CLAIM SUMMARY / DETERMINATION FORM 

Date : 7/27/2009 

Claim Number : E08467-001

Claimant : State of South Carolina 

Type of Claimant : State 

Type of Claim : Removal Costs 

Claim Manager : 

Amount Requested : $7,852.30 

FACTS: 

 

Oil Spill Incident: On May 20, 2008 a Falls Express Company (Falls Express) truck was 

involved in a head-on vehicular accident, causing the release of 60 gallons of diesel fuel 

from the truck. The spill impacted the surrounding area and threatened a storm drain that 

leads to an unnamed tributary to Fairforest Creek, in Spartanburg, South Carolina. 

Fairforest Creek is a navigable water of the United States. The incident was reported to 

the National Response Center (NRC) via report # 872578. The State on Scene 

Coordinator (SOSC), , of the South Carolina Department of Health and 

Environmental Control (SCDHEC), arrived at the site in response to a call reporting the 

accident. The SOSC coordinated with , the Federal on Scene Coordinator 

(FOSC), to authorize the state to take the lead for the response. 

The SOSC hired Advanced Environmental Options, Incorporated (AEO) for response and 

cleanup of the spill. The cleanup, as noted by Claimant, was consistent with the National 

Contingency Plan. 

The Responsible Party (RP) is Falls Express. Falls Express refused to be involved in the 

clean-up efforts. The RP refused to cooperate at the scene of the incident. The RP's 

insurance company refused payment. 

The Claim: On May 12 2009, the Claimant submitted a removal cost claim in the amount 

of $7,852.30 to the National Pollution Funds Center (NPFC) for reimbursement for their 

uncompensated State response costs. The claim consists of the incident billing summary, 

invoices, incident reporting, NRC report, a copy of a Pollution Removal Funding 

Authorization (PRFA) which was generated between the Federal On Scene Coordinator 

(FOSC) and the claimant agency, and proof of payment. 

Additional Information: The Pollution Removal Funding Authorization (PRFA) for the 

SCDHEC was established on June 4, 2008 for services provided and removal costs 

incurred in response to this pollution incident. 

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. Findings: 

1. The FOSC coordination was provided by of the Environmental 

 Protection Agency (EPA). 

2. The incident involved the 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 on time. 

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 costs for these actions were indeed reasonable and allowable under 

OPA and 33 CFR § 136.205 as set forth below. 

B. Analysis: 

The Claimant seeks reimbursement for their uncompensated removal costs. The 

emergency response was performed by AEO, on May 31, 2008. However, on June 4, 

2008, a Pollution Removal Funding Authorization (PRFA), with an obligation amount of 

$25,000.00, was generated by the FOSC to cover the costs incurred by the claimant. 

Therefore, the NPFC hereby determines that this claim is denied in accordance with 33 

CFR 136.203 & 205 and the costs which are subject of the claim need to be presented 

directly to the FOSC for processing under the PRFA. 

Please contact , of the United States Environmental Protection Agency 

(USEPA), at for information on submitting costs. 

AMOUNT: $0.00 

Claim Supervisor: 

Date of Supervisor’s review: 8/5/09 

Supervisor Action: Denial approved 

Supervisor’s Comments: