CLAIM SUMMARY / DETERMINATION FORM 

Date : 4/8/2010 

Claim Number : 910086-001

Claimant : State of New Jersey 

Type of Claimant : State 

Type of Claim : Removal Costs 

Claim Manager : 

Amount Requested : $10,388.91

FACTS:

1. Oil Spill Incident: On December 27, 2008, New Jersey Bureau of Emergency 

Response (BER) received notification from Nutley Fire Department responder 

 that a 55-gallon drum was abandoned at the corner of 40th and Prospect 

Avenue in Irvington, Essex County. The notification stated that 40 gallons of oil had 

spilled onto the roadway. BER responders were deployed to the 

incident location. Initial investigation revealed that the roadway was saturated with 

oil so sand was spread onto the roadway to help with absorption. Additionally, it was 

noted that the bulk of the oil entered two storm drain basins that were present at the 

intersection. BER contacted Irvington Department of Public Works to determine 

where the outfall for the storm sewers was. The outfall was identified as being in the 

vicinity of Stuyvesant Avenue and 40th Street. BER responder deployed 

with Nutley HazMat to identify the outfall and place sorbent boom and sweep in 

order to contain the spill. 

 . 

The incident was reported o the National Response Center (NRC) on December 27, 

2008 via report # 893475. Investigation revealed no know source of the spill. 

2. Description of Removal Actions: BER contacted Region Supervisor 

who authorized the use of $10,000.00 of State Spill Fund monies. The claimant 

contacted Allstate Power Vac/Environmental Products & Services (EPS) supervisor 

, who agreed to handle the response. 

On December 27, 2008 the remaining sand was swept up and the vacuum truck was

used to empty the storm basins of oil. Additional Speed Dry was applied to the 

roadway, making it safe for passage. The manhole in the middle of 40th Street was

cleaned and EPS personnel re-deployed to the outfall, where contaminated sorbent 

boom was removed and new deployed. 

On December 28, 2008 BER responders conducted a follow-up 

investigation at the outfall and it was noted that a heavy sheen was still present but 

was contained by the sorbent booms previously deployed. Emulsified oil was noted 

within the sorbent boom and subsequently removed with sorbent pads. 

On December 29, 2008 BER responder deployed to see if any residual oil was on 

the sorbent lines and a minimal amount was noted. BER decided to allow the oil to 

accumulate for one more day. 
On December 30, 2008 BER responders deployed to see if any 

additional oil had accumulated on the boom lines. The additional oil accumulated was 

cleaned up by BER. The sorbents were left in place due to minimal amounts of sheen 

still reaching the outfall.

On January 15, 2009 BER re-deployed to the scene in order to gauge the status of the 

stream and boom lines as a snow event and minor thaw occurred the previous week. 

It was noted that additional roadway runoff and what appeared to be used motor oil 

had reached the sorbent lines. Despite the additional oil on the roadway, it was noted 

that no additional sheen was found to be discharging from the outfall and response 

was concluded. 

 

3. The Claim: The NJ BER submitted a removal cost claim to the National Pollution 

Funds Center (NPFC), for reimbursement of their uncompensated removal costs 

associated with this incident in the amount of $10,388.91. The claim consisted of 

invoices, proof of payment, BER Report, NRC Report, contractor dailies, EPA FOSC 

Coordination Letter Region 2 dated October 6, 2009, BER Emergency Work 

Authorization, contractor rate schedule, and Disposal Manifest. 

 

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. USEPA provided FOSC coordination via a letter dated October 6, 2009.

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.

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. 
The Claims Manager validated the costs incurred and determined they were reasonable 

and necessary and performed in accordance with the National Contingency Plan (NCP). 

The NPFC has denied $1,975.49 which is the State of New Jersey indirect cost associated 

with the OMB A-87 agreed rate. The NPFC has allowed the 23% derived figure for the 

state’s labor category although we cannot approve the unsubstantiated indirect cost 

charged over above the initial 23% as this is considered an improper use of the OSLTF. 

See 33 CFR §136.105(e)(6). 

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

$8,413.42 of uncompensated removal costs in order to remove and further mitigate the 

substantial threat of discharge 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 #910086-001. The claimant states that all costs 

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

on December 27, 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 hereby determines that the OSLTF will pay $8,413.42 as full compensation 

for the reimbursable removal costs incurred by the claimant and submitted to the NPFC 

under claim 910086-001. 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 the Claimant. 

AMOUNT: $8,413.42

 

Claim Supervisor:

Date of Supervisor’s review: 

Supervisor Action: 

Supervisor’s Comments: