CLAIM SUMMARY / DETERMINATION FORM 

Date : 3/18/2010 

Claim Number : 910079-001

Claimant : State of New Jersey 

Type of Claimant : State 

Type of Claim : Removal Costs 

Claim Manager : 

Amount Requested : $3,567.34

FACTS: 

1. Oil Spill Incident: On August 24, 2008, New Jersey Bureau of Emergency Response 

(NJ BER) received notification from Union County HazMat responder 

 that approximately 5-10 gallons of an unknown petroleum based liquid 

had been dumped into a storm drain. The down gradient storm drain had been 

boomed off but assistance was needed in conducting the cleanup as it appeared that 

the material had been dumped by an unknown source. As a result, NJ BER 

responders and deployed to the scene in order to aid Union County 

HazMat in mitigating the discharge. 

The incident was reported to the National Response Center (NRC) on the day of the 

incident via report # 881654. Investigation revealed no known source of the spill. 

2. Description of removal actions: Upon arrival on site, it was determined that 

approximately 5-10 gallons of black liquid with a petroleum odor had been dumped 

into the storm drain catch basin with some of it having migrated down the storm pipe. 

The material was somewhat viscous making it appear to be a mixture of some sort of 

asphalt based sealant and motor oil. With the material in the storm basin and the 

likelihood that it would migrate from the spill location, the claimant contacted Region 

Supervisor at approximately 1430 hours in order to obtain authorization 

to utilize State Spill Fund Resources to conduct a cleanup. Mr. agreed and 

authorized the use of $5,000.00 of State Spill Fund monies. Having obtained a 

funding source, the claimant contacted Environmental Products and Services who 

agreed to handle the response. The contractor arrived on site at approximately 1500 

hours. 

The contractor worked to empty the catch basin utilizing a drum vac to remove all 

liquid materials. Soils at the bottom of the catch basin that were contaminated were 

also removed. The residual staining was removed using sorbent clay. The sorbent 

pads deployed by Union County HazMat were picked up and disposed of. Sorbent 

boom was left in each of the catch basins to catch any residual material that may have 

been trapped in the pipe.

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 $3,567.34. The claim consisted of 

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

Coordination Letter dated October 6, 2009, BER Emergency Work Authorization, 

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 report of a discharge of “oil” and substantial threat 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 $528.65 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 

$3,038.69 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 #910079-001. The claimant states that all costs claimed are for 

uncompensated removal costs incurred by the claimant for this incident on August 24, 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 $3,038.69 as full compensation for 

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

claim 910079-001. 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: $3,038.69

Claim Supervisor: 

Date of Supervisor’s review: 

Supervisor Action: 

Supervisor’s Comments: