CLAIM SUMMARY / DETERMINATION FORM 

Date : 9/30/2009 

Claim Number : 909088-001

Claimant : State of California Department of Fish and Game 

Type of Claimant : State 

Type of Claim : Removal Costs 

Claim Manager : 

Amount Requested : $10,193.09

FACTS: 

1. Oil Spill Incident: On May 12, 2005, a diesel oil spill was discovered in a creek in the 

Piercy area of Northern Mendocino County, California. The creek in the Piercy area is 

an unnamed tributary to the Eel River. The Eel River is a navigable water of the United 

States. The spill was discovered when two wardens of the California Department of Fish 

and Game Office of Spill Prevention and Response (OSPR) were investigating to 

determine the source of the spill that had reached the creek, as well as the local water 

supply, as reported by a citizen caller. The wardens detected a visible sheen and odor of 

diesel fuel. They discovered that the discharge of diesel fuel was from a generator, an 

above ground tank system, and its fuel lines used to provide power for an indoor 

marijuana growing operation. It was determined that fifty gallons of diesel fuel was 

discharged. 

2. Description of removal actions: At the incident site, the OSPR wardens monitored and 

assisted in the clean up and response executed by Ben's Trucking, and acted as an 

incident commander throughout the process. The OSPR wardens gathered water samples 

at the site and had a lab analysis performed. 

3. The Claim: On April 30, 2009, the State of California submitted a removal cost claim 

in the amount of $10,193.09 to the National Pollution Funds Center (NPFC) for costs that 

were incurred as a result of the oil spill. 

The State of California is claiming personnel expenses of $8,815.35, operating expenses 

of $110.00, vehicle usage of $817.74, and water pollution control lab work for $450.00. 

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). 

"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 CFR 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 CFR 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 CFR 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 CFR 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 CFR 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 CFR 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 CFR 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.”

Under 33 CFR 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]. 

DETERMINATION OF LOSS: 

A. Overview:

1. The NPFC has determined that the actions undertaken by the claimant are deemed 

consistent with the National Contingency Plan (NCP). This determination is made in