CLAIM SUMMARY I DETERMINATION 

Claim Number: 913061-0001 

Claimant: 

Type of Claimant: 

Florida Department of Environmental Protection 

State 

Type of Claim: Removal Costs 

$89,421.26 

Claim Manager: 

Amount Requested: 

FACTS: 

1. Oil Spill Incident: On July 10,2011, Florida Bureau ofEmergency Response (FL 

BER), received an email from the SWP concerning a structural fire with cooking oil 

and cleaning chemicals that discharged at Stan's Coffee located at 5614 2nd Street 

West in Lehigh Acres. FL BER contacted the fire department at 1717 hrs and Chief 

stated they were currently fighting a fire at a 33,000 square foot warehouse 

that contained coffee, cooking oil, and cleaning chemicals. Due to fire fighting 

activity, there was runoff coming from the building but it was contained on-site in the 

stormwater system. The incident was reported to the National Response Center 

(NRC) via report #9823 79. It is important to note that the Florida Emergency 

Response Incident Report states the following pollutants were involved in this spill: 

ammonia derivatives, caustic scrubber, phosphoric acid, food oils, and isopropyl 

alcohol. 

2. Decsription of removal actions: FL BER personnel arrived on scene at about 1445 

on July 11, 2011 and met with fire and police. The fire department advised that they 

had applied over 1.5 million gallons of water on the fire. FL BER noted substantial 

flooding with floating oil throughout the property, leading off site through the 

stormwater ditches to the nearby canal system which empties into the Orange River, a 

navigable waterway of the US. 

FL BER took pH readings at various locations which were all neutral, and it is 

believed that the fire fighting foam neutralized the cleaning chemicals. East County 

Water Control Distirct (ECWCD) deployed hard boom at two canal locations 

downstream from the site. The Responsible Party (RP) hired SWS to handle cleanup. 

FL BER called and reported the incident to the National Response Center (NRC) and 

called the United States Coast Guard (USCG) Station Fort Myers. 

On July 12, 2011, FL BER monitored SWS remediation ofthe stormwater system and 

ECWCD reported that due to heavy rains, the water control structures downstream 

had all overflowed. FL BER and USCG monitored the Orange River in several 

locations but did not observe a sheen. At the end of the day, the cleanup reverted to 

FL BER due to insufficient insurance coverage by the RP. 

On July 13, 2011 and July 14, 2011, FL BER oversaw soil excavation and vacuuming 

activities by SWS who was retained by FL BER to continue response efforts. Lee 

County DOT agreed to scrape the stormwater ditches along 2nd Street and the 

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contaminated soil was taken to the Lee/Hendry Landfill for disposaL The USCG 

referred the incident to the United States Environmental Protection Agency (USEP A) 

as the Federal On Scene Coordinator (FOSC). 

On July 15, 2011 and July 16, 2011, FL BER supervised SWS remediation of the 

contaminated soil and stormwater system. On July 18,2011 and July 19,2011, FL 

BER oversaw contaminated soil and petroleum contaminated water removal. The 

storm water system was scraped including the west, south and east sides of the 

building along with the stormwater pond on the north side. 

Over 664 tons of contaminated soil and vegetation were hauled to the Okeechobee 

Landfill for disposal and 31, 000 gallons of petroleum contaminated water were 

transported to Aqua Clean Environmental for disposal. The loading bay water level 

was also pumped down to keep floating oil and debris contained during rainstorms. 

On August 10,2011, FL BER met with SWS to empty and decon the frac tanks of the 

residual cooking oil which was transported to Clark Environmental for solidification. 

The loading bay was pumped down again to ensure the berm was not breached during 

future rainstorms. On August 11, 2011, S WS hauled the last load of cooking oil to 

Clark Environmental which totaled over 60,000 pounds for solidification. On August 

12, 2011, SWS hauled five drums of contaminated absorbents to Clark Environmental 

for disposal. FL BER stated remedication complete on August 12, 2011. 

3. The Claim: On May 14, 2013, the Claimant presented this claim to the National 

Pull uti on Funds Center (NPFC) for compensation of it's uncompensated removal 

costs in the amount of$89,421.26. FL BER is claiming $68.085 in FL BER vehicle 

costs, $137.00 in work and nitrile gloves, $.80 in pH paper, $2,575.55 in FL BER 

personnel costs, $22.00 in clerical charges, and $86,617.82 in response costs invoiced 

by SWS as the response contractor on this incident. 

The claim was denied on May 21, 2013 on the grounds that the Claimant failed to 

provide substantiation that the oil was oil as defined by OP A and did not contain 

ANY hazardous materials such as Polychlorinated Biphenyls (PCBs). 33 USC 

2701(23). "Oil" must be discharged to impose liability under the Oil Pollution Act 

(OP A). The facts as presented in the documentation from the Claimant indicates the 

contamination included Phosphoric Acid, which is listed as "hazardous substances" 

under CERCLA and as a result, excluded from the definition of oil under OP A. 

The claim package included the FL BER Emergency Response Incident Report dated 

July 11, 2011, which indicated one of the pollutants involved was Phosphoric Acid 

regardless of the amount present. Therefore the substance involved in this incident 

does not meet the definition of oil under OPA but rather is considered a "mixed spill" 

and not compensable by the OSL TF. 

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REQUEST FOR RECONSIDERATION: 

On July 19, 2013, the Claimant sent a request for reconsideration to the NPFC via 

email stating they would like the NPFC to reconsider the claim. The Claimant 

provided no new information to support the request other than written arguments 

which are as follows: 

1. Although FDEP-OER was notified that hazardous substances were located on 

site, and that notification was included in our report, there was no visual, physical, or 

anecdotal evidence of hazardous substances being mixed with the oil. The lack of 

hazardous substances being mixed with the oil is supported by the actions of our 

responder as denoted in the response report, the excerpts of such can be found below. 

a. Our responder, the State OSC, utilizing the PH paper to test the oil/water 

mixture and finding no elevated readings negates the presence of hazardous 

substances in the product being recovered. 

b. The SOSC visually noted "oil floating on water" and she did not visually 

note the other products. 

c. Her testing of the oil/water for PH and it coming back normal indicates no 

presence of other items to make a mixture. 

2. The State OSC observed oil floating on the water, which had the potential to 

impact a navigable waterway. This observation alone dictated that an NCP response 

be enacted. 

NPFC Determination on Reconsideration 

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. The NPFC considered all the 

documentation submitted by the Claimant. The request for reconsideration must be in 

writing and include the factual or legal grounds for the relief requested, providing any 

additional support for the claim. 33 CFR 136.115(d). 

The NPFC performed a de novo review of the entire claim submission upon 

reconsideration. 

Following receipt of the request for reconsideration on July 19,2013 via email from 

Ms. , the NPFC sent an email to Ms. requesting a copy of any 

lab analysis that had been performed which would demonstrate whether or not the 

product was strictly oil. On July 29, 2013, the NPFC called and spoke with Ms. 

about the evidence needed to substantiate the product was oil. Ms. 

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advised that no lab analysis was performed and that while the Claimant's report listed 

phosphoric acid as being present, she said that it in fact was not but that they reported 

what was told to them. 

The NPFC advised that without a lab analysis, the Claimant would not be able to 

demonstrate the product was strictly oil and as such, the Claimant would not prevail 

in meeting their burden. The NPFC asked the Claimant if she wanted to withdraw the 

request for reconsideration or if she wanted the NPFC to move forward with a denial 

based on the fact that the Claimant was unable to demonstrate the product was oil. 

Ms. informed the NPFC that she would speak with others and let the NPFC 

know her intent. 

On September 18, 2013, Mr. of the United States Environmental 

Protection Agency (USEPA) met with of the NPFC to dicuss the 

details of the incident. While Mr. was only able to say that the Claimant did 

not have a lab analysis but believed the product was strictly oil based on a visual 

inspection only and a field ph test, the NPFC explained that the burden is on the 

Claimant to demonstrate the product was an oil as defined under OP A. Mr. 

understood that without a lab analysis and with a facility that is known to have 

hazardous waste products on site, the NPFC is not able to make a different 

determination based on the preponderance of the evidence. 

Based on the foregoing, this claim is again denied on reconsideration as the Claimant 

has failed to provide substantiation that the oil was oil as defined by OP A and did not 

contain ANY hazardous materials such as Polychlorinated Biphenyls (PCBs). 33 

USC 2701(23). "Oil" must be discharged to impose liability under the Oil Pollution 

Act (OPA). 

The facts as presented in the documentation from the Claimant indicates the 

contamination consisted of Phosphoric Acid, which is listed as "hazardous 

substances" under CERCLA and are thus excluded from the definition of oil under 

OPA. This claim is denied. 

Claim Supervisor:

Date of Supervisor's review: 10116113 

Supervisor Action: Denial on reconsideration approved 

Supervisor's Comments: 

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