's Field Directive 

(Directive), dated September 13,2009.5 The Directive informed the Claimant that they were 

responsible for the discharge, and directed them to conduct remedial investigations and actions 

to prevent the #2 fuel oil from entering Toms River by deploying hard and sorbent boom; pump 

out and contain contents of the fuel tank, as well as remove tank; remove any ponded fuel using 

pumps or sorbent materials; remove contaminated soil and debris at the incident site; maintain 

boom in place during the entire remediation; and that the work was to be performed by a 

properly certified contractor. A September 14, 2009 Notice of Federal Interest (NOFI) was 

also issued to the Claimant by the Federal On-Scene Coordinator Representative (FOSCR), 

On October 7, 2009, the NJDEP sent TRMUA a Jetter informing them that 

they had closed out their case because they had complied with all of the terms of the imposed 

Directive.7 Per NJDEP, their inspections determined that "all practical measures to remediate 

the contamination" from the discharge were taken, and that there was no longer a pollution 

threat to Toms River. 

On February 21,2013, the National Pollution Funds Center (NPFC) contacted Mr. 

, TRMUA, to inform, that based on their claim submission, they were the 

responsible party for the incident.' The NPFC asked ifTRMUA possessed any information or 

documentation to prove that they were not responsible for the discharge. Mr. 

replied that TRMUA purchased the property in 1949, and that the property was a bluebeny 

fann before their purchase. He added that TRMUA would have been proactive if they had 

known the tank was on their property; that they did not put the tank on the property; the 

property was never used as a dump; and they don't except tanks. He also stated that the seal of 

the tank started to rot and that caused the oil to discharge into Toms River. He asked that the 

NPFC look at the photographs submitted with the claim. He was then informed that the 

photographs had been damaged before aniving to the NPFC. Mr. stated that he 

would send copies of the photographs. On Marchl8, 2013, Mr. sent an e-mail to the 

NPFC asking for confi1mation regarding updates of the claim. 9 The NPFC returned his call and 

he requested the status of the claim. 10 He was informed that the photographs he forwarded to 

the NPFC did not provide proof that TRMUA was not the responsible party. Mr. 

requested to speak to a supervisor regarding the claim. Mr. Rutkowski addressed his concerns 

regarding the claim status to . Ms. granted a 30 day extension to 

TRMUA to provide proof that they were not the responsible party. 11 

On Aprill5, 2013, Mr. , on behalf ofTRMUA, provided a summary of the incident 

and additional supporting documentation to prove that TRMUA was not responsible for the 

4 United States Coast Guard Optional OSLTF Claim Form, signed by on February 4, 2013. 5 NIDEP Site Remediation Program Field Directive to TRMUA, dated September 13, 2013. 6 United States Coast Guard Notice of Federal Interest to TRMUA, dated September 14, 2013. 7 Letter from , NIDEP-BER, to , TRMUA, dated October 7, 2009. 8 Phone Notes of telephone conversation with , TRMUA, dated Februmy 21, 

2013. 

9 electronic mail to , dated March 18, 2013. 

1

° Phone Notes re conversation with , dated March 18, 2013. 

11 electronic mail to , dated March 18, 2013. 

4 
discharge.12 The documents included NJDEP Underground Storage Tank (UST) System 

Closure Approval, effective as of July 13, 1994.13 The Approval was for TRMUA's 

Administration Office, granting approval to remove one 1,500 gallon #2 heating UST; one 

2,000 gallon #2 heating oil UST; one 275 gallon waste oil UST; one 500 gallon diesel fuel 

UST; one 6,000 gallon gasoline fuel UST, and one 8,000 gallon UST. And, on April 8, 2009, 

the NJDEP sent TRMUA a No Further Action Letter and Covenant Not to Sue after the 

removal of two 2,000 gallon heating oil USTs from their property. 14 The UST tank removal 

was carried out by Envirotactics, Incorporated on October 9, 2008.15 

TRMUA was not aware that the UST discovered on September 13, 2009 was on their property. 

They noted that the USTwas "embedded in a bank of the Toms River adjacent to a vacant 

TRMUA owned property and was subject to tidal influences."16 

They also noted that they were not able to determine the owner of the tank. 

Based on the information provided, the NPFC has determined that TRMUA is not the 

responsible party for the September 13, 2009 incident. The responsible party remains 

unknown. Therefore, under OPA, TRMUA will be reimbursed for compensable removal costs 

incun·ed due to the incident of September 13, 2009. 

APPLICABLE LAW: 

"Oil" is defined in relevant part, at 33 USC§ 2701(23), to mean "oil of any kind or in any fonn, 

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 Pati 136, to pay claims for uncompensated removal costs that are determined to be 

consistent with the National Contingency Plan and uncompensated datnages. Removal costs are 

defmed as "the costs of removal that are incmTed 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 136.1 03(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 "lf a claim is presented in accordance with this section, 

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

datnages 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." 

12 letter to , dated Aprill5, 2013. 13 NJDEP Underground Storage Tank System Closure Approval for Adn:Linistrative Office, dated July 13, 1994. 14 NJDEP, Jetter to , TRMUA, dated April 8, 2009. 15 , Envirotactics, Inc. letter to , dated October 10, 2008. 16 Toms River Municipal Utilities Authority NPFC Claim# 913032-0001 Summary. 

5 
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 necessruy by the Director, NPFC, to 

support the claim. 

Under 33 CFR 136.105(b) each claim must be in writing, for a sum ce1tain for each category of 

uncompensated drunages 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 talcen that were dete1mined 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. The FOSC coordination was provided by FOSCR of the United States Coast 

Guard Sector Delaware Bay. 

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 

comt 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 what removal costs presented were for actions in accordance with the NCP and 

that costs for these actions were indeed reasonable and allowable under OPA and 33 CFR § 

136.205 as set forth below. 

B. Analysis: 

The NPFC Claims Manager has reviewed the actual cost invoices and dailies to confum 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 NPFC obtained a copy of the Coast Guard MISLE case and associated documentation 

regarding the incident. 

6 
The Claimant has requested reimbursement for the removal of the UST discovered on September 

13, 2009 for services provided by Northstar Marine and Budget Boat. For their services provided, 

Northstar Marine billed the Claimant a total of $28,273.56 and Budget Boat billed $43,197.50. 

Northstar Marine, Incorporated 

The Claimant provided Northstar Marine's daily worksheets on July 18, 2013. 17 The NPFC 

received Northstar Marine's rate schedule on June 26, 2013, after requesting the rate schedule 

from them on June 25, 2013. 18 

For their services provided on Sunday, September 13, 2009, Northstar Marine billed TRMUA 

$4,198.27. was billed at the double time rate of$180.00 for 5.5 hours of work for a 

total of $990.00, for a supervisor. However, according to their rate schedule, the supervisor rate 

is $75.00 per hour. The NPFC will reimburse TRMUA at the $150.00 per hour rate for double 

time for Mr. for a total of $825.00 for his 5.5 hours worked. A waste class sample was 

billed for $90.00, but no cost documentation was provided. Therefore, the cost for the sample is 

denied. Nmthstar Marine also billed for two Level D PPEs at $45.00 each, for a total of $90.00, 

but they were not documented on the signed daily worksheet. The NPFC denies the costs for the 

PPEs, as well. 

Northstar Marine billed $9,871.64 for work performed on September 14, 2009. They billed 8.0 

hours for supervisor at the Project Manager rate of $90.00 per hour as his standard rate, 

for a total of $720.00; and 3.0 hours at the overtime rate of $135.00 per hour for a total of 

$405.00. However, the signed daily for September 14, 2009 has Mr. listed as the 

supervisor. The NPFC will reimburse the Claimant at the supervisor rate of $75.00 per hour and 

$112.50, respectively, for a total of $937.50. Northstar Marine billed $650.00 for the 

"mob/demob of equipment," but that task was not found on their rate schedule, and therefore 

denied. A chainsaw was billed on the invoice for $150.00 per day. It was also listed on the daily 

work sheet, but it was not on the rate schedule, nor was any cost documentation provided for the 

item. The chainsaw cost for $150.00 are denied. They also billed for 5 rolls of polyethylene 

sheeting at the rate of $95.00 per roll for a total of $475.00. On their signed daily worksheet, the 

items were listed as 3 rolls of poly tarp, but the item was not found on the rate schedule. 

Therefore, the cost of $475.00 for the tarp is denied. The water waste class sample for $90.00 

and the soil waste class sample for $400.00 are also denied due to lack of receipts or other fonn 

of cost documentation. 

The Claimant was billed $6,032.50 for their work on Tuesday, September 15, 2009. 

was hilled as the Subsurface Evaluator at the standard rate of $90.00 per hour for 8.0 hours, for a 

total of $720.00; and the overtime rate of$135.00 per hour for 2.0 hours, for a total of$270.00. 

However, the signed daily worksheet has Mr. listed as the supervisor who worked the 8 

hours standm·d time and 2 hours ovettime. The Claimant will be reimbursed at the standard rate 

of$75.00 and overtime rate $112.50 of a supervisor for a total of$600.00 and $225.00, 

respectively. An unnamed administrative assistant was billed for 4.0 hours at the standard rate of 

$45.00 per hour for a total of$180.00. The administrative assistant was not on the signed daily 

and therefore, the $180.00 is denied. With regards to equipment, again, the chainsaw, billed at 

$150.00 per day, is not on the rate schedule; nor are the 3 roll-off can liners billed at $55.00 per 

liner for a total of$165.00; or the 3 Level D PPEs billed at $45.00 each for a total of$135.00. 

These costs for equipment are all denied, for a total of $450.00. There was no receipt or other 

11 electronic mail to , dated July 18, 2013. 18 electronic mail to , dated Juoe 25, 2013. 

7 
cost documentation provided for the 30 yard roll-off container Spot Fee that was billed for two 

days at the rate of$275.00 per day, for a total of$550.00. The Form U Waste Classification 

Sample was also billed, for $1,250.00, without cost documentation. Without the cost 

documentation, the NPFC denies those charges. 

Northstar Marine's Invoice Number 5048, dated September 18, 2009, for their services rendered 

on September 15, 2009 and for services of September 21, 2009. They billed for two hours of 

straight time at the rate $90.00 per hour for a Subsmface Evaluator, for a total of $180.00; and 

billed two hours straight tinle for an Administrative Assistant at the rate of$45.00 per hour, for a 

total of $90.00. However, a signed daily worksheet was not provided, and therefore the NPFC 

denies the costs for the Northstar Marine personnel. 

Budget Boat Towing & Salvage Company, Incorporated 

The Clainlant provided unsigned daily work sheets for Budget Boat on June 12, 2013.19 On July 

8, 2013, after previous failed attempts, the NPFC contacted Budget Boat via telephone to request 

their rate schedule20 Budget Boat informed that they had been trying to fmd the rate schedule, 

but could not because they don't save old rate schedules. 

Budget Boat billed for vehicles and equipment used on September 15, 2009. Based on the daily 

worksheet, two vehicles were used for the day. However, their invoice listed three vehicles were 

used at the rate of$150.00 per day, for a total of$450.00 billed. The Clainlant will be 

reinlbursed for the two vehicles documented on the daily worksheet, for a total of $300.00. Also, 

a boat trailer was billed for the day at the rate of $150.00 per day, but it was not on the daily 

worksheet, and no other cost documentation was provided. The boat trailer cost is denied. 

For services provided on September 18, 2009, Budget Boat biiied I .5 hours at the rate of$55.00 

per hour for a Hazmat Field Service Tech for vessel decontamination, for a total of $82.50. 

However, that Tech was not identified on their employee sign-in sheet provided to the NPFC by 

the Clainlant. Therefore, the NPFC denies the $82.50 costs for that Tech. 

Again, for their services on September 24, 2009, Budget Boat billed the Claimant 1.0 hour at the 

rate of $55.00 per hour for a Hazmat Field Service Tech for vessel decontamination. The Tech 

was not identified on their employee sign-in sheet that the Claimant provided to the NPFC. The 

cost for the Tech is denied. 

Therefore, based on the NPFC's denial of$5,600.00, the NPFC determines that the OSLTF will 

pay $65,871.06 as full compensation for the reimbursable removal costs incmTed by the Claimant 

and submitted to the NPFC under clainl # 913032-0001. 

C. Detemzined Amount: 

The NPFC determines that the OSLTF will pay $65,871.06 as full compensation for the 

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

913032-0001. All costs claimed are for charges paid for by the Claimant for removal actions as 

that term is defined in OP A and, are compensable removal costs, payable by the OSLTF as 

presented by Claimant. 

19 electronic mail to , dated Juoe 12, 2013. 2

° Phone Notes re conversation with Budget Boat personnel, dated July 8, 2013. 

8 
AMOUNT: $65.871.06 

Date of Supervisor's review: 8/30/13 

Supervisor Action: Approved 

Supervisor's Comments: 

9