CLAIM SUMMARY / DETERMINATION FORM 

Date : 10/21/2009 

Claim Number : 910015-001

Claimant : State of Florida

Type of Claimant : State 

Type of Claim : Removal Costs 

Claim Manager : 

Amount Requested : $10,836.97 

FACTS: 

Oil Spill Incident: On October 27, 2008, Florida Department of Environmental 

Protection (FL DEP) received a call from the Hillsborough County Sheriff’s Office 

stating that there was an abandoned, 300-gallon diesel fuel tank leaking into a ditch off of 

Owens Road in Wamauma. This drainage ditch is approximately .42 miles from Pierce 

Branch, a tributary of the Little Manatee River, which flows into Tampa Bay, all 

navigable waters of the US. Additionally, this ditch is located within close proximity to 

Little Manatee River to the west, the Alafia River to the east and Carlton Lake located 1.5 

miles to the southeast, also all navigable waterways in the US.1

 

BER responded by meeting the Sheriff’s Office on-scene, conducting an initial 

investigation. They observed that approximately 150 gallons of diesel fuel had spilled 

from the tank, impacting soil and vegetation which posed a substantial threat of discharge 

into nearby navigable waters. BER contracted Southern Waste Services (SWS) to not 

only clean the spill site, but also to collect pre-burn and confirmatory samples, backfill 

the excavation and set up MOT protocol. This incident was reported to the National 

Response Center (NRC) on October 27, 2009 via Report # 888420. BER determined that 

the Responsible Party (RP) was unknown.2 

Description of Removal Activities for this claimant: On November 4, 2008, SWS 

responded by removing three dump trucks full of contaminated soil using a Grad-All 

excavator. An OVA/PID was utilized to collect readings. SWS personnel took a soil 

confirmatory and sent it to Phoslab Environmental Services (Phoslab) to be analyzed. 

The excavation was backfilled and compacted. The final measurement for the excavation 

was 42’ long by 17’ wide by 4’ deep. During the excavation, groundwater was 

discovered four feet below land surface, and therefore required SWS, along with BER, to 

install a temporary well and to send a soil sample to Phoslab for analysis. The final 

analysis reports returned with both soil and groundwater cleanup target levels met.3

The Claim: On October 7, 2009 the FL DEP submitted a removal cost claim to the 

National Pollution Fund Center (NPFC) for reimbursement of their uncompensated 

removal costs of State personnel, equipment and administrative costs in the amount of 

$10,836.97. 

FL DEP is claiming $969.66 in State personnel expenses, $9,505.39 in State contractor 

expenses, $339.92 in State equipment expenses and $22.00 in State administrative 

 

1

 See Claim submission forms, submitted by State of Florida to the NPFC on 10/7/2009. 

2

 See Claim submission forms, submitted by State of Florida to the NPFC on 10/7/2009 and NRC report # 888420, 

dated October 27, 2008. 

3

 See Claim submission forms, submitted by State of Florida to the NPFC on 10/7/2009. 
documentation/photo fees. The removal costs are based on the rate schedule in place at 

the time services were provided. A copy of the vendor rate schedule is provided in the 

claim submission.

This claim consists of copies of the invoicing and associated dailies, copies of contracted 

rate schedules, a copy of NRC Report #888420, a copy of State of Florida Emergency 

Response Incident Report (including a signed copy from the US EPA), a copy of FL BER 

Contracts/Work Authorization Forms, a copy of Phoslab analytical reports, a copy of the 

Non-Hazardous Waste Disposal Manifest, photographs, and internal email 

correspondence. 

The review of the actual cost invoicing and dailies 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 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 FOSC coordination has been established via Ms. with the US 

EPA.4

.

2. The incident involved the 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. No RP was identified. 

6. 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 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 

 

4

 See Claim submission forms, submitted by State of Florida to the NPFC on 10/7/2009.