CLAIM SUMMARY / DETERMINATION FORM 

Date : 5/5/2010 

Claim Number : 910094-001

Claimant : State of Wisconsin 

Type of Claimant : State 

Type of Claim : Removal Costs 

Claim Manager : 

Amount Requested : $4,993.00

FACTS: 

1. Oil Spill Incident: On April 5, 2005, the Wisconsin Department of Natural 

Resources (WDNR) was alerted of a storm sewer in Milwaukee, WI that was 

discharging petroleum products into the Lincoln Creek, a navigable waterway of the 

US. The discharge had been occurring for an undetermined period of time. Upon 

arrival, approximately five gallons of product had been discharged into the creek. 

Investigation revealed no known source of the spill.

2. Description of Removal Actions: WDNR Spills Coordinator, , 

proceeded to hire Onyx Special Services (OSS) to assist in the cleanup. OSS 

stretched containment boom across the waterway to prevent oil from escaping and 

corralled the oil into one area with a leaf blower and absorbent boom. The oil was 

then removed from the water via absorbent pads and placed in drums and disposed of 

in accordance with the NCP. 

3. The Claim: The WDNR 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 $4,993.00. The claim consisted of 

invoices, proof of payment, OSS spill report, contractor dailies, OSS rate schedule, 

EPA FOSC coordination form, 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. US EPA provided FOSC coordination via a letter dated April 6, 2010.

2. The incident involved the report of a discharge of “oil” and a substantial threat 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. 

Upon review of the claim, the Claims Manager hereby determines that there are 

discrepancies with regards to the reimbursement requested and the cost documentation 

provided by the claimant. On the OSS invoice for April 5, 2005, an ‘ER Clerical – Regular’ 

is billed for $44. However, on the OSS personnel signed daily, a clerk is not listed. 

Additionally, on the OSS invoice for April 7, 2005, one absorbent pad at $60.00/bale is billed 

for. On the OSS equipment daily, however, only .5 absorbent pad bales were used. 

Finally, while OSS did provide a waste manifest for the five 55-gallon drums disposed of, a 

receipt/invoice was not provided. The NPFC Claims Manager understands that ‘waste 

disposal’ is an inter-company charge but must have the waste disposal price listed on a rate 

schedule or invoice in order to determine whether the pricing was appropriate. If the State of 

Wisconsin chooses to come back on reconsideration, please provide the inter-company 

agreement with OSS that determines the price of the waste disposal. 

Based on the NPFC’s denial of $602.00, the NPFC determines that the OSLTF will pay 

$4,391.00 as full compensation for the reimbursable removal costs incurred by the claimant 

and submitted to the NPFC under claim #910094-001.

C. Determined Amount: 

The NPFC hereby determines that the OSLTF will pay $4,391.00 as full compensation for 

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

claim 910094-001. 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: $4,391.00

Claim Supervisor: 

Date of Supervisor’s review: 5/6/10 

Supervisor Action: Approved