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CLAIM SUMMARY / DETERMINATION 

Claim Number: 917007-0001 

Claimant: State of California Dept. of Fish & Wildlife 

Type of Claimant: State 

Type of Claim: Removal Costs 

Claim Manager: 

Amount Requested: $64,125.39 

FACTS: 

Oil Spill Incident: On January 16, 2015, the State of California Department of Fish and 

Wildlife’s Office of Spill Prevention and Response (OSPR) was notified by East Bay Regional 

Parks (EBRP) of an unknown substance found on the bodies of dead birds along the San 

Francisco Bay shoreline in Hayward, California. OSPR was further notified by the San Leandro 

Police Department of both live and dead birds covered with an oil-based substance found on the 

San Francisco Bay shoreline in San Leandro, and an oil sheen in San Francisco Bay extending 

from Hayward to San Leandro.1

 USCG Sector San Francisco coordinated with OSPR and 

permitted them to oversee the response due to the incident’s substantial wildlife impact.

2

 

Extensive investigation has not revealed a responsible party/source for this incident and as such, 

the incident is considered a mystery spill.

Description of Removal Activities for this claimant: OSPR personnel performing on-site 

investigation confirmed the substance found in San Leandro was the same as the substance found 

in Hayward. Aerial observation of the San Francisco Bay near San Leandro could not find the 

reported oil sheen and did not reveal the source of the substance. Between January 17, 2015 and 

January 22, 2015, the unknown substance was discovered by OSPR, EBRP, International Bird 

Rescue Center and San Leandro Police Department personnel upon the bodies of hundreds of live 

and dead birds in various locations throughout the San Francisco Bay shoreline. OSPR 

investigated water treatment plants and a specific discharge pipe in the San Fransico Bay area, as 

well as reviewing vessel traffic information that was provided by the USCG, but were unable to 

identify the source of the substance.3

 Shoreline recovery efforts were terminated on January 22, 

2015. 

Lab analysis was performed on the unknown substance by US Fish and Wildlife, EPA and the 

Fish and Wildlife Petroleum Chemistry Lab. EPA’s lab analysis number NEICRP1627Z01 

determined the material to be an oil or oil-based substance. 4

The Claim: On February 28, 2017, the State of California Department of Fish and Wildlife

submitted a removal cost claim to the National Pollution Fund Center (NPFC) for reimbursement 

of their uncompensated removal costs in the amount of $64,125.39.5

APPLICABLE LAW: 

 

1 See Emergency Services Hazardous Materials Spill Report 15-0297 dated January 16, 2015. 2 See email sent by LTJG to Claims Manager , dated February 28, 2017. 3 See State of California Department of Fish and Wildlife Claim Package dated February 14, 2017. 4 See EPA NEIC Work Product No. NEICRP1627Z01 dated April 15, 2015.

5 See State of California Department of Fish and Wildlife Claim Package dated February 14, 2017.
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"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 
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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. LTJG confirmed response actions were in accordance with NCP and provided 

FOSC coordination. 33 U.S.C § 2702(b)(1)(B) and 2712(a)(4)6

; 

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 the need for a more detailed explanation of all sampling, analysis and 

research activities of OSPR personnel involved with the oil spill response, as well as a more 

detailed description of daily activities. The claimaint was emailed the additional information 

request by the NPFC Claims Manager, and provided an extension on the due date for 

additional information requested7

. Claimant failed to provide information supporting the 

daily activity reports of personnel for all time periods claimed in the costs.

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. 

The NPFC has determined that the majority of the costs incurred by the Claimant in this 

determination are OPA compensable removal costs based on the supporting documentation provided. 

The NPFC has determined that the costs invoiced were in accordance with the state’s rates that were 

in effect at the time services were rendered. The NPFC communicated with the FOSC who 

determined that any costs the NPFC were to offer and pay, are determined to be consistent with the 

National Contingency Plan (NCP). The NPFC has determined that $53,466.61 is supported by the 

record and fully documented. The NPFC has denied the following amounts: 

Denied Items: 

1. Costs paid to Information Officer in the amount of 

$72.75/hour, were denied by NPFC as public affairs/media relations and is not an 

OPA compensable removal cost. As such, all amounts invoiced for 

, totaling $3,710.25, are denied; 

2. Costs paid to Information Officer in the amount of $72.75/ hour, 

were denied by NPFC as public affairs/media relations and is not an OPA 

 

6 See email sent by LTJG to Claims Manager , dated February 28, 2017. 7 See emails sent by NPFC Claims Manager to Ms. titled 217 03 03 Claim 917007-

0001 Out of Office. 
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compensable removal cost. Furthermore, costs paid for lodging 

and eating expenses are likewise denied. As such, all amounts invoiced for 

 totaling $4,444.89, are denied;

3. Costs paid to Senior Environmental Scientist (SPEC) in the amount of 

$87.70/hour, for the dates of June 9, 2015, June 25, 2015 and June 30, 2015 are 

denied as shoreline recovery efforts were terminated on January 22, 2015, and all 

supporting evidence of removal activity was dated prior to June, 2015. As such, 

all amounts invoiced for June, 2015, totaling $877.00, are denied;

4. Costs paid to Senior Environmental Scientist (SPEC) in the amount of 

$95.69/hour, for the date of July 9, 2015 are denied as shoreline recovery efforts 

were terminated on January 22, 2015, and all supporting evidence of removal 

activity was dated prior to July, 2015. As such, all amounts invoiced for July, 

2015, totaling $287.07, are denied; 

5. Costs paid to Senior Environmental Scientist (SPEC) in the amount of 

$95.69/hour, for the dates of September 17, 2015 and September 18, 2015 are 

denied as shoreline recovery efforts were terminated on January 22, 2015, and all 

supporting evidence of removal activity was dated prior to September, 2015. As 

such, all amounts invoiced for September, 2015, totaling $1,339.66, are denied. 

Overall Denied Costs = $10,658.868

The NPFC hereby determines that the OSLTF will pay $53,466.61 as full compensation for the 

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

917007-0001. 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.

Should you request reconsideration, you will need to provide more detailed daily information of work 

performances by individual, as well as obtain all case information for actions undertaken and bird 

statistics from the International Bird Rescue Center for the time periods of which you are requesting 

cost reimbursement.

AMOUNT: $53,466.61

 

Claim Supervisor: 

 

Date of Supervisor’s review: 3/28/17 

Supervisor Action: Approved

Supervisor’s Comments: 

 

8 See Claim 917007-0001 OSPR Spreadsheet for specifics regarding the amounts approved and denied by the NPFC.