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CLAIM SUMMARY / DETERMINATION

Claim Number: 919002-0001 

Claimant: City of Charlotte Storm Water Services 

Type of Claimant: Local Government 

Type of Claim: Removal Costs 

Claim Manager: 

Amount Requested: $36,758.10 

Action Taken: Offer in the amount of $36,757.79 

EXECUTIVE SUMMARY: 

An off-road red-dyed diesel fuel was observed in an unnamed tributary and the upper reach 

of Little Sugar Creek in Charlotte, NC, a navigable waterway of the US. The Charlotte Fire 

Department and Charlotte-Mecklenburg Storm Water Services (CMSWS) personnel responded 

and hired an oil spill removal organization (OSRO) for cleanup and disposal of contaminated 

materials.1 No responsible party (RP) was identified by CMSWS.2 The NPFC has thoroughly 

reviewed all documentation submitted with the claim, analyzed the applicable law and 

regulations, and after careful consideration has determined that $36,757.79 is compensable and 

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

I. INCIDENT, RESPONSIBLE PARTY AND RECOVERY OPERATIONS: 

Incident 

On January 14, 2018, a red-dyed diesel fuel was reportedly observed in an unnamed tributary 

of Little Sugar Creek in Charlotte, NC, both tributaries of the Catawba River, a navigable 

waterway of the United States. The spilled substance was believed to be off road red-dyed diesel 

due to its red color, diesel odor, and the fact it floated on the water’s surface. The discharge site 

was determined to be a storm-drain drop inlet located at 707 N. Brevard Street in Charlotte, NC.

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The spill impacted approximately 300 feet of vegetation, soil, and rock within the upper tributary 

of Little Sugar Creek, and approximately 2400 feet of vegetation, soil, and rock within the lower 

tributary of Little Sugar Creek.5 There was also a fish kill associated with this discharge as 

approximately 35 catfish and sunfish were observed dead in the tributary.

6

It was claimed that CMSWS personnel contacted the United States Coast Guard’s National 

Response Center7 (NRC) and the North Carolina Dept. of Environmental Quality (DEQ) to 

report the incident; however, the DEQ provided no report number for reference.8 CMSWS 

 

1 Charlotte Fire Department Incident Detail for Incident report #18-0085652, Page 1 of 3, Incident Remarks section 2 Page 4 of claim submission, Section 4: Has claimant communicated with the responsible party?

3 33 CFR 136.115.

4 Page 3 of claim submission, Section 2: Incident Information, Brief Description of Incident

5 Page 5 of claim submission, Section 9: Description of the nature and extent of damages

6 NC DWR Fish Kill Field Investigation Form, Page 1 of 2, Total Finfish Mortality section, dated January 16, 2018 7 NRC report # 1201984 dated January 14, 2018

8 Page 4 of claim submission, Section 2: Incident Information, Brief Description of Incident
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contacted Haz-Mat Environmental Services (Haz Mat), who began cleanup of the discharged oil 

on January 14, 2018.9

 

Responsible Party 

CMSWS identified no RP for this incident. 

Recovery Operations:

Haz-Mat personnel vacuumed oil from the stream with the use of a vacuum truck, used 

absorbent pads to collect pockets of oil, and used hydrocarbon booms to contain and absorb the 

oil from the surface of the water. According to CMSWS, remedial activities continued until 

January 30, 2018.10

Additionally, a microbial product called BioRem 2000 was applied to the soil, vegetation, 

and rocks that had been impacted by the oil spill.11 BioRem 2000 is a microbial technology used 

to help break down the hydrocarbons within the soil. CMSWS personnel received permission 

from Mr. , Senior Environmental Specialist with the NC DEQ, to apply the BioRem 

2000 on the spill as the product was on the EPA’s National Contingency Plan (NCP) product 

schedule for microbial technology at the time of the incident.

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At the conclusion of the cleanup, all contaminated water, solids, and absorbents were 

properly disposed of by the contractor.13

II. CLAIMANT 

 On October 17, 2018, the NPFC received a removal cost claim from the City of Charlotte 

Storm Water Services, hereinafter known as the Claimant, for reimbursement of their 

uncompensated removal costs paid to Haz-Mat Environmental Services for personnel, materials, 

and equipment, in the total amount of $32,249.96. 

The Claimant also requested reimbursement of its own uncompensated removal costs paid to 

CMSWS internal staff for labor, oversight of the pollution removal activities, and investigation 

into the source of the spill, in the total amount of $4,508.14. The total requested sum-certain 

amount for the claim was $36,758.10. 

The Claimant provided an Optional OSLTF Claim Form; Incident-area map and numerous 

photographs; Charlotte Fire Dept. Incident Detail Report 18-0085652; Haz-Mat Invoice # 81179; 

City of Charlotte proof of payment to Haz-Mat (Check Number 00622050); labor cost 

breakdown for CMSWS internal staff; North Carolina Division of Water Resources (DWR) Fish 

Kill Field Investigation Form; Haz-Mat daily worksheets; BioRem-2000 Surface Cleaner 

Material Safety Data Sheet; Non-hazardous waste manifests.

III. DETERMINATION PROCESS: 

 

9 Page 3 of claim submission, Section 2: Incident Information, Brief Description of Incident

10 Page 3 of claim submission, Section 2: Incident Information, Brief Description of Incident 11 Page 6 of claim submission, Section 11: Incident Information, Description of actions taken by claimant... 12 Email from to dated November 16, 2018 13 Haz-Mat Waste Disposal Manifest Numbers 82815; 82817 - 82819; 82821 - 82832; 82834
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The NPFC utilizes an informal process when adjudicating claims against the Oil Spill 

Liability Trust Fund (OSLTF).14 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.15 The NPFC may rely upon, but is not bound by the findings of fact, 

opinions, or conclusions reached by other entities.

16 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. 

IV. DISCUSSION: 

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

with the National Contingency Plan.

17 The NPFC has promulgated a comprehensive set of 

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

claims.

18 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.

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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.20 

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

information to the Claimant as described below:

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14 33 CFR Part 136. 15 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). 16 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). 17 See generally, 33 U.S.C. § 2712 (a)(4); 33 U.S.C. § 2713; and 33 CFR Part 136. 18 33 CFR Part 136. 19 33 CFR 136.105. 20 33 CFR 136.203; 33 CFR 136.205. 21 Email from to dated October 25, 2018