CLAIM SUMMARY / DETERMINATION FORM 

Date : 4/6/2010 

Claim Number : 910081-001

Claimant : State of New Jersey 

Type of Claimant : State 

Type of Claim : Removal Costs 

Claim Manager : 

Amount Requested : $14,306.96

FACTS: 

1. Oil Spill Incident: On February 19, 2009, the New Jersey Bureau of Emergency 

Response (NJ BER) was alerted by Bergen County Health Department (BCHD) of a 

petroleum spill in a tributary of the Overpeck Creek in Ridgefield Park, Bergen 

County. NJ BER responders and were subsequently deployed to assist 

with the investigation. Upon arrival, the responders discovered fifty to seventy-five 

gallons of petroleum oil in the tributary.

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

incident via report # 897974. Although a tractor-trailer fire occurred several weeks 

earlier near the scene of the incident, BCHD could not determine if the oil was related 

to the fire or was a new discharge into the tributary by another source. Thus, the 

source of the spill is unknown. 

2. Description of Removal Actions: Upon arrival to the incident site, BER responders 

discovered that the fifty to seventy-five gallons of petroleum oil were contained by

sorbent booms deployed across the tributary. At 1715 hours, Region-1 Supervisor, 

, authorized $15,000.00 to mobilize the department’s emergency 

contractor to remediate the spill. At 1900 hours, Environmental Products & Services 

(EPS) personnel arrived on site. They proceeded to deploy additional sorbent booms 

within the tributary to reinforce containment of the oil, remove oil soaked sorbent 

booms and pads along with oil that accumulated in front of the sorbent lines, 

generated waste was placed into drums and transportation of waste to a storage 

facility, and disposal of all additional waste was performed. 

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 $14,306.96. The claim consisted of 

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

coordination letter, BER Emergency Work Authorization, contractor rate schedule, 

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 discharge of “oil” as defined in OPA 90, 33 USC § 2701(23) to 

navigable waterways.

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 $1,315.58 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 

$12,991.38 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 #910081-001. The claimant states that all costs claimed are for 

uncompensated removal costs incurred by the claimant for this incident on February 19, 

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 $12,991.38 as full compensation for 

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

claim 910081-001. 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: $12,991.38
Claim Supervisor: 

Date of Supervisor’s review: 4/13/10

Supervisor Action: Approved 

Supervisor’s Comments: