Claim Number 

Claimant 

Type of Claimant 

Type of Claim 

Claim Manager 

Amount Requested 

FACTS: 

CLAIM SUMMARY I DETERMINATION FORM 

913007-0001 

State of South Carolina 

State 

Removal Costs 

$15,454.27 

Oil Spill Incident: On July 25, 2011 , The State of South Carolina, Department of Health 

and Environmental Control (SCDHEC) received an odor complaint associated with a 

tractor trailer located at TA Travel Center of 1-95 exit 164. It was reported that the 

refrigerated trailer was no longer functioning, causing frozen fowl to thaw. SCDHEC 

made contact with the responsible party (owner, Mr. ) and advised him 

that the trailer must be removed and contents disposed of at local landfill. 

On August 8, 2011 ,SCDHEC received a call from Canier Transicold Mid-Atlantic 

(CTMA) reporting that the referenced trailer was recently removed from the property 

after an extended period of time, creating significant odor issues (resulting in CTMA 

sending staff home). When the trailer was removed, by an unknown person, the thawed 

liquid was spilled at several locations along freight Road, TV Road, Pocket Road and SC 

Highway 327. 

On August 9, 20 11 , while SDHEC was trying to determine the location of trailer, CTMA 

reported that they received an anonymous phone call that stated to look along Highway 

34 in Marlboro County. When SDHEC investigator told CTMA representative that that 

was too broad of a description he was told "Pee Dee". The trailer was found along SC 

Highway 34 under a bridge adjacent to the Great Pee Dee River covered with flies and 

leaking liquid. 

Description of Removal Activities for this Claimant: On August 10, 2011 , A&D 

Environmental Services was contacted by SCDHEC and provided a description of the 

trailer and location and asked to prepare a cost estimate to offload the turkeys and to 

transport the waste to a disposal facility. SCDHEC then contracted A&D to proceed with 

the response. 

A&D personnel made preparations and mobilized the necessary equipment for the 

response on August 11 , 2011. Clean-up response activities commenced on August 12, 

2011. A&D personnel removed the turkeys and placed them in staged roll-off containers. 

After the removal of the turkeys from the trailer, the interior of the trailer was then 

cleaned. Pulverized lime was then spread on the ground by SCDHEC. 

A total of three roll-off containers were used for 15.25 tons of solid food waste. This 

material was disposed of at the Lee County Landfill in Bishopville, SC. A total of 1200 

gallons of liquid waste was collected from the clean out of the trailer and disposed of at 

the Lee County landfill in Camden, SC. The liquid waste consisted of water, turkey 

residue, and maggots. 
The Claim: On October 17. 2012, SCDHEC submitted a removal cost claim to the 

National Pollution Funds Center (NFPC) seeking reimbursement of their alleged 

uncompensated removal costs in the amount of $15,454.27. 

APPLICABLE LA W: 

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 pai1, 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 (OSL TF), 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 detem1ined to be consistent with the National Contingency Plan and 

uncompensated damages. Removal costs are defined as "the costs of removal that are 

incmTed 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 136.1 03(d) no claim against the OSLTf may be 

approved or certified for payment during the pendency of an action by the claimant in 

com1 to recover the same costs that are the subj ect 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. Specificall y, 

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. After the fact FOSC coordination was made by U.S. EPA. Mr. on 

March 20,2012. 

2. 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. 

3. The claim was submitted within the six year statute of limitations for removal costs. 

4. The Claimant has failed to demonstrate how the spill posed a substantial threat of 

discharge into a navigable waterway. 

B. A nalysis: 

NPFC CA reviewed the actual cost invoices and dailies to confirm that the claimant 

had incun-ed 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. 

National Response Center Notification was made on March 12, 2012 via rep01i 

number 1005478. After the fact FOSC Coordination was made on March 20, 20 12 

which was some seven months after the fact. 

The NPFC has dete1mined that the response to this incident has more than one 

purpose and that any oil spill resulting from the thawed turkey parts is not the primary 

purpose of the emergency response. The primary purpose of this incident appears to 

be the removal of a health and/or biological hazard and not an oil removal activity 

compensable by the OSLTF. 

NPFC also determines that there is little evidence that shows how the turkeys, animal 

fats and oils, posed a substantial threat of discharge into the Big Pee Dee River. The 

product was contained within its packaging and then inside a container trailer. The 

1200 gallons of liquid waste are identified as water, tmkey residue and maggots 

which were all removed from within the trailer. No product was found in the 

surrounding area and as such, there is no evidence that the contents within the trailer 

posed a substantial threat of discharge into the navigable waterway. 

C. Determined Amount: 

Based upon the foregoing, the NPFC denies this claim because the Claimant has 

failed to demonstrate that the product contained within the trailer posed a substantial 

threat of discharge into or upon a navigable waterway. It is also important to note 
that while the EPA Federal On Scene Coordinator (FOSC) signed that the response 

was consistent with the NCP, there is no evidence in the record to demonstrate that he 

was provided information to support a substantial threat of discharge from the trailer 

into the waterway. 

Amount: . l l l 

Claim Supervisor: 

Date of Supervisor's review: 1110113 

Supervisor Action: Denial approved 

Supervisor's Comments: