2

CLAIM SUMMARY / DETERMINATION

Claim Number: N19045-0004 

Claimant: National Shipping of America, LLC 

Type of Claimant: Corporate 

Type of Claim: Loss of Profits and Earnings 

Claim Manager: 

Amount Requested: $1,246,296.17 

Action Taken: Denied on Reconsideration

EXECUTIVE SUMMARY:

On March 17, 2019, a fire broke out at the Intercontinental Terminals Company (ITC) tank 

farm in Deer Park, Texas. On that date, due to the fire, vessel traffic on the Houston Ship 

Channel was prevented from entering the ITC facility or nearby VOPAK facility.1

 Several tanks 

containing chemicals and oil burned and, as a result, released their contents. The chemicals and 

oil then commingled inside the containment area surrounding the tanks. After the substances 

commingled in the containment area, the containment area breached on March 22, 2019, and the 

mixture discharged into the Houston Ship Channel (HSC), a navigable waterway of the United 

States. A portion of the HSC was initially closed because of the fire and toxic air quality; then 

remained closed for a period of time due to the commingled release. 

Both the EPA and U.S. Coast Guard responded and it was determined the spill was a release 

of hazardous substances under the Comprehensive Environmental Response, Compensation and 

Liability Act (CERCLA). 

The claimant, National Shipping of America, LLC operates the M/V NATIONAL GLORY 

which sails every other Wednesday from Houston, arriving the following Wednesday in San 

Juan delivering cargo, food items and consumer goods.2 It seeks lost profits and earnings in the 

amount of $1,246,296.17.3

 

On September 8, 2020, the National Pollution Funds Center (NPFC) issued a denial to the 

Claimant. Via email received by the NPFC and dated November 5, 2020, the Claimant timely 

requested reconsideration of the claim.4

The NPFC has thoroughly reviewed the original claim, the request for reconsideration, all 

information provided by the Claimant, information it obtained independently, and the applicable 

law and regulations. Upon reconsideration, the NPFC concludes that the facts established within 

1 Vessel Traffic Service Broadcast dated March 17, 2019. 

2 See, https://natship.us/our-services/ (last visited January 26, 2021). See also, Claimant’s Description of Business. 3 Optional OSLTF Claim Form dated March 27, 2020. The claimed costs are described as; Lost Revenue/Lost 

Freight, Expenses at Barbours Cut Terminal, Additional Vessel Expenses During Eight Day Delay, Delay Expenses 

at Jacinto Port, Expenses to Divert Reefer Containers to Jacksonville, Drayage and Line Haul Expenses to Move 

Perishable Food Items, Consumer Goods, and Cargo from Spill/Closed Area to Outside Spill/Closed Area.

4 Claimant’s Request for Reconsideration dated November 4, 2020. 

(b) (6)
3

the NPFC’s initial determination as well as information provided by the Claimant within their 

request for reconsideration do not support payment of the claim. The NPFC once again denies 

the claim, as outlined in the original determination and below. 

I. CLAIM HISTORY

The claimant, National Shipping of America, LLC operates the M/V NATIONAL GLORY

which sails every other Wednesday from Houston, arriving the following Wednesday in San 

Juan delivering cargo, food items and consumer goods.5 The Claimant seeks costs for lost 

revenue and additional expenses due to the river closure. 6

On May 6, 2020, the Claimant presented a claim for Loss of Profits and Earnings 

Capacity to the NPFC for $1,246,296.17.7

 The NPFC thoroughly reviewed the original 

claim, all information provided by the Claimant or obtained independently, the relevant 

statutes and regulations, and ultimately determined that the claim was not compensable under 

OPA.8

 The NPFC’s initial determination is hereby incorporated by reference. On November 

5, 2020, the NPFC received the Claimant’s timely request for reconsideration.

9

 

II. REQUEST FOR RECONSIDERATION

The regulations implementing OPA require requests for reconsideration of an initial

determination to be in writing and include the factual or legal grounds for the relief requested, 

along with any additional support for the claim in accordance with our governing claims 

regulations at 33 CFR 136.115(d). The claimant has the burden of providing all evidence, 

information, and documentation deemed necessary by NPFC to support the claim.10 When 

analyzing a request for reconsideration, the NPFC performs a de novo review of the entire claim 

submission, including any new information provided by the Claimant in support of its request for 

reconsideration. The written decision by the NPFC is final agency action.11

On November 5, 2020, the Claimant timely submitted a request for reconsideration and 

provided arguments purporting to support their claim.12 The Claimant argues that the cases the 

NPFC cited in its denial letter do not apply and that the ITC fire involved a discharge and 

substantial threat of a discharge from tanks containing petroleum products, even if a mix of oil 

and hazardous substances occurred post discharge.

13 Claimant asserts that as a direct result of 

the ITC fire it incurred OPA damages, in the form of, loss of profit and earning capacity.14 

5 See, https://natship.us/our-services/ (last visited January 26, 2021). See also, Claimant’s Description of Business. 6 Optional OSLTF Claim Form dated March 27, 2020. The claimed costs are described as; Lost Revenue/Lost 

Freight, Expenses at Barbours Cut Terminal, Additional Vessel Expenses During Eight Day Delay, Delay Expenses 

at Jacinto Port, Expenses to Divert Reefer Containers to Jacksonville, Drayage and Line Haul Expenses to Move 

Perishable Food Items, Consumer Goods, and Cargo from Spill/Closed Area to Outside Spill/Closed Area.

7 Original claim submission, attachment # 3, page 14 of 80, of Claimant’s Binder # 1.

8 NPFC determination issued to the Claimant on September 8, 2020.

9 Claimant’s Request for Reconsideration dated November 4, 2020.

10 33 CFR 136.105(a). 11 33 CFR 136.115(d). 12 Claimant’s Request for Reconsideration dated November 4, 2020. 13 Id., page 8. 14 Claimant’s Request for Reconsideration dated November 4, 2020, page 9.
4

III. ANALYSIS ON RECONSIDERATION: 

The NPFC utilizes an informal process when adjudicating claims against the Oil Spill 

Liability Trust Fund (OSLTF).15 As a result, 5 U.S.C. § 555(e) requires the NPFC to provide a 

brief statement explaining its decision. This determination is issued to satisfy that requirement.

When adjudicating claims against the OSLTF, the NPFC acts as the finder of fact. In this 

role, the NPFC considers all relevant evidence, including evidence provided by claimants and 

evidence obtained independently by the NPFC, and weighs its probative value when determining 

the facts of the claim.16 If there is conflicting evidence in the record, the NPFC makes a 

determination as to what evidence is more credible or deserves greater weight, and makes its 

determination based on the preponderance of the credible evidence.

Release of Hazardous Substances

On Sunday March 17, 2019, a chemical fire ignited at the Intercontinental Terminals 

Company (ITC) tank farm in Deer Park, Texas. ITC reported the fire to the National Response 

Center the same day.17 The EPA Region VI Federal On-Scene Coordinator mobilized to the 

site.18 

The impacted tank farm included 15 petro-chemical storage tanks that contained a variety of 

different petroleum and chemical products such as: Yubase 6, Gasoline Blend Stock, Yubase 4 

Plus, Xylene, Pyrolysis Gasoline, Naphtha, Base Oils, and Toluene. The fire began in the 

centrally located Naphtha tank and spread to 13 of 15 tanks within the containment area. As the

tanks were compromised, they leaked their contents creating a mixture of chemical and 

petroleum products within the containment area.19 On March 22, 2019, the commingled 

substances breached the containment area and entered Tucker Bayou and the HSC.20 On March 

23, lab results from the sampling in Tucker Bayou and in Buffalo Bayou found exceedances of 

 

15 The court in Bean Dredging, LLC v. United States, 773 F. Supp, 2d 63, 75 (D.D.C.2011), characterized the 

informal adjudication process for OSLTF claims with the following: “[W]hile the OPA allows responsible parties to 

present a claim for reimbursement to the NPFC, they do not confer upon such parties a right to a formal hearing, a 

right to present rebuttal evidence or argument, or really any procedural rights at all, see 33 U.S.C. § 2704, 2708, 

2713, an entirely unremarkable fact given the Congress’ overarching intent in enacting the OPA was to ‘streamline’ 

the claims adjudication process ...”.

16 See, e.g., Boquet Oyster House, Inc. v. United States, 74 ERC 2004, 2011 WL 5187292, (E.D. La. 2011), “[T]he 

Fifth Circuit specifically recognized that an agency has discretion to credit one expert's report over another when 

experts express conflicting views.” (Citing, Medina County v. Surface Transp. Bd., 602 F.3d 687, 699 (5th Cir. 

2010)). 17 NRC Report #1240304 dated March 17, 2019. 18 EPA Region VI POLREP #1; EPA Region VI ITC tank fire site profile, available at

https://response.epa.gov/itctankfire (last visited January 28, 2021). 19 Email from CDR to NPFC dated January 22, 2020. CDR was in charge of the CG Incident 

Management Division at Sector Houston/Galveston during the spill.

20 Email from CDR to NPFC dated January 22, 2020.

(b) (6) (b) (6) (b) (6)
5

the water quality levels for benzene and xylene.21 Due to the commingling of oil and hazardous 

chemical products, it became a CERCLA response.22

The combination of the fire, the toxic air quality, and the response to the commingled release 

caused channel closures and waterway traffic restrictions.

Facility Owner and Operator 

Intercontinental Terminals Company LLC (ITC) is the owner and operator of the terminal

and tanks used to store oil and chemicals, including those that discharged. The EPA identified 

ITC as a “potentially responsible party” under CERCLA.23 ITC’s facilities were not designated 

as the source of the discharge under OPA. Also, the U.S. Coast Guard has not identified ITC as 

an OPA responsible party. 

Recovery Operations

EPA Region VI and U.S. Coast Guard Sector Houston-Galveston responded. During the 

initial stages of the response, federal and state authorities quickly determined that the release 

involved CERCLA hazardous substances and responded under CERCLA authority.24 EPA 

Region VI provided the Federal On-Scene Coordinator (FOSC) who oversaw the response and 

removal operations. EPA exercised pollution-response authority under CERCLA based on 

sampling data indicating a release or threat of release of CERCLA-listed hazardous substances, 

including toluene, benzene, xylene, naphthalene, ethylbenzene and styrene.25 On March 23, EPA 

delivered an Administrative Order to ITC, requiring ITC to conduct actions to abate or mitigate 

an imminent and substantial threat to the public health or welfare by the discharge or substantial 

threat of a discharge of hazardous substances from the Deer Park facility into or upon the 

navigable waters or adjoining shorelines.26 

IV. DISCUSSION

OPA provides a mechanism for compensating parties who have incurred removal costs and 

certain damages where the responsible party has failed to do so. 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 such an incident.”27

The NPFC is authorized to pay claims for uncompensated damages that result from the 

discharge or substantial threat of the discharge of oil into navigable waters of the United States.28

21 In addition, naphthalene, ethylbenzene, methyl tert-butyl ether (MTBE), and toluene exceeded the TCEQ levels in 

the Tucker Bayou sample; EPA Region VI POLREP #2. 22 Email from CDR to NPFC dated January 22, 2020. 23 EPA Region VI POLREPs One through Four. 24 EPA Region VI POLREP #2. 25 EPA Region VI letter to ITC attorneys dated September 27, 2019; U.S. Coast Guard Second 80’s Tank Farm Fire 

Product Listing PowerPoint presentation attached to email from MSTC to NPFC dated May 2, 2019. 26 EPA Region VI POLREP #2. 27 33 U.S.C. § 2701(31). 28 See generally, 33 U.S.C. § 2712(a)(4); 33 U.S.C. § 2713; and 33 CFR Part 136.

(b) (6) (b) 

(6)
6

The NPFC has promulgated a comprehensive set of regulations governing the presentment, 

filing, processing, settling, and adjudicating such claims.29 The claimant bears the burden of 

providing all evidence, information, and documentation deemed relevant and necessary by the 

Director of the NPFC, to support and properly adjudicate the claim.30 

OPA defines a “claim” to mean “a request made in writing for a sum certain, for 

compensation for damages or removal costs resulting from an incident.” 31 

An “incident” under OPA is defined as “any occurrence or series of occurrences having the 

same origin, involving one or more vessels, facilities, or any combination thereof, resulting in 

the discharge or substantial threat of discharge of oil.”32 

OPA defines “oil” as “oil of any kind or in any form, including petroleum, fuel oil, sludge, 

oil refuse, and oil mixed with wastes other than dredged spoil, but does not include any 

substance which is specifically listed or designated as a hazardous substance under 

subparagraphs (A) through (F) of section 101 (14) of the Comprehensive Environmental 

Response, Compensation, and Liability Act (42 USC § 9601) and which is subject to the 

provisions of that Act [42 USCA Section 9601 et seq.]”.33 

CERCLA defines “hazardous substance” broadly.34 However, the definition of “hazardous 

substance” under CERCLA specifically excludes “petroleum, including crude oil or any fraction 

thereof...”35 Further, the definition goes on to exclude “natural gas, natural gas liquids, liquefied 

natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas).”36 

A Commingled spill

Notwithstanding the statutory definitions, a question sometimes exists when the release 

involves a mixture of oil and hazardous substances that have commingled before substantially 

threatening to discharge, or discharging into a navigable waterway, such as the facts in this case.

The analysis of these types of releases must begin by analyzing the purpose of each of the 

statutes and how Congress and the agencies have intended them to apply. 

 

29 33 CFR Part 136. 30 33 CFR 136.105. 31 33 U.S.C. § 2701(14). 32 33 U.S.C. § 2701(14)(emphasis added). 33 33 U.S.C. § 2701(23). 34 42 U.S.C. § 9601(14). “Hazardous substance means (A) any substance designated pursuant to section 

311(b)(2)(A) of the Federal Water Pollution Control Act, (B) any element, compound, mixture, solution, or 

substance designated pursuant to section 9602 of this title, (C) any hazardous waste having the characteristics 

identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act [42 U.S.C. 6921] (but not 

including any waste the regulation of which under the Solid Waste Disposal Act [42 U.S.C. 6901 et seq.] has been 

suspended by Act of Congress), (D) any toxic pollutant listed under section 307(a) of the Federal Water Pollution 

Control Act [33 U.S.C. 1317(a)], (E) any hazardous air pollutant listed under section 112 of the Clean Air Act [42 

U.S.C. 7412], and (F) any imminently hazardous chemical substance or mixture with respect to which the 

Administrator has taken action pursuant to section 7 of the Toxic Substances Control Act [15 U.S.C. 2606].” 35 Id. 36 Id. 
7

OPA’s legislative history clearly highlights the intent of Congress that OPA liability and, by 

extension OPA claim compensation, only applies to discharges of “oil” and not “oil mixed with 

hazardous substances”. 

The definition [of oil] has been modified... to clarify that it does not 

include any constituent or component of oil which may fall within the 

definition of "hazardous substances", as that term is defined for the 

purposes of the Comprehensive Environmental Response, Compensation, 

and Liability Act (CERCLA). This ensures that there will be no overlap 

in the liability provisions of CERCLA and the Oil Pollution Act.

37

The legislative history of CERCLA likewise is instructive: “The reported bill [CERCLA] 

does not cover spills or other releases strictly of oil.”38 Contemporaneous congressional debate 

further elucidated how it intended CERCLA to apply to spills of oil mixed with hazardous 

substances.39 Both Representative Edgar and Senator Randolph specifically discussed oil slicks 

that were mixed with hazardous materials present on a navigable waterway, with the intent of 

ensuring the final legislation was broad enough to cover these events. By all accounts, it was. 

Since the passage of CERCLA, the EPA has promulgated several policy documents 

explaining its position with respect to discharges of oil. Taken holistically and simplistically, the 

policies explain that CERCLA excludes discharges of oil40 but CERCLA could impose liability 

on certain discharges of substances that contain oil in an adulterated form. Because of the 

adulteration of the oil, if released, it would be considered a “hazardous material” not “oil” as 

defined.41 While most of the jurisprudence in this area concerns cases where the EPA is asserting 

jurisdiction under CERCLA and the defendant asserts the “petroleum exclusion” as a defense, 

the decisions discussing the intent and application of CERCLA are instructive to how to analyze 

a commingled spill. For example, one court after reviewing the legislative history of CERCLA 

and analyzing EPA’s policy documents on CERCLA’s application to oil concluded pointedly, 

“the EPA determined that the purpose of the petroleum exclusion was ‘to remove from CERCLA 

jurisdiction spills only of oil, not releases of hazardous substances mixed with oil.’”42 

 

37 H. R. Rep. No. 653, 101st Cong., 2d Sess.102 (1990). S. Rep. No. 101-94 (1989) (emphasis added). 38 S. Rep. No. 96-848, 96th Cong., 2d Sess. 29-30 (1980) (emphasis added). 39 See, e.g., at 126 Cong.Rec. H11798 (Rep. Edgar) (oil slicks and industrial oil waste); 126 Cong.Rec. S14963 

(daily ed. November 24, 1980) (Sen. Randolph) (contaminated oil slick), and other petroleum products containing 

hazardous substance additives intended to be addressed by the legislation including PCBs in transformer fluid, id. at 

S14963 (Sen. Randolph) and S14967 (Sen. Stafford); dioxin in motor fuel used as a dust suppressant, id. at S14974 

(Sen. Mitchell); PCB's in waste oil, id. (Sen. Mitchell) and contaminated waste oil, id. at S14980 (Sen. Cohen). 40 This has become known colloquially as EPA’s “petroleum exclusion”. 41 Several courts have analyzed whether or not a particular discharge falls under CERCLA or has been exempted 

from CERCLA jurisdiction because of the application of the “petroleum exclusion”. For example, when discussing 

lead in waste oil discharge: “If the lead results from its use as an additive to petroleum products, and was found at 

the level expected of purely petroleum additives, it would fall under the petroleum exclusion and would not be a 

“hazardous substance” for the purpose of CERCLA liability. If, on the other hand, the level exceeded the amount 

that would have occurred in petroleum during the refining process, then the petroleum exclusion would not apply.” 

Mid Valley Bank v. North Valley Bank, 764 F.Supp. 1377 (E.D. Cal. 1991). See also, e.g., State of Wash. v. Time Oil 

Co., 687 F.Supp. 529 (W.D. Wa. 1988), City of New York v. Exxon, 744 F. Supp. 474 (S.D.N.Y. 1990). 42 Mid Valley Bank v. North Valley Bank, 764 F.Supp. 1377, 1383-4 (E.D. Cal. 1991).
8

Moreover, the Tenth Circuit analyzed the commingling of petroleum products and hazardous 

materials in the soil and floating in the groundwater beneath an oil refinery.43 In that case, the 

sampling results and expert testimony confirmed that certain soil at the refinery, as well as the 

petroleum plume in the groundwater aquifer beneath the refinery, contained a mixture of 

petroleum and hazardous wastes.44 In holding that the petroleum exclusion did not apply to 

these facts, the court indicated that in order for CERCLA to be inapplicable, the moving party 

would have to have provided testing to show that unadulterated petroleum was the only

contaminant in the ground water plume. Moreover, the court would have required an expert to 

opine that the hazardous waste did not commingle with petroleum products.45

Claimant proffers in its reconsideration request that since some amount of oil was discharged 

at the very beginning of this incident, any resultant damages, no matter how derivative of that 

initial discharge of oil, are compensable. The NPFC disagrees. Coupled with the undisputed facts 

that this oil commingled with hazardous materials far before it impacted the navigable waterway 

and the closure of the waterway was based on a combination of the fire, toxic air quality and the 

release of the commingled substances, it would be fundamentally inconsistent with the statutory 

language of OPA and CERCLA; the NPFC and EPA’s longstanding interpretations of this 

language, and established case law to find otherwise.46 

As a factual matter, the NPFC finds that the claimant did not suffer any loss of profits as a 

result of an oil discharge under OPA. Any loss of profits suffered by the claimant was caused by 

the mixture of oil and hazardous substances in the HSC, not any oil discharged into the 

containment area. A mixture of both CERCLA hazardous substances and OPA oil falls within 

CERCLA’s definition of hazardous substances and is thereby excluded from OPA’s definition of 

oil. Thus, this claim must be denied because claimant’s alleged damages did not result from oil 

as defined by OPA.47 While admittedly more narrow than OPA, CERCLA does provide for 

damage claims that arise from hazardous substance releases.48 Any claim for damages resulting 

 

43 Tosco Corp. v. Koch Indus., Inc., 216 F.3d 886 (10th Cir. 2000). 44 Id. 45Id. at 894. See also, Eastman v. Brunswick Coal & Lumber Co., No. CIV. 95-255-P-C, 1996 WL 911200, (D. Me. 

Apr. 19, 1996)(A truck loaded with diesel fuel (an OPA oil) overturned and caught fire releasing its contents, and in 

conjunction with the fire, hazardous materials mixed with the diesel fuel. This mixture entered the [plaintiffs'] soil 

and groundwater, and ultimately, a navigable waterway of the United States. The court indicated that the petroleum 

exception would not apply and these facts, if alleged and proven, would constitute a CERCLA release. 46 “...the Fourth and Fifth Circuits agree that OPA was not designed to cover economic losses that are derivative of 

an oil spill.” Venoco, Inc. v. Plains Pipeline, L.P., 2016 WL 10646303 (C.D. Ca. 2016). As of July 31, 2020, the 

Ninth Circuit agrees as well. See, Venoco, Inc. v. Plains Pipeline, L.P. 814 Fed.Appx. 318 (mem) (9th Cir. 2020). 47 See, e.g., In re Taira Lynn Marine Ltd. No. 5, LLC, 444 F.3d 371, 383 (5th Cir. 2006)(holding that OPA only 

applies when the damages result from either an oil discharge or substantial threat of oil discharge). See also, Gatlin 

Oil v. United States, 169 F.3d. 207 (4th Cir. 1999)(affirming NPFC’s denial of an OSLTF claim because the 

claimant’s damages resulted from a fire as opposed to oil); In re Deepwater Horizon, 168 F.Supp.3d 908, 914 (E.D. 

La. 2016)(dismissing OPA claims because the damages resulted from a moratorium on offshore drilling instead of 

an oil discharge); and Venoco, Inc. v. Plains Pipeline, L.P., 2016 WL 10646303 (C.D. Ca. 2016)(holding that 

plaintiff’s lost profits claim was not compensable under the OPA because any loss resulted from plaintiff’s pipeline 

being “shut-in”, not the discharge of oil). Affirmed, Venoco, Inc. v. Plains Pipeline, L.P. 814 Fed.Appx. 318 (mem)

(9th Cir. 2020). 48 42 U.S.C. § 9612. 
9

from the release hazardous substances must be compensated by the Superfund instead of the 

OSLTF.49 

Similarly, the claimant states its belief that “the discharge of hazardous substances together 

with the discharge of oil does not preclude a claim under OPA. In other words, the claimant 

argues that even where the discharge or threat of discharge involved a mix of oil and hazardous 

substances, a claim under OPA remains viable” and points to the Magistrate Judge’s Findings 

and Recommendations in United States v. Mare Island Sales, LLC50 to illustrate its point.51 The 

NPFC carefully considered this case and concludes that it does not support paying an OSLTF 

claim for damages resulting from substances that fail to meet OPA’s definition of an oil at 33 

U.S.C. § 2701 (23). 

Critical to the claimant’s misreliance on the case, the Mare Islands Sales case did not involve 

a claim against the OSLTF at all. At best, Mare Islands Sales illustrates the point that many 

casualties involve both a discharge of oil under the OPA and a release of hazardous substances 

under CERCLA. In such cases, a RP may be liable under either OPA or CERCLA, but never 

liable under both for the same costs because these statutes impose mutually exclusive liability. If 

there is ever a question of which statute covers a substance in a particular case, the United States 

may opt to plead alternative causes of action under both OPA and CERCLA.

52 By pleading 

claims under both statutes, the United States protects against a finding at trial that a substance 

originally thought to be OPA oil was in fact a CERCLA hazardous substance. However, the 

mere fact that the United States sought recovery against a RP under both OPA and CERCLA in 

the Mare Islands Sales case does not authorize OSLTF compensation for damages resulting from 

hazardous substances covered by CERCLA. 

When a FOSC initially responds to a pollution event such as this one, he or she may have 

two separate funding streams available. An FOSC may use OSLTF funding to clean up an oil 

spill.53 Alternatively, a FOSC can use the Superfund to address a release of hazardous substances 

under CERCLA.54 A FOSC decides which funding stream to use based on the best information 

available at the time during what is commonly a chaotic and rapidly evolving event, but the 

funding stream can change as better information becomes available. As evidenced in this case, 

the Coast Guard initially responded and opened an OSLTF funding stream under OPA. 

However, quickly thereafter and in conjunction with the EPA, the incident was determined to be 

a CERCLA incident. As such, the OSLTF funding stream was immediately closed, and a 

Superfund funding stream under CERCLA was opened. All of the federal response costs were 

ultimately reimbursed by the Superfund. Since this was a CERCLA release, the EPA assumed 

the role of the FOSC and led the response. This is evident in the several pollution reports filed by 

the EPA.55 These reports describe the incident and the unified federal and state response in 

49 Id. 50 2008 U.S. Dist. LEXIS 85339 (E.D. Cal. 09/16/2008). 51 Claimant’s request for reconsideration dated November 4, 2020, page 8, footnote 29. 52 Fed. R. Civ. Proc. 8 (d). 53 See, 33 U.S.C. §§ 1321 (c), 1321 (s), 2712 (a)(1), and 2752 (b). See also, 26 U.S.C. 9509 (c)(1)(D). 54 See, 42 U.S.C. §§ 9604 and 9611 (a)(1). See also, 26 U.S.C. § 9507 (c)(1). 55 EPA Region VI POLREPs One through Four. 
10

detail; including the explanation of the initial funding stream under OPA, the closing of that 

stream, and that all subsequent funding for the response was provided by the Superfund.56 

Finally, in its request for reconsideration, claimant cites to the “Trustees’ Notice of Intent to 

Perform a Natural Resource Damage Assessment” to describe the incident.57 A careful review of 

that document evinces a position in symmetry with the discussion above, in that the Trustees

understand and acknowledge that since this event was “a discharge or release of a mixture of oil 

and hazardous substances,” they, too, are obligated to proceed under the regulations governing 

natural resources damages for CERCLA releases (vice OPA discharges).

58 

V. CONCLUSION:

While FOSCs have the ability to choose which funding authority (OSLTF or CERCLA) is 

best suited for funding the response to an event, the authority for the NPFC to compensate 

claimants for damages based on an event is exclusively found in OPA and is limited to 

compensating those damages that are solely the result of discharge or a substantial threat of 

56 Id. at Section 2.4-Finance Section (throughout). 57 Claimant’s request for reconsideration dated November 4, 2020, page 4, footnote 2, available at: 

https://www.cerc.usgs.gov/orda_docs/DocHandler.ashx?task=get&ID=5609 (last visited January 29, 2021).

58 “Trustees’ Notice of Intent to Perform a Natural Resource Damage Assessment - In re: ITC Deer Park Facility 

Tank Fire ‘2nd 80’s Fire’ dated August 5, 2019”, note 1: “For natural resource damages resulting from a discharge 

or release of a mixture of oil and hazardous substances, trustees must use 43 C.F.R. Part 11” citing “15 CFR

990.20(c).” 15 CFR 990.20(c) reads “Oil and hazardous substance mixtures. For natural resource damages resulting 

from a discharge or release of a mixture of oil and hazardous substances, trustees must use 43 CFR [P]art 11. 43 

CFR Part 11 in part explains that when there is a mixed spill, these procedures “must be used by Federal or State 

natural resource trustees in order to obtain the rebuttable presumption contained in section 107(f)(2)(C) of 

CERCLA.”

When publishing its Final Regulation, National Oceanic and Atmospheric Administration (NOAA) explained that an 

incident involving a mixture of oil and hazardous substances should be assessed under the CERCLA regulations 

controlling a Natural Resources Damage Assessment (NRDA), not the OPA NRDA regulations. See, Natural 

Resource Damage Assessments, 61 Fed. Reg. 440, 444 (January 5, 1996)(codified at 15 C.F.R. Part 990), available 

online at: https://www.gpo.gov/fdsys/pkg/FR-1996-01-05/pdf/95-31577.pdf. Before issuing its Final Regulation, 

NOAA explained why a mixed spill should be covered by CERCLA with the following:

If a component of a mixed spill is a hazardous substance under CERCLA, CERCLA and the 

CERCLA NRDA regulations apply. . . .

According to EPA guidance, “oil” covered by OPA includes: (1) Crude oil and fractions of crude 

oil including the hazardous substances, such as benzene, toluene, and xylene, which are 

indigenous to petroleum and its refined products; and (2) hazardous substances that are normally 

mixed with or added to crude oil or crude oil fractions during the refining process, including 

hazardous substances that have increased in level as a result of the refining process. (U.S. EPA 

Memorandum on the Petroleum Exclusion Under the Comprehensive Environmental Response, 

Compensation, and Liability Act, July 31, 1987; BNA, 1988) Hazardous substances added to 

petroleum that increase in concentration through any process other than refining, or added as a 

result of contamination of the petroleum during use (including waste oil), would not be excluded 

from CERCLA. For example, the presence of dioxin in oil used as a dust suppressant on 

highways would bring a discharge of such mixture under the jurisdiction of CERCLA, not OPA.

Natural Resource Damage Assessments, 60 Fed. Reg. 39804, 39810, 1995 WL 455595 (August 3, 1995), available 

online at: https://www.gpo.gov/fdsys/pkg/FR-1995-08-03/pdf/95-19128.pdf.