2

CLAIM SUMMARY / DETERMINATION 

Claim Number: 919005-0001 

Claimant: Pennsylvania Department of Environmental Protection 

Type of Claimant: State 

Type of Claim: Removal Costs 

Claim Manager: 

Amount Requested: $3,781.27 

Action Taken: Offer in the amount of $3,781.27 

EXECUTIVE SUMMARY: 

An orphaned home heating oil tank was discovered along the banks of the Connoquenessing 

Creek, a tributary of the Beaver River, and lodged itself against a tree on the property of Mr. 

. The origin of the heating oil tank was unknown, and it had approximately 234 gallons of 

home heating oil and water mixture inside12

. Additionaly heavy rains were forcasted for the near 

future from Hurricane Florence and the likelihood of further flooding along the creek was 

deemed high. As such, the Pennsylvania Department of Environmental Protection (PADEP or 

Claimant) hired a response contractor in order to vacuum out the contents of the abandoned tank 

and remove the tank from the creek bank. No responsible party (RP) was determined since the 

tank had no identifying marks and the property owner was not the owner of the source. The 

NPFC has thoroughly reviewed all documentation submitted with the claim, analyzed the 

applicable law and regulations, and after careful consideration has determined that $3,781.27 is 

compensable and offers this amount as full and final compensation for this claim.3

I. INCIDENT, RESPONSIBLE PARTY AND RECOVERY OPERATIONS: 

Incident 

On September 14, 2018, the United States Coast Guard’s National Response Center (NRC) 

received notification that an orphaned home heating oil tank was discovered along the banks of 

the Connoquenessing Creek, a tributary of the Beaver River, and was threatening to discharge 

approximately 234 gallons of home heating oil and water mixture.4

 

Responsible Party 

 No responsible party (RP) has been identified for this incident.5

 

1 National Response Center (NRC) report # 1224629 dated September 14, 2018.

2 PA DEP Emergency Response Incident Report, Observation section, page 1 of 5, dated September 14, 2018.

3 33 CFR 136.115.

4 National Response Center Report #1224629, reported on Septemeber 14, 2018.

5 PA DEP Emergency Response Incident Report, Potential Responsible Party section, page 1 of 5, dated September 

14, 2018.
3

Recovery Operations:

Because heavy rains were expected in the area,PADEP hired McCutcheon Enterprises, Inc. 

as its response contractor and dispatched them to vacuum the liquid from the tank and remove 

the tank from the banks of the Connoquenessing Creek. The oil and water mixture was removed 

and disposed of at Danco Industries Inc. in Oil City, PA on or about September 18, 2018.6

II. CLAIMANT 

 On November 18, 2018, the NPFC received a claim for uncompensated removal costs from 

Pennsylvania Department of Environmental Protection (PADEP) dated November 9, 2018. The 

claim included the PADEP Emergency Response Incident Report, NRC Report # 1224629, 

Description of Actions & Dates on which work was performed, Analysis of spilled substance 

(PADEP Lab Analytical Report – Sample ID# 2541 441, map and aerial image of the incident 

location, pictures of impacted are/damage, email from U.S. EPA’s to 

, Director of the PADEP Emergency Response, stating the actions taken by the DEP were 

necessary and consistent with the National Contingency Plan, explanation of PADEP’s rates, 

PADEP’s daily work sheets, PADEP payroll report, McCutcheon Enterprises, Inc. invoice # 

10110526, proof of payment made to McCutcheon Enterprises, Inc., explanation of contractor’s 

rates, contractor’s daily work sheet, contractor’s time and material rate sheet, contractor’s third 

party purchase receipt, and contractor disposal documents.7

III. DETERMINATION PROCESS: 

The NPFC utilizes an informal process when adjudicating claims against the Oil Spill 

Liability Trust Fund (OSLTF).8 As a result, 5 U.S.C. § 555 (e) requires the NPFC to provide a 

brief statement explaining its determinations. This determination is issued to satisfy that 

requirement for the Claimant’s claim against the OSLTF.

When adjudicating claims against the OSLTF, the NPFC acts as the finder of fact. In this 

role, the NPFC considers all relevant evidence, including evidence provided by claimants and 

evidence obtained independently by the NPFC, and weighs its probative value when determining 

the facts of the claim.9 The NPFC may rely upon, but is not bound by the findings of fact, 

opinions, or conclusions reached by other entities.

10 If there is conflicting evidence in the record, 

the NPFC makes a determination as to what evidence is more credible or deserves greater 

weight, and finds facts and makes its determination based on the preponderance of the credible 

evidence. 

 

6 NPFC Claim submission document entitled “Supporting Information, 2018-09-14 Orphaned Home Heating Oil 

Tank, North Sewickley Twp., Beaver Co., Description of Actions & Dates on which work was performed.”

7 NPFC claim submission file identified as NPFC claim # 919005-0001. 8 33 CFR Part 136.

9 See, e.g., Boquet Oyster House, Inc. v. United States, 74 ERC 2004, 2011 WL 5187292, (E.D. La. 2011), “[T]he 

Fifth Circuit specifically recognized that an agency has discretion to credit one expert's report over another when 

experts express conflicting views.” citing Medina County v. Surface Transp. Bd., 602 F.3d 687, 699 (5th Cir. 2010). 10 See, e.g., Use of Reports of Marine Casualty in Claims Process by National Pollution Funds Center, 71 Fed. Reg. 

60553 (October 13, 2006) and Use of Reports of Marine Casualty in Claims Process by National Pollution Funds 

Center 72 Fed. Reg. 17574 (concluding that NPFC may consider marine casualty reports but is not bound by them).
4

IV. DISCUSSION: 

The NPFC is authorized to pay claims for uncompensated removal costs that are consistent 

with the National Contingency Plan.

11 The NPFC has promulgated a comprehensive set of 

regulations governing the presentment, filing, processing, settling, and adjudicating such 

claims.

12 The claimant bears the burden of providing all evidence, information, and 

documentation deemed relevant and necessary by the Director of the NPFC, to support and 

properly process the claim.

13 

Before reimbursement can be authorized for uncompensated removal costs, the claimant 

must demonstrate by a preponderance of the evidence:

(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 directed by the FOSC or determined by the FOSC to be 

consistent with the National Contingency Plan. 

(d) That the removal costs were uncompensated and reasonable.14

Upon initial review of the claim submission, the NPFC made a request, via email, for 

additional information to the Claimant on November 28, 2018 as described below15:

1) Proof of a signed service agreement/contract/standing agreement between the 

Pennsylvania Dept. of Environmental Protection and McCutcheon Enterprises and Danco 

Industries Inc.

2) Was there intent to seek recovery of any incurred costs for the sample analysis that was 

performed?

A second request for additional imformation was made on December 6, 2018 as described 

below16:

1) A detailed description of the reason for the purchase of supplies at Busy Beaver in 

Ellwood City, PA, and their usage in the oil and water mix cleanup efforts. 

In response to the NPFC’s initial request for additional information, the Claimant responded 

with the following email17:

1) “The Pennsylvania Dept. of Environmental Protection does not have a pre-existing 

service agreement/contract/standing agreement with McCutcheon Enterprises for 

cleanups or with Danco Industries Inc. for disposal. For emergency cleanups, the 

Department contracts with a cleanup contractor known to the Department that can 

 11 See generally, 33 U.S.C. § 2712 (a)(4); 33 U.S.C. § 2713; and 33 CFR Part 136. 12 33 CFR Part 136. 13 33 CFR 136.105. 14 33 CFR 136.203; 33 CFR 136.205. 15 NPFC email to PADEP dated November 28, 2018. 16 NPFC email to PADEP dated December 6, 2018. 17 PADEP email to NPFC dated December 3, 2018 .