CLAIM SUMMARY / DETERMINATION FORM

Claim Number : 913001-0001 

Claimant : Carolina Environmental Specialists

Type of Claimant : OSRO

Type of Claim : Removal Costs

Claim Manager : 

Amount Requested : $33,925.47 

FACTS: 

Oil Spill Incident: On April 19, 2011, a personal vehicle operated by Mr. struck a Farm 

Service vehicle carrying 650 gallons of nitrogen fertilizer/herbicide.1 The impact occurred at 515 West 

Knapp Street, Dobson, NC which is the location of the Dunmore Plantation Assisted Living, LLC. As a 

result of the impact, the Farm Service vehicle spilled the entire volume of nitrogen fertilizer/herbicide at 

the site.2 The material migrated from the Dunmore Plantation Assisted Living parking lot to an adjacent 

grass-lined ditch and flowed into a creek that feeds into the Fisher River which joins the Yadkin River, a 

navigable waterway of the United States.3

 

Description of Removal Actions: On April 20, 2011, the Claimant responded to the spill at the request of 

, Surry County Emergency Management Coordinator. The migration of the spilled material 

affected approximately 60 feet of lawn on the Dunmore Plantation Assisted Living property, which 

necessitated its partial removal.4 The affected grassed areas and underlying soils were excavated and 

approximately 4 truckloads of material were taken to the Carolina Environmental Specialists (CES) 

facility for storage and laboratory sample testing. The Claimant secured the services of Zebra 

Environmental Services for the removal of the non-hazardous liquid at the site, which resulted in 665 

gallons of liquid waste pumped off the site and out of the overturned farm vehicle. The site was 

remediated to NC Department of Environment and Natural Resources (NC-DENR) standards and 

evidenced through multiple site soil samples subsequent to the cleanup. The site was granted “no further 

action” status on January 18, 2012. 

The Claim: Carolina Environmental Specialists presented a removal cost claim to the National Pollution 

Funds Center (NPFC) in the amount of $33,925.47. 

The claim consists of OSLTF Claim Form, Claimant letter to the NPFC, Claimant letter to Mr. ’ 

motor vehicle insurance company, NC-DENR letter to Mr. ’ motor vehicle insurance company, 

Zebra Environmental Services facility profile form, NC-DENR application for contaminated soil land 

application, GeoScience & Technology sample reports and chain of custody records, Claimant Invoice 

#1377, Zebra Environmental Services invoice #11808, GeoScience & Technology invoices #4468, 5059, 

and 4576, and disposal manifests. 

1 See, OSLTF Claim Form, dated October 9, 2012. 

2 See, Claimant letter to Mr. ’ Insurance Company, dated April 4, 2012.

3 See, OSLTF Claim Form, dated October 9, 2012. 

4 See, GeoScience & Technology Analysis Report to NC Department of Environment & Natural Resources, dated 

20 Jan 2012.

 
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]. 

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DETERMINATION OF LOSS: 

Overview:

1. There is no evidence of FOSC coordination. 

2. The incident involved the discharge of a mixed spill as evidenced by sample analysis 

testing provided. 

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 within the six year statute of limitations. 33 U.S.C. § 

2712(h)(2) 

Analysis:

The claim is denied. The claimant has failed to provide substantiation that the spilled material was oil as 

defined by OPA, and did not contain ANY hazardous materials such as Polychlorinated Biphenyls 

(PCBs). See 33 USC 2701(23) and 40 CFR 116.4. 

“Oil” must be discharged to impose liability under the Oil Pollution Act (OPA). The facts as presented 

in the lab analysis documentation from Zebra Environmental Services indicate the contamination 

consisted of 0.0025% liquid nitrogen (N2), 0.0025% Bicep II Magnum (acetamide), 0.0025% Scanner 

(non-ionic surfactant), and 0.0025% Gramoxone (paraquat dichloride) as constituents in the water 

solution spilled from its farm service carrier as a result of the motor vehicle crash. Acetamide is listed as a 

“hazardous substance” under CERCLA and is thus excluded from the definition of oil under OPA. 

The claimant has failed to provide substantiation that the spilled material did not contain hazardous 

substances as defined under 40 CFR 116.4 and as such, this claim is denied. Oil spill incidents involving 

“mixed spills” are not compensable under OPA. 

Claim Supervisor: 

Date of Supervisor’s review: 10/29/12 

Supervisor Action: Denial approved

Supervisor’s Comments: 

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