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umes possible. It is more fully de- tions from those Federal agencies havscribed in section 2 of the Decision and ing statutory responsibilities over varReport to Congress on the Alaska Natural ious aspects of (ANGTS)” (Id., at a 41Gas Transportation System (Decision) Ex 42). He concluded, however, that the ecutive Office of the President, Energy necessary transfer of authorities would Policy and Planning, issued September have to await a reorganization plan, 22, 1977.
which in turn necessitated compliance
with the substantive and parliamen$ 1500.202 Statutory background.
tary requirements of the Reorganiza(a) The Alaska Natural Gas Transpor tion Act of 1977, 5 U.S.C. 901, et seq. tation Act of 1976 (ANGTA).
(2) In deferring appointment of the (1) In 1976 ANGTS was given priority Federal Inspector until after transmitstatus, and thus removed from the ting a reorganization plan to Congress, standard regulatory process, by the President substantially expanded ANGTA. The Congressional purpose of the Federal Inspector concept, from ANGTA was twofold: to provide for a Congress' watchdog to the focus of all sound system-selection decision, in- enforcement of Federal laws related to volving the President, Congress, and ANGTS. Also as part of section 5 of the many Federal agencies; and to expedite Decision, the President further exconstruction-once a system was se panded the Federal Inspector's authorlected-through a number of adminis- ity to include pre-approval of the many trative and judicial innovations. One important planning decisions to be such innovation was the Federal In made by the ANGTS sponsors. This spector.
took the form of numerous terms and (2) The President was authorized and conditions governing construction directed by section 7(a)(5) of ANGTA, costs and schedule, safety and design, 15 U.S.C. 719(e), to appoint either a sin and environmental protection. gle officer or a board as Federal Inspec (3) These myriad terms and conditor, following issuance of his decision tions have the force of law. The Presiselecting a transportation system. The dent was authorized, by section 7(a)(6) authorities first envisioned by Con- of ANGTA, to include them in his Decigress for the Federal Inspector entail sion. And because the Decision in its enmonitoring, as contrasted to actual en tirety was given full legal effect, under forcement. In addition to the authority section 8 of ANGTA by joint resoluto establish a joint monitoring agree tion, H.J. Res. 621, Pub. L. 95–158, 95th ment with Alaska, to monitor compli- Cong. 1st Sess., these terms and condiance with all Federal laws, to compel tions have in essence become statutory submission of information, and to re in nature. port to the President and Congress, the (c) Reorganization Plan and Executive Federal Inspector was authorized to Order. (1) In 1979 the OFI was actually monitor closely the technical aspects established, and the necessary transfer of project planning and execution.
of authorities accomplished through, (b) President's Decision. (1) In 1977 the Reorganization Plan No. 1 of 1979. President selected the Alcan (since First, the OFI was transferred "excluchanged to Alaskan Northwest Natural sive responsibility for enforcement of Gas Transportation Company) project, all Federal statutes relevant in any as he issued his Decision and Report to manner to preconstruction, construcCongress on the Alaska Natural Gas tion, and initial operation" of ANGTS. Transportation System (Decision), Execu- section 102 of the Reorganization Plan. tive Office of the President, Energy The OFI is to enforce the legal requirePolicy and Planning, issued September ments of many Federal agencies. The 22, 1977. In section 5 thereof, the Presi Environmental Protection Agency dent determined that, in order to en (EPA), the Army Corps of Engineers sure coordinated government over- (COE), Department of Transportation sight, the Federal Inspector must, in (DOT), Department of Energy (DOE), addition to the ANGTA authorities (de Federal Energy Regulatory Commisscribed in paragraph (a) of this section) sion (FERC), Department of the Intehave "field-level supervisory authority rior (DOI), Department of Agriculture over enforcement of terms and condi- (USDA), and Department of the Treas
ury (Treasury), and their respective (a) Coordinating enforcement with Alaslegal authorities, are specifically enu- ka. The OFI is to establish a “joint surmerated as the most likely to be en- veillance and monitoring agreement" forced by the OFI relative to ANGTS. with the State of Alaska (section The OFI was also charged with enforc- 7(aX5XA) of ANGTA). In this way Feding the terms and conditions found in eral and State enforcement efforts can section 5 of the Decision, as well as ful- be coordinated, to avoid conflicts and filling the monitoring duties set for the to enhance efficiency. The OFI may Federal Inspector in section 7(a)(5) of also work jointly on compliance with ANGTA and the supplemental enforce the Lower 48 states traversed by ment duties found in section 11 of ANGTS. ANGTA.
(b) Monitoring compliance with Federal (2) Enforcement and monitoring con- laws. The OFI is to monitor compliance stitute only part of the OFI's authority with applicable Federal laws and terms under the Reorganization Plan. Under and conditions of the many Federal section 202(b), for example, the OFI is permits and other authorizations isto coordinate and expedite the permit sued for ANGTS (section 7(a)(5)(B) of ting activities of the Federal agencies. ANGTA). This includes compliance This is a permit-scheduling function with the terms and conditions attached
(3) Under section 202(a) final enforce to the authorizations. ment actions of the OFI are subject to (c) Monitoring for effective planning. judicial review only under section 10 of The OFI is to "monitor actions taken ANGTA. Thus, complaints must be to assure timely completion of confiled with the U.S. Court of Appeals for struction schedules and the achievethe District of Columbia Circuit within ment of quality of construction, cost 60 days of the challenged final OFI ac control, safety, and environmental protion. Review is then expedited (90 days)
tection * * *" (section 7(a)(5)(C) of and of limited scope.
ANGTA). The breadth of this monitor(4) The Reorganization Plan became ing function requires that the OFI foleffective as of July 1, 1979, as per Exec low the various aspects of project planutive Order 12142. And with the Execu ning and execution. tive Order, the OFI officially came into (d) Reporting to Congress and the Presiexistence.
dent. One purpose of the monitoring function is to provide the information
for the OFI's current and periodic reSubpart C-Function and Duties
ports to Congress and the President on
the status of ANGTS progress (section 1500.301 Summary.
7(aX5XE) of ANGTA). In this regard, Through the combination of authori- the OFI publishes a quarterly report on ties described in 81500.202, the OFI the status of ANGTS (section 7(aX5)(E) oversees every aspect of ANGTS plan- of ANGTA). This is available to the ning and execution. For ease of under- public upon request. standing, these functions (and the underlying legal authorities) are enumer- $1500.303 Permit scheduling and coated under five major groupings: gen ordination. eral monitoring and oversight (a) The Reorganization Plan differen($1500.302); scheduling of permits and tiates between permitting (so-called other governmental authorizations “nonenforcement") and enforcement, ($ 1500.303); review and approval of sys only the latter function being transtems, plans, and design during plan- ferred to the OFI. Nevertheless, the ning ($ 1500.304); cost control (81500.305); OFI is responsible for coordinating and and enforcement of Federal statutes
expediting the issuance of permits and and related terms and conditions other authorizations by the Federal (81500.306).
agencies. Section 9(a) and (b) of
ANGTA, and Section 202(b) of the Reor81500.302 General monitoring and
ganization Plan. OFI coordination can, oversight
for example, take the form of "requirMonitoring and oversight entails the ing submission of scheduling plans for following OFI functions:
all permits;” and “serving as the 'one window' point for filing for and issu- mate, and construction schedule" for ance of all necessary permits" and data the ANGTS applicants (Id., Condition requests. Section 202(b) of the Reorga 1.5.). Because construction may not nization Plan.
start until final design is approved, (b) This coordination function goes this review is perhaps the OFI's pribeyond mere permit scheduling. It also mary means for assuring proper design involves the OFI, pursuant to Section and planning, as well as assuring the 202(b) of the Reorganization Plan, in reasonableness of the design-cost estievaluating the many discretionary mate. terms and conditions which each Fed (1) Quality control and assurance. The eral agency may impose on ANGTS, to OFI must approve the procedures proassure that they do not impair project posed for quality control and quality expedition, as per Section 9(c) of assurance during construction (Id., ANGTA.
Condition 1.9.). Apart from these proce
dures, the OFI must approve technical $ 1500.304 Approval of systems, plans,
construction specifications and seismic and design.
monitoring systems, to assure pipeline All significant systems, plans, and safety and integrity of design, as well design are subject to OFI scrutiny, as a as approve plans to assure environprecondition to commencement of con- mental protection (Id., Safety and Destruction (Section 5 of the Decision and sign Conditions II.2 and II.6; EnvironSection 102(h)(3) of the Reorganization mental Condition III.2.). Plan). Without listing every approval (g) Procurement review. As part of the requirement, the following are the bilateral agreement with Canada relmost significant:
ative to ANGTS, the OFI, along with (a) Management plans. Prior to final the Northern Pipeline Agency in Cancertification, the ANGTS applicants ada, is charged with endeavoring “to must provide a "detailed overall man ensure that the supply of goods and agement plan” for OFI approval (Sec- services to (ANGTS) will be on gention 5 of the Decision, Condition 1.1.). erally competitive terms" (Decision, Thus, at the outset the applicant's Section 7, paragraph 7(a)). Because overall strategy for executing the proj sanctions for violation include reopenect will be scrutinized.
ing bids, procurement review occurs (b) Execution contracts. Several as during the planning process, not afterpects of the contracts with execution the-fact. This review is accomplished contractors (the prime contractor for through detailed reciprocal procedures, any given pipeline spread) must be ap which were established by a "diploproved by the OFI (Section 5 of the De matic exchange of notes" and subsecision, Conditions 1.2, 1.3, 1.7, and 1.8). quently given regulatory approval by These include contract form (if other the FERC. than fixed-price), bonding and other prequalification requirements, labor
$ 1500.305 Cost control. relations procedure, and dispute proce In addition to the cost-control purdures.
pose and effect of monitoring (c) Cost and schedule control. The ap (81500.302) and systems approval plicants must provide the OFI with de ($1500.304), the OFI has additional and tailed “cost and schedule control tech- more direct cost-control functions. niques” (Id., Condition 1.4.). This en- (a) The Incentive Rate of Return, details, for example, manpower, material, veloped by the Federal Energy Regulogistical, and equipment planning. latory Commission (FERC), is to be ad
(d) Operating strategies. The OFI must ministered by the OFI during planning approve the applicants' operating and construction, Determination of Instrategies. Equipment supply, repair centive Rate of Return, Order No. 31, facilities, and spare-part inventories Docket No. RM78–12, issued June 8, are among the items to be reviewed 1979. The OFI will rule on design (Id., Condition 1.6.).
changes prior to its approval of the (e) Design review. The OFI's technical final design during planning and conoversight is manifested most in approv- struction (Determination of Incentive ing the "final design, design-cost esti Rate of Return. Order No. 31, Docket No.
RM78-12, issued June 8, 1979. The OFI emit over 100 tons per day of any air cost estimate and on scope changes pollutant. during construction).
(vi) Resource Conservation and Re(b) both by transfer of enforcement covery permits (Resource Conservation functions under Section 102(d) of the and Recovery Act of 1976). Enforcement Reorganization Plan, and also by dele- of permits for disposal or chemical degation from the FERC pursuant to Sec Struction of hazardous wastes. tion 202(b) of the Reorganization Plan,
(2) The U.S. Army Corps of Engineers. 45 FR 85511 (December 29, 1980), the OFI Such enforcement functions of the Secwill audit expenditures for rate base
retary of the Army and others related formation and accounting compliance to compliance with: This audit must be performed on a (i) Dredged and fill material permits timely basis during construction (Sec
(Section 404 of CWA). Enforcement of
(Santion and of tion 5 of the Decision, Finance Condi
permits regulating the discharge in wation IV.2.).
ters of the U.S. of dredged materials
and pollutants that comprise fill mate8 1500.306 Enforcement of Federal laws.
(ii) Permits for structures in navi(a) The OFI's enforcement function
gable waters (Section 10 of Rivers and extends to "all Federal statutes rel
Harbors Appropriation Act of 1899). Enevant in any manner to pre-construc
forcement for permits for structures, tion, construction, and initial oper
including piers, break waters, bulkation" of ANGTS. Section 102 of the
heads, revetments, power transmission Reorganization Plan. This transfer in
lines, and aids to navigation, as well as cludes, but is not limited to, the en
for certain work performed in naviforcement functions of the following
gable waters. agencies:
(3) The Department of Transportation. (1) The Environmental Protection Agen
Such enforcement functions of the Seccy. Such enforcement functions of the
retary of Transportation and others reAdministrator and others related to
lated to compliance with: compliance with: (1) National Pollutant Discharge
(i) The Natural Gas Pipeline Safety
Act of 1968 and related regulations. Elimination System permits (Section 402 of the Clean Water Act of 1977
This entails a comprehensive oversight (CWA)). These permits are required for
program to assure quality of constructhe discharge of pollutants into waters
tion and pipeline integrity. of the U.S.
(ii) The Federal Aviation Act and re(ii) Spill prevention, containment,
lated authorizations and regulations, and countermeasure plans (Section 311
such as, proposed private airport faciliof CWA). These plans are required for
ties, air traffic limitations, and height
requirements for structures like micromajor nontransportation oil storage at camps and other facilities.
wave transmitter towers. (iii) Review of permits issued by the
(iii) Permits for bridges across naviCorps of Engineers for dredged and fill
gable waters (Section 9 of Rivers & materials (Section 404 of CWA). These Harbors Appropriation Act of 1899). permits are required for the discharge (4) The Department of Energy and of dredged or fill material into waters Federal Energy Regulatory Commission. of the U.S.
Such enforcement functions of the Sec(iv) New Source Performance Stand- retary of Energy, the Commission and ards (Section 111 of the Clean Air Act). others related to compliance with: Enforcement of standards of perform (i) Certificates of public convenience ance for new stationary sources of air and necessity (Section 7 of the Natural pollution such as stationary gas tur- Gas Act). bines and incinerators.
(ii) Authorizations for importation of (v) Prevention of Significant Deterio- natural gas, including gas imported ration review and approval (Sections from Alberta as predeliveries of Alaska 160-169 of the Clean Air Act). Review of gas (Section 3 of the Natural Gas Act). construction or modification of most Enforcement of requirements for facilistationary air emission sources which ties necessary to transport this gas.
(5) The Department of the Interior. (ix) Review of Corps of Engineers' Such enforcement functions of the Sec- dredged and fill material permits (Secretary of the Interior and others relat- tion 404 of CWA). See similar discussion ed to compliance with:
under paragraph (a) of this section, (i) Grants of rights-of-way and tem- EPA, and paragraph (b) of this section, porary use permits for Federal lands the Corps. (Section 28 of Mineral Leasing Act). (x) Rights-of-way across recreation These grants and permits include those lands (Land and Water Conservation for gas pipelines and related facilities Fund Act of 1965). Compliance with reon Federal lands, as well as those for strictions for land acquired or develrelated temporary uses, such as camp oped with the assistance of the Fund. sites, roads, communications and mon (xi) Historic preservation (National itoring sites.
Historic Preservation Act of 1966). (ii) Land use permits for temporary Principally consultation on the effect use of public lands and other associated of system activities on locations Covland uses (Section 302, 501, and 503-511 ered by the Act. of the Federal Land Policy and Man (xii) Permits issued under the Antiqagement Act of 1976). These permits uities Act of 1906. Such permits allow provide authority for temporary use of certain institutions to examine ruins, Federal lands in addition to the au to excavate archeological sites and to thority under the Mineral Leasing Act gather objects of antiquity on or from and include permits for field work pre- Federal lands. paratory to applying for grants of (xiii) System activities requiring coright-of-way and other associated uses. ordination and approval under the gen
(iii) Materials sales contracts (the eral authorities of: Materials Act of 1947). These permits (A) The National Trails System Act, concern the removal of mineral or veg (B) The Wilderness Act, etative material from public lands.
(C) The Wild and Scenic Rivers Act, (iv) Rights-of-way across Indian (D) The National Environmental Pollands (Rights of Way Through Indian icy Act of 1969, Lands Act). Grants of rights-of-way is (E) The Act of April 27, 1935, dealing sued by the Secretary after tribal con- with the prevention of soil erosion, and sent.
(F) An Act to provide for the Preser(v) Removal permits (the Materials vation of Historical and Archeological Act of 1947). These permits also con- Data. cern removal of mineral or vegetative The enforcement functions under material from public lands.
these Acts generally concern require(vi) Approval to cross national wild- ments that the purposes and protection life refuges (National Wildlife Refuge set forth in the Act be observed, or, deSystem Administration Act of 1966 and pending on the specific statute, at least Upper Mississippi River Wildlife and be taken into account, in the performFish Refuge Act). Issuances of permits ance of system activities. or rights-of-way or permits on wildlife (xiv) Equal opportunity regulations refuges must have Interior approval as published by the Department. 43 CFR being compatible with the purpose for Part 34. These regulations require afestablishing the refuge.
firmative action to assure against dis(vii) Wildlife consultation (Fish and crimination in employment and conWildlife Coordination Act). Require tracting on ANGTS. Section 17 of ment for consultation with Fish and ANGTA. Wildlife Service as to the effects of (6) The Department of Agriculture. rights-of-way or permits on wildlife re- Such enforcement functions of the Secsources.
retary of Agriculture or other related (viii) Protection of certain birds (Mi- to compliance with: gratory Bird Treaty Act and Bald and (i) Associated land use permits under Golden Eagles Protection Act). Interior grants of rights-of-way across Federal is responsible for protecting migratory lands (Section 28 of the Mineral Leasbirds and eagles, their nests and eggs. ing Act of 1920). Similar permits to Special use permits or waivers are those of Interior above except for lands available except in the case of eagles. administered by USDA.