CLAIM SUMMARY / DETERMINATION FORM 

Date : 10/19/2010 

Claim Number : 910069-001

Claimant : Hepaco, Incorporated 

Type of Claimant : OSRO 

Type of Claim : Removal Costs 

Claim Manager :

Amount Requested : $11,699.79 

FACTS: 

1. Oil Spill Incident: 

On 17 June 2009, the claimant, HEPACO, Inc. received a call from the Responsible Party, Mr. 

 the owner and operator of J’s Trucking to respond to a diesel spill at the 

intersection of Old River Road and Francis Marion Road in Florence, South Carolina. The 

incident was the result of a tractor/trailer rollover where approximately 75 gallons of diesel fuel 

spilled onto the roadway and into a ditch. The ditch empties into Willow Creek, Jeffries Creek, 

which enters the system downstream to Claussen Branch and eventually into the Pee Dee River, a 

navigable waterway of the United States. 

2. Description of removal actions: 

In responding to the incident, , HEPACO’s Emergency Response Project Manager, 

mobilized an emergency response team to the site. HEPACO’s supervisor met with 

 with the South Carolina DHEC to discuss clean up procedures. Mr. 

 signed HEPACO’s Blanket Rapid Response Agreement. 

HEPACO set up vacuum operations to skim off the product off the water and began placing 

absorbent pads and boom in the ditch. Once the tractor/trailer was removed the crew members 

continued clean up collecting spent absorbent pads and boom and placed it into drums. The crew 

members were allowed limited duties until the wrecker service reloaded the truck with trees and 

removed it from the area. Once the tractor trailer was removed, the crew members continued 

clean up collecting spent absorbent pads and absorbent boom and placed it into drums. 

 The crew placed additional boom into the ditch left it there for a few days to absorb any residual 

product. The site was secured and demobilized. The equipment was cleaned and re-stocked. 

On 25 June 2009 HEPACO returned to the site to remove the absorbent boom. On that day, they 

collected the snare and absorbent boom from the ditch and placed it into drums. A total of six 

drums were collected for proper disposal. 

3. The Claim: 

HEPACO entered into a written contract with Mr for their services of responding to and 

cleaning up the oil that discharged into the ditch. A signed copy of that contract is included in the 

claims submission. The claimant asserts that costs incurred in response to this incident totaled 

$11,699.79. HEPACO submitted the invoices to Mr. S for payment under the terms of the 

contract. Evidence in the claims submission indicates that Mr. submitted these invoices 
to his insurance company for payment under the terms of an insurance policy. The insurance 

company failed to pay Mr. under the terms of that policy and Mr. did not pay 

HEPACO under the terms of the contract he signed with them. 

The claimant made presentment to the RP as required under the provisions of OPA. The NPFC 

received the claim on or about 20 February 2010. The NPFC notified the claimant of receipt of 

the claim and also sent notification to the RP that the NPFC had received a claim for these costs. 

After reviewing the submission the claims manager requested evidence of whether the Federal On 

Scene Coordinator (FOSC) was on scene and if not whether they had received after the fact 

coordination with the FOSC. The NPFC was informed that the FOSC was not present at the time 

of the incident, nor was the incident reported to the National Response Center (NRC). The NPFC 

contacted the State DHEC for further clarification on the actions taken at the time of the incident. 

They informed that the incident was reported to their office at the time of the incident. They 

further informed that it was not within their standard operating procedure to report a spill of this 

size to the NRC or the FOSC. The claims manager also made requests for additional information 

and clarification of documentation submitted from claimant, both of which were received. 

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 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 NPFC has determined that the actions undertaken by the claimant are deemed consistent 

with the National Contingency Plan (NCP). This determination is made in accordance with the 

“Delegation of Authority for Determination of Consistency with the National Contingency Plan 

(NCP) for the Payment of Uncompensated Removal Cost Claims under Section 1012(a)(4), Oil 

Pollution Act of 1990,” and is consistent with the provisions of 33 U.S.C. Section 

2701(b)(1)(B)1 

2. The incident involved the 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 within the six year statute of limitations.

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 to be consistent with the NCP or directed by the 

FOSC, and (4) whether the costs were adequately documented and reasonable. 

The facts of the incident indicate that the discharge of diesel occurred into ditches alongside the road 

that contained water. In order to determine whether those ditches posed a substantial threat to a 

navigable water, the Claims Manager conducted a search of Google Maps which indicated that 

Claussen’s Branch was slightly south of the intersection of Old River Road and Francis Marion Road, 

where the incident occurred. The map indicated that Claussen’s Branch led directly to a larger 

navigable waterway, the Pee Dee River, as asserted by the claimant in its claims submission. The 

claimant informed that the Pee Dee River was approximately five (5) miles from the location of the 

incident (discharge). Based on the location of the waterway and its proximity to the location of the 

accident it is reasonable to believe that a discharge of oil into these ditches could pose a substantial 

threat to this navigable waterway. The Claims Manager validated the costs incurred and determined 

that the majority of them were reasonable and necessary and performed in accordance with the 

National Contingency Plan (NCP). 

Although the claimant’s submission asserts that it incurred costs in the amount of $11,699.74, the 

NPFC has only been able to account for $11,292.31 of costs incurred. Of those costs only $11,112.32 

have been determined to be compensable as uncompensated removal costs. $180.00 of the costs are 

being denied because they exceed the claimants published rates. The remaining $227.48 of the costs 

are being denied because they are undocumented and unsubstantiated by the documentation provided 

by the claimant. 

 

1 Delegation of Authority from COMDT letter 5402 of 19 March 1992
AMOUNT: $11,112.32

Claim Supervisor: 

Date of Supervisor’s review: 10/19/10

Supervisor Action: Approved 

Supervisor’s Comments: