3

CLAIM SUMMARY / DETERMINATION1 

Claim Number: UCGPN23011-URC001 

Claimant: E3 OMI, LLC

Type of Claimant: OSRO

Type of Claim: Removal Costs 

Claim Manager: 

Amount Requested: $891,698.38 (Amended to $95,238.16)

Action Taken: Denial

EXECUTIVE SUMMARY:

On December 22, 2022, WCC Energy Group LLC., (“WCC Energy” or “RP”) 

reported the release of two barrels of oily water mixture onto the ground of their facility 

due to equipment failure via NRC Report # 1355635.2 On the same day, the National 

Response Center (NRC) notified United States Coast Guard (USCG) Sector New Orleans 

(SEC NOLA) via NRC Report # 1355663 of an unknown oil sheen in the City’s drainage 

canal from an unknown source leading to Lake Washington, a navigable waterway of the 

United States.3

 

The United States Coast Guard (USCG) Sector New Orleans (“SEC NOLA” or 

“FOSC”) was the Federal On-Scene Coordinator (FOSC) for the incident.4 WCC Energy 

is the owner of the facility and the responsible party for the incident under the OPA.5 

The RP hired E3 OMI (“OMI” or “Claimant”) to respond to the spill.6

 ES&H was hired 

by the FOSC under Federal Project Number (FPN) UCGPN23011 to conduct an initial 

site assessment.7

 The FOSC took five (5) samples confirming WCC Energy as the 

source and owner of the facility and to establish the path of discharge under the Federal 

Water Pollution Control Act (FWPCA).8 

1 This determination is written for the sole purpose of adjudicating a claim against the Oil Spill Liability 

Trust Fund (OSLTF). This determination adjudicates whether the claimant is entitled to OSLTF 

reimbursement of claimed removal costs or damages under the Oil Pollution Act of 1990. This 

determination does not adjudicate any rights or defenses any Responsible Party or Guarantor may have or 

may otherwise be able to raise in any future litigation or administrative actions, to include a lawsuit or other 

action initiated by the United States to recover the costs associated with this incident. After a claim has 

been paid, the OSLTF becomes subrogated to all the claimant’s rights under 33 U.S.C. § 2715. When 

seeking to recover from a Responsible Party or a Guarantor any amounts paid to reimburse a claim, the 

OSLTF relies on the claimant’s rights to establish liability. If a Responsible Party or Guarantor has any 

right to a defense to liability, those rights can be asserted against the OSLTF. Thus, this determination does 

not affect any rights held by a Responsible Party or a Guarantor. 2 NRC Report # 1355635 dated December 22, 2022, 0800 local time.

3 NRC Report # 1355663 dated December 22, 2022, 1435 local incident time. 4 USCG SITREP-POL ONE dated December 22, 2022. 5 33 U.S.C. § 2701(32). 6 See, E3 OMI Short Form Service Contract dated December 22, 2022. 7 USCG SITREP-POL ONE dated December 23, 2022. E3 OMI took over the response operations on 

December 24, 2022. ES&H remained on contract under the FPN for wildlife response and rehabilitation. 8 See, USCG Marine Safety Laboratory Case Number 23-016 dated January 18, 2023. Samples were taken 

on December 22, 2022, as indicated in USCG SITREP-POL One. Sample 1 was taken from the drainage 

canal northwest of the WCC Energy facility; Sample 2 was taken from the shoreline adjacent to the WCC 

(b) (6)
4

On January 13, 2023, the NRC received two notifications for a subsequent pollution 

incident at the same WCC Energy, West Potash Facility. The first notification was made

via NRC Report # 1357554 by the RP, WCC Energy who reported a release of crude oil 

from an unknown source that may have been related to NRC Report # 1355635 taken on 

December 22, 2022.9 The second notification came via NRC Report # 1357553. That

report was made by E3 OMI, the RP’s response contractor, that was on scene still 

actively responding to the pollution incident from December 22, 2022.10

On January 20, 2023, E3 OMI presented its costs to WCC Energy in the amount of 

$891,698.38 which included activities involving both the December 2022 and January 

2023 releases.

11 On May 16, 2023, the National Pollution Funds Center (NPFC) received 

E3 OMI’s claim submission for $891,698.38.12 On June 15, 2023, WCC Energy paid E3 

OMI $796,460.22 leaving a balance of $95,238.16 in unpaid costs that remain the subject 

of this claim.

13 

After thoroughly reviewing the administrative record, the NPFC finds that removal 

costs incurred from both releases are non-compensable under the Oil Pollution Act

(OPA). The first release was comprised of produced water and crude oil which had 

commingled well before it discharged into the navigable waterway and removal actions 

commenced. The second incident involved the release of pure crude oil, but the crude oil 

commingled with the residual mixture of produced water and crude oil that was still 

present from the first incident before removal actions were performed. Additionally,

even if the release of crude oil had not commingled in the second event, the claimant did 

not meet its burden of proof that the second incident resulted in a substantial threat of 

discharge or actual discharge of oil into a navigable waterway as required by OPA. 

As such, based on the administrative record and the applicable law and regulations 

and after careful consideration, the NPFC has determined that the claim is not 

compensable under OPA and must be denied. 

On July 18, 2023, the NPFC conducted an interview with WCC Energy’s Chief 

Executive Officer, Mr. , to understand the cause of the first release and 

to obtain clarification of what products discharged. The WCC Energy West Potash 

facility is in Port Sulphur and consists of four above ground storage tanks.14 Specifically,

the incident location contains two 400-barrel (bbl.) crude oil tanks, one 400-bbl. gun 

barrel tank (used as a settling tank for crude oil and produced water), and a 400-bbl. 

Energy facility; Sample 3 was taken from the oil pit located on the WCC Energy property; Sample 4 - taken 

from the secondary containment, matches samples 1 and 2; and sample 5 was taken from the canal and 

designated as “Clean Water” for comparison purposes only. Based on the foregoing, scientific evidence 

establishes the path of discharge from the WCC Energy facility to the drainage canal to identify the 

Responsible Party of a FWPCA violation. 

9 NRC Report # 1357554 dated January 13, 2023, at 0100 local time. 10 NRC Report # 1357553 dated January 13, 2023, at 0244 local time. 11 Optional OSLTF Claim Form dated May 15, 2023. 12 Id. 13 See, WCC Energy Group LLC check # 001300 to OMI dated June 15, 2023. On June 30, 2023, E3 OMI 

provided confirmation to the NPFC that they received WCC Energy’s insurance payment. 

14 See, WCC Energy Group, LLC Spill Prevention Control & Countermeasure Plan (SPCC), Section 3, 

page 23.

(b) (6)
5

produced water tank. Mr. stated that the produced water tank and gun barrel 

tank from his facility were sabotaged by a disgruntled employee, causing the release of 

produced water and crude oil from the containment area. He further states that the two 

crude oil tanks were not vandalized.15 

The NPFC has thoroughly reviewed all documentation submitted with the claim, 

analyzed the applicable law and regulations and after careful consideration, has 

determined that the claim is not compensable under the Oil Pollution Act (OSLTF) and 

must be denied. 

INCIDENT, RESPONSIBLE PARTY AND RECOVERY OPERATIONS:

Incident 

Release 1 - On December 22, 2022, WCC Energy Group, LLC (“WCC Energy” or 

“Responsible Party (RP)”) made a report to the National Response Center (NRC), that 

two barrels16 of oily water mixture released onto the ground at their West Potash Facility, 

due to equipment failure.17 Later the same day, a second report was made to the NRC by 

a private citizen, asserting an unknown sheen in the city’s drainage canal from an 

unknown source leading to Lake Washington, a navigable waterway of the United 

States.18 

The WCC Energy West Potash facility, located in Port Sulphur, LA, consists of four 

above ground storage tanks.19 Specifically, the incident location contains two 400-(bbl.) 

crude oil tanks, one 400-bbl. gun barrel tank (used as a settling tank for crude oil and 

produced water), and a 400-bbl. produced water tank. On July 18, 2023, the NPFC 

conducted an interview with WCC Energy’s Chief Executive Officer, Mr 

, to understand the cause of the first release and to obtain clarification of what 

products discharged. Mr. (WCC Energy’s Chief Executive Officer) stated that 

on December 22, 2022, a disgruntled employee entered his facility and locked out the 

safety system that was designed to prevent an overflow from the 400-bbl. gun barrel tank 

to the 400-bbl. produced water tank. The wells associated with this tank battery produce 

large amounts of produced water. Mr. explained that the PVC caps from the 

drainage tubes were removed from the containment area surrounding the 400-bbl. gun 

barrel tank and the 400-bbl. produced water tank and the earthen berm surrounding the 

facility which allowed crude oil and produced water mixture to leave the facility and

enter the drainage canal. 20

15 See, Recap of interview with Mr. via email dated July 18, 2023. 16 One barrel of oil equals 42 gallons. 17 NRC Report # 1355635 dated December 22, 2022. 0800 Local Time. 18 NRC Report # 1355663 dated December 22, 2022. 1435 Local Incident Time. SEC NOLA was notified 

by the NRC of the spill.

19 See, WCC Energy Group, LLC Spill Prevention Control & Countermeasure Plan (SPCC), Section 3, 

page 23.

20 See, Recap of interview with Mr. via email dated July 18, 2023. Mr. r also stated

that the two 400-bbl. crude oil tanks were not touched. He believes that the disgruntled employee was 

trying to make the release of crude oil and produced water look like an accident. 

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

SEC NOLA was the FOSC for the incident.21 On December 22, 2022, the FOSC

took five (5) samples confirming WCC Energy as the source and owner of the facility 

and to establish the path of discharge under the Federal Water Pollution Control Act 

(FWPCA).

22

Release 2 - On January 13, 2023, the NRC received two notifications for a subsequent 

pollution incident at the same WCC Energy, West Potash Facility. The first notification 

was made via NRC Report # 1357554 by the RP, WCC Energy who reported a release of 

crude oil from an unknown source that may have been related to NRC Report # 1355635 

taken on December 22, 202223 The second notification was made by E3 OMI, the RP’s 

response contractor, that was on scene still actively responding to the pollution incident 

from December 22, 2022.24 Although the record does not indicate the cause of the 

second release, both NRC reports intimate that inclement weather might have been a 

factor. The FOSC determined the release was contained within the earthen berm 

secondary containment area and there was no impact to the navigable waterway. .25

Responsible Party

WCC Energy as the owner of the facility is the RP under OPA.26 The FOSC issued a 

Notice of Federal Interest (NOFI) to WCC Energy dated December 22, 2022.27 The 

NPFC issued an RP Notification Letter to WCC Energy dated May 24, 2023.28 An RP 

Notification letter notifies the responsible party that a claim was presented to the NPFC 

seeking reimbursement of uncompensated removal costs incurred as a result of a 

discharge of oil to navigable waters of the United States. 

Recovery Operations

SEC NOLA was the FOSC for the incident and accessed the Oil Spill Liability Trust 

Fund via Federal Project Number (FPN) UCGPN23011. Under the FPN, the FOSC hired

ES&H to conduct a waterside assessment.29 SEC NOLA took five (5) samples 

confirming WCC Energy as the source and owner of the facility and to establish the path

21 USCG SITREP-POL ONE dated December 22, 2022. 22 See, USCG Marine Safety Laboratory Case Number 23-016 dated January 18, 2023. Samples were taken 

on December 22, 2022, as indicated in USCG SITREP-POL One. Sample 1 was taken from the drainage 

canal northwest of the WCC Energy facility; Sample 2 was taken from the shoreline adjacent to the WCC 

Energy facility; Sample 3 was taken from the oil pit located on the WCC Energy property; Sample 4 - taken 

from the secondary containment, matches samples 1 and 2; and sample 5 was taken from the canal and 

designated as “Clean Water” for comparison purposes only. Based on the foregoing, scientific evidence 

establishes the path of discharge from the WCC Energy facility to the drainage canal to identify the 

Responsible Party of a FWPCA violation. 

23 NRC Report # 1357554 dated January 13, 2023, at 0100 local time. 24 NRC Report # 1357553 dated January 13, 2023, at 0244 local time. 25 SITREP POL FOUR dated January 20, 2023. “There was no impact to the tributary and canal.” 26 33 U.S.C. § 2701(32). 27 See, USCG NOFI dated December 22, 2022. WCC refused to sign the notification as noted at the bottom 

of the letter.

28 See, NPFC RP Notification Letter dated May 24, 2023. 29 USCG SITREP-POL ONE dated December 22, 2022.
7

of discharge under the Federal Water Pollution Control Act (FWPCA).30 The RP hired 

E3 OMI to respond to the spill.31 

On December 22, 2022, ES&H deployed one crew boat to begin a waterside 

assessment and deployed sorbent boom around the two miles of product in the canal.32 

ES&H deployed boats and containment boom and began to recover oily water from the 

canal using a drum skimmer.33 

On December 24, 2022, E3 OMI assumed cleanup operations of the spill and ES&H 

remained on contract for the animal rehabilitation center they had set up.34

 On January 4, 2023, E3 OMI continued with active recovery of product from the 

facility’s secondary containment utilizing vacuum trucks. Diversion booming was 

utilized in the canal to collect the product. Scraping of the drainage ditch and removal of 

oiled vegetation within the drainage ditch and the containment were conducted.35

 On January 6, 2023, E3 OMI changed absorbent boom, cut overhanging branches, 

collected oily product, and scraped the inside of the secondary containment as well as the 

tributary in the canal continued.36

 January 9, 2023, SECNOLA arrived on scene for the continued oversight of cleanup 

operations. Recommendations were made to WCC for a plan to address berm height and 

to clean up the saturated sediment in the secondary containment.37

 

 On January 13, 2023, SEC NOLA personnel arrived on scene to oversee the removal 

of the second release of product and monitor the continued response actions of the first 

spill. SEC NOLA personnel determined the 250-bbl. of crude oil from this second release 

was fully contained in the secondary containment earthen berm and posed no impacts to 

the navigable waterway. OMI pumped the oil contained within the earthen berm back to 

the tanks.38 The FOSC continued oversight of cleanup operations until they closed the 

case on January 25, 2023.39 E3 OMI performed all required response actions under the 

oversight of the FOSC.40

30 See, USCG Marine Safety Laboratory Case Number 23-016 dated January 18, 2023. Samples were taken 

on December 22, 2022, as indicated in USCG SITREP-POL One. Sample 1 was taken from the drainage 

canal northwest of the WCC Energy facility; Sample 2 was taken from the shoreline adjacent to the WCC 

Energy facility; Sample 3 was taken from the oil pit located on the WCC Energy property; Sample 4 - taken 

from the secondary containment, matches samples 1 and 2; and sample 5 was taken from the canal and 

designated as “Clean Water” for comparison purposes only. Based on the foregoing, scientific evidence 

establishes the path of discharge from the WCC Energy facility to the drainage canal to identify the 

Responsible Party of a FWPCA violation. 

31 See, E3 OMI Short Form Service Contract dated December 22, 2022. 32 USCG SITREP-POL ONE dated December 23, 2022. 33 USCG SITREP-POL TWO dated January 5, 2023. 34 USCG SITREP-POL THREE dated January 13, 2023. 35 Id. 36 Id. 37 Id. 38 SITREP POL FOUR dated January 20, 2023, 39 USCG SITREP-POL FIVE AND Final dated February 16, 2023. 40 Id. 
8

II. CLAIMANT AND RP: 

Absent limited circumstances, the federal regulations implementing the Oil Pollution 

Act of 1990 (OPA)41 require all claims for removal costs or damages must be presented 

to the responsible party before seeking compensation from the NPFC.42 

On January 20, 2023, E3 OMI submitted its claim to WCC Energy via its eleven

invoices. The invoices were inclusive of labor, equipment and vehicles, materials and 

supplies, subcontractors, markup, and fixed priced items totaling $891,698.38.43

On June 15, 2023, WCC Energy paid E3 OMI $796,460.22 leaving a balance of 

$95,238.16 in unpaid removal costs.44 On June 30, 2023, E3 OMI provided the NPFC 

confirmation of payment.45

III. CLAIMANT AND NPFC:

When an RP denies a claim or has not settled a claim after 90 days of receipt, a 

claimant may elect to present its claim to the NPFC.46 On May 16, 2023, the NPFC 

received a claim for uncompensated removal costs from E3 OMI dated May 15, 2023, in 

the total amount of $891,698.38.47 

In its claim to the NPFC, E3 OMI provided an executed OSLTF Claim Form; E3 

OMI invoices # 10049 Final, # 10042 Final, # 10148 Final, # 10152 Final, # 10772, # 

10773, #10778, # 10779, # 10780, # 10781, # 19782, disposal invoices, incident photos, 

E3 OMI Schedule of Rates dated November 1, 2022, a signed E3 OMI Short Form 

Service Contract and WCC West Potash Incident Update emails to SEC NOLA.

48

As noted above, E3 OMI received a payment from the RP on June 15, 2023, of 

$796,460.22 leaving a balance of $95,238.16 in unpaid removal costs.49

IV. DETERMINATION PROCESS:

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

Liability Trust Fund (OSLTF).50 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.

41 33 U.S.C. § 2701 et seq. 42 33 U.S.C. § 2713; 33 CFR 136.103. 43 See, E3 OMI Invoices # 10049 Final, # 10042 Final, # 10148 Final, # 10152 Final, # 10772 Final, # 

10773 Final, # 10778 Final, # 10779 Final, # 10780 Final, # 10781 Final, # 19782 Final. 44 See, WCC Energy Group LLC check # 001300 to OMI dated June 15, 2023. 45 Email to NPFC from E3 OMI dated June 30, 2023. 46 33 CFR 136.103. 47 See, E3 OMI claim submission dated May 15, 2023, and received by the NPFC on May 16, 2023 48 Id. 49 See, WCC Energy Group LLC check # 001300 to OMI dated June 15, 2023. 50 33 CFR Part 136.
9

 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.51 The NPFC may rely upon, but is not 

bound by the findings of fact, opinions, or conclusions reached by other entities.52 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. 

V. DISCUSSION: 

An RP is liable for all removal costs and damages resulting from either an oil 

discharge or a substantial threat of oil discharge into a navigable water of the United 

States.53 An RP’s liability is strict, joint, and several.54 When enacting OPA, Congress 

“explicitly recognized that the existing federal and states laws provided inadequate 

cleanup and damage remedies, required large taxpayer subsidies for costly cleanup 

activities and presented substantial burdens to victim’s recoveries such as legal defenses, 

corporate forms, and burdens of proof unfairly favoring those responsible for the 

spills.”55 OPA was intended to cure these deficiencies in the law. 

OPA provides a mechanism for compensating parties who have incurred removal 

costs 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 an incident.”56 The term “remove” or “removal” means 

“containment and removal of oil [...] from water and shorelines or the taking of other 

actions as may be necessary to minimize or mitigate damage to the public health or 

welfare, including, but not limited to fish, shellfish, wildlife, and public and private 

property, shorelines, and beaches.”57 

The NPFC is authorized to pay claims for uncompensated removal costs that are 

consistent with the National Contingency Plan (NCP).58 The NPFC has promulgated a 

comprehensive set of regulations governing the presentment, filing, processing, settling, 

51 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)). 52 See, e.g., Use of Reports of Marine Casualty in Claims Process by National Pollution Funds Center, 71 

Fed. Reg. 60553 (October 13, 2006) and Use of Reports of Marine Casualty in Claims Process by National 

Pollution Funds Center 72 Fed. Reg. 17574 (concluding that NPFC may consider marine casualty reports 

but is not bound by them).

53 33 U.S.C. § 2702(a). 54 See, H.R. Rep. No 101-653, at 102 (1990), reprinted in 1990 U.S.C.C.A.N. 779, 780. 55 Apex Oil Co., Inc. v United States, 208 F. Supp. 2d 642, 651-52 (E.D. La. 2002) (citing S. Rep. No. 101-

94 (1989), reprinted in 1990 U.S.C.C.A.N. 722). 56 33 U.S.C. § 2701(31). 57 33 U.S.C. § 2701(30). 58 See generally, 33 U.S.C. § 2712(a) (4); 33 U.S.C. § 2713; and 33 CFR Part 136.
10

and adjudicating such claims.59 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 process the claim.60

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.”61

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.62

OPA defines “oil” as “oil of any kind or 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].”63

CERCLA defines “hazardous substance” broadly.64 However, the definition of 

“hazardous substance” under CERCLA specifically excludes “petroleum, including crude 

oil or any fraction thereof...”65 Further, the definition goes on to exclude “natural gas, 

natural gas liquids, liquefied natural gas, or synthetic gas useable for fuel (or mixtures of 

natural gas and such synthetic gas).”66

Produced Water

When it is initially extracted from subsurface geological structures, unrefined crude 

oil typically includes portions of natural gas, silt, water, and sand, in addition to any 

chemical additives previously used during production to enhance extraction of the crude. 

To obtain a marketable product, some of these constituents must be removed from the 

crude oil. The separation process generates various types of wastes like produced water, 

59 33 CFR Part 136. 60 33 CFR 136.105. 61 33 U.S.C. § 2701(14). 62 33 U.S.C. § 2701(14)(emphasis added). 63 33 U.S.C. § 2701(14). 64 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].”

65 Id. 66 Id.
11

cuttings, and drilling fluids. Produced water refers to the water separated from the crude 

oil.67

In addition to small parts of crude oil, produced water may include other 

contaminants that can be difficult to remove. The concentrations and types of pollutants 

in production water may vary significantly depending upon factors like the well’s 

location and any treatment of the water. Production water commonly includes significant 

concentrations of chloride, sodium, calcium, magnesium, and potassium. Production 

water may also include varying concentrations of the following: 

• Organic compounds: benzene, naphthalene, toluene, phenanthrene, 

bromodichloromethane, and pentachlorophenol; 

• Inorganics: lead, arsenic, barium, antimony, sulfur, and zinc; 

• Radionuclides: uranium, radon, and radium68

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. 

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 

67 Produced water is more fully as follows:

A term used to describe water produced from a wellbore that is not a treatment fluid. The 

characteristics of produced water vary, and use of the term often implies an inexact or unknown 

composition. It is generally accepted that water within the pores of shale reservoirs is not produced due 

to its low relative permeability and its mobility being lower than that of gas. Schlumberger Oilfield 

Glossary, available online at: www.glossary.oilfield.slb.com/Terms/p/produced_water.aspx. 68 See, United States Environmental Protection Agency, Office of Compliance, Profile of the Oil and Gas 

Extraction Industry, p 39 (October 2000) available online at: 

https://archive.epa.gov/sectors/web/pdf/oilgas.pdf. See also, United States Department of the Interior, 

Bureau of Reclamation, Oil and Gas Produced Water Management and Beneficial Use in the Western 

United States, p. 41-60 (September 2011) available online at: 

https://www.usbr.gov/research/dwpr/reportpdfs/report157.pdf; United States Environmental Protection 

Agency, Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water 

Resources, p. ES- 17 (June 2015) (External Review Draft)—EPA/600/R-15/047, available online at 

http://ofmpub.epa.gov/eims/eimscomm.getfile?p_download_id=523539. Additionally, many other 

constituents found within produced water are CERCLA hazardous materials. (A listing of CERCLA 

hazardous substances is found at 40 CFR 302.4). 

13

contained a mixture of petroleum and hazardous wastes.76 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 had 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.77

VI. CONCLUSION:

 The NPFC finds the product that discharged from the first release on December 

22, 2022, was a commingled product of produced water and oil.78 Produced water 

commonly includes a varying concentration of organic compounds, inorganic 

compounds, and radionuclides, many of which are classified as CERCLA-listed 

hazardous substances. The second release on January 13, 2023, was identified by the 

FOSC as crude oil, which did not escape the secondary containment. The crude oil 

commingled with the substances remaining from the first release. 

It is the NPFC’s determination that if a commingled mixture of oil and hazardous 

substances discharges into a navigable waterway, liability and by extension, claim 

compensation, for the spill does not fall under OPA. The OSLTF is not available to pay 

claims based on these facts. In the context of claims, the burden is on the claimant to 

prove that the discharged substance was as defined by OPA. The claimant must also 

show that the claimed expenses resulted from the discharge of the OPA oil.79

 As a result, NPFC determines based on all the information that was provided by the 

claimant and obtained independently by the NPFC, that the claimant has not met its 

burden of proving that the commingled mixture from the contents of WCC Energy 

Group, West Potash Facility that are subject of the claimed removal expenses, was 

comprised solely of oil as defined by OPA.80

The NPFC finds the claimed removal costs were not the result of a discharge or a 

substantial threat of discharge of oil as defined by OPA and, as such, the OSLTF is not 

available to pay claims based on these facts. As such, based on a comprehensive review 

of the record, the applicable law and regulations, and for the reasons outlined above, E3 

OMI LLC’s, claim for uncompensated removal costs is denied. 

76 Id. 77 Id. 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. 

78 Facility SPCC plan page 3-2 and 3-4. Also see, Recap of phone con with Mr. via email 

dated July 18, 2023.

79 See, e.g., Gatlin Oil v. United States, 169 F.3d. 107 (4th Cir. 1999) (affirming NPFC’s denial of an 

OSLTF claim because the claimant’s damages resulted from a fire as opposed to oil). See also, 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). 80 See, e.g., Gatlin Oil v. United States, 169 F.3d. 107 (4th Cir. 1999). 

(b) (6)