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CLAIM SUMMARY / RECONSIDERATION DETERMINATION

Claim Number: 917007-0002 

Claimant: International Bird Rescue 

Type of Claimant: Corporate (US) 

Type of Claim: Removal Costs 

Claim Manager: 

Amount Requested: $124,234.11 

Action Taken: Offer on reconsideration in the amount of $118,326.50

EXECUTIVE SUMMARY:

 On January 16, 2015, an East Bay Regional Park’s (EBRP) Supervisor notified the State of 

California Department of Fish and Wildlife’s Office of Spill Prevention and Response (OSPR), 

in its capacity as the State On-Scene Coordinator (SOSC), of a wildlife incident caused by an 

unknown substance found along Hayward Shoreline Park1 in Hayward, California.2 In 

coordination with the Federal On-Scene Coordinator, the SOSC responded to the incident, 

recovering a large amount of birds covered in, what was later determined to be an oil, as defined 

by the Oil Pollution Act.3 No Responsible Party (RP) has been identified for this incident.4 

International Bird Rescue (“IBR” or “Claimant”) became involved when EBRP advised IBR 

that it was bringing sixty-nine (69) contaminated animals to IBR’s facility for care and 

rehabilitation. On August 27, 2019, the Claimant presented its original claim for uncompensated 

removal costs to the NPFC for $124,234.11 resulting from IBR’s involvement in caring for the 

wildlife brought to its facility during the response. The NPFC denied the original claim because 

the claimant failed to meet its burden in supporting the costs claimed. 

 On April 13, 2020, the NPFC received the Claimant’s timely request for reconsideration for 

$124,234.11 and a request for an extension of time to submit additional information in support of 

its request.5 The NPFC approved the request for an extension of time and executed a tolling 

agreement with IBR.6

 

Requests for reconsideration are considered de novo. 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. Based on the 

additional information provided by the Claimant upon reconsideration, the NPFC offers to 

reimburse the claimant $118,326.50 for removal costs as outlined in the original determination 

and below. 

 

1 Hayward Shoreline Park is adjacent to San Francisco Bay, a navigable waterway of the United States. See also, 

National Response Center (NRC) Report # 1105833 dated January 16, 2015 reporting a sheen affecting hundreds of 

birds along the shoreline of San Francisco Bay. 2 State of California Department of Fish and Wildlife Narrative/Supplemental Report dated January 15, 2015. 3 Id. See also, USEPA National Enforcement Investigation Center (NEIC) Analytical Results Memorandum dated 

April 15, 2015.

4 State of California Department of Fish and Wildlife Narrative/Supplemental Report dated January 15, 2015. 5 Email from Claimant to NPFC dated April 13, 2020 requesting reconsideration and seeking an extension of time to 

submit additional information in support of its request. 

6 See, tolling agreement between IBR and NPFC executed April 16, 2020. 

(b) (6), (b)
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I. CLAIM HISTORY: 

On August 27, 2019, the Claimant presented its original claim for uncompensated 

removal costs to the NPFC for a final sum certain amount of $124,234.11.7 The NPFC 

denied the original claim because the claimant failed to meet its burden in supporting the 

costs claimed.8 The NPFC’s initial determination is hereby incorporated by reference. 

On April 13, 2020, the NPFC received the Claimant’s timely request for reconsideration 

and for an extension of time to provide its additional supporting documentation. The NPFC 

executed a Tolling Agreement with the claimant that granted it until June 13, 2020 to provide 

additional evidence in support of its request for reconsideration and extended the deadline for 

the NPFC to issue its determination on the request for reconsideration to November 10, 

2020.9 The Claimant provided the additional information in support of its claim to the NPFC 

on June 10, 2020. 

 

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. The Claimant has the burden of providing all 

evidence, information, and documentation deemed necessary by the 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.11

The NPFC has thoroughly reviewed and considered the Claimant’s request for 

reconsideration and additional information in support of its request. Specifically, on 

reconsideration, IBR provided a detailed explanation of the database systems used to verify and 

confirm all rescued bird cases claimed and an extensive cross-walk of all case numbers to each 

database entry. Additionally, IBR provided a complete roster of paid staff members and 

volunteers. Finally, IBR provided a statement from a Supervisory Veterinary that specifically 

elucidated the treatments provided, and the amounts of food, medications, medical supplies and 

staff time spent on, the rescued birds. Based on the detailed documentation accompanying its 

request for reconsideration, the NPFC identified and validated the majority of the costs claimed 

as outlined below. 

III. DISCUSSION: 

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

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

regulations governing the presentment, filing, processing, settling, and adjudicating such claims. 

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 

 

7 Original claim submission dated August 27, 2019. The claimant later revised its sum certain to $124,234.11. 8 Original determination dated February 14, 2020.

9 See, tolling agreement between IBR and NPFC executed April 16, 2020. 10 33 CFR 136.105(a). 11 Id. 
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claim. 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.” 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.” 

 Before reimbursement can be authorized for uncompensated removal costs, the claimant must 

demonstrate by a preponderance of the evidence: 

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 directed by the FOSC or determined by the FOSC to be 

consistent with the National Contingency Plan. 

d) That the removal costs were uncompensated and reasonable. 

The NPFC analyzed each of the factors and determined the costs incurred by Claimant and 

submitted herein are compensable removal costs based on the supporting documentation 

provided. The NPFC determined that $118,326.50 of removal costs claimed are compensable, 

while $5,907.61 were deemed not compensable as further explained below. 

Credit Card Expenses 

1. IBR claimed costs for a flight for to San Francisco. This 

person is not listed on the roster of IBR staff personnel or volunteers and on that 

basis, the NPFC denies $128.99 associated with the flight.

2. IBR claimed lodging for for the dates from 1/25/2015 to 2/5/2015. This 

item includes duplicate billing and NPFC denies $246.62 for the duplicated expense. 

3. IBR claimed $16.00 for car washes on 1/27/2015 and 1/30/2015. The NPFC denies 

these expenses, as they are not OPA-compensable.

4. IBR claimed $4.28 for purchasing antacid. The NPFC denies this expense, as is not 

an OPA compensable.

5. IBR claimed $26.33 for taxes paid for items purchased at Costco. Some of the tax 

was paid on non OPA-compensable items. The NPFC calculated the tax on the nonOPA compensable items as $11.97 and denies that amount.

6. IBR claimed $1.52 for taxes paid for items purchased at Walmart. Some of the tax 

was paid on non OPA-compensable items. The NPFC calculated the tax on the nonOPA compensable items as $0.34 and denies that amount.

7. IBR claimed $11.96 for taxes paid for items purchased at Home Depot. This expense 

is duplicated elsewhere in the claim. The NPFC denies the duplicated expense of 

$11.96.

(b) (6), (b)(b) (6), (b) (b) (6), (b)
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Utilities

1. IBR claimed $11,803.33 for Fairfield Municipal Services which provides daily water 

and sewage services. Upon adjudication, the NPFC adjusted the cost claimed based 

on the ratio of rescued birds to overall birds at the facility.12 Based on this 

adjustment, the NPFC denies $3,568.84. 

2. IBR claimed $2,914.43 for Allied Propane which provides propane services. Upon 

adjudication, the NPFC adjusted this cost based on the ratio of rescued birds to 

overall birds at the facility 13 Based on this adjustment, the NPFC denies $10.26.

3. IBR claimed $3,662.91 for Pacific Gas and Electric utility expenses. IBR failed to 

provide two invoices. One invoice was for services provided from 2/11/2015 to 

3/12/2015 totaling $1,303.30 and the second invoice was for services provided from 

3/13/2015 to 4/12/2015 totaling $392.37. The NPFC denies $1,695.67 for lack of 

supporting documentation.14

Overall Denied Costs = $5,907.6115

IV. CONCLUSION:

 Based on a comprehensive review of the record, the applicable law and regulations, and for 

the reasons outlined above, International Bird Rescue’s request for uncompensated removal costs 

is approved in the amount of $118,326.50. 

This determination on reconsideration is a settlement offer;16 the claimant has 60 days in 

which to accept this offer. Failure to do so automatically voids the offer.17 The NPFC reserves 

the right to revoke a settlement offer at any time prior to acceptance.18 Moreover, this settlement 

offer is based upon the unique facts giving rise to this claim and is not precedential. 

 

12 See, claimant submission on reconsideration - Attachment 5b. Rev.1. This spreadsheet contains four tabs of data 

pertaining to utilities usage and the number of birds associated with the incident on any given day. 13 Id. 14 Upon adjudication, the NPFC adjusted the cost claimed based on the ratio of rescued birds to overall birds at the 

facility; however for this expense, the final adjusted amount was greater than the amount claimed and thus, unlike 

the other utility expenses, no amount was denied for this reason. Cf/cx, supra, notes 13 and 14 and accompanying 

text. Id. 15 See, Enclosure 3 for a detailed analysis of the amounts approved and denied by the NPFC. 16 Payment in full, or acceptance by the claimant of an offer of settlement by the Fund, is final and conclusive for all 

purposes and, upon payment, constitutes a release of the Fund for the claim. In addition, acceptance of any 

compensation from the Fund precludes the claimant from filing any subsequent action against any person to recover 

costs or damages which are the subject of the uncompensated claim. Acceptance of any compensation also

constitutes an agreement by the claimant to assign to the Fund any rights, claims, and causes of action the claimant 

has against any person for the costs and damages which are the subject of the compensated claims and to cooperate 

reasonably with the Fund in any claim or action by the Fund against any person to recover the amounts paid by the 

Fund. The cooperation shall include, but is not limited to, immediately reimbursing the Fund for any compensation 

received from any other source for the same costs and damages and providing any documentation, evidence, 

testimony, and other support, as may be necessary for the Fund to recover from any person. 33 CFR § 136.115(a).

17 33 CFR § 136.115(b). 18 Id.