3

CLAIM SUMMARY / DETERMINATION 

Claim Number: A02005-0001 

Claimant: State of California Dept. Fish & Wildlife, OSPR 

Type of Claimant: State 

Type of Claim: Removal Costs 

Claim Manager: 

Amount Requested: $10,851.00 

FACTS: 

Oil Spill Incident: Between the dates of December 14 and December 19, 2015, 

following a large ocean swell that occurred on or about December 11, 2015, a total of ten 

oiled birds were found and collected on the beaches between the Monterey and Santa 

Cruz counties. Sample analysis revealed that the oil on nine out of the ten birds was 

scientifically connected to a recent discharge from the S/S Jacob Luckenbach oil spill, 

identified under Federal Project Number (FPN) A02005. Scientific evidence indicates 

that following a large ocean swell that occurred on or about December 11, 2015, in the 

vicinity of the S/S Lukenbach wreck location, a discharge of oil occurred as proven by 

the oiled birds that were discovered to be scientifically connected to the S/S Jacob 

Lukenbach oil.1

Description of Removal Activities for this Claimant: Between December 14 and 

December 19, 2015, California OSPR collected ten oiled birds in Monterey and Santa 

Cruz Counties and transferred them to the Oiled Wildlife Care Network for cleaning and 

rehabilitation.

2

 Oiled feather samples were taken from the collected birds and forwarded 

to OSPR’s chemistry lab for testing. 

The Claim: On January 02, 2018, California OSPR submitted a removal cost claim to 

the National Pollution Fund Center (NPFC) in the amount of $10,851.00 for 

reimbursement. The Claimant is the California Department of Fish and Wildlife, Office 

of Spill Prevention and Response (OSPR). It seeks reimbursement of its uncompensated 

“response costs” related to their treatment of oiled birds and the associated sample 

analysis that was performed.

34

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). 

 

1 See, CA OSPR Arrest/Investigation Report dated June 9, 2016. 2 Id. 3 See, OSLTF Claim Form datedDecember 19, 2017. 4 See, CA OSPR Arrest/Investigation Report dated June 9, 2016, 
4

"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 
5

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 and its Oiled 

Wildlife Care Network are deemed consistent with the NCP. This determination is 

made in accordance with its Delegation of Authority for Determination of 

Consistency with the NCP for the payment of uncompensated removal cost claims 

and is consistent with the provisions of sections 1002(b)(1)(B) and 1012(a)(4) of 

OPA, 33 U.S.C § 2702(b)(1)(B) and 2712(a)(4);

2. The incident involved the 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 within the six-year statute of limitations. 33 U.S.C. § 

2712(h)(1);

5. The NPFC Claims Manager has thoroughly reviewed all documentation submitted 

with the claim and determined that the 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 to be 

consistent with the NCP in accordance with the NPFC delegation of authority for 

determination of consistency, and (4) whether the costs were adequately documented and 

reasonable. 

Upon adjudication of the claim, the NPFC was able to determine by way of sample analysis, 

that all of the birds were oiled by an oil that has been determined not to be a natural seep and 

were all with the exception of one, similar to the S/S Jacob Lukenback oil. The NPFC then 

determined based on full medical record history provided that it could account for each day 

the birds were in treatment at a cost of $25.00 per day and then the NPFC determined the 

laboratory tests and costs identifying nine of the birds to an OPA oil, are reasonable and 

necessary.

The costs associated with one bird indicated there were no petroleum hydrocarbons present at 

all and therefore no comparison could be made to other potential sources. Based on this 

scientific finding, all costs associated with SFOS-2015-0026 (bird identification label) are 

denied in their entirety. 
6

The NPFC determined that a total of $3,245.00 in costs are denied and they are outlined as 

follows: 

Denied Items: 

1. $25.00 Daily rehab charge for SFOS-2015-0026 is denied because the 

sample analysis of its feather showed no hydrocarbons present and 

therefore not an OPA compensable costs;

2. $300.00 sample analysis charge for S-125-15-1 is denied. This sample 

analysis charge showed no hydrocarbons present and as such, this analysis 

is not an OPA compensable cost; 

3. $1,168 sample analysis charge for Invoice S00116 is denied. There were 

two samples taken on January 8, 2016 following the oiled bird discovery 

the month prior. These samples were affiliated with mystery tar balls that 

were discovered from Weston Beach, Pt. Lobos (middle of the cove) and 

from Pt. Lobos (from the small cove south of Weson Beach). Both of the 

samples revealed that it is a possible natural seep oil similar to the 

weathered Monterey Formation Crude; and 

4. $1,752 sample analysis charge for Invoice S00316 is denied. It is for three 

samples that were taken on January 11, 2016 from slot Beach, Pt. Lobos 

and the lab results reveal that they are a possible natural seep oil similar to 

the weathered Monterey Formation Crude. 

Overall Denied Costs = $3,245.00

Based on the foregoing, the NPFC has determined that the majority of the costs incurred by 

the Claimant in this determination were reasonable and necessary to mitigate the effects of 

the incident. Upon review of the information provided by the Claimant, the NPFC has 

determined that the payable costs were billed in accordance with the rate schedule and/or 

contractual agreements in place at the time the services were rendered, unless otherwise 

indicated below, and were determinaed by the NPFC, pursuant to its Delegation of Authority, 

to be consistent with the NCP. 

The NPFC hereby determines that the OSLTF will pay $7,606.00 as full compensation for 

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

claim # A02005-0001. 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. 

DETERMINED AMOUNT: $7,606.00 

 

Claim Supervisor: 

Date of Supervisor’s review: January 11, 2018

Supervisor Action: Approved