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CLAIM SUMMARY / DETERMINATION FORM

Claim Number : 917022-0001 

Claimant : State of California Department Fish & Wildlife, 

 Office of Spill Prevention and Response 

Type of Claimant : State

Type of Claim : Removal Costs

Claim Manager : 

Amount Requested : $3,804.75 

FACTS: 

1. Oil Spill Incident: The State of California Department Fish & Wildlife, Office of Spill 

Prevention and Response (OSPR) reports that on February 4, 2016, an abandoned 40-foot 

wooden vessel was beached on the rocks (rip-rap) of Emory Cove Harbor. Emory Cove 

Harbor flows into San Francisco Bay, both of which are navigable waterways of the US. It 

was estimated that approximately 400 gallons of diesel was onboard the vessel. 

This incident was reported to the National Response Center via incident #1162655.1

 

2. Description of removal actions performed: The Claimant, OSPR, arrived on site and 

assessed the situation. After assessment of the vessel, and due to the amount of oil being on 

board, OSPR personnel decided to secure it and tow it to the Army Corps of Engineers dock 

in Sausalito.

THE CLAIMANT AND THE CLAIM:

On May 26, 2017, OSPR submitted a removal cost claim to the National Pollution Funds 

Center (NPFC), for reimbursement of removal costs in the amount of $3,804.75 for the 

services provided on February 4, 2016. This claim is for removal costs based on the rate 

schedule in place at the time services were provided.

The review of the actual cost invoicing and dailies focused on: (1) whether the actions taken 

were compensable “removal actions” under OPA and the claims regulations at 33 CFR 136 

(e.g., actions to prevent, minimize, mitigate the effects of the incident); (2) whether the costs 

were incurred as a result of these actions; (3) whether the actions taken were consistent with 

the NCP or directed by the Federal On-Scene Coordinator (FOSC), and (4) whether the costs 

were adequately documented. 

APPLICABLE LAW: 

"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”. 

 

1 See, NRC Report # 1139858, dated 2/04/2016.
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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 at 33 USC § 2701(31) 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]. 

Under 33 USC §2713(a), all claims for removal costs or damages must (with certain 

exceptions not applicable here) be presented first to the responsible party or guarantor of the 

designated source of the incident. Then, as provided in 33 U.S.C. §2713(d), “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 Director, 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.”

In addition, 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 
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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. There is no evidence that the response was directed by a FOSC or determined by 

him/her to be consistent with the National Contingency Plan (NCP). 33 U.S.C. §§ 

2702(b)(1)(B) and 2712(a)(4).

2. There is no evidence that an FOSC determined that an OPA incident occurred, nor 

has the Claimant proven that the incident involved a discharge or substantial threat of 

discharge of oil to “navigable waters.”

3. The claim was submitted to NPFC within the six year period of limitations. 33 U.S.C. 

§ 2712(h)(1).

4. A Responsible Party has not been identified. 33 U.S.C. § 2701(32).

5. In accordance with 33 CFR § 136.105(e)(12), the Claimant has certified that no suit 

has been filed by or on behalf of the Claimant in court for the claimed uncompensated 

removal costs.

B. Analysis:

OSPR states in its claim submission that all costs claimed are for uncompensated removal 

costs incurred for this incident. It represents that all costs presented to the Fund are 

compensable removal costs, payable by the OSLTF.

The NPFC Claims Manager reviewed OSPR’s actual cost invoicing and dailies to ensure that 

the Claimant had incurred all costs claimed and that the costs were adequately documented 

and reasonable. Pursuant to 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. 

In this case, the facts and evidence do not support a finding that an OPA-incident occurred. 

They also do not support a finding that the claimed costs would be compensable under OPA. 

The Claimant’s Investigation Report states that the fuel tanks were still intact and no hull 

damage was present. The Claimant has not provided documentation to demonstrate that a 

substantial threat of a discharge to a navigable waterway existed, not to mention the amount 

of diesel, if any, was unknown at the time of the response by the Claimant. The evidence 

presented also does not demonstrate that the Claimant’s actions were directed by an FOSC or 

that an FOSC determined that the actions performed by the Claimant were consistent with the 

NCP. 

Even if the circumstances gave rise to an OPA incident, the evidence provided does not 

support a finding that the claimed costs would be compensable under OPA. Under 33 CFR 

136.203, a claimant must establish that the actions taken were determined by the FOSC to be 

consistent with the National Contingency Plan or were directed by the FOSC. The Claimant 

provided no documentation that shows any involvement by an FOSC, much less that 
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Claimant’s actions were directed by an FOSC or that an FOSC determined that they were 

consistent with the NCP. 

C. Determined Amount: $0.00

The NPFC hereby determines this claim is denied because (1) the evidence does not demonstrate 

that there was a discharge or substantial threat of discharge of oil into navigable waters of the 

U.S., (2) there is no evidence that the actions taken by the Claimant were directed by an FOSC in 

accordance with the governing claims regulations found at 33 CFR 136.203 and 205, and (3) the 

Claimant failed to demonstrate that the costs claimed are OPA compensable removal costs vice 

salvage costs. Should the Claimant request reconsideration, it must provide evidence that a 

discharge or substantial threat of discharge of oil into or upon the navigable waters of the U.S. 

occurred, it must obtain an FOSC’s concurrence that an incident occurred and the FOSC’s 

determination that the actions taken were consistent with the NCP, and lastly, the Claimant must 

have the FOSC determine that the response costs incurred were not salvage but rather response 

and provide supporting justification for that decision. 

This claim is denied. 

 

Claim Supervisor: 

Date of Supervisor’s review: 6/21/17 

Supervisor Action: Denial Approved 

Supervisor’s Comments: