4

smell of diesel extended from Berth 8 to Berth 18, and that the highest concentration of diesel 

was in the vicinity of Berths 10 and 12. Initial observations from Port Authority staff suggested 

that the sheen was caused by red-dyed diesel fuel. Port Authority staff also observed red-dyed 

diesel fuel in the water.7

Sector New York Incident Management Division (IMD) team personnel conducted an initial 

investigation and observed an estimated 200 gallons of red dye diesel around three Weeks 

Marine construction barges, between Berths 10 and 14 on the south side of Port Newark 

Channel. A dock walk was conducted between Berths 2 through 22, and it was found that the 

affected area spanned from Berths 8 to 20. IMD conducted investigations on each barge and 

observed no apparent signs of fresh diesel discharge. Oil samples were taken from the EMORY 

B, Weeks 524, Weeks 536, and the spill location.8

 

IMD personnel surveyed each barge and determined they had no evidence of a diesel 

discharge. The barges were ordered to be decontaminated for Coast Guard approval prior to 

departure from the scene.9

A thorough, multi-day investigation was conducted but the source of the diesel discharge was 

unable to be identified. None of the oil samples that were processed came back as a positive 

match against the potential sources identified. As a result, the USCG has not yet determined a 

Responsible Party for this incident.10

Responsible Party 

Personnel from USCG Sector New York conducted an investigation into suspected 

vessels/operators but was unable to determine a viable source, and as such, no responsible party 

was identified. 

Recovery Operations

 Port Authority staff talked with Weeks, Bouchard, and Donjon, all of whom had marine 

vessels on-site at or around the time the sheen was discovered, to sound tanks and locate the 

source of the spill. Personnel from USCG Sector New York arrived on scene and also took fuel 

samples.11 

Port Authority hired Miller Environmental (Miller), an Oil Spill Response Organization 

(OSRO) for cleanup and removal activities. It arrived on scene and began to place containment 

boom and utilized vac truck equipment and absorbents pads around the spill site. Miller then 

began product recovery via pump truck vacuuming operations, continuing into the evening. 

Miller maintained the boom throughout the night.12

 

7 PANYNJ NJMT Narrative of Events, dated January 13, 2020. 8 USCG Sector New York Case Activity 6845258, opened October 30, 2019. 9 USCG Sector New York Case Activity 6845258, opened October 30, 2019. 10 See both, USCG Sector New York Case Activity 6845258, opened October 30, 2019 and Letter from P.O. 

 USCG Sector New York FOSC-R, to the NPFC, undated. 11 PANYNJ NJMT Narrative of Events, dated January 13, 2020. 12 PANYNJ NJMT Narrative of Events, dated January 13, 2020.

(b) 

(6) 

(b) 

(6)
5

On the morning of October 31, 2019, additional accumulation of product around Berth 10 

and 12 was evident. Port Authority inspected Berths 4 and 6 (west of the spill) and found no 

diesel. It also inspected Berths 16, 18 and 20 (east of the spill) and found only sheening at Berths 

16 and 18. Port Authority staff re-checked catch basins in the vicinity of the spill. Miller 

continued to conduct vac recovery operations. The USCG was also on scene throughout the 

morning and afternoon providing response oversight.13

Over the next several days, both Port Authority staff and Miller personnel continued to 

monitor and perform cleanup activities. This included dropping and monitoring absorbent socks 

and replacing them as needed, as well as continuing vac efforts. 

On November 12, 2019, Port Authority met with USCG personnel on site, the FOSCRs 

determined that they would monitor the boomed area for one more day before removing 

containment, and additionally requested extension of the booming to include Berth 14 for the 

night, which had some sheening. The following day, the FOSCR cleared the site for full removal 

of the booming.14

Miller Environmental’s final estimate of “pure” product removed was approximately 500 

gallons.15 

 

III. CLAIMANT AND NPFC:

 Port Authority presented its uncompensated costs claim to the National Pollution Funds 

Center (NPFC) for $670,013.95.16

Port Authority broke down its claim via the following invoiced costs:17

1. $368,379.86 for Invoice # 10005149

2. $301,634.09 for Invoice # 10005168

Total claimed costs: $670,013.95 

IV. DETERMINATION PROCESS:

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

Liability Trust Fund (OSLTF).18 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 

 

13 PANYNJ NJMT Narrative of Events, dated January 13, 2020. 14 See both, USCG Sector New York Case Activity 6845258, opened October 30, 2019 and PANYNJ NJMT 

Narrative of Events, dated January 13, 2020. 15 PANYNJ NJMT Narrative of Events, dated January 13, 2020. 16 33 CFR 136.103(c). 17 See the Summary of Costs spreadsheet as an enclosure to this determination for a further breakdown of claimed 

costs.

18 33 CFR Part 136.
6

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

the facts of the claim.19 The NPFC may rely upon, is not bound by the findings of fact, opinions, 

or conclusions reached by other entities.20 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.21 An RP’s liability 

is strict, joint, and several.22 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.”23 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.”24 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.”25 

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

with the National Contingency Plan (NCP).26 The NPFC has promulgated a comprehensive set 

of regulations governing the presentment, filing, processing, settling, and adjudicating such 

claims.27 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.28

 

19 See, e.g., Boquet Oyster House, Inc. v. United States, 74 ERC 2004, 2001 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). 20 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). 21 33 U.S.C. § 2702(a). 22 See, H.R. Rep. No 101-653, at 102 (1990), reprinted in 1990 U.S.C.C.A.N. 779, 780. 23 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). 24 33 U.S.C. § 2701(31). 25 33 U.S.C. § 2701(30). 26 See generally, 33 U.S.C. § 2712 (a)(4); 33 U.S.C. § 2713; and 33 CFR Part 136. 27 33 CFR Part 136. 28 33 CFR 136.105.