CLAIM SUMMARY / DETERMINATION FORM 

Date : 1/06/2010 

Claim Number : 910043-001

Claimant : Wisconsin Department of Natural Resources 

Type of Claimant : State 

Type of Claim : Removal Costs 

Claim Manager : 

Amount Requested : $9,881.50

FACTS: 

1. Oil Spill Incident: The United States Coast Guard Sector Lake Michigan Case # 

458546,1reports that on June 19, 2009, approximately 10 gallons of diesel fuel were 

discovered in Prairie Harbor, a navigable waterway of the US in Kenosha, WI, and along 

the rock shore line and boat dock area of the Prairie Harbor Yacht Club.2

 The sheen 

source is unknown. 

The incident was reported to the National Response Center (NRC) on June 19, 2009 at 

approximately 10:00 p.m. CST via report # 909366.3

 After receiving this report on June 

22, 2009, Sector Lake Michigan personnel conducted an investigation of the spill site. 

While this investigation was conducted, the Prairie Harbor Yacht Club began initial 

cleanup of the scene. Mr. of the Wisconsin Department of Natural Resources 

(WDNR), also responded on-scene, along with . Both 

spoke with the harbormaster and assistant harbormaster regarding this spill, as well as 

mechanics who worked on a boat that may have been responsible for the spill. Because 

the WDNR was not informed of the spill until approximately 2.5 days later, some of the 

diesel had already begun to dissolve and dissipate.4

 

Oil samples were taken and sent to the Marine Safety Lab for testing. Results returned 

inconclusive results regarding a Responsible Party and, therefore, it was determined to be 

a mystery spill. The WDNR hired out Veolia Environmental Services (VES) for spill 

cleanup and removal activities in the affected area. 

Description of removal actions performed: The claimant, WDNR, hired out VES to 

clean and decontaminate the areas affected by the diesel fuel spill. VES arrived on-site 

on June 23, 2009. VES personnel placed absorbent boom around the dock area to contain 

and collect any fuel in the area. VES personnel also used a power washer to clean fuel 

off of the dock and the boat slips. VES put an additional 200 feet of containment boom 

to stop the fuel from spreading further out into the adjacent wetlands. Sections of 

absorbent boom were used to absorb fuel along the first 50 feet of shoreline. VES 

removed contaminated boom and decontaminate the Harbor’s boat, which had residual 

fuel, as well. The USCG was satisfied with the booms in place and the storage of the 

waste drums.5

 

1

See Sector Lake Michigan’s Coast Guard Case # 458546 opened 6/24/2009

2

 See, Veolia Environmental Services Incident Response Report, submitted by the claimant on 12/31/2009 

3

 See, NRC Report # 909366, opened 6/20/2009 

4

 See, WDNR SERTS, submitted with the claim on 12/31/2009 

5

 See, Veolia Environmental Services Incident Response Report, submitted by the claimant on 12/31/2009 
VES returned on June 25, 2009 to remove the absorbent boom, per the request of WDNR. 

They also inspected the boat slips and disconnected the containment boom, placing the 

loose end along the shoreline. The absorbent boom was later collected and placed into 

55-gallon drums for disposal. A total of 5 drums were generated. On June 29, 2009, the 

five drums were transported to Menomonee Falls, WI for disposal.6 VES invoiced the 

WDNR on July 24, 2009, and was paid on August 11, 2009.7

3. The Claim: On December 31, 2009, Wisconsin Department of Natural Resources 

(WDNR) submitted a removal cost claim to the National Pollution Funds Center (NPFC), 

for reimbursement of removal costs in the amount of $9,881.50 for the services provided 

from June 22 through June 30, 2009. This claim is for removal costs based on the rate 

schedule in place at the time services were provided. A copy of the vendor rate schedule 

is provided in the claim submission.

This claim consists of copies of the invoicing and associated dailies, contracted rate 

schedule, a copy of MISLE Case # 458546, NRC report #909366, copies of Notice of 

Federal Interest (NOFI) as issued by the USCG, a copy of Veolia Environmental Services 

Incident Response Report, copies of the Non-Hazardous Waste Manifests, internal email 

correspondence, and copies of maps and pictures. 

The review of the actual cost invoicing and dailies 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 consistent with the NCP or directed by the FOSC, and (4) whether the costs were 

adequately documented. 

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 

 

6

See, Veolia Environmental Services Incident Response Report, submitted by the claimant on 12/31/2009

7

See, Invoice from VES to WDNR, dated 7/24/2009, submitted with the claim on 12/31/2009
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 has been established via USCG Case # 458546, along with a 

memorandum written by LCDR , USCG Sector Lake Michigan.8

2. The incident involved the report of 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. 

 

8

See Sector Lake Michigan’s Coast Guard Case # 458546 opened 6/24/2009 and USCG Sector Lake Michigan 

Memorandum, submitted with the claim on 12/31/2009 
5. A Responsible Party could not be determined. 

6. The NPFC Claims Manager has thoroughly reviewed all documentation submitted with the 

claim and determined that all 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 confirmed that the claimant did in fact perform a joint site assessment 

with the USCG on June 20, 2009. The Claims Manager validated the costs incurred and 

determined they were reasonable and necessary and performed in accordance with the 

National Contingency Plan (NCP). 

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

$9,881.50 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 #910043-001. The claimant states that all costs claimed 

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

period of June 20 through June 30, 2009. 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 $9,881.50 as full compensation for 

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

claim #910043-001. 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: $9,881.50

Claim Supervisor: 

Date of Supervisor’s review: 

Supervisor Action: 

Supervisor’s Comments: