CLAIM SUMMARY / DETERMINATION FORM 

Date : 3/31/2009 

Claim Number : E07805-001

Claimant : Dixon Rural Fire Department 

Type of Claimant : Local Government 

Type of Claim : Real or Personal Property 

Claim Manager : 

Amount Requested : $2,415.60

FACTS: 

The Oil Spill Incident: On Wednesday, April 25, 2007 the initial action for the mystery oil spill 

was taken by the Confederated Salish & Kootenai Tribes (CSKT) of the Flathead Reservation by 

placing booms in the sewer lagoon and removing approximately 500 gallons of the oil by using a 

skimmer and vacuum truck. A spokeswoman for the CSKT requested the help of the United 

States Environmental Protection Agency (USEPA) to clean up and remediate the situation. 

On that same day, the United States Environmental Protection Agency (USEPA), Region 8 

requested the Pacific Strike Team's assistance for a mystery oil spill from an unknown source 

near the Clark Fork River in Dixon, Montana, a navigable waterway of the US. The spill site 

was located along the north side of Highway 200, approximately one mile west of Dixon in the 

county of Sanders, Montana. The spill caused contamination of the town of Dixon's sewer 

lagoon. 

The threat consisted of the potential for overflow or breaching of the berm surrounding the 

lagoon and flowing to a nearby creek, as well as to the Flathead River which is located about 0.5 

miles to the north. The potential for wildlife damage was evidenced by one dead duck found at 

the site, as well as an oil-covered mouse that survived. 

On April 26, 2007 the USEPA's Emergency and Rapid Response Services (ERRS) contractor 

arrived at the site at 3:30 AM and assessed the situation. The contractor then waited until the 

Federal On-Site Coordinator (FOSC), , arrived at approximately 3:00 PM. 

The lagoon was well constructed with a thick layer (approximately 2 feet) of bentonite. For at 

least 25 years, the lagoon has served as the repository for , MT. The bottom of the lagoon 

was filled with soft, muddy material. Therefore, it was determined that the best approach for 

remediation was to pump the water out from under the oil’s surface, and then allow the area time 

to dry where the oil had soaked into the berm walls before removing the oil-stained soil. At the 

time of the clean-up, samples were collected and sent for analysis. Finger printing was also 

performed. 

On April 27, 2007, sorbent booms were tied together to reach across the 140 yards long and 45 

yards wide lagoon. This gradually eased the surface oil to a centralized area for collection by a 

skimmer. Three trash pumps were used to pump the water into a lagoon adjacent to the 

contaminated lagoon. The sewer material was also sent to that lagoon. 

By the morning of April 28, 2007, the water had been lowered by approximately 3 feet. An 

estimated 10 feet wide ledge was exposed with the ring of contamination near the junction of the 

ledge and slope of the berm. Approximately 2700 gallons of oil was recovered. 
Claimant Information: Dixon Rural Fire Department (Dixon RFD) provided materials for cleanup of the mystery oil spill to the Pacific Strike Force Team. Dixon RFD provided eighteen 4" x 

10' diking booms, four 18"x18" absorbent pads, and twelve loose absorbent bags. 

Additional Information: On May 11, 2007, NPFC Case Officer opened a 

$90,000.00 ceiling, after the FOSC requested the current ceiling of $50,000.00 be raised. To 

date, $61,393.28 was spent of the $90,000.00 ceiling. 

 

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”.

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(b) each claim must be in writing, for a sum certain for each category of 

uncompensated damages or removal costs resulting from an incident. 

Claims may be presented first to the Fund if the President or his delegated representative has 

advertised or notified claimants that the Fund is accepting claims resulting from an oil discharge. 

33 U.S.C. §2713(b)(1)(A). 

The uses of the OSLTF are described at 33 U.S.C. §2712. It provides in relevant part that: 

“(a) Uses generally

The Fund shall be available to the President for –

(4) [T]he payment of claims in accordance with section 2713 of this title for uncompensated 

removal costs determined by the President to be consistent with the National Contingency Plan 

or uncompensated damages; . . . 

(b) Defense to liability for Fund 

The Fund shall not be available to pay any claim for removal costs or damages to a particular 

claimant, to the extent that the incident, removal costs, or damages are caused by the gross 

negligence or willful misconduct of the claimant.”
Damages include damages for injury to natural resources, injury to or economic losses from the 

destruction of real or personal property, loss of subsistence use of natural resources, Government 

loss of revenues, loss of profits or earning capacity as a result of loss or destruction of real or 

personal property or natural resources, and costs of increased public services. 33 U.S.C. 

§2702(b). Damages are further defined in OPA to include the costs of assessing the damages. 

33 U.S.C. §2701(5).

Damage claims must be presented within 3 years after the date on which the injury and its 

connection with the discharge in question were reasonably discoverable with the exercise of due 

care. 33 U.S.C. §2712(h)(2).

In any case in which the President has paid an amount from the OSLTF for any removal costs or 

damages specified under 33 U.S.C. §2712(a), no other claim may be paid from the Fund for the 

same removal costs or damages. 33 U.S.C. §2712(i).

Under 33 CFR 136.105(a) and 136.105(e)(6), the claimant bears the burden of providing all 

evidence, information, and documentation deemed necessary by the Director, NPFC, to support 

the claim. Further, a claim presented to the Fund should include, as applicable:

“[T]he reasonable costs incurred by the claimant in assessing the damages claimed. This 

includes the reasonable costs of estimating the damages claimed, but not attorney’s fees or other 

administrative costs associated with preparation of the claim.” 33 CFR 136.105(e)(8).

With regard to claims for loss profits and impairment of earning capacity, the NPFC must 

independently determine that the proof criteria in OPA and the implementing regulations, at 33 

CFR Part 136, are met, including the general provisions of 33 CFR 136.105, and the specific 

requirements for loss of profits and earning capacity claims in Subpart C, 33 CFR 136.231, et 

seq. 

Pursuant to the provisions of 33 CFR 136.231, claims for loss of profits or impairment of earning 

capacity due to injury to, destruction of, or loss of real or personal property or natural resources 

may be presented to the Fund by the claimant sustaining the loss or impairment. 

“In addition to the requirements of Subparts A and B of this part, a claimant must establish the 

following—

(a) That real or personal property or natural resources have been injured, destroyed, or lost. 

(b) That the claimant’s income was reduced as a consequence of injury to, destruction of, or loss 

of the property or natural resources, and the amount of that reduction.

(c) The amount of the claimant's profits or earnings in comparable periods and during the period 

when the claimed loss or impairment was suffered, as established by income tax returns, 

financial statements, and similar documents. In addition, comparative figures for profits or 

earnings for the same or similar activities outside of the area affected by the incident also must 

be established. 

(d) Whether alternative employment or business was available and undertaken and, if so, the 

amount of income received. All income that a claimant receives as a result of the incident must 

be clearly indicated and any saved overhead and other normal expenses not incurred as a result 

of the incident must be established.” 33 CFR 136.233 (a) – (d)

If a third party claimant or an RP is able to establish an entitlement to lost profits, then 

compensation may be provided from the OSLTF. But the compensable amount is limited to the 

actual net reduction or loss of earnings and profits suffered. Calculations for net reductions or 
losses must clearly reflect adjustments for the following: all income resulting from the incident; 

all income from alternative employment or business undertaken; potential income from 

alternative employment or business not undertaken, but reasonably available; any saved 

overhead or normal business expenses not incurred as a result of the incident; and state, local, 

and Federal tax savings. 33 CFR 136.235(a)–(e).

The Oil Spill Liability Trust Fund (OSLTF), which is administered by the NPFC, is available, 

pursuant to 33 USC §§ 2712(a)(4) and 2713. The OSLTF claims adjudication regulations at 33 

CFR Part 136, provide for paying claims. 

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 136.115(d), the Director, NPFC, will, upon written request of the claimant or the 

claimant's representative, reconsider any claim denied. The request for reconsideration must be 

in writing and include the factual or legal grounds for the relief requested, providing any 

additional support for the claim. The request for reconsideration must be received by the NPFC 

within 60 days after the date the denial was mailed to the claimant or within 30 days after receipt 

of the denial by the claimant, whichever date is earlier. 

DETERMINATION OF LOSS: 

A. Findings: 

1. The FOSC Coordination was provided by Mr. , USEPA Region 8. MST2 

 and YN2 were also on site for immediate response. 

2. The incident involved the discharge and 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 certified no suit has been filed in 

court for the claimed 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 costs presented were for actions in accordance with the NCP 

and that the costs for these actions were indeed reasonable and allowable und OPA and 33 

CFR § 136.205 as set forth below. 

B. Analysis: 

No depreciation has been applied to the replacement cost of the consumable items since they

are a one time use product. Confirmation that the materials were provided on site has been 

made by FOSC. 

The NPFC hereby determines that the OSLTF will pay $2,415.60 as full compensation for 

reimbursable real property costs provided by the Claimant and submitted to the NPFC under 

claim# E07805-001.
AMOUNT: $2,415.60

Claim Supervisor: 

Date of Supervisor’s review: 4/6/09 

Supervisor Action: Approved 

Supervisor’s Comments: