CLAIM SUMMARY / DETERMINATION FORM 

Date : 6/17/2010 

Claim Number : 910110-001

Claimant : Oil Mop, LLC 

Type of Claimant : OSRO 

Type of Claim : Removal Costs 

Claim Manager : 

Amount Requested : $3,974.70

FACTS: 

1. Oil Spill Incident: On Friday, August 29, 2008, a leaking drum was discovered 

leaking in a container of Mercaptan, a chemical used as a gas odorant. The leak occurred 

at the World Commerce South Warehouse at the Ocean Exports at the Jacinto Port in 

Houston Texas. Two storm drains are located in close proximity to the leak. The Jacinto 

Port is on the Buffalo Bay, which leads to the Gulf of Mexico, a navigable waterway of 

the United States. That same day, World Commerce, the responsible party (RP), signed 

an Emergency Service Agreement with the Claimant, Oil Mop, LLC (OMI) to clean up 

the leak. 

2. Description of Removal Activities for this claimant: OMI cleaned the drums in the 

container and discovered one drum leaking Mercaptan from the seal around the top of the 

drum. The leaking drum was over packed with an 85 gallon steel over pack drum and 

micro-blaze was sprayed in the container to eliminate vapors. On Saturday, August 30, 

2008, OMI removed nine drums of Mercaptan from the container and placed each in an 

85 gallon steel over pack drum and reloaded the nine over pack drums into the container. 

3. The Claim: On June 1, 2010, OMI submitted a removal cost claim to the National 

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

of $3,974.70. As noted on the invoice, claimant seeks reimbursement for labor and 

equipment to decontaminate the leaking drum of Mercaptan. 

The claim consists of the signed Emergency Service Contract, invoice, dailies, maps of 

the incident site, a Site Specific Health and Safety Plan, Daily Tool Box Safety Meeting 

Record, and the Mercaptan Material Safety Data Sheet. 

 

According to OMI's claim submission, the RP refused to sign the dailies or pay the 

invoice. The claim was submitted to the RP on December 17, 2008 and OMI made 

several calls to World Commerce for payment. 

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. FOSC coordination was not provided for this claim. 

2. The incident did not involve 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 to determine if the removal costs presented were for actions in accordance 

with the NCP and that costs for these actions were indeed reasonable and allowable under 

OPA and 33 CFR § 136.205 as set forth below. 

B. Analysis: 

The NPFC Claims Manager has 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, and (4) whether the costs were adequately documented 

and reasonable. 

The claimant seeks reimbursement of its uncompensated removal costs for the 

decontamination of the drums of Mercaptan in the container. The claim submission 

includes the Emergency Service Contract, signed by , Account Supervisor 

for World Commerce. 

Claimant’s Site Specific Health and Safety Plan, indicates that the type of operation 

required for the incident is “chemical” in section A. Section B of the Plan describes the 

substance as “a gas odorant.” 

In summary, the total amount claimed for removal costs incurred is $3,974.70. The 

NPFC hereby determines that the claim is denied because (1) the claimant failed to 

establish that the actions taken were performed under FOSC coordination in accordance 

with the National Contingency Plan (NCP), as required under 33 CFR 136.203 and 33 

CFR 136.205; (2) the claimant failed to establish that the actions taken were associated 

with the mitigation of a substantial threat of discharge of "oil" into navigable waters and 

(3) the product, Mercaptan, which was contained in the drums is CERCLA vice oil 

therefore this is not an OPA event and therefore not compensable by the Fund.

It is important to note that mercaptan is produced by a chemical reaction. While there 

may be mercaptans (AKA thiols) in crude petroleums it is not where most mercaptans 

come from. Some chemicals are considered oil either based on historical precedent or 

because the chemicals are carried in solvent/diluent oil; neither is the case for this 

mercaptan mix. Additionally, the mercaptan mix would not be carried on a tank vessel 

(either oil or chemical), so there will never be a requirement for a spill response plan 

under MARPOL or OPA 90.