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CLAIM SUMMARY / DETERMINATION 

Claim Number: 917011-0003 

Claimant: State of California, Department of Fish & Wildlife, OSPR

Type of Claimant: State 

Type of Claim: Removal Costs 

Claim Manager: 

Amount Requested: $11,210.62 

FACTS: 

On May 25th, 2016 at approximately 2:45PM the Tahoe Keys Property Owners Association (TKPOA) 

received a report of a spill of some type in the lagoon water located at the Tahoe Keys West Lagoon - 

Spinnaker Cove. It was reported by a TKPOA Water Quality Staff member who stated that he noticed a 

sheen and smell of fuel in Spinnaker Cove near Beach Drive and White Sands. 

The State of California, Department of Fish and Wildlife (DFW) received notification from TKPOA, 

opened its own investigation into the incident and responded on scene to take samples and attempt to 

identify the responsible party.

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CLAIMANT AND CLAIM: 

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 the personnel time, 

vehicle costs, and sample analysis costs that it expended in order to respond to the incident. The Claimant 

requests reimbursement in the total amount of $11,210.62. 

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”. 

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.” 

 

1 See, Cal OES Spill Report # 16-3111, opened 5/25/2016.
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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: 

A. Overview:

1. The NPFC has determined that the actions undertaken by the Claimant are consistent with the 

NCP. This determination is made in accordance with the 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 a discharge of “oil” as defined in OPA 90, 33 U.S.C. § 2701(23), to 

navigable waters.

3. The claim was submitted to NPFC within the six year statute 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.

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

Claimant with the claim, and has determined which of the removal costs presented were 

incurred for removal actions taken by the Claimant in accordance with the National 

Contingency Plan (NCP), and whether the costs for these actions were reasonable and 

allowable under OPA 90 and 33 CFR § 136.205.

B. Analysis:

The NPFC Claims Division (CA) reviewed the cost invoices and dailies submitted by the Claimant to 

determine whether the Claimant had incurred all costs claimed. The review focused on: (1) whether the 

actions taken were compensable “removal actions” under OPA 90 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, and were reasonable and 

necessary.
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The NPFC hereby determines that $9,918.37 of the Claimant’s costs represent OPA compensable 

response actions that were performed in accordance with the NCP, and that the rates charged by the 

Claimant were in accordance with the Claimant’s published rates at the time services were provided.

The NPFC denies the Claimant’s “Fed ICRP 38.44%” markup applied to personnel in this claim, because 

this is an indirect cost for which the Claimant has not provided actual cost documentation detailing the 

itemized costs associated with this percentage. Therefore, the NPFC took the claimant’s rate schedule 

hourly rate without the Indirect Cost Rate Proposal (ICRP) percentage ($54.97/hour for the Oil Spill 

Prevention Specialist, $59.90/hour for the Environmental Scientist, and $62.03/hour for the Warden) and 

approved the hours provided in the claim with that rate. The total amount approved for the Oil Spill 

Prevention Specialist is $1,154.37, $718.80 for the Environmental Scientist, and $1,488.72 for the 

Warden. The remaining ICRP percentage costs ($1,292.25) are unsubstantiated costs and are denied 

because the NPFC is unable to adjudicate the merits of the indirect cost by way of actual documentation. 

The vehicle and lab analysis costs totaling $6,556.48 are payable as presented. 

The NPFC hereby determines that the OSLTF will pay $9,918.37 as full compensation for the 

reimbursable removal costs incurred by the Claimant and submitted to the NPFC under claim #917011-

0003. All reimbursable costs are for charges incurred 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.

Of the claimed costs, a total of $1,292.25 are denied.

DETERMINED AMOUNT: $9,918.37 

 

Claim Supervisor

Date of Supervisor’s review: 2/13/18

Supervisor Action: Approved

Supervisor’s Comments: