CLAIM SUMMARY / DETERMINATION FORM 

Date : 4/14/2009 

Claim Number : 909081-001

Claimant : Avalon Pointe Marina Inc 

Type of Claimant : Corporate (US) 

Type of Claim : Removal Costs 

Claim Manager : 

Amount Requested : $2,942.50

FACTS: 

Oil Spill Incident: On Thursday, November 20, 2008, Hertz delivered a JLG Manlift to 

the Avalon Pointe Marina location that was being rented by Padula Masonry. Upon 

delivery of the JLG Manlift, an employee of Padula Masonry was to drive the JLG Manlift 

across the Avalon Pointe Marina yard to the bulkhead to be loaded onto a waiting barge 

that was launched by Avalon Pointe Marina at the request of Northstar. 

Once the JLG Manlift was to be loaded onto the waiting barge, Northstar was going to tow 

the barge to a work location in Avalon that Padula Masonry was presently working at. As 

the JLG Manlift was being driven across the bulkhead by the Padula Masonry employee, 

the barge gave way and the JLG Manlift ended up in the waters of Ingrams Thorofare, a 

navigable waterway of the US. 

After emergency services personnel completed evacuating the injured driver, Avalon 

Pointe Marina removed the JLG Manlift from the waterway as it was leaking diesel fuel 

and hydraulic oil. It is important to note that there was no work order or contract between 

Avalon Pointe Marina and Padula Masonry. After the incident, Avalon Pointe Marina 

made numerous calls to the office of Padula Masonry. Padula Masonry refused and still 

refuses to accept calls from Avalon Pointe Marina. The claimant also sent the invoicing to 

Padula Masonry for payment which to date remains unpaid. 

Description of Removal Activities for this Claim: Northstar was on the scene when the 

incident occurred. Avalon Pointe Marina worked with Northstar to contain the spill with 

boom and absorbent pads, before removing the manlift from the liftwell. Avalon Pointe 

Marina used their 70 ton travel lift, a 25 ton travel lift and a fork truck to remove the 

manlift from the water. 

The Claim: On April 3, 2009, Avalon Pointe Marina submitted a removal cost claim to 

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

removal costs in the amount of $2,942.50. Upon receipt of the claim, the NPFC issued an 

RP Notification Letter to Padula Masonry advising that Avalon Pointe Marina had 

submitted a claim which has identified them as the Responsible Party for the oil spill 

incident that occurred. To date, no response has been received. It is important to note that 

Hertz was provided the information for the insurance company for Padula Masonry which 

Hertz filed a claim with for their loss of equipment and the insurance company has denied 

the costs because the policy only consists of medical coverage. 

The claim consists of an invoice, correspondence with Hertz, and photographs of the 

incident. The NPFC’s review of the actual cost invoice and related documents focused on: 
(1) whether the actions taken were compensable “disposal 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 are determined to be consistent with the National Contingency Plan 

(NCP) or directed by the (Federal On-Site Coordinator) FOSC; and (4) whether the costs 

were adequately documented and reasonable. 

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. The NPFC has determined that the actions undertaken by the claimant are deemed 

consistent with the National Contingency Plan (NCP). This determination is made in 

accordance with the Delegation Authority for Determination of Consistency with the 

NCP for the payment of uncompensated removal cost claims under section 1012(a)(4), 

Oil Pollution Act of 1990. 

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 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.

7. The claimant’s removal costs included rates in accordance with their published vendor 

rate schedule.

B. Analysis:

NPFC CA 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, to be consistent with the NCP or directed by the FOSC, and (4) 

whether the costs were adequately documented and reasonable. 

On that basis, the Claims Manager hereby determines that the claimant did in fact incur 

$2,942.50 of uncompensated removal costs and that that 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# 909081-001. The claimant states that 

all costs claimed are for uncompensated removal costs incurred by the claimant for this 

incident on November 20, 2008. The claimant represents that all costs paid by the 

claimant are compensable removal costs, payable by the OSLTF as presented by the 

claimant. 

C. Determined Amount: 

The NPFC determines that the OSLTF will pay $2,942.50 as full compensation for 

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

Claim Number 909081-001 for removal costs. 

AMOUNT: $2,942.50

Claim Supervisor: 

Date of Supervisor’s review: 4/20/09

Supervisor Action: Approved 

Supervisor’s Comments: