CLAIM SUMMARY / DETERMINATION FORM 

Date : 1/22/2009 

Claim Number : 908108-001

Claimant : Atlantic Response Inc 

Type of Claimant : OSRO 

Type of Claim : Removal Costs 

Claim Manager : 

Amount Requested : $396,183.70 

FACTS: 

 1. Oil Spill Incident: On November 26, 2007, Morris County Hazmat (MCH) requested 

assistance from New Jersey Bureau of Emergency Response (NJ BER) with a No. 2 home 

heating oil spill from an above-ground storage tank located at Royal Terminals in Netcong, NJ. 

According to of MCH, more than 500 gallons of home heating oil had migrated off 

site and impacted the Musconetcong River, a navigable waterway of the US. The Responsible 

Party hired Atlantic Response to remediate the spill. NJ BER responders were dispatched to the 

site in order to assist with the incident. 

 Once on site, NJ BER confirmed that MCH’s findings were accurate. NJ BER also 

determined oil was migrating into a storm catch basin located along the roadway directly in front 

of the Royal Terminal’s tank farm. Initial investigation revealed that an above ground storage 

tank was overfilled which caused the discharge of oil. The oil sprayed out of the tank’s vent pipe 

directly onto the roadway and into the tank’s containment area. The oil that pooled within the 

containment area migrated outside of the tank farm because the containment berm was not 

continuous around the tank farm. Concrete barrier berms were being used as temporary 

containment walls. 

 The berms were placed side by side along the roadside portion of the tank farm. 

However, large gaps existed that allowed the oil to migrate onto the roadway and the catch basin. 

The claimant’s personnel focused on stopping the discharge into the catch basin. NJ BER 

Responder Weeks remained at the Royal Terminal location in order to supervise the claimant’s 

activities. NJ BER Responder Camargo deployed with MCH to the Musconetcong River in 

order to determine and establish containment locations along the river. NJ BER’s Acting Region 

1 Supervisor, , was advised of the incident findings and a request was made for 

additional responders along with deployment of the BER 1’s river containment boom. 

Responders and deployed to the incident location. 

 At approximately 1700, state contractor, EPS, arrived on-site with sufficient manpower 

and equipment to perform the following tasks: (1) the site location was divided into 3 work zone 

areas. Zone 1 area was from the Royal Terminal facility to the storm box entrance location along 

the roadway; Zone 2 area was from the storm box entrance point to its exit location on the 

Musconetcong River; and Zone 3 area was from the oil impacted outfall pipe in the 

Musconetcong River to the furthest downstream oil recovery location in Waterloo Village. EPS 

was scheduled to meet with NJ BER Responders and in Zone 3, to deploy 

workboats within Waterloo Village Park for the deployment of sorbent and hard containment 

boom near the entrance to the park; (2) EPS would also continue the deployment of containment 

boom upriver towards the spill location and toward Atlantic Response’s boom containment lines; 

once containment lines were deployed, Atlantic Response would assume the maintenance and 
cleanup of any collected oil; and (3) NJ BER Responder Weeks and would remain within 

Zone 1 with Atlantic Response and oversee cleanup operation at these locations. 

 The incident was reported to the National Response Center (NRC) via report # 855526 

and the incident was coordinated with the Federal On Scene Coordinator (FOSC), who was Mr. 

 of the United States Environmental Protection Agency (USEPA) Region 2. The FOSC 

issued a pollution report on November 29, 2007. Additionally, the NPFC opened 

communication with Mr. ; USEPA FOSC, who later took over the case and 

had a coordination statement issued, dated November 3, 2008 and signed by Mr. , 

Chief of the USEPA Region 2, Response and Prevention Branch. (See, Enclosure 1 – FOSC 

coordination statement). 

2. Description of removal activities: On November 26, 2007 through November 28, 

2007, the claimant vacuumed spilled product and stored it in a Baker Tank; they used absorbents 

to collect product that was flowing into the creek and they set collection points with filter fences 

and they provided overnight vac service to continue collecting product. The claimant began 

disposal of the oil/water to Lorco Petroleum Services for proper disposal and 24 hr vacuum truck 

recovery continued in this period. Complete change out of all absorbents and maintenance of 

creek and debris removal continued. 

For the period of November 29, 2007 through December 6, 2007, the following services 

were performed: excavation and stockpiling of contaminated soil from the tank farm; continue to 

collect oily water; change out absorbents as needed; continue recovery of oil/water from 

excavation; transport of oily water to Lorco for disposal; use trash pump behind retaining wall to 

slow the flow of water to the tank farm; inspect and change out absorbents as needed; on 

12/3/07, a temporary system was set up to divert and slow storm water runoff from entering the 

tank farm and excavation area. 

 For the period of December 7, 2007 through December 12, 2007, the following services 

were performed: excavation and stockpiling of contaminated soil; continue to remove 

contaminated water from the excavated areas and store in a frac tank; inspect all absorbents in 

creek, outflow, river and excavation site; change absorbents as needed; continue excavation of 

tank farm; de-water open excavation and store in a frac tank; change out absorbents placed in 

Musconetcong River by NJ BER; backfill excavated areas with certified clean fill; and prep area 

for recovery well installation. 

 For the period of December 13, 2007 through December 21, 2007, the following services 

were performed: transfer of remaining product in tanks 1 & 3 into a tanker truck; vacuum out 

residual oil and store in a frac tank; inspection of all frozen absorbents was performed; clean 

internal tanks 1 & 3; vacuum out sludge and water; wash floors and walls up to the first seam - 

discharge into the frac tank; subcontractor charges for excavation performed from 11/26/07 –

12/3/07; backfill the excavated area from the retaining wall to the curb with certified clean fill; 

and repair and replace damaged PVC pipes for the sump system. 

 For the period of December 23, 2007 through December 31, 2007, the following services 

were performed: responded to a call of heavy sheen on the property; deployed absorbents and 

inspected the creek area; completed change out of all absorbents in creek and Musconetcong 

River; bagged waste and put it in a roll off container for future disposal; and subcontractor 

charges for solid disposal. 

 For the period of January 7 through January 18, 2008, the following services were 

performed: decontamination of mini excavators; subcontractor charges for mini excavators and 
birdsall engineering; transportation of 20 cyd roll off of absorbent waste to Clean Earth of NJ for 

disposal; rental charges for the roll off box for 37 days (included in this period). 

 For the period of February 5, 2008 through February 12, 2008, the following services 

were performed and/or billed: vacuum 3000 gallons of oily water out of the frac tank; gauge tank 

afterwards; transport oily water to Lorco for disposal; remove ice and oil contaminants from 

Baker Tank; clean tank and vacuum out all free liquid; place ice into roll off container and stage 

on site; transport liquid to Lorco for proper disposal; and cover soil pile. 

 For the period of February 19, 2008, the subcontractor billed the claimant for services 

associated with frac tank rental and removal for January 21, 2008 through February 7, 2008. 

 For the period of February 21, 2008, the subcontractor billed the claimant for engineering 

services that are for services provided in the month of January 2008 which pertain to analytical 

services. 

 3. The Claim: On September 18, 2009, Atlantic Response submitted a removal cost 

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

removal costs in the amount of $396,183.70 for the services provided to Royal Terminals Inc. 

from November 26, 2007 through February 7, 2008. This claim is for removal costs based on the 

contracted rate schedule in place with Royal Terminals at the time services were provided. 

 This claim consists of copies of the invoicing and associated dailies, disposal manifests, 

contracted rate schedule, NJ BER Spill Summary Report, NRC report, sample analysis and 

associated results and EPA FOSC coordination. 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. 

 It is important to note that the claimant filed an action in Court which was the subject of 

this claim and therefore went back to the Court and obtained a Dismissal Without Prejudice in 

order to have the claim adjudicated on its merits through the National Pollution Funds Center 

(NPFC). Upon receipt of the claim, the NPFC sent a Responsible Party Notification letter to 

both the owner of the facility: Royal Terminals and to the operator of the facility: Kendall 

Financial. Royal Terminals responded to the NPFC’s notification and took the position that Mr. 

, who executed a contract for services with Atlantic Response on behalf of Royal 

Terminals at the time of the incident, was not an authorized agent of Royal Terminals. Royal 

Terminals stated that Mr. was an employee of Kendall Financial (operator) and therefore 

the executed contract is not valid and they are not liable for the incurred response costs. The 

NPFC Claims Manager provided information to Royal Terminals regarding the definition of a 

Responsible Party under the Oil Pollution Act (OPA) and since that communication; no response 

has been received by either the owner or the operator. 

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 has provided FOSC coordination. A coordination statement has been provided via 

a Pollution Report dated November 29, 2007 and a statement dated November 3, 2008 from 

Mr. . (See, Enclosure 1). 

2. The incident involved the discharge and continuing substantial threat of 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 had his pending litigation 

dismissed without prejudice on January 9, 2009. (See, Enclosure 2 – Dismissal Without 

Prejudice) 

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 with the exception of the following: (See, 

Enclosure 3 – Summary of Vendors) 

* Interest billed on invoice # 6729 in the amount of $10,132.74 

* Interest billed on invoice # 6803 in the amount of $5,518.33 

* Interest billed on invoice # 6490 in the amount of $7,577.68 

* Interest billed on invoice # 6561 in the amount of $5,066.37 

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 

$367,888.58 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# 908108-001. The claimant states that all costs claimed are 

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

of, November 26, 2007 through February 7, 2008. The claimant represents that all costs paid by 

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

claimant. 

The Claims Manager has determined the costs are reasonable in accordance with the 

contracted rate schedule that was in place at the time services were provided. 

The Claims Manager has had numerous phone discussions with both the claimant and the 

EPA FOSC regarding the coordination and actions performed by the claimant. Mr. of 

USEPA Region 2 has stated that had he hired the claimant to perform the work for USEPA, he 

would have had the exact same services provided. The Claims Manager has confirmed by way 

of supporting documentation that the substantial threat remained during the entire response 

period and was disposal was performed in accordance with the NCP. 
C. Determined Amount: 

The NPFC hereby determines that the OSLTF will pay $367,888.58 as full compensation 

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

claim # 908108-001. 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 Claimants. 

AMOUNT: $367,888.58

Claim Supervisor: 

Date of Supervisor’s review: 

Supervisor Action: 

Supervisor’s Comments: