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CLAIM SUMMARY / DETERMINATION 

Claim Number: P16006-0001 

Claimant: Elizabeth City-Pasquotank County Airport Authority 

Type of Claimant: Local Government 

Type of Claim: Loss of Profits and Earnings 

Claim Manager: 

Amount Requested: $45,301.52 

FACTS: 

Incident:

The United States Coast Guard Sector North Carolina reports1

 that on December 8, 2015, it 

received notification of a pollution incident at the Elizabeth City Regional Airport (ECRA). Mr. 

, of Base Elizabeth City, reported the incident to the National Response Center (via 

report # 11352542

) requesting oil boom from the Sector to prevent the observed oil from making 

it to the Pasquotank River, a navigable waterway of the US. During the preliminary investigation 

by Sector Nags Head Incident Management Division (IMD), it was found that the nexus to the 

Pasquotank River was an unnamed tributary that is subject to the ebb and flow of tide. The IMD 

authorized Station Elizabeth City and Mr. to gain access to the pollution response 

trailer and utilize the containment boom in order to contain the oil and prevent further pollution. 

Claim and Claimant:

This claim for uncompensated removal costs was presented to the National Pollution Funds 

Center (NPFC) on January 23, 2017 in the amount of $45,301.52 by the Elizabeth City Regional 

Airport (ECRA). The Claimant is specifically seeking uncompensated removal costs in the 

amount of $45,301.52, asserting that no Responsible Party (RP) has been identified and as such, 

Claimant contends the incident was a mystery spill.3

Description of Removal Activities for this incident:

Upon discovery of the incident, the Claimant, ECRA, hired Eastern Environmental Management, 

LLC (Eastern Environment) to handle clean-up and removal operations. Eastern Environment 

arrived on site on December 8, 2015 and removed an estimated 390 gallons of oil from two 

storm drain accesses. Response actions then focused on the affected waterway and removal of 

the emulsified oil pockets that had begun to form. On December 11, 2015, both the United 

States Environmental Protection Agency (USEPA) and the Federal On Scene Coordinator’s 

representative (FOSCR) arrived on scene and found clean-up operations being conducted as 

scheduled and, by the end of the day, minimal sheen was observed in the waterway. 

USEPA representative recommended a passive approach to clean up. He suggested maintaining 

absorbent boom throughout the waterway and to remove any emulsified oil pockets that form 

 

1 See, Sector North Carolina Case Report # 1008466, opened 12/08/2015. 2 See, NRC Report # 1135254, opened 12/08/2015. 3 See, OSLTF Claim Form dated December 22, 2016.
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over time. He further advised that the best method for clean-up moving forward, was natural 

flushing. The FOSCR advised the ECRA that he would intermittently spot check the site. When 

the EPA representative was no longer needed, he completed the scope of work requested and 

demobilized back to Raleigh, NC. 

On December 15, 2015, the FOSCR arrived on scene to conduct a spot check of the waterway 

and the passive response actions. While the FOSCR was on site, an ECRA employee stated that a 

pressure washing truck that was on site during the time of the incident was back on Airport 

property and available to be sampled. The FOSCR took a sample from the truck and also a 

sample from the waterway. The samples were then sent to the Coast Guard’s Marine Safety Lab 

(MSL) for testing.

The CG’s MSL issued laboratory results that found four (4) conclusive non-matches and one (1) 

conclusive match. The sample that matched was taken from a McCarthy contractor water truck.4

It is important to note that McCarthy was on the Claimant’s property behind fence lines while 

working as a subcontractor to Barnhill Contracting Company. Barnhill Contracting Company 

had an executed contract with the Elizabeth City-Pasquotank County Airport Authority, 

Claimant, dated March 23, 2015 for an airport project described as ”...construction associated 

with the rehabilitation of the General Aviation Ramp.” The work being performed by Barnhill 

and any of its subcontractors included, but was not limited to, the construction and maintenance 

of erosion control measures, replacement of the existing drainage system, full depth reclamation 

of existing asphalt pavement and aggregate base for incorporation into a new cement treated 

base, construction of approximately 25,500 square yards of new concrete pavement, electrical 

work to include the replacement of gate loops and airfield lighting relocation, and other 

incidental items necessary to complete the project.5

Responsible Party: 

Upon review of the claim submission and based on the evidence either presented to or obtained 

by this office, the NPFC has determined that in accordance with the Oil Pollution Act of 1990 

and based on its definition of a Responsible Party (RP), it states ....,”(32) "responsible party" 

means the following:

(B) Onshore facilities.-In the case of an onshore facility (other than a pipeline), any person 

owning or operating the facility, except a Federal agency, State, municipality, commission, or 

political subdivision of a State, or any interstate body, that as the owner transfers possession and 

right to use the property to another person by lease, assignment, or permit. 

While the Coast Guard Pollution Investigation Report has labeled the incident as a “mystery 

spill” and as such, no Responsible Party (RP) was tagged.6 The NPFC has determined that by a 

preponderance of the evidence and in consideration of a conclusive laboratory matching product 

within a McCarthy truck that was inside the fence line and on airport property, that the Claimant 

is the Responsible Party (RP) for this incident. 

 

4 See, FOSCR witness statement dated January 4, 2016. 5 See, Barnhill / ECRA contract dated March 23, 2015. 6 See, Pollution Investigation Report written by MST2 , dated 1/04/2016.
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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).

However, OPA allows certain RPs to limit their liability under certain conditions. At 33 USC 

2704 the OPA states the provisions for limiting liability. In pertinent part, 33 USC 2704 follows:

(a) General Rule.—Except as otherwise provided in this section, the total of 

the liability of a responsible party under section 1002 and any removal cost 

incurred by, or on behalf of, the responsible party, with respect to each incident 

shall not exceed—

(1) for a tank vessel, the greater of—

(A) $1,200 per gross ton; or

(B)(i) in the case of a vessel greater than 3,000 gross tons,$10,000,000; or

 (ii) in the case of a vessel of 3,000 gross tons or less, $2,000,000;

(2) for any other vessel, $600 per gross ton or $500,000, whichever is 

greater...

(c) Exceptions—

(1) Acts of Responsible Party.—Subsection (a) does not apply if the incident 

was proximately caused by—

(A) gross negligence or willful misconduct of, or

(B) the violation of an applicable Federal safety, construction, or 

operating regulation by, the responsible party, an agent or employee of the 

responsible party, or a person acting pursuant to a contractual relationship with 

the responsible party...

(2) Failure or Refusal of Responsible Party.—Subsection (a) does not apply if 

the responsible party fails or refuses—

(A) to report the incident as required by law and the responsible party 

knows or has reason to know of the incident;

(B) to provide all reasonable cooperation and assistance requested by a 

responsible official in connection with removal activities; or 

(C) without sufficient cause, to comply with an order issued under 

subsection (c) or (e) of section 311 of the Federal Water Pollution Control Act 

(33 U.S.C. 1321), as amended by this Act, or the Intervention on the High Seas 

Act (33 U.S.C. 1471 et seq.).

“The responsible party for a vessel or facility from which oil is discharged, or which poses the 

substantial threat of a discharge of oil, may assert a claim for removal costs and damages under 

section 1013 only if the responsible party demonstrates that –
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(2) the responsible party is entitled to a limitation of liability under section 1004.” 33 

U.S.C. 2708

A responsible party may present a claim directly to the Oil Spill Liability Trust Fund. 33 U.S.C. 

2713

"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 C.F.R. 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 C.F.R. § 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 

C.F.R. § 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 C.F.R. § 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 C.F.R. § 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 

C.F.R. § 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 C.F.R. § 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.”
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Under 33 C.F.R. § 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]. 

NPFC DETERMINATION:

Findings of USCG Marine Safety Laboratory:

Six (6) samples were sent to the USCG Marine Safety Laboratory (MSL) for testing: Sample 16-

038-1 (“spill sample”) was specified to be representative of spilled oil. Analysis indicated this 

sample contained very slightly weathered light fuel oil with characteristics most resembling 

those of lower-sulfur diesel fuel with non-petroleum contamination is present. Sample 16-038-4 

contained light fuel oil with characteristics similar to those of the spill sample. Sample 16-038-2 

contained light fuel oil with characteristics similar to those of spill sample; however, sample 16-

038-2 was red-dye diesel, whereas the spill sample 16-038-1 was yellow diesel. Sample 16-038-

3 contained light fuel oil in the #1 range, such as kerosene or jet fuel, with characteristics 

different from those of the spill sample. Sample 16-038-5 contained light fuel oil with 

characteristics different from those of the spill sample. Finally, Sample 16-038-6 was specified 

to represent clean water, and thus, no petroleum oil was detected. 

The MSL concluded that Sample 16-038-4 and the spill sample, 16-038-1, were derived from a 

common source of petroleum oil.

Findings on Removal Costs claimed:

During the adjudication of the claim, the NPFC determined additional information was needed 

and as such, the Claimant, ECRA, was asked7 to provide the following:

1. A copy of the name of the fuel truck supplier that delivered diesel fuel to the Airport 

location for any and all assets whether owned by the Airport or owned and/or operated 

by McCarthy or Barnhill during the project; 

2. A copy of any and all invoices that the Airport may have received, paid, or intended to 

pay to the fuel supplier, if any, for the purchase of diesel fuel that was delivered on site 

to the airport location between November 1, 2015 and the present (if applicable);

3. An itemization of all diesel consuming equipment utilized (by the airport or its 

contractors) and on the job site, as well as how much those pieces of equipment 

consumed on a daily basis (whether owned by the ECRA or by McCarthy or Barnhill). 

This was to include the week leading up to the oil spill incident, through the end of the 

project, providing where and how the equipment was refueled.

The NPFC also sent the same request to both McCarthy and Barnhill in light of the fact that these 

companies were under contract with the Claimant and had assets on site that contained product 

similar to what was discovered following the incident on airport property.

 7 See, Letter from the NPFC to the ECRA, dated 3/16/2017.
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In accordance with 33 CFR §136.105(e)(10), the Claimant, was to provide a copy of all written 

communications and the substance of any and all verbal communications, if any, between it and 

any diesel fuel supplier, contractor or subcontractor that was working on the project being 

conducted during the time period of the oil spill. It is important to note that the burden is on the 

Claimant to prove its claim and as such, that includes providing all information requested which 

would include information this office desired from its contractors. While the Claimant states that 

it does not have diesel delivered or fuel on its property8, but the Claimant was in a contractual 

relationship with contractors that did in fact have equipment on site that used and carried diesel 

fuel.9 Based on the fact that there was a laboratory match to the product recovered combined 

with the fact that the match came from an asset located within the fence line on airport property, 

the Claimant has failed to prove that it and/or its contractor/subcontractor was not the source of 

the spill and as such, the Claimant is liable under OPA. 10

Should the Claimant seek reconsideration, it would need to provide any and all requested 

documentation, including what this office requested from its contractor/subcontractor. 

DETERMINATION:

Based on the foregoing, the NPFC determines that the Claimant has failed to prove it is not a 

Responsible Party (RP) under OPA. OPA provides that a responsible party is not liable for 

removal costs and damages if it establishes, by a preponderance of the evidence, entitlement to a 

complete defense. To establish a defense, the responsible party must establish that the incident 

and resulting removal costs and damages were caused solely by the acts or omissions of a third 

party and that the responsible party exhibited due care with respect to the oil. Additionally, the 

third party cannot have a contractual relationship with the responsible party. 

DETERMINED AMOUNT: $0.00

 

Claim Supervisor: 

Date of Supervisor’s review: 4/14/17 

Supervisor Action: Denial Approved 

Supervisor’s Comments: 

 

8 See, Email from the ECRA to the NPFC, dated 3/21/2017. 9 See, Letter from Barnhill to the NPFC, dated 3/30/2017. 10 See, Buffalo Marine Services, Inc. v. United States, 663 F.3d 750 (5th Cir. 2011).