CLAIM SUMMARY / DETERMINATION FORM 

Date : 4/22/2010 

Claim Number : 910090-001

Claimant : State of South Carolina 

Type of Claimant : State 

Type of Claim : Removal Costs 

Claim Manager :

Amount Requested : $3,597.85

FACTS:

1. Oil Spill Incident: On June 2, 2009, two abandoned 55 gallon drums were discovered in 

Lexington County, S.C. leaking oil onto the ground. The location of the abandoned 

drums was in direct proximity of the Congaree River, a navigable waterway of the US.. 

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

incident via report # 907453. Investigation revealed no known source of the spill. 

2. Description of removal actions: Because the drum was already leaking material, the 

South Carolina Department of Health and Environmental Control (SC DHEC) found this 

to be an immediate threat to the river and activated the emergency response contract with 

A&D Environmental to assist with the cleanup. A&D removed and disposed of the drums 

and affected soil. 

3. The Claim: SC DHEC 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 $3,597.85. The claim consisted of a description of the route 

to navigable waters, maps and photos of incident location, NRC Report, signed 

concurrence from the FOSC, contractor invoices, accounting information, vendor rate 

schedule, and disposal/waste manifests. 

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 June 4, 2009.

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

defined in OPA 90, 33 U.S.C. § 2701(23), to navigable waters.

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). 

On that basis, the Claims Manager hereby determines that the claimant did in fact incur 

$3,597.85 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 #910090-001. The claimant states that all costs 

claimed are for uncompensated removal costs incurred by the claimant for this incident 

on June 2, 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 $3,597.85 as full compensation 

for the reimbursable removal costs incurred by the claimant and submitted to the NPFC 

under claim 910090-001. 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: $3,597.85

 

Claim Supervisor: 

Date of Supervisor’s review: 4/22/2010 

Supervisor Action: Approved 

Supervisor’s Comments: