CLAIM SUMMARY / DETERMINATION FORM 

Date : 10/05/2010 

Claim Number : G06003-001

Claimant : Wisconsin Department of Natural Resources 

Type of Claimant : State 

Type of Claim : Removal Costs 

Claim Manager : 

Amount Requested : $73,535.52 

FACTS: 

1. Oil Spill Incident: The United States Coast Guard Marine Safety Unit (MSU) Duluth 

Case # 262485,1reports that on October 18, 2005, MSU Duluth received a phone call 

reporting an oil sheen in the Hughitt and Cummings slips of Howard’s Bay, an inlet of 

Lake Superior, a navigable waterway of the US. The incident was reported to the 

National Response Center (NRC) on October 18, 2005 at approximately 12:08 p.m. CST 

via report # 776553.2

 An MSU Pollution Investigator responded on-scene, conducting 

an investigation of local trucking companies to determine a possible source.3 After both 

the USCG MSU Duluth and the City of Superior Wisconsin (Superior) inspected these 

facilities/warehouses, it was determined that the Potential Responsible Party (PRP) was 

Mr. , owner of Superior Truck and Trailer (ST&T). 

City inspection of the storm sewer lines found significant volumes of oily sludge in the 

Hughitt Ave line, and dye test confirmed that several of these inlets led to the ST&T 

warehouse. Furthermore, city inspections indicated that the Hughitt Ave line is the only 

part of the entire system leading to the Cummings slip that contained oil product or had 

oil stains.4

While touring ST&T, it was observed that a collection of used drums remained on the 

property. A sample was taken from these drums (sent for analysis but were deemed 

inconclusive5). Additionally, Superior and Wisconsin Department of Natural Resources 

(WDNR) inspectors observed oil stains and oil sludge on parts of the floor at this 

location, as well as oil products in floor sumps, uncovered containers and catch basins. 

Samples were taken off the vault floor, one toward the west at the stair bottom, the other 

at the sump pit. The sump pit and pump located on the south side of the building 

discharged directly into a manhole located at John Avenue. The pipeline that flowed 

through this manhole transverse south to East 2nd Street, then east to Lift Station #4, 

which is located at the corners of Cummings and 2nd Street. The oily substance was 

found along the 1445 feet of pipe line from the assumed lateral connection exiting ST&T 

 

1

See MSU Duluth’s Case # 262485, opened 10/18/2005.

2

 See NRC Report # 776553, opened 10/18/2005. 

3

 See PI Statement written by MST2 , dated 10/19/2005, submitted with the claim by Mr. 

WDNR, on 5/13/2010. 

4

 See Notice of Violation letter to Mr. from Mr , WDNR, dated 12/20/2007 and 

Summary of Findings Report prepared by Mr. , Superior, dated 3/24/2008, both submitted 

with the claim by Mr. , WDNR, on 5/13/2010. 

5

 See USCG Marine Safety Laboratory Order # 06-039, dated 10/18-19/2005 and Summit Environmental 

Technologies, Inc., dated 11/16/2005, both submitted with the claim by Mr , WDNR, on 

5/13/2010. 

Sample Analysis Report; a copy of a letter written by the FOSC, CDR , 

to the NPFC regarding FPN G06003; copies of the WDNR Activity Analysis Reports for 

Activity # RRJW; copies of correspondence letters and DVD submitted by the PRP, Mr. 

, to the NPFC; copies of internal WDNR correspondence emails and 

letters; 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 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]. 

Under 33 U.S.C. 2713(b)(C) and 33 CFR 136.103(b)(3), claims for removal costs or 

damages may be presented first to the Fund by the Governor of a State for removal costs 

incurred by that State. 

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. 

The Claims Manager confirmed that the claimant performed a joint site assessment with the 

USCG on October 19, 2005.10 The Claims Manager validated the costs incurred and 

determined what were reasonable, necessary and performed in accordance with the National 

Contingency Plan (NCP). 

The NPFC determined that, of the $73,535.52 claimed, $64,892.47 is reimbursable under 

OPA. The breakdown of costs approved and costs denied are as follows: 

Salary:

Total Salary Costs Claimed: $7,226.25 

Total Salary Costs Approved: $5,615.42 

Reasoning: The WDNR provided the NPFC with a breakdown of personnel costs attributed 

to this spill.11 Of the $7,226.25 claimed, $ 1,690.42 comes from allocable costs (According 

to the WDNR: An allocable activity does not relate to a specific work effort but benefits the work 

of the whole subprogram. There are three main types of allocable activities . . . One is leave time 

and the other is comp time. The third is general administration time.12). The WDNR did provide 

the NPFC with a breakdown of money allotted for allocable costs for this project during 

fiscal years 2005-2009; however, the WDNR did not provide documentation as to how the 

totals were derived. Therefore, due to the lack of evidence to support its claim, all WDNR 

allocable costs have been denied.13 Based on the hours and rates provided to the NPFC by 

WDNR, the actual amount of compensable personnel costs totals $5,615.42.14

 Therefore, 

this amount is approved. 

Fringe: 

Total Fringe Costs Claimed: $2,954.82 

Total Fringe Costs Approved: $0.00 

Reasoning: The WDNR provided the NPFC with a breakdown of money allotted to fringe 

(the allocated percentage of employee fringe) for this project during fiscal years 2005-2009; 

however, the WDNR did not provide documentation as to how the totals were derived.15 

Because no documentation was submitted determining how these costs were calculated, all 

WDNR fringe costs have been denied. 

Contracts:

Total Contract Costs Claimed: $61,132.96 

 

10 See ICS Communications List, prepared by MST1 , dated 10/20/2005, submitted with the claim by 

Mr. , WDNR, on 5/13/2010. 

11 See Labor Distribution for Activity RJWW spreadsheet, submitted by Mr , WDNR, to Ms. 

, NPFC, via email on 7/02/2010 and RRJW Howard’s Bay Activity Analysis Report, submitted 

by Mr , WDNR, to Ms , NPFC, via email on 5/26/2010. 

12 See Finance Data to CG document, submitted via email by Mr , WDNR, on 8/04/2010. 

13 See email from Mr WDNR, to Ms. , NPFC, dated 8/04/2010 and See RRJW 

Howard’s Bay Activity Analysis Report, submitted by Mr. , WDNR, to Ms. , 

NPFC, via email on 5/26/2010.. 

14 See NPFC Howards Bay Cost Analysis Spreadsheet, “WI Personnel Costs,” and See Labor Distribution for 

Activity RJWW spreadsheet, submitted by Mr , WDNR, to Ms. , NPFC, via 

email on 7/02/2010. 

15 See NPFC Howards Bay Cost Analysis Spreadsheet, “Fringe Costs” and RRJW Howard’s Bay Activity Analysis 

Report, submitted by Mr , WDNR, to Ms. , NPFC, via email on 5/26/2010. 
Total Contract Costs Approved: $59,277.05 

Reasoning: The WDNR submitted both dailies and invoicing from its contractors, ET and 

WRR. However, the invoices provided amount to $61,304.62, not the claimed amount of 

$61,132.96, due to calculation errors on WDNR’s part.16 $200.00 has been denied from ET 

Invoice #3519, dated May 30, 2009 (Supervisor; 2.5 hours at $80.00 per hour = $200.00),17

because this item is not included in the provided dailies, only the invoicing. Additionally, all 

administration fees included in the WRR invoices (totaling $1827.57) are denied because 

administrative costs are not compensable costs under OPA. Therefore, the NPFC determines 

$59,277.05 as compensable costs. 

Supplies:

Total Supply Costs Claimed: $821.88 

Total Supply Costs Approved: $0.00 

Reasoning: The invoices provided for supply costs calculate a total of $821.88 but, due to 

calculation errors on WDNR’s part, the actual amount claimed should be $368.67.18 The 

WDNR did provide the NPFC with a breakdown of money allotted to supplies for this 

project during fiscal years 2005-2009; however, the WDNR did not provide documentation 

as to how the totals were derived.19 Therefore, due to the lack of evidence to support its 

claim, all WDNR supply costs have been denied. 

Indirect Charges:

Total Indirect Charges Claimed: $1,399.61 

Total Indirect Charges Approved: $0.00 

Reasoning: The WDNR describes the Indirect Charges as “DNR administrative costs, 

depreciation of administrative facilities, central services cost allocation plan and Single Audit 

costs . . . negotiated with, and approved by, the US Department of Interior.”20

 This Indirect 

Rate “applies to all Grants (including contracts, cooperative agreements, etc.) which come to 

the DNR from federal and other outside funding sources. At their request, [the WDNR has] 

one rate for all grants.”21

 While it is true that A-87 guidelines show these types of charges 

apply to grant programs, the OSLTF is not a grant program. Therefore, this does not apply 

and all costs “Indirect Charges” are subsequently denied.

C. Determined Amount: 

The NPFC hereby determines that the OSLTF will pay $64,892.47 as full compensation for 

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

claim #G06003-001. All costs claimed are for charges paid for by the Claimant for removal 

 

16 See NPFC Howards Bay Cost Analysis Spreadsheet, “Contractor Invoices,” and individual invoices for both ET 

and WRR, submitted with the claim by Mr. , WDNR, on 5/13/2010. 

17 See ET Daily for 5/30/2006, submitted by Mr. , WDNR, to Ms. , NPFC, via email on 

7/02/2010.

18 See NPFC Howards Bay Cost Analysis Spreadsheet, “Supply Costs” RRJW Howard’s Bay Activity Analysis 

Report, submitted by Mr. , WDNR, to Ms. , NPFC, via email on 5/26/2010. 

19 See RRJW Howard’s Bay Activity Analysis Report, submitted by Mr. , WDNR, to Ms 

, NPFC, via email on 5/26/2010.

20 See email from Mr. , WDNR, to Ms. , NPFC, dated 5/26/2010. 

21 Ibid.
actions as that term is defined in OPA and, are compensable removal costs, payable by the 

OSLTF as presented by the Claimant. 

AMOUNT: $64,892.47

Claim Supervisor: 

Date of Supervisor’s review: 10/20/10

Supervisor Action: Approved 

Supervisor’s Comments: