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CLAIM SUMMARY / DETERMINATION 

Claim Number: 918030-0001 

Claimant: Southwest Renewal Foundation of High Point INC 

Type of Claimant: Corporate 

Type of Claim: Removal Costs 

Claim Manager: 

Amount Requested: $7,711.00 

FACTS: 

On July 03, 2017, Guilford County Department of Health and Human Services Environmental 

Health/HERA was notified by the High Point Fire Department of an overturned 55-gallon steel 

drum found leaking oil on Southwest Renewal Foundation of High Point, Inc.’s property located 

at 1401 S. Elm Street, High Point, NC.1

 Guilford County’s incident report stated, a 55-gallon 

drum had been dumped on the property and the contents of the container leaked out and was 

absorbed into the ground spanning a 10’x20’ area killing the grass. The report further states that 

approximately 20-30 feet downslope from the spill is Richland Creek.2

On July 10, 2017, at 11:37a.m., (Seven days after the discovery of the abandoned drum and oil 

spill), the National Response Center (NRC) was contacted by Guilford County, resulting in NRC 

Incident Report number# 1183627. The NRC report states, a single 55-gallon drum was dumped 

and was overturned and believed to contain used motor oil. It further states, there is a Creek 

about 20 feet away but there appeared to be no creek involvement. 3

REMOVAL AND CORRECTIVE ACTIONS TAKEN:

On July 25, 2017, (22 days after the discovery of the abandoned drum and oil spill), the North 

Carolina, Department of Environmental Quality, Waste Management Division, issued a Notice 

of Regulatory Requirements in accordance with, 15A NCAC 2L .0106(f), for corrective actions 

to be taken. The letter was issued to Southwest Renewal Foundation, attention to Ms. 

. The letter identified, Southwest Renewal Foundation, as the responsible party (RP) because 

it is the landowner subject of where the incident occurred. The letter contained a list of two (3) 

State required corrective action items that were to be performed and they were as follows:

1. All contaminated soil that exceeded the soil-to-groundwater maximum containment 

concentrations must be disposed of; 

2. Soil assessment must be performed in order to confirm the removal of all contaminated 

soil; and

3. An Initial Assessment Report must be prepared in accordance with the most recent 

Version of the, UST Section Guidelines for the Investigation and Remediation of 

 

1 See, Guilford County Dept. of Public Health, Division of Environmental Health, Incident Report Number 063-17, pg 1 of 2. 2 See, Guilford County Dept of Public Health, Division of Environmental Health, Incident Report Number 063-17, pg 2 of 2. 3 See, Incident Report# 1183627, identified as Claimant’s Attachment A.

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Approximately 23 tons of contaminated soil was disposed of at, EVO Corporation.13 The 

analytical results for the post excavation samples, near the creek, showed no signs of petroleum. 

The analyses confirmed, the additional excavations were sufficient to remove the remaining soil 

contaminants.14

On December 04, 2017, (Five months after the discovery of the abandoned drum and oil), the 

North Carolina Deparmtnet of Environmental Quality, Waste Management Divisionissued a 

Notice of No Further Action (15A NCAC 2L .0106), Corrective Action Letter to Southwest 

Renewal Foundation, Inc.. The letter stated that a review of the report filed indictaed after soil 

excavation, the soil contamination no longer exceeds the TPH action levels. In closing, the 

Underground Storage Tank Section of Waste Management determined that based on the 

information provided to date, no further action was warranted for this incident.15

APPLICABLE LAW: 

"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.” 

 13 See, The EVO Waste Profile and Pace Analytical Results and photos identified as Claimant’s Attachment D. 14 See, Pace Analytical letter to Pyramid dated October 30, 2017 providing alaytical results for samples received by them on 

October 20, 2017 and associated photos, identified as Claimant’s Attachment E.

15 See, North Carolina Dept. of Environmental Quality, Waste Management Division,Notice of No Further Action letter to the 

Claimant dated December 04, 2017.
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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. A Federal On-Scene Coordinator (FOSC) did not direct the response for this incident, 

nor did one determine the actions undertaken by the Claimant were consistent with the 

National Contingency Plan (NCP). 33 U.S.C. §§ 2702(b)(1)(B) and 2712(a)(4).

2. An FOSC did not determine an OPA incident occurred, nor has the Claimant proven the 

incident involved a discharge or substantial threat of discharge of oil to “navigable 

waters.”

3. In accordance with 33 CFR § 136.105(e)(12), Claimant has certified no law suit has been 

filed in court for the claimed costs.

4. The NPFC Claims Manager thoroughly reviewed all documentation submitted with the 

claim and determined that none of its costs are allowable under OPA and 33 CFR § 

136.205.

B. Analysis:

NPFC CA reviewed the documentation provided. The review focused on: (1) whether a 

discharge or substantial threat of a discharge to a navigable waterway occurred; (2) 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 an incident); (3) whether the 

costs were incurred as a result of these actions; (4) whether the actions taken were determined by 
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the FOSC, to be consistent with the NCP or directed by the FOSC, and (5) whether the costs 

were adequately documented and reasonable.

Upon review and adjudication of the claim, the NPFC made various requests for additional 

information from several parties, including but not limited to: 

1. The Claimant

2. Guilford County 

3. Pyramid Environmental, and 

4. USEPA.

The NPFC requested the following information from the Claimant in order to support the 

claimed costs:

1. Copy of the Pyramid Invoice(s), 

2. Proof of payment to Pyramid and a copy of the Pyramid rate schedule in support of their 

invoiced costs; 

3. Copy of any and all disposal manifests from Evo Corporation (disposal facility); 

4. Requested proof of USEPA communications and coordination for the response cleanup; 

and

5. Requested whether North Carolina Department of Environmental Quality (NCDEQ) and 

Guilford County Env. Health were on site and requested contact information for both 

agencies.

Because the claim appeared to have no Federal On Scene Coordination (FOSC) as required by 

the interim claims regulations found at 33 CFR 136.203 & 205, the NPFC requested the 

following detailed information as it related to Pyramid Environmental:

a. Project Set up (not on rate schedule) 

b. Sorbent pads and boom installed (not on rate schedule) 

c. Walmart plastic sheeting and stakes (not on rate schedule and no receipts 

provided) 

d. Charge associated with the preparation and submission of UST-62 form to the 

State

e. Equipment mobilization fee (not on rate schedule) 

f. Excavation equipment and personnel 

g. Plastic charged to stockpile the soil and drum (not on rate schedule) 

h. Transport and Supply charges (not on rate schedule) 

i. Lab Analysis (not on rate schedule therefore provide all Pace documentation) 

j. Pyramid daily field notes/logs, and

k. Contract between Pyramid and Claimant

Because the State was involved in the response to this incident, the NPFC contacted Ms. 

 of Guilford County and asked for a statement explaining Guilford County’s role in the 

cleanup and disposal. The NPFC also asked for the contact info for any state or County person(s) 

that was on scene and to provide any and all witness statements as well as a copy of the NCDEQ 

complete file.
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Finally, the NPFC reached out to the United States Environmental Protection Agency (USEPA) 

as the FOSC for this incident and requested assistance on whether after the fact FOSC 

coordination could be provided. During the NPFC’s initial communication with the FOSC, Mr. 

, initially, Mr. could not recall the incident but after the NPFC forwarded 

some claim incident information, he responded via email on, June 26, 2018, with a copy of the 

“WebEOC” log entry dated, July 10, 2017, ID # 1064235.16

The only information contained in the Action Information section of the log entry was the 

following... “Called and spoke with RP for Guilford County. Offered OSC coordination for 

potential cost recovery from OSLTF in case property owner was unable to perform removal.” 

Mr. said that he barely remembered this from a year ago. He stated that he called them and 

went over the specifics and due to impending rain, he felt there was an adequate threat to take an 

action.17

It is important to note, when the NPFC reviewed the, Guilford County Incident Report form, the 

report contained a section, at the bottom of the form, that is intended for the Federal On-Scene 

Coordinator (FOSC) to sign. If the incident response was reasonable, necessary, properly 

coordinated, and determined to be in accordance with the National Contingency Plan (NCP), the 

FOSC would endorse the report. This report was not signed-off by an FOSC and therefore begs 

the question whether an actual substantial threat of a discharge into a navigable waterway even 

existed. Additionally, during the NPFC’s adjducation, it performed independent research, using 

NOAA historic records which showed the year, month, and day, of historic temperature, 

precipitation, evaportation, and soil temperature.18 

Historic scientific evidence revealed that during the month of July 2017, High Point, NC 

received 1.53 inches of rain, August 2017, High Point, NC received 2.58 inches of rain, 

Septemeber 2017, High Point, NC received 3.18 inches of rain, and in October 2017, High Point, 

NC recieved 3.83 inches of rain. The rain total for this area between July 2017 and October 

2017 totalled 11.12 inches of rainfall. The abandoned drum and contaminated soil(s) were not 

removed until October 2017 and yet, at no time during the rains and several days of being 

unattended and exposed to adverse weather conditions, the oil did not move down gradient to the 

creek or enter the water.

Based on the foregoing, the preponderance of the credible evidence in this case, does not support 

a finding that an OPA-incident occurred. While oil did leak onto the ground, the Claimant has 

not provided evidence to demonstrate that a substantial threat of discharge into a navigable 

waterway occurred, as required under the Oil Pollution Act of 1990 (OPA). High Point, North 

Carolina experienced many rain events in the area between July 03, 2017 (date the oil drum was 

discovered) through October 19, 2017 (when disposal was completed). The NPFC does not see 

any indication that the product that spilled onto the ground in fact posed a substantial threat of 

discharge into a navigable waterway.

 

16 See, Email between Mr. , USEPA and Ms. , NPFC, dated June 26, 2018. 17 See, Email between Mr. , USEPA and Ms. , NPFC, dated June 26, 2018. 18 See, Record of Climatological Observations from 7/2017, 08/2017, 9/2017, and 10/2017 obtained through the Department of 

Commerce, National Oceanic & Atmospheric Administartion (NOAA).