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CLAIM SUMMARY / DETERMINATION 

Claim Number: 915086-0002 

Claimant: McKinney Wrecker Service 

Type of Claimant: Corporate 

Type of Claim: Removal Costs 

Claim Manager: 

Amount Requested: $21,700.28 

FACTS: 

Oil Spill Incident

On December 04, 2014, McKinney Wrecker Service (Claimant or McKinney) received 

notification from CDG Engineers & Associates, Inc. that a tanker truck, that was fully loaded1

with a mixture of gasoline and diesel had overturned on Interstate 59, near Reece City, Alabama. 

The tanker truck spilled its product into a drainage ditch on the side of the road that leads into 

Little Wills Creek, a tributary to the Coosa River, which is a navigable waterway of the United 

States.

McKinney Wrecker Service arrived on scene at 0630 on December 05, 2014. Federal On-Scene 

Coordination was made with the United States Environmental Protection Agency, (US EPA), 

Mr. Region 4. Local Hazmat, State, and Emergency Management Personnel for 

Etowah County were all on-scene.

The Responsible Party (RP) is idedntified as Petroleum South Transport (RP or PST).2

 

Description of Removal Activities for this Claimant

CDG Engineers & Associates, Inc. (CDG)3

 responded to the spill and removed product and oily 

water from the marshy area and the drainage ditch that leads to the Little Wills Creek. CDG also 

off loaded the remaining product from the wrecked tanker truck to a responding tanker. 

However, residual petroleum remained in the tanker, making the wrecked tanker a potential 

threat to the Little Wills Creek and the Coosa River, the navigable waterways.. 

The RP hired McKinney to remove the tanker from the median to mitigate the continuing threat

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and to restore the median of the roadway to its natural state. The Claimant removed 

approximately 100 cubic yards of trees and shrubs that were transported to Alabama Department 

of Transportation (AL DOT) property where they were disposed of.5 Approximately 70 yards of 

petroleum contaminated soil was removed. The contaminated soil was placed in bags and taken 

 

1 The tanker truck was a 9,000 gallon capacity and was believed to be hauling approximately 8,000 gallons of diesel 

and gasoline at the time of the accident.

2 Mr. is the General Manager for Petroleum South Transportation. 3 CDG is a prior Claimant that submitted costs to the Fund for reimbursement of their costs pertaining to this 

incident and can be found at claim # 915086-0001 4 At approximately 1230 on December 05, 2014, the tanker truck was removed from the median.

5 The trees had to be removed befoe the contaminated soil could be excavated.
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to AL DOT for disposal,6 and in addition, composite soil samples were collected and analyzed 

for Total Petroleum Hydrocarbons (TPH). Per the request of the Department of Transportation, 

(DOT), clean soil was placed back into the excavated areas and covered with grass seed and hay. 

Finally, the Claimant swept the interstate using a street sweeper, also requested by DOT.

AL DOT, US EPA, and EMA representatives were satisfied with all of the abatement activities 

that were conducted and over-seen by US EPA.

The Claim

On July 22, 2015, McKinney submitted a removal cost claim to the NPFC for reimbursement of 

their uncompensated removal costs in the amount of $21,700.28. 

The Claimant made presentment of their invoices in the amount of $21,700.28 to the RP for the 

emergency response. To date, McKinney has not received payment from PST. Claimant also 

provided an Affidavit Regarding Nonpayment for invoice # 41098. The invoice was signed and 

dated on April 24, 2015.7

 

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]. 

 

6 Claimant is not asking for reimbursement of costs for disposal.

7 Notary Public, , State of Alabama, Bibb County.
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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. EPA, Region 4 provided FOSC coordination 33 U.S.C. § 2702(b)(1)(B) and 2712(a)(4);

2. The incident involved the discharge of “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 suit has been 

filed in court for the claimed uncompensated removal costs.

4. The claim was submitted within the six year period of limitations for claims. 33 U.S.C. 

§2712(h)(1);

5. The NPFC Claims Manager has thoroughly reviewed all documentation submitted with 

the claim and determined that 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.
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B. Analysis:

The NPFC reviewed the actual cost invoice to confirm that the claimant had obtained all rights, 

claims, and causes of actions for the costs claimed. The review focused on: (1) whether the 

actions taken were compensable “removal actions” under OPA and the claims regulations at 33 

CFR Part 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 

detrmined 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 NPFC determined that the approved costs incurred by the Claimant were reasonable and 

necessary in order to mitigate the effects of the incident. Upon review of the information 

provided by the Claimant, the NPFC determined that the approved costs, that were billed, were 

billed in accordance with the rate schedules that were in place at the time the services were 

rendered. 

The NPFC has confirmed that the rates charged by the Claimant are in accordance with the 

published rates at the time services were rendered and were coordinated with US EPA and 

determined to be consistent with the NCP. It is important to note that the NPFC spoke directly 

with the EPA FOSC in order to confirm that the actions were necessary and that a threat still 

existed despite the bulk removal of fuels by CDG in a previous claim. The EPA FOSC did 

verbally confirm removal of the truck was necessary to completely mitigate the threat.

The NPFC hereby determines that the OSLTF will pay, $21,700.28 as full compensation for the 

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

915086-0002. All the costs deemed approved by the Fund have been 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: $21,700.28

 

 

 

Claim Supervisor: 

Date of Supervisor’s review: 7/27/15

Supervisor Action: Approved