CLAIM SUMMARY / DETERMINATION FORM 

Date : 4/5/2010 

Claim Number : 910075-001

Claimant : State of Wisconsin 

Type of Claimant : State 

Type of Claim : Removal Costs 

Claim Manager :

Amount Requested : $6,246.70

FACTS: 

1. Oil Spill Incident: On May 29, 2004 twenty-five gallons of petroleum was 

discharged at the intersection of 45th Street and 26th Avenue in Kenosha, Wisconsin, 

by way of a storm sewer culvert under 45th Street which discharged the fuel into Pike 

Creek from an unknown source. The discharge ran from the storm sewer into Pike 

Creek, which empties into the harbor at Lake Michigan. Lake Michigan is a 

navigable waterway of the United States. The State On- Scene Coordinator, 

, of the Wisconsin Department of Natural Resources (WDNR), 

detected a sheen and deployed absorbent boom across Pike Creek approximately 100 

feet downstream of the weir and contacted Onyx Special Services, Incorporated 

(OSS) to respond to the spill. 

2. Description of Removal Activities for this Claimant: OSS was hired and began the 

cleanup upon arrival. OSS deployed containment boom downstream from the weir in 

the farthest location where the discharge had been detected and deployed absorbent 

boom and pads upstream to contain the spill. On June 1, 2004, OSS returned to the 

incident site to evaluate the location. The deployed boom was then collected and 

replaced with new boom. Again on June 15, 2004, when they determined there was 

no longer oil present in the culvert, the absorbent boom was removed and placed in 

drums for disposal and the remaining containment boom was removed from the 

creek. Eight drums were taken to OSS for disposal. 

3. The Claim: On February 18, 2009, the claimant submitted a removal cost claim to the 

National Pollution Funds Center (NPFC) for reimbursement of their uncompensated 

removal costs in the amount of $6,246.70. 

WDNR is claiming expenses of $6,246.70 for the services provided by OSS. The 

claim consists of the WDNR spill report, an invoice, an incident summary, maps, 

dailies, waste manifests, a rate schedule and a Federal On-Scene Coordinator 

memorandum. 

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. Overview: 

1. The FOSC coordination was provided by Ms. of the United States 

Environmental Protection Agency- Region 5 on 01/28/10. 

2. The incident involved a 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 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 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. 

Upon review of the claim, the Claims Manager hereby determines that there are 

discrepancies with regards to the reimbursement requested and the cost documentation 

provided by the claimant. The OSS invoice billed for two hours of work performed by 

the Emergency Response Project Manager at the regular pay rate of $70.00 per hour for a 

total of $140.00. According to the OSS ER Crew Timesheets, was the 

Emergency Response Foreman, billing at the $55.00 per hour regular pay rate during the 

incident. Mr. t was also noted as the Project Manager in the OSS Incident 

Response Report. However, the work of the Project Manager was not provided in the 

daily timesheets. The reimbursement of $140.00 for two hours of work at $70.00 per 

hour is denied. Therefore, the NPFC has adjusted the amount payable to $6,106.70, for a 

total denied amount of $140.00. 

Based on the NPFC’s denial of $140.00, the NPFC determines that the OSLTF will pay 

$6,106.70 as full compensation fro the reimbursable removal costs incurred by the 

claimant and submitted to the NPFC under claim #910075-001.

C. Determined Amount: 

The NPFC determines that the OSLTF will pay $6,106.70 as full compensation for the 

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

claim # 910075-001. 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 Claimant. 
AMOUNT: $6,106.70

Claim Supervisor: 

Date of Supervisor’s review: 4/6/10 

Supervisor Action: Approved 

Supervisor’s Comments: