CLAIM SUMMARY / DETERMINATION FORM 

Date : 2/08/2010 

Claim Number : 910066-001

Claimant : State of California 

Type of Claimant : State 

Type of Claim : Removal Costs 

Claim Manager : 

Amount Requested : $18,332.13

FACTS: 

1. Oil Spill Incident: The State of California (CA) Department of Fish and Game (DFG) 

Office of Spill Prevention and Response (OSPR),1reports that on May 14, 2008, 

approximately 600-1000 gallons of red-dye diesel fuel were released onto the ground due 

to a generator failure at a rural indoor marijuana grow operation. The fuel released from 

the grow site, migrating downhill and into a tributary of upper Hacker Creek, which is a 

tributary of South Fork Salmon Creek, which leads into Salmon Creek, leading to South 

Fork Eel River, which becomes Eel River, all navigable waterways of the US. 

On May 14, 2008, at approximately 17:45 hours, Fish and Game was 

notified by the Eureka DFG that an unknown caller reported a diesel spill into Hacker 

Creek. Because daylight was ending, the location was remote and the area was known 

for its illicit marijuana potential, made the decision to investigate onscene the following day. 2

On May 15, 2008, , along with , and found 

and inspected the grounds of the spill site. It was determined that a generator running 

inside a makeshift enclosure attached to one of the three buildings on the property was 

the cause of the fuel spill. The building was on the bank of Hacker Creek, and the soil 

appeared to be soaked with diesel. On closer inspection, it was discovered that the same 

red-dye diesel was found in the waters of Hacker Creek. 

Because of the possibility of this location being used as an illegal marijuana grow, the 

 left the spill site and returned the next day, May 16, 2008, along with members 

from Humboldt County Drug Task Force and Humboldt Sheriff’s Department. The 

address of the spill site was determined to be 1480 Road B, Upper Thomas Road, 

Miranda, CA, with the owner (now deceased3

) being named as Mr. . 

Mr. denied that he was responsible for the diesel spill, as he lived in Thailand 

and stated to that he rented out his property to Mr. and Mr. 

 (He stated to , however, that he rented out the property to 

an “ ,” and that he had a notarized rental contract, which he never produced). Mr. 

 also stated that he did not know what was going on at his property in his 

absence; however, several CA 215 Prescription Documentation sheets were posted 

around the property (allowing him to spoke marijuana for medicinal purposes). When 

asked if he was illegally cultivating marijuana on his property, he stated that he liked 

 

1

 See CA DFG OSPR Incident Report # 58391, dated 5/14/2008 

2

 See CA DFG Arrest/Investigation Report, completed by , submitted to the NPFC by the 

claimant on 2/01/2010 

3

 See email from Ms. , CA DFG, to ms. , NPFC, dated 2/03/2010 
“outdoor stuff, not indoor weed,” and that he had just recently returned from Thailand, 

his place of residence. 

Mr. told CA DFG OSPR that he had been in contact with Mr. , 

owner of North Coast Environmental Construction (North Coast), and would pay for the 

clean-up and removal of the diesel and contaminated soil/debris. North Coast retained 

SHN Engineering to assist them in the cleanup and removal activities. 

In June of 2008, spoke with and informed him they were no 

longer working with Mr. , as he had fled the country and was in Thailand. Mr. 

 was not planning on returning to the United States. On September 16, 2009, 

Mr. was reported dead in Thailand, from a brain hemorrhage. North Coast was 

not paid by Mr. before he fled the United States. However, in civil court, they 

received Mr. ’s property in lieu of payment.4

 

Description of removal actions performed: The claimant, CA DFG OSPR, performed 

the initial response to the spill site. After locating the owner of the property, Mr. 

, and speaking with the contractor hired for cleanup and removal of the red-dye 

diesel from the property and affected waterway, CA DFG OSPR maintained a presence 

as monitoring the work being performed. The use of personnel and vehicles to perform 

this assessment, monitoring and response were uncompensated by the property owner, 

Mr. , before he fled the United States. 

3. The Claim: On Februry 1, 2010, CA DFG OSPR submitted a removal cost claim to the 

National Pollution Funds Center (NPFC), for reimbursement of removal costs in the 

amount of $18,332.13 for the services provided from May 14 through August 15, 2008. 

This claim is for removal costs based on the rate schedule in place at the time services 

were provided. A copy of the vendor rate schedule is provided in the claim submission. 

This claim consists of copies of the invoicing and associated dailies, a copy of CA DFG 

Investigation reports written by and , a copy 

of CA Regional Water Quality Control Board North Coast Region Cleanup and 

Abatement Order, a copy of the Humboldt County Biological Injury Report, a copy of 

North Coast Laboratories, Ltd Case narrative for Lab Order # 0805450, photographs and 

internal email correspondence. 

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 FOSC, and (4) whether the costs were 

adequately documented. 

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 

 

4

 See email from Ms. , CA DFG, to ms. , NPFC, dated 2/03/2010 
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 State OSC coordination has been established via CA DFG OSPR Incident Report # 

58391.5

2. The incident involved the report of a discharge of “oil” as defined in OPA 90, 33 U.S.C. § 

2701(23), to navigable waters. 

3. In accordance with 33 CFR § 136.105(e)(12), the claimant has certified no suit has been filed 

in court for the claimed uncompensated removal costs. 

4. The claim was submitted on time. 

5. As Mr. is deceased, the NPFC has determined that there is no Responsible 

Party. 

6. The NPFC Claims Manager has thoroughly reviewed all documentation submitted with the 

claim and determined that all removal costs presented were for actions in accordance with the 

NCP and that the costs for these actions were indeed reasonable and allowable under OPA 

and 33 CFR § 136.205. 

B. Analysis: 

NPFC CA reviewed the actual cost invoices and dailies to confirm that the claimant had 

incurred all costs claimed. The review 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 determined by the 

FOSC, to be consistent with the NCP or directed by the FOSC, and (4) whether the costs 

were adequately documented and reasonable. 

On that basis, the Claims Manager hereby determines that the claimant did in fact incur 

$18,332.13 of uncompensated removal costs and that that amount is properly payable by the 

OSLTF as full compensation for the reimbursable removal costs incurred by the claimant and 

submitted to the NPFC under claim #910066-001. The claimant states that all costs claimed 

are for uncompensated removal costs incurred by the claimant for this incident from May 14 

through August 15, 2008. The claimant represents that all costs paid by the claimant are 

compensable removal costs, payable by the OSLTF as presented by the claimant. 

C. Determined Amount: 

The NPFC hereby determines that the OSLTF will pay $18,332.13 as full compensation for 

the reimbursable removal costs incurred by the Claimant and submitted to the NPFC under 

claim 910066-001. All costs claimed are for charges paid for by the Claimant for removal 

actions as that term is defined in OPA and, are compensable removal costs, payable by the 

OSLTF as presented by the Claimant. 

AMOUNT: $18,332.13

Claim Supervisor: 

 

5

 See CA DFG OSPR Incident Report # 58391, dated 5/14/2008 
Date of Supervisor’s review: 

Supervisor Action: 

Supervisor’s Comments: