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of a recommendation can only come after direct consultation with the Governor, or where appropriate the local executive, and must be formally communicated in writing, with reasons.
The Committee did not believe that any State should have a veto power over OCS oil and gas activities. The committee fully expects, however, that the advice of the Governor be given full and careful consideration, and be incorporated into the ultimate decision of the Secretary, insofar as they are not inconsistent with the balanced approach to OCS leasing set out in this Act. It is also expected that any recommendations made by a Governor, and the reasons for rejection of such recommendations, will be part of the record of any judicial proceeding as to a lease sale, provided for in the citizens' suit subsection 23(a) or for review of a development and production plan, provided for in the judicial review subsection 23(c). Rejection of any specific recommendation shall not, alone, be a basis for invalidation by a court, unless of course, the rejection was an abuse of discretion and thus, as with any other administrative action, invalid as arbitrary or capricious. However, weight can and should be attached to the recommendations, and the reasons for rejection, as part of the total record before the court.5
Interstate and Federal-State coordination One of the main purposes of the 1977 amendments is to provide for coordinated OCS action. One concern raised at the hearings was the need for regional, rather than State by State, action as to OCS activities. The committee decided not to establish any new formal mechanism for regional bodies.53 Governors, of course, are free to establish whatever advisory or consultative mechanisms they deem useful and necessary. The Secretary of the Interior has already established certain regional advisory boards, consisting of representatives from States and various Federal agencies. The committee expects these arrangements to continue and be improved. In addition, under the Coastal Zone Management Act of 1972, as amended (16 U.S.C. 1451 et seq.) coastal States are encouraged to coordinate planning, policies, and programs, pursuant to informal agreements or, if desired, pursuant to formal interstate agreements or compacts, and funds are authorized for such activities. The CZMA also provides for mandated consultation procedures, advice, and Government agency involvement with any formal or informal interstate body.
Finally, subsection 19(e) does provide a coordination mechanism between Federal and State bodies. Explicit authority is granted for cooperative agreements between the Secretary and affected States for, among other things, information sharing, expert advice, planning, and joint permitting and enforcement.
62 The committee is aware that under the Coastal Zone Management Act of 1972, as amended in 1976 (16 U.S.C. 1451 et seg.), certain OCS activties including lease sales and approval of development and production plans must comply with “consistency' require. ments as to coastal zone management plans approved by the Secretary of Commerce. Except for specific changes made by Titles IV and V of the 1977 Amendments, nothing in this Act is intended to amend, modify or repeal any provision of the Coastal Zone Management Act. Specifically, nothing is intended to alter procedures under that Act for consistency once a State has an approved Coastal Zone Management Plan.
53 A provision authorizing the Governors of States to be affected by OCS activities to establish regional boards was included in OCS bills passed by both Houses during the 94th Congress. The Coastal Zone Management Act of 1976 (Public Law 94-370), described above, was passed after this action.
Section 20.-Baseline and Monitoring Studies
. production in that area. The study is to be conducted by the Secretary of the Interior. Because of the experience and the expertise on ocean matters of the National Oceanic and Atmospheric Administration, and the undertaking of more than half of the OCS environmental studies by that Administration to this date, the Secretary of the Interior is, however, under subsection (e), directed to utilize NOAA, to the maximum extent practicable, through appropriate arrangements with the Department of Commerce.
The committee understands that there is a great deal of controversy as to what is or what is not a "baseline study". The Act only mandates that the information collected is to determine baselines.
The determination of what is or is not a "baseline" is not static. Therefore, a study to be submitted by the Secretary will not necessarily be a "baseline study”, but will rather be a study collecting a baseline of information to be of use to those people conducting, administering and reviewing activities on the Shelf. The Secretary is given the discretion to determine what information is necessary to make any necessary reports. It may be a "baseline" or any other method of environmental investigation.
In designing these studies, the Secretary, to the extent practicable, is to attempt to have the studies predict impacts on marine biota from low-level pollution or large spills associated with activities on the Outer Continental Shelf, and from drilling and the laying of pipelines. In addition, the studies should predict the impact of off-shore activities on affected on-shore areas.
In order to assure the prompt commencement and completion of these studies, subsection 20(a) mandates that if no such study has already been commenced, it must be commenced within six months from the date of enactment of the 1977 amendments for any area or region where a lease sale has already been held or firmly scheduled, and in the future, is to be commenced in any area at least 6 months prior to the holding of a lease sale in such area. In those areas where studies have already commenced, the Secretary can utilize information already collected.
It is expected that ordinarily the Secretary should complete a study prior to the commencement of production in a lease area. Ordinarily, the Secretary will therefore, have 4 to 6 years to prepare his study while exploration is being undertaken in a lease area. As the information to be obtained from such a study would be of great value to the Secretary in evaluating a development and production plan, the Secretary should coordinate his studies with the activities of a lessee or permittee in a lease area so as to be able to compile at least some of the useful environmental information prior to development and production.
Subsection 20(b) is intended to provide for continued study and monitoring of an area. As the Secretary is encouraged to compile environmental information in a study for use in considering a development and production plan, and as such a study might not completely collect all necessary information, especially if there are recent environmental, economic or recreational changes, additional studies might be appropriate. The Secretary is permitted, therefore, after completion of his first study, to conduct additional studies to establish baseline information as he deems necessary. In addition, he is to monitor the production area in a manner designed to provide time series data which can be compared with earlier studies and previously collected data summarized in those studies for the purpose of identifying any significant changes and the possible cause of such changes.
Subsection 20(c) requires implementing regulations and procedures to be promulgated and calls for cooperation with the States in planning and carrying out studies and monitoring, including issuance of contracts to appropriate State agencies and universities. Although the Secretary of the Interior is given responsibility for conducting such studies, the committee recognized that other Federal, State, and local agencies have been collecting information to prepare environmental impact statements, as to human, marine or coastal environments. The committee wishes the studies, mandated by this section, to be cooperative efforts by all Federal and State government agencies with the capability to undertake such studies. Information already collected should be used by the Secretary so as to avoid redundant studies, or to supplement or reduce the scope of any new study.
Subsection 20(d) provides that the Secretary is to submit to Congress and to make available to the public an assessment of the cumulative effects of OCS activities on the environment of the various regions affected.
Finally, the committee made it explicit that information prepared pursuant to this section should be adequately considered by the Secretary. In making decisions, promulgating regulations, setting lease terms, and establishing operating procedures, he is to review, analyze and consider all available and relevant environmental information prepared pursuant to this section, Section 21.-Safety Regulations
Section 21 establishes procedures for study, review, coordination, and if necessary, revision of safety regulations in light of the policy of the 1977 amendments related to the need
for safe operations on the Outer Continental Shelf. Specifically, the 1977 amendments, paragraph (6) of Section 3 of the OCS Act make it an explicit policy that:
“(6) operations in the Outer Continental Shelf should be conducted in a safe manner by well-trained personnel using technology, precautions, and techniques suficient to prevent or minimize the likelihood of blow-outs, loss of well control, fires, spillages, physical obstruction to other users of the waters or subsoil and seabed, or other occurrences which may cause damage to the environment or to property, or endanger life or health.”
Safety regulation and enforcement should be in accord with this policy.
Preparation of a study Subsection 21 (a) provides for a study of the adequacy of existing safety regulations for the OCS, and of the technology, equipment, and techniques available for OCS activities. Such study shall be submitted to the President who shall then submit a plan for the promotion of safety and health to the Congress. Congress will then have an opportunity, through appropriate oversight, or if necessary, further legislation, to insure that adequate provision is provided for safe OCS operations.
Responsibility for regulations and coordination The committee is aware of the numerous Federal agencies and departments presently involved in OCS safety regulations and enforcement. As with all other OCS activities and decisions, it is the intention of the committee to limit, and hopefully eliminate, any "bureaucratic nightmare" of uncoordinated governmental action. Thus, the study required by subsection (a) is to be done “in consultation with” appropriate agency heads. Thus the safety plan forwarded to Congress will cover areas administered by all appropriate agencies. In addition, subsection 21(e) provides a mechanism to avoid too numerous or overlapping safety regulations. The Secretary is to consult with and coordinate the activities of all relevant Federal agencies. In effect, he is to act as a “clearinghouse” to assure, to the maximum extent practicable, that inconsistent or duplicative requirements are not imposed.
In addition, subsection 21 (e) seeks to provide easy access to OCS regulations, whether prepared by the Secretary of Interior or other agencies. Thus, the Secretary of the Interior is required to prepare an annual compilation of all regulations, as prepared by all agencies, applicable to activities on the Shelf and to make such compilation available to lessees, permittees, subcontractors, sublessees, workers, or any other interested person.
The committee was aware of the present major safety-related regulatory responsibilities of the U.S. Geological Survey, within the Interior Department, of the Coast Guard and Office of Pipeline Safety within the Department of Transportation, and the Occupational Safety and Health Administration within the Department of Labor.
Subsections 4(e) and 4(f) of the OCS Act of 1953, as readopted by the 1977 amendments, provide that the Secretary of the Department in which the Coast Guard is operating shall promulgate and enforce reasonable regulations as to safety of life and property and that the Secretary of the Army is to continue to have the authority to prevent obstruction to navigation in navigable waters. Except for the preparation and enforcement of regulations as to workers' safety described below, nothing in section 21 eliminates or lessens these responsibilities.
The committee is aware of the role of the U.S. Coast Guard in regard to vessel safety, including provisions to protect employees. The Coast Guard has developed a program beginning at the design stage and continuing through construction and operation of a vessel. This
program currently covers mobile drilling units and support vessels engaged in operations on the shelf.
The committee recognized that these mobile drilling units and vessels are not restricted to operations on the shelf but are commonly employed worldwide. Adequate regulations to be promulgated and enforced should not only apply to such vessels when they are mobile but also when they are actually drilling, and therefore, attached to the seabed. In order to avoid conflict and ambiguities, the committee expects the Coast Guard to work with other responsible agencies so as to provide that drill ships or other mobile vessels would not only comply with Coast Guard regulations while traveling, but also comply with other appropriate regulations, when in the drilling mode.
The Natural Gas Pipeline Safety Act assigns to the Secretary of Transportation primary responsibility for establishing minimum Federal safety standards for the transportation of gas and pipeline facilities as defined in that Act. These standards may apply to the design, installation, inspection, testing, construction extension, operation, replacement, and maintenance of those pipeline facilities. The committee reviewed the Report on Safety Standards and Pipelines on Federal Lands and the Outer Continental Shelf which was submitted by the Secretary of Transportation. The committee fully expects the Secretary of Transportation to exercise his existing authority on the shelf and on lands beneath navigable waters within State boundaries and to continue to issue and enforce regulations for off-shore pipelines. As discussed earlier in relation to "rights-of-way” under section 4 of this Act and as specifically indicated by subsection (d), this section is not intended to diminish or duplicate any authority of the Secretary of Transportation, presently provided by law, to establish and enforce such pipeline safety standards and regulations in the Outer Continental Shelf. The committee understands that a memorandum of understanding has now been established between the Department of Transportation and the Department of the Interior as to pipeline safety standards and regulations. Nothing in this section is intended to supersede that memorandum of understanding.
The committee determined that special provision should be made as to worker's safety regulation and enforcement on the OCS. Section 4(e) of the OCS Act of 1953 provided that the Coast Guard had the responsibility for the safety of any person, which would include occupational safety on OCS facilities and in adjacent waters.
The Occupational Safety and Health Act (24 U.S.C. 651) provides authority for the Secretary of Labor, through the Occupational Safety and Health Administration, to prepare interim worker's safety regulations and standards and, unless ousted by another agency or department, permanent standards, for all areas including the Shelf.
The committee is aware of a continuing controversy as to whether OSHA or the Coast Guard should exercise regulatory authority over OCS worker's safety and health.
Some witnesses suggested that OSHA, within the Department of Labor, be given sole responsibility, or at least lead agency authority