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CLAIM SUMMARY / DETERMINATION 

Claim Number: 915071-0001 

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

Type of Claimant: State 

Type of Claim: Removal Costs 

Claim Manager: 

Amount Requested: $41,817.73

FACTS:

Background: 

In the Summer of 2013, California Department of Transportation (Cal-Trans) and its contractor, 

Granite Construction Company (Granite), began work on an 18 million dollar sea wall 

restoration project near Solimar Beach and north of Emma Wood State Beach.1

 The 

construction project was to replace deteriorating sea walls and also remove a rocky rip rap 

barrier. The construction process involved drilling 60 feet below the ground surface to install 

piles for the new seawall.2

In September 2013, while drilling holes for the new piles, construction workers encountered oily 

groundwater between 20 and 40 feet below the surface. Cal-Trans did not report the oily 

groundwater to the California Office of Emergency Services (OES) or the California Department 

of Fish and Wildlife’s Office Spill Prevention and Response (OSPR).3 Instead, Cal-Trans hired 

Pacific Petroleum to remove the oily groundwater from under its construction site. Pacific 

Petroleum drilled three extraction wells to pump out the oily groundwater and place the oily 

groundwater in Baker tanks for vacuum trucks to transport it to a disposal facility. According to 

OSPR’s Narrative #5, during the extraction process construction crews demolished the old 

seawall and observed oily groundwater into the sand berm that Granite excavated between its 

construction site and the Pacific Ocean. 

On November 5, 2013 the Environmental Coordinator for the Ventura County Chapter of the 

Surf Riders Foundation phoned California OES to report that construction on the beach struck an 

oil pipeline. The caller related that on October 22, 2013 the sand berm holding the oil was 

breached by a large wave and it washed the oil into the Pacific Ocean. 4

 Because the caller 

reported that the pollution event occurred on October 22, 2013, OES created Hazardous 

Materials Spill Report #13-6853 as a “Historical Report.”5

 

A year later, on November 10, 2014, of OSPR wrote Narrative Report 4 

outlining the above OSPR activities from November 5, 2013 to November 22, 2013. 6

 On 

November 5, 2013, responded to the Historical Report on November 5, 2013 and 

 

1

 The California Department of Transportation (Cal-Trans) owns the right-of-way and seawall along Highway 1 in 

Ventura County 

2

 See EMA Historic Report 13-6853 in the administrative record 

3

 See Narrative 4 Investigation Report Case Synopsis dated November 10, 2014 in the administrative record 

4

 See California Emergency Management Agency Hazardous Materials Spill Report 13-6853 November 5, 2013 in 

administrative record Part 3 

5

 See Narrative 4 Investigation Report Case Synopsis dated November 10, 2014 in the administrative record 

6 Id
 

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drove to the construction site. Upon arrival on site, construction was closed for the day. He 

reported that he did see or not smell any petroleum or see anything that would lead him to 

believe there was an oil spill.7

The California Coastal Commission (Commission) is a state agency that has regulatory oversight 

for land use and public access in the California coastal zone. The Commission authorized CalTrans to widen Ventura Highway and replace the old deteriorating seawall. On November 8, 

2013, the Commission asked OSPR about the November 5, 2013 incident report (#13-6853). 

OSPR dispatched Environmental Scientist to the construction site. met with 

personnel from Cal-Trans, Granite Construction and Pacific Petroleum and was informed that a 

few weeks earlier Cal-Trans saw oil in the groundwater beneath the old rip-rap that was removed 

from the beach. contacted the USCG Marine Safety Detachment Santa Barbara, CA. 8

Federal On-Scene Coordination: 

MST2 of USCG Marine Safety Detachment, Santa Barbara was the acting 

Federal On-Scene Coordinator- Representative (FOSC-R). MST2 arrived at the 

construction site on November 8, 2013 and set up a Unified Command consisting of Cal-Trans 

OSPR and Pacific Petroleum. 

Potential Responsible Party: 

Because several oil companies operated underground pipelines in the area, initially all pipeline 

operators were considered potential responsible parties. However, each pipeline operator proved 

by pressure testing and oil samples, that their pipelines were not the source of the oil. 

Ultimately, no responsible party was identified. 

Claim: 

On March 20, 2015, the NPFC received OSPR’s claim for uncompensated removal costs totaling 

$41,817.73 for pollution investigation from November 8, 2013 until November 22, 2013. 

OSPR’s invoice represents personnel costs of $26,696.81, travel expenses of $30, vehicle costs 

of $1,042.65, laboratory fees of $10,138.00, and administrative costs of $3,910.27.9

 

APPLICABLE LAW:

Under OPA 90 33 USC § 2701(7) "’discharge’ means any emission (other than natural seepage) 

intentional or unintentional, and includes, but is not limited to, spilling, leaking, pumping, 

pouring, emitting, emptying, or dumping;” 

Under OPA 90 33 USC § 2701(13) Definitions: “incident” means any occurrence or series of 

occurrences having the same origin, involving one or more vessels, facilities or any combination 

thereof, resulting in the discharge or substantial threat of a discharge of oil; 

 

7 Ibid

8

 See OSPR Narrative 4 Investigation Report Case Synopsis dated November 10, 2014 in the administrative record 

9

 See OSPR form 1081 Voucher and Schedule of Withdrawal and Credits dated March 14, 2015. 
 

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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). 

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 
 

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circumstances, removal activities for which costs are being claimed must have been coordinated 

with the FOSC.” [Emphasis added]. 

DETERMINATION OF LOSS: 

Overview: 

1. The Federal On-Scene Coordinator along with the Unified Command investigated the 

source of the alleged oil in the groundwater. And, in accordance with USC § 

2701(13),the FOSC has determined that this was not an OPA incident, 

2. In accordance with 33 USC § 2701(7), the Claimant has not proven that there was an 

OPA incident that involved a discharge or substantial threat of discharge of oil to 

“navigable waters.” 

3. The Claimant is a state and is not required to present its claim to the responsible party 

before presenting it to the Fund. 

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

has been filed in court for the claimed costs. 

5. In accordance with 33 U.S.C. § 2712(h)(1), the claim was submitted within the six 

year period of limitations for removal costs. 

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

the claim and determined that none of the costs claimed are allowable under OPA and 

33 CFR § 136.205. 

A. Analysis: 

Description of Removal Actions Performed:

On November 5 and November 8, 2013, OSPR personnel responded to a Historic Report of an 

incident that was initially reported on or about November 5, 2013 whereby the Case Synopsis 

indicated that the alleged release had been ongoing since October 22, 2013.10 OSPR personnel 

went to the incident scene and investigated the source of the oily groundwater by taking oil 

samples to its lab for analysis. OSPR personnel checked with oil pipeline companies to see if 

they could find the source of the oil. From November 8, 2013 through November 22, 2013 

OSPR personnel monitored Pacific Petroleum’s remediation of the oily groundwater and served 

on the Unified Command. 

Summary of the Geotechnical Survey: 

In 2010, Cal-Trans commissioned , Geotechnical and Environmental Sciences 

Consultants to perform a pre-construction geophysical site survey of the proposed seawall 

construction area. The purpose of survey was to report any oil in the soil or groundwater along 

Route1 in Ventura County. This included the area between Solimar Beach and Emma Woods 

Beach, where the discharge was reported to have occurred. The geotechnical survey sampled the 

groundwater and found hydrocarbons present at 20 and 40 feet below the surface. The report 

10 See OSPR’s Narrative Supplemental #4 Page 1of 6; Case Synopsis Section 
 

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concluded that the oil was probably from a naturally occurring crude oil seep and warned about 

encountering oily groundwater during excavation of the seawall piles. The report specifically 

recommended that Cal-Trans obtain a permit to remove the oily groundwater before excavating 

the seawall.11

Not an OPA Incident: 

According to the OSPR investigation and Coast Guard FOSC-R reports on September 30, 2013, 

Cal-Trans observed oily groundwater while installing new 60 foot pilings during a road widening 

project. Cal-Trans did not report the encounter of oil to either California OES or to OSPR. 

Instead, Cal-Trans initiated response measures by hiring Pacific Petroleum to contain and 

remove the oily groundwater from the construction site. Pacific Petroleum drilled three 

extraction wells to pump out the oily groundwater and stored it in Baker tanks for disposal. 

Pacific Petroleum later told OSPR that some of the oily groundwater had 

flowed into the sand berm area and during a high tide, a wave washed over the berm and carried 

the oil out into the waters of the Pacific Ocean. No incident date was provided in this statement. 

A call from Surf Rider Foundation was made 15 days after the caller alleged the incident 

occurred. So, California OES labeled the report a “Historical Report.” The OSPR investigation 

report shows that initially investigated on November 5, 2013 and found 

nothing to report. The reason appears to be because the incident occurred on October 22, 2013.12 

 reported in his Narrative 4 that he too responded to the OES report on November 

5, 2013. But, he did not find any evidence of an oil spill. 13 In addition, another supplemental 

Narrative 5 report from states that later on November 12, 2013 that he did 

not see any oil on the beach or in the water.14 From the information submitted by OSPR, no 

OSPR personnel found evidence of oil contamination on the beach or in the waters of the Pacific 

Ocean or impact to wildlife. 

The FOSC-R repots in the Incident Action Plan (IAP) on November 8, 2013 that MSD 

responded to the incident location and confirmed the presence of oil in the groundwater and sand 

berm area. The FOSC-R reports in IAP that, “Because groundwater flow in the area of 

contamination was being pumped/ contained it was determined to not be an emergency response 

by USCG.”15 Also, OSPR’s Narrative #4 reads that, due to the lack of presence of oil, or sheen 

in the immediate worksite, or on the beach or in the sand the (FOSC-R and his superiors) did not 

classify the response as an “emergency response.”16

Under OPA 90, 33 USC § 2701(13): “incident” means any occurrence or series of occurrences 

having the same origin, involving one or more vessels, facilities or any combination thereof, 

resulting in the discharge or substantial threat of a discharge of oil.” The NPFC finds that the 

source of the oil was not from a vessel or facility. 

11 See geophysical report of February 25, 2010 pg 1 Part 2: Property Background Research in the 

administrative record 

12 See OSPR’s Narrative Supplemental #4 Page 4 Line 42 

13 See OSPR’s Narrative Supplemental #4 Page 4 Line49 

14 See OSPR’s Narrative Supplemental #5 Page 3 Line 8-11 

15 See IAP, Ventura County Seawall, Page 1, in administrative record 

16 See OSPR Narrative #4 
 

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The administrative record shows that beginning November 8, 2013, OSPR personnel were 

engaged in trying to find a responsible party for the oil in the groundwater. OSPR personnel 

checked with the oil pipelines companies operating in the area and took oil samples for lab 

analysis. Lab analysis found that there were hydrocarbons in the soil and groundwater but, that 

the samples were inconclusive as to the identity of a responsible party. 

On November 22, 2013, the FOSC-R discovered a geotechnical report by that 

had confirmed the presence of hydrocarbons in the groundwater back in February 25, 2010. The 

 survey included Solimar Beach to Emma Woods State Beach. The 2010 

geotechnical survey stated, “Naturally occurring petroleum hydrocarbon contamination was 

discovered in one geotechnical boring, therefore, there is a potential for encountering soil 

containing naturally occurring petroleum hydrocarbons during site excavation for piles.” The 

geotechnical survey recommended that Cal-Trans apply for a permit to remove the oily 

groundwater when it encountered it. After reading the geotechnical report, the FOSC-R 

concluded that there was no responsible party or facility for the oil in the groundwater.17 

C. Determination: 

Based upon a preponderance of the evidence, the NPFC had determined that there is no evidence 

(1) that an OPA compensable oil spill occurred, and (2) nor did the FOSC direct the actions of 

the Claimant in response to an OPA event. The NPFC has determined that the investigation and 

its costs presented are not related to an OPA incident and therefore, are not payable by the 

OSLTF. The NPFC denies OSPR’s claim for uncompensated removal costs that it incurred and 

submitted to the NPFC under claim #915071-0001. 

Claim Supervisor: 

Date of Supervisor’s review: 6/10/15 

Supervisor Action: Denial Approved

Supervisor’s Comments: 

 

17 See the administrative record