CLAIM SUMMARY / DETERMINATION FORM 

Date : 6/03/2010 

Claim Number : E10404-001

Claimant : Weavertown Environmental Group 

Type of Claimant : Corporate 

Type of Claim : Removal Costs 

Claim Manager : 

Amount Requested : $427,410.39 

FACTS: 

Oil Spill Incident: The United States Environmental Protection Agency (USEPA) reports that 

on November 6, 2009, at 16:00 hours, approximately 3200 gallons of a crude oil-brine mixture 

was discharged from a tank farm on the Cornerstone Minerals (Cornerstone) production facility 

into a creek that is a tributary of Big Caney Creek, a cold-water stock pond that drains into 

Grayson Lake Reservoir, all navigable waterways in the US.1

 This incident was reported to the 

National Response Center by Mr. , of Cornerstone, the Responsible Party (RP) for 

this incident.2

Mr contacted Weavertown Environmental Group (WEG) about the spill, stating that he 

believed 60-70 percent of a 100-barrel tank was released into the creek and, ultimately, the stock 

pond. WEG then mobilized to the site for cleanup.3

Description of removal actions performed: The claimant, WEG, was hired by Cornerstone to 

contain and remove the spilled product. WEG arrived on-scene by 16:40 hours on November 6, 

2009, and assessed the grounds and waterway. Oil was recorded as present along the unnamed 

tributary into Big Caney Creek for approximately one-half mile. The U.S. EPA was the federal 

on-scene coordinator for this spill response and determined that the cleanup was consistent with 

the National Contingency Plan (NCP).4 

Both WEG and the Kentucky Department of Environmental Protection Environmental Response 

Team (ERT) began to construct an earthen underflow dam below the lowest affected area of the 

tributary. WEG deployed the use of a vac truck, which remained in operation throughout that 

night. 

The next day, November 7, 2009, WEG began excavating along the tributary, with the vac truck 

still in operation along the tributary. A skid steer was being used to spread gravel along the farm 

lane for accessing the necessary equipment. Soil samples were taken to test for VOCs, chloride, 

oil and grease. Hefner Environmental (HE), a sub-contactor hired by WEG, personnel removed 

contaminated debris and placed absorbent booms and pads along the tributary. 

Work continued on November 8, 2009. WEG and ERT crews constructed an intersecting trench 

and a large underflow dam and containment area below the spring location, capturing a new 

 

1

 See EPA Cornerstone Oil POLREP ONE, dated 11/06/2009. 

2

 See NRC Report # 922838, opened on 9/06/2009. 

3

 See KY DEP Incident Response Report for Incident # 2303992, submitted with the claim by WEG to the NPFC on 

4/29/2010. 

4

 See EPA Cornerstone Oil POLREP ONE, dated 11/06/2009 and KY DEP Incident Response Report for Incident # 

2303992, submitted with the claim by WEG to the NPFC on 4/29/2010. 
crude oil leak. A controlled flush of the tributary was performed, at the request of the EPA OnScene Coordinator. The vac truck was still in use operation, collecting free product from the 

tributary, while workers removed contaminated debris by hand.5 

From November 9, 2009 onward, general cleanup activities were performed by WEG, with the 

last of the materials being disposed of by January 27, 2010. EPA demobilized from the scene on 

November 9, 2009.6 

The Claim: On or about November 30, 2009, the claimant submitted its claim to the responsible 

party. On April 29, 2010, Weavertown Environmental Group (doing business as Weavertown 

Transport Leasing, Inc.) submitted a removal cost claim to the National Pollution Funds Center 

(NPFC), for reimbursement of removal costs in the amount of $427,410.39 for the services 

provided November 6, 2009 through January 27, 2010. This claim is for removal costs based on 

the rate schedule in place at the time services were provided. WEG submitted this claim to the 

RP on November 30, 2009, but did not receive payment. Additionally, the claimant has not filed 

an action in court to recover these costs. 

This claim consists of copies of the invoicing and associated dailies, a copy of WEG contracted 

rate schedule, copies of the EPA Region IV POLREPS for this spill, a copy of NRC Report # 

922838, copies of the KY DEP Incident Response Reports for Incident # 2303992, a copy of the 

WEG contract signed by a representative for Cornerstone, copies of proof of payments to thirdparties, copies of the Disposal of Non-Hazardous Waste Manifests, a copy of the Precision 

Analytical, Inc. Analytical Reports for Order # 0911399, EPA and WEG maps and photographs, 

various news articles and internal email correspondence. 

The review of the actual cost invoicing and dailies 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 consistent with the NCP 

or directed by the FOSC, and (4) whether the costs were adequately documented. 

APPLICABLE LAW: 

Under OPA 90, each responsible party for a vessel or facility from which oil is discharged, or 

which poses a substantial threat of a discharge of oil, into or upon the navigable waters is liable 

for the removal costs and damages specified in subsection (b) of this section. 33 USC § 2702(a). 

“Responsible party” means “in the case of an onshore facility any person owning or operating 

the facility.” 33 U.S.C. § 2701(32)(B).

“Facility” means “any structure, group of structures, equipment or device (other than a vessel) 

which is used for one or more of the following purposes: exploring for, drilling for, producing, 

storing, handling, transferring, processing, or transporting oil.” 33 U.S.C. § 2701(9).

 “Removal costs” means “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 such an incident.” 33 U.S.C. § 2701(31).

 

5

See EPA Cornerstone Oil POLREP TWO, dated 11/08/2009 and KY DEP Incident Response Report for Incident # 

2303992, submitted with the claim by WEG to the NPFC on 4/29/2010.

6

See EPA Cornerstone Oil POLREP THREE, dated 11/09/2009, KY DEP Incident Response Report for Incident # 

2303992 and Disposal Manifests for Big Run Landfill, both submitted with the claim by WEG to the NPFC 

on 4/29/2010.
“Removal costs referred to in subsection 2702 (a) are all 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). , to pay claims for uncompensated removal costs that are 

determined to be consistent with the National Contingency Plan and uncompensated damages. 

Except as otherwise provided all claims for removal costs or damages shall be presented first to 

the responsible party or guarantor of the source. 33 U.S.C. § 2713(a). If the claim is presented to 

the responsible party and each person to whom the claim is presented denies all liability for the 

claim; or the claim is not settled by any person by payment within 90 days upon which the claim 

was presented, the claimant may elect to commence an action in court against the responsible 

party or guarantor or to present the claim to the Fund. 33 U.S.C. § 2713(c).

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 costs that are the subject of the claim. 

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. The FOSC coordination has been established via United States Environmental Protection 

Agency Region IV OSC Mr. .

7

2. The incident involved the report of a discharge of “oil” as defined in OPA 90, 33 U.S.C. § 

2701(23). . 

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 timely submitted to the Fund, within three years after completion of the 

removal action.. 

5. Presentment of costs to the RP was made by the claimant, prior to the submission of the 

claim, on November 30, 2009. The NPFC also made presentment of costs to the RP, who 

denied the ability to pay this claim.8

6. 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 confirmed that the claimant did perform a site assessment with the EPA 

OSC, Mr , on November 7, 2009. The Claims Manager validated the costs 

incurred and determined they were reasonable and necessary and performed in accordance 

with the National Contingency Plan (NCP). Upon examination of the claim, the NPFC has 

denied a total of $1,266.00 due to math errors on the part of the claimant.9 

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

$426,144.39 of uncompensated removal costs 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 #910097-001. The claimant states that all costs claimed 

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

November 6, 2009 through January 27, 2010. The claimant represents that all costs paid by 

 

7

 See EPA Cornerstone Oil POLREPS 1-4, dated 11/06, 11/08, and 11/10/2009, as well as the EPA Website for this 

spill, found at: http://www.epaosc.org/site/site_profile.aspx?site_id=5590. 

8

 See email from Mr. to Ms. , NPFC, dated 5/10/2010. 

9

See WEG Invoice #7034947, 11/08/2009, “Technician Hours DT, 4 @ 13.5 hours each = 64 hours.” This amount 

should total 54 hours. Also see WEG Invoice #7034947, 11/12/2009, “Excavator Hours, 3 @ 13.5 hours 

each = 41 hours” and “Roll-Off Truck hours, 3 @ 13.5 hours each = 41 hours.” Both these amounts should 

total 40.5 hours. The total difference in these three errors equals $1266.00. 
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 $426,144.39 as full compensation for 

the reimbursable removal costs incurred by the Claimant and submitted to the NPFC under 

claim E10404-001. 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: $426,144.39

Claim Supervisor: 

Date of Supervisor’s review: 6/3/10 

Supervisor Action: Approved 

Supervisor’s Comments: