CLAIM SUMMARY / DETERMINATION FORM

Date : 1/13/2009 

Claim Number : P05005-139 

Claimant : Sunoco, Inc.

Type of Claimant : Corporate (US)

Type of Claim : Removal Costs 

Claim Manager : 

Amount Requested : $236,743.08 

FACTS: 

1. Incident. On November 26, 2004, between 2100 and 2115 hours, the T/V ATHOS I 

struck a submerged anchor within Federal Anchorage #9 on the Delaware River (also known as 

the “Mantua Creek Anchorage”). The Claimants allege that the incident occurred when two 

tugboats began maneuvering the ATHOS I (pushing from the vessel’s starboard side) toward the 

dock at the CITGO Asphalt Refinery Company terminal in Paulsboro, NJ. (See, TMC (Marine 

Consultants) Ltd. Report, May 25, 2005, hereinafter the “TMC Report”). The investigation into 

the incident revealed that the anchor punctured the vessel’s hull rupturing the #7 port ballast tank 

and the #7 center cargo tank, causing an estimated 263,371 gallons of “Bachaquero crude oil” to 

discharge into the Delaware River, a navigable waterway of the United States. (See, SITREPPOL 50 dated 17 May 2006). 

The T/V ATHOS I is a single-bottom hull, double-sided, 37,895 gross ton oil tank vessel with a 

breadth of 32.2 meters or 105.6 feet. The vessel is owned by Frescati Shipping Company 

Limited and was managed on the date of the incident by Tsakos Shipping & Trading S.A 

(hereinafter jointly referred to as the “Responsible Party” or “RP”). (See, Certificate of Financial 

Responsibility, #841496-15 with effective date of 17 May 2004 and expiration date of 17 May 

2007). 

2. Description of removal activities. According to the National Response Center (NRC) 

report #742509, at 2200 on November 26, 2004, the RP, via The O’Brien’s Group, reported the 

incident to the National Response Center. Coast Guard Marine Safety Office, Philadelphia, 

responded to the report. (See voluminous SITREP-POL message traffic and NRC report 

#742508). The RP accepted responsibility for the spill. (See, Claimants’ December 1, 2004 

letter from Montgomery, McCracken, Walker & Rhoads to the ). 

The RP participated in the incident response as part of the Unified Command (UC), under the 

direction of the Federal On-Scene Coordinator (FOSC), USCG Capt. Sarubbi, COTP, MSO 

Philadelphia. (See, SITREP P 271013Z NOV 04 ZUI ASN-A14332000007). 

The claimant’s Emergency Response Teams began response activities immediately following the 

oil spill incident in order to mitigate the impact of the spill on Sunoco and Sunoco Logistics 

facilities. Sunoco’s locations are:

Sunoco Philadelphia Refinery – Zone PA-3; 

Sunoco Marcus Hook Refinery – Zone PA-8; 

Sunoco Eagle Point Refinery – Zone NJ-3; 

Sunoco Frankford Chemical Plant – Zone PA-2; 

Sunoco Logistics docks at Eagle Point – Zone NJ-3; 

Sunoco Logistics docks at Hog Island – Zone PA-4; 

Sunoco Logistics docks at Fort Mifflin – Zone PA-4. 

(b) (6) (b) (6)
Activities at these sites included boom operations at docks and water intakes and vessel and 

equipment cleaning. Lightering of some vessels was also required to allow them to enter the 

spill area. Sunoco employees and contractors participated in the effort to cleanup oil in the area 

near the refineries and to prevent damage to the facilities, which resulted in increased overtime 

hours and fees. Additionally, equipment was purchased or rented for use in these operations. 

The cleanup and monitoring effort continued for several weeks following the incident. 

Several outside contractors were used to assist efforts to protect the area refineries and docks and 

help in the cleanup efforts. Cleanup efforts required the use of absorbent materials and booms to 

protect and clear the waterways near the Sunoco refineries. Sunoco Logistics operates three 

docks along the Delaware River: Eagle Point in NJ, and Fort Mifflin and Hog Island in PA. The 

Fort Mifflin and Hog Island docks provide crude oil to the Philadelphia Refinery and the Eagle 

Point dock is the crude discharge point for Sunoco’s Eagle Point Refinery. 

Clean Venture provided extensive cleaning and repair services to the docks at Eagle Point at the 

time of the incident and replaced sections of the containment boom. They also replaced the 

permanent boom in 2007. At Eagle Point, this system consists of dock structures, secondary 

containment on the transfer manifolds, and floating containment booms in the water. 

Approximately 6,000 feet of spill containment boom is required to contain the transfer ops at the 

dock. Approximately 3,000 feet of that is permanent fence boom which is deployed between the 

dock and the shoreline to capture any leakage that may occur. The permanent boom is kept in 

place ten months out of the year, being removed in the winter months due to ice and other winter 

conditions. The containment boom was damaged as a direct result of the oil spill and was 

replaced at the time of the spill.

The permanent boom that was damaged as a direct result of the oil spill was removed to a 

cleaning station during the response, under the direction of The O’Brien’s Group, although 

attempts to clean the boom failed therefore requiring replacement.

The removal action at the site was nearing completion on 21 Nov 2005. (See, SITREP 48 dated 

21 Nov 2005, which specifically states that a monthly maintenance monitoring plan was signed 

for areas which had been highly impacted and that final inventory disposal was scheduled for the 

end of November 2005). 

As required by 33 CFR 136.203, the claimant worked closely with the FOSC and Unified 

Command throughout the response. (See, Incident Action Plans by Zone locations and date). 

Sector Delaware Bay provided FOSC coordination. 

3. Claim. On 29 October 2007, the sent the National Pollution Funds Center (NPFC) a 

removal cost claim component for reimbursement in the amount of $236,743.08. The Claimant 

provided the NPFC 1 binder of invoices containing some 7 tabbed sections to document the 

$236,743.08 in total removal costs claimed. The NPFC claims manager reviewed each and 

every submitted proof of payment, invoice, as well as every “daily” sheet submitted to 

substantiate the invoices. The review of the actual costs, invoices and dailies focused on: (1) 

whether the actions taken were compensable “removal actions” under OPA and the NPFC claims 

regulations at 33 CFR Part 136 (e.g., actions to prevent, minimize or 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. The NPFC claims manager reviewed the 

payment records submitted by the Claimants against the claimed costs for each 

contractor/subcontractor. (See, Enclosure (1) – Sunoco, Inc. Summary of Vendors and Detailed 

Summary by Vendor spreadsheets, listing the vendors that make up the claim and the amount 

determined by NPFC to be compensable for each vendor). 
4. Initial Determination and Reconsideration Request: NPFC’s original determination of 

$166,857.51 was completed and emailed to the claimant on 06 October 2008, with disallowances 

for costs that were missing supporting documentation, costs that were invoiced over a year after 

response without justification for reasonableness, and costs that were depreciated for 

replacement based on the age of the equipment/materials.

 

The NPFC received the Claimant’s request for reconsideration letter on 5 December 2008 

via email. The Claimant’s assertions in support of reconsideration consist of the 

following: 

1. The claimant provided the missing invoice and daily personnel log for SafWay 

invoice # D034400 in the amount of $925.30; 

2. The claimant provided justification, affidavits, and additional contemporaneous 

documentation to demonstrate the reasonableness of the costs along with an 

explanation as to why the invoicing didn’t occur until 2007 for Sunoco Logistics 

invoice # 0155439-IN in the amount of $7,554.01 and invoice # 0115441-IN in the 

amount of $46,118.93; 

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 Coast Guard FOSC has provided coordination via POLREPS One through 

Fifty. A Federal Project was opened by the USCG for this incident.

2. The incident involved the discharge of “oil” as defined in OPA 90, 33 USC § 

2701 (23), to navigable waters. 

3. In accordance with 33 CFR § 136.105(e)(12), the claimant certified that 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 both initially and on reconsideration and has determined that most 

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. 

B. Reconsideration Determination:

NPFC CA has reviewed the documentation provided by the claimant on 

reconsideration under cover dated 5 December 2008. The NPFC has performed a 

de novo review upon reconsideration. The NPFC has determined that the new 

arguments presented on reconsideration along with a complete review of the 

additional information provided by the claimant, in particular, the invoice for 
SafWay that was missing during the original adjudication process in the amount 

of $925.30 and the affidavits, contemporaneous emails from 2005 regarding the 

replacement of boom and supporting documentation now provides extensive 

detailed information demonstrating removal, disposal and replacement of 

containment boom during the Athos I response was reasonable, appropriate, and 

properly documented and coordinated. 

NPFC CA reviewed the actual cost invoices and dailies to confirm 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 $221,455.75 of uncompensated removal costs and that the 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 # 

P05005-139. The claimant states that all costs claimed are for uncompensated 

removal costs incurred by the claimant for this incident. The claimant represents 

that all costs paid by the claimant are compensable removal costs, payable by the 

OSLTF as presented by the claimant.

C. Conclusion:

The NPFC hereby determines that the OSLTF will pay $221,455.75 as full 

compensation for the reimbursable removal costs incurred by the claimant and 

submitted to the NPFC under claim # P05005-139. The NPFC 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. All costs 

claimed are for charges paid for by the claimant for removal actions as the term is 

defined in OPA, and, are compensable removal costs, payable by the OSLTF as 

presented by the claimant.

DETEMINED AMOUNT: $221,455.75 

Claim Supervisor: Thomas Morrison

Date of Supervisor’s Review: 

Supervisor Action: 

Supervisor’s Comments: