4

April 4, 2018, and all waste generated during the response was disposed at their facility which 

included a total of 3100 pounds of oiled containment boom and 387 gallons of oil water. 8 9 10

Lenoir County paid Eastern Environmental’ s invoice # 76789, in full on June 22, 2018, for all 

work performed on March 7, 2018, March 8, 2018, April 2, 2018, and April 4, 2018 and 

subsequent disposal costs.

11

Claim: 

On July 5, 2018, the NPFC received a removal costs claim from Lenoir County Emergency 

Services (Claimant) for reimbursement of their uncompensated removal costs for personnel, 

materials, and disposal costs in the total amount of $15,950.00.

12 The Claimant provided an 

Optional OSLTF Claim Form, a copy of NRC Report # 1206029 dated March 6, 2018, Eastern 

Environmental invoice # 76789 dated June 18, 2018 in the amount of $15,950.00, field logs 

created by Eastern in support of its invoicing, disposal manifests for both solids and liquids on 

March 7, 2018, April 2, 2018, and April 4, 2018, as well as two news articles from the Kinston 

Free Press.

13

APPLICABLE LAW: 

"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]. 

 8 See, Eastern Environmental Management Non-Hazardous Waste Manifest dated April 2, 2018. 9 See, Eastern Environmental Management Non-Hazardous Waste Manifest dated April 2, 2018. 10 See, Eastern Environmental Management Non-Hazardous Waste Manifest dated April 4, 2018. 11 See, Check # 32141 dated June 22, 2018, in the amount of $15,950.00. 12 See, OSLTF Claim Form dated June 26, 2018. 13 One Article was dated, April 2, 2018 and the other was dated April 11, 2018.
5

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. Mr. from the USEPA Region 4 was the Federal On-Scene Coordinator 

(FOSC). Via an email dated July 9, 2018, Mr. t stated that based on the 

information he was provided, he has determined that the actions undertaken by the 

Claimant were consistent with the National Contingency Plan (NCP). 33 U.S.C. §§ 

2702(b) (1) (B) and 2712(a) (4)14. 

2. Evidence does not indicate the discharged oil is an OPA oil, 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 law suit has 

been filed in court for the claimed costs.

4. The NPFC Claims Manager thoroughly reviewed all documentation submitted with the 

claim and determined, none of its costs are allowable under OPA and 33 CFR § 136.205. 

 

14 See, July 9, 2018 email from Mr. , USEPA and NPFC Claims Manager.
6

B. Analysis:

NPFC CA reviewed all documentation provided. The review focused on: (1) whether a 

discharge or substantial threat of a discharge to a navigable water waterway occurred; (2) 

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): (3) whether the costs were incurred as a result of these actions; (4) 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 initial review of the claim submission, the NPFC made various requests for additional 

information from several parties as described below: 

1. United States Environmental Protection Agency (US EPA):15

• Whether the oil spill was cleaned per the National Contingency Plan (NCP); 

• FOSC Coordination; 

• Records / information; and 

• If anyone from their office went on scene. 

 

2. North Carolina Department of Environment and Natural Resources (NCDENR):

16

• Records / information; 

• Were lab analyses performed; 

• If anyone from their office went on scene; and

• Whether the oil spill response was performed in accordance with the NCP. 

3. Eastern Environmental Management LLC:17

• Were any oil sample analyses performed before disposal took place; 

• What day was testing conducted, if applicable; and

• Oil spill analysis documentation, if applicable. 

The NPFC also requested information from the Claimant in order to support its claimed costs:18

1. Copy of Eastern Environmental Management Invoice(s); 

2. Proof of payment to Eastern Environmental Management, in order to demonstrate that the 

Claimant had uncompensated removal costs; 

3. The Eastern Environmental Management rate schedule in support of their invoiced costs; 

4. Copy of the original claim submission; and

5. Information on whether the second spill was reported to the NRC; 

 

15 See, Email string between Mr. , USEPA and the NPFC Claims Manager dated July 6, 2018 through 

July 09, 2018.

16 See, Email String between members of NCDENR and the NPFC Claims Manager dated July 6, 2018 through 

August 02, 2018.

17 See, Email string between Eastern Environmental and the NPFC Claims Manager dated July 13, 2018 through 

July 18, 2018.

18 See, Email string between Mr. and Ms. , NPFC, dated July 6, 2018 through July 11, 

2018.
7

6. Information on whether the second spill was reported and/or discussed with Mr. 

, USEPA FOSC; and

7. Whether any oil spill analyses were performed. 

Documentation Provided by all Parties 

1. The Claimant provided: 

• A signed Optional OSLTF Claim Form;

• NRC Incident Report # 1206029; 

• Eastern Environmental Management, LLC, Invoice 76789;

• Four (4) Eastern Environmental Management, LLC, Non-Hazardous Waste 

Manifests;

• Two (2) Newspaper Articles, dated April 2, 2018 and April 11, 2018; 

• Copy of a cancelled check in the amount of, $15,950.00 and

• The Eastern Environmental Management, LLC, published rate schedule. 

2. U.S. EPA Provided: 

• After the fact FOSC Coordination for both spills, via an email dated July 09, 

2018; and 

• Email Communications with the Claimant.

3. NCDENR Provided: 

• Information regarding the second oil spill; and

• Four (4) Inspection Reports generated by NCDEQ Division of Waste 

Management – Hazardous Waste Section: DWM-HWS.

4. Eastern Environmental Provided: 

• Via email, dated July 17, 2018, Eastern Environmental stated no analyses were 

run at the time and nor did they retain an oil sample. 

Details Associated with Two Separate Incident Dates 

During the review of this claim submission, it became evident that there were two separate and 

unique oil spill incidents associated with this claim. The first oil spill incident was discovered on 

March 6, 2018, and was discovered by the Fire Department Commander of the Lenoir County 

Emergency Services.19

The second oil spill incident was discovered coming through the same outfall on April 1, 2018, 

while the Fire Department Commander was checking on the river.20 Eastern Environmental 

responded and incurred pollution removal costs for both incidents. The NPFC reached out to the 

Claimant regarding the details of the second spill and inquired as to whether or not the County 

reported the second incident to the National Response Center (NRC). The Claimant responded 

 

19 See, Email between Mr. and NPFC Claims Manager, dated August 14, 2018. 20 Id.

9

Federal On-Scene Coordination of this Claim 

United States Environmental Protection Agency Region 4 (USEPA), is the designated Federal 

On Scene Coordinator (FOSC) for the incidents that are subject of this claim submission. The 

NPFC will discuss the FOSC coordination according to the date of each spill that is subject of 

this claim.

As FOSC coordination was missing from the original claim submission, the NPFC contacted 

EPA Region IV FOSC regarding his role during the spill response. Mr. 

stated that he was the FOSC for the incident. He also stated he had been in contact with Lenoir 

County via telephone on several occasions between March 6 and 7, 2018, to discuss boom 

placement and use.30 Mr. further stated that he coordinated with the State in an attempt 

to determine the source of the discharge and made the NPFC aware that most of his coordination 

was performed over the telephone and email. Due to the small amount of the oil spill and its 

location, Mr. felt it timely and cost effective to coordinate with the local responders and 

the SOSC to take the lead on the response.31 

With respect to the second incident that the Claimant stated was discovered on April 1, 2018, the 

FOSC contacted the NPFC to advise that he had only learned of the second spill by reading the 

Kinston Free Press newspaper articles that were submitted as part of the claim submission. He 

confirmed that he had not discussed a second sheening with the Claimant prior to calling him on 

July 9, 2018. The FOSC stated that he supported payment for the costs incurred during the 

response to the second incident as the spill impacted a navigable waterway and the local 

responders acted accordingly.

32 

In consideration of the information obtained as it pertains to the FOSC and his coordination of 

the incidents, the NPFC has determined that the first incident was coordinated with the FOSC for 

the purpose of discharge and response although identification of the product as an OPA oil is not 

supported by the evidence presented. With respect to the second incident, the FOSC has an after 

the fact FOSC coordination statement via email to the NPFC based on information available after 

the fact. Again, there is no evidence to indicate that the product cleaned up in April 2018 was an 

OPA oil.

 

State On-Scene Coordination of this Claim

The NPFC contacted the North Carolina Department of Environmental Quality Division of 

Waste Management Hazardous Waste Section – Eastern Region, (NC DENR) who served as the 

State On-Scene Coordinator (SOSC) for this response and requested any and all information / 

records relevant to the oil spill incident and the cleanup.33

 

30 See, Email from, U.S. EPA, FOSC to NPFC Claims Manager dated July 9, 2018. 31 See, Email from, U.S. EPA, FOSC to NPFC Claims Manager dated July 9, 2018. 32 See, July 9, 2018 email from Mr. , USEPA to Ms. , NPFC Claims Manager at 

1:12pm.

33 See, Email from NPFC Claims Manager to Mr. , Environmental Specialist II, dated July 6, 2018.