CLAIM SUMMARY / DETERMINATION FORM

Date : 3/12/2011 

Claim Number : 910064-001 

Claimant : Hepaco, Incorporated

Type of Claimant : OSRO

Type of Claim : Removal Costs 

Claim Manager : 

Amount Requested : $26,700.58 

FACTS: 

Oil Spill Incident: On the evening of July 31, 2007, Hepaco received a call from Mr. 

 of East Port Marina and Resort, LLC requesting Hepaco respond to a 

gasoline spill on the water in Luka, MS. Mr. advised Hepaco that the fuel line 

running from the above ground storage tank to the boat dock gas pumps had formed a 

leak and released product into the lake. Upon arriving on site, Mr. of Hepaco 

met with local and state EMA personnel to discuss the cleanup of the product. Mr. 

 observed that the dock areas had been partially contained by the local fire 

department. Mr. and Mr. agreed on the process of removal and disposal 

of the product from the waters around the marina. 

Description of Removal Activities: On July 31, 2007, Mr. of Hepaco received a 

call from Mr. of East Port Marina and Resort, LLC. At 7:20pm, Mr. 

 spoke with Hepaco personnel to mobilize all necessary personnel and equipment 

to respond to East Port Marina. At around 8:15pm, Mr. met with Mr. and 

at around 9:50pm, Mr. met with local and state officials from the EMA and 

Department of Environmental Quality (DEQ) along with the fire department that had 

responded to the scene. Around 10:10pm, Mr. made a site walk around A, B, 

and C docks where the contamination had occurred and was temporarily contained by 

some disposable boom and fire hose that the fire department deployed. Mr. 

observed the largest amount of oil contamination around dock B and between docks B 

and C. At approximately 11:45pm, Hepaco response personnel arrived on site with 

equipment and a boom trailer. Around 11:50pm, Hepaco performed a site inspection in 

order to determine a plan of action. 

On August 1, 2007, Hepaco met with Mr. and advised of their plan of action for 

response to the spill. Personnel deployed boom via boat in order to completely contain 

the oil for the night. Later in the day, Hepaco had a three man crew start on dock A 

beginning dipping and removing product from the water while a two man crew in a boat 

removed product while pulling boom. By mid morning, dock A cleanup was complete 

and the boom was returned back to the boat ramp. 

A two man crew on dock C began to remove product while a two man crew in a boat 

went out of the channel to the river in order to check along the shore lines for possible 

product or debris. Later in the day, MDEQ asked Mr. to remove padding from 

around the damaged coupling where the leak had originated from in order to inspect and 

see if it was still leaking. Once the padding was removed, a small leak was detected. 

Hepaco began to apply plug and dyke to the hole in the coupling to temporarily stop the 

leak until a company can arrive to replace with a new coupling and hose. 
By mid afternoon, dock C cleanup was complete and all booms were pulled in tight 

around dock B in order to begin removal of product from the dock B area. Hepaco used a 

five man crew to perform cleanup around dock B. Cleanup continued throughout the day 

and in the evening when operations were stopping for the day, MDEQ requested that 

boom be left until Southern Company had completed the repairs to the fuel line in the 

event another failure.

On August 2, 2007, dock B cleanup was completed and Southern Company was on site in 

order to pressure test the repaired line. Once Southern Company was done, Hepaco 

began removing all the boom from the water. On August 28, 2007, time associated with 

finalizing invoices etc. and closeout of the job was completed.

The Claim: On March 6, 2010, Hepaco submitted a removal cost claim to the National 

Pollution Funds Center (NPFC), for reimbursement of the uncompensated removal costs 

in the total amount of $46,700.58 for the services provided to East Port Marina in Luka, 

MS from July 31, 2007 through August 2, 2007, and August 28, 2007. This claim is for 

removal costs based on the claimant’s emergency response rate schedule in place at the 

time services were provided. It is important to note that the Responsible Party paid 

Hepaco a partial payment of $20,000.00 via check dated November 2, 2007 although no 

further payments were ever made to the Claimant by the Responsible Party.

The claim consists of Hepaco invoicing, dailies, disposal manifests, contracted rate 

schedule, photographs, information pertaining to the State on Scene Coordinator, Mr. 

 of Mississippi Department of Environmental Quality (MDEQ) along 

with his contact information, and a Hepaco signed Agreement to Conduct Emergency 

Response Services.

Upon receipt of the claim, the NPFC sent an RP Notification Letter to East Port Marina 

to the attention of Mr. On March 6, 2010, Mr. sent a 

letter to the NPFC stating he is aware of the balance owed to Hepaco although he has not 

paid the balance due to a lawsuit he has pending against the former owners of the Marina 

for reimbursement of the expenses. Mr. goes on to say that if his civil action is 

favorable, he intends on paying Hepaco the balance of the bill and if it unfavorable, he 

will make every effort to work out a payment plan with Hepaco. 

On December 27, 2010, the NPFC contacted Mr. via email to inquire on 

his current situation although to date he has not responded to the NPFC. 

The review of the actual cost invoicing and dailies focused on: (1) whether the actions 

taken were compensable “removable 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, 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]. 

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

consistent with the NCP. This determination is made in accordance with the Delegation 

of Authority for Determination of Consistency with the NCP for the payment of 

uncompensated removal cost claims and is consistent with the provisions of sections 

1002(b)(1)(B) and 1012(a)(4) of OPA, 33 U.S.C. §§ 2702(b)(1)(B) and 2712(a)(4).

2. The incident involved the discharge and continuing substantial threat of 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 statute of limitations for removal costs.

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 “removable 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 and reasonable.

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

$26,684.58 of uncompensated removal costs and that the amount is payable by the 

OSLTF as full compensation for the reimbursable removal costs incurred by the claimant 

and submitted to the NPFC under claim # 910064-001. The NPFC is denying $16.00 for 

which the NPFC has been unable to identify such costs within the Hepaco invoices. The 

claimant states that all costs claimed are for uncompensated removal costs incurred by 

the claimant for this incident for the time period of July 31, 2007, through August 2, 

2007, and August 28, 2007. The claimant represents that all costs paid by 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 $26,684.58 as full compensation 

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

under claim # 910064-001. 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 present by the Claimant.
AMOUNT: $26,684.58 

Claim Supervisor: 

Date of Supervisor’s review: 3/14/11 

Supervisor Action: Approved 

Supervisor’s Comments: