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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 41– Gas 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,
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 6 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 Treasury (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 18 permits and other authorizations 18to 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 Subpart C-Function and Duties
for the OFI's current and periodic re
ports to Congress and the President on $ 1500.301 Summary.
the status of ANGTS progress (section
7(a)(5)(E) of ANGTA). In this regard, Through the combination of authori- the OFI publishes a quarterly report on ties described in $1500.202, 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 (80-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 ($1500.305); 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 ($1500.306).
agencies. Section 9(a) and (b) of
ANGTA, and Section 202(b) of the Reor1500.302 General monitoring and oversight.
ganization Plan. OFI coordination can,
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 issuance of all necessary permits” and data requests. Section 202(b) of the Reorganization Plan.
(b) This coordination function goes beyond mere permit scheduling. It also involves the OFI, pursuant to Section 202(b) of the Reorganization Plan, in evaluating the many discretionary terms and conditions which each Federal agency may impose on ANGTS, to assure that they do not impair project expedition, as per Section 9(c) of ANGTA.
3 1500.304 Approval of systems, plans,
and design. All significant systems, plans, and design are subject to OFI scrutiny, as a precondition to commencement of construction (Section 5 of the Decision and Section 102(h)(3) of the Reorganization Plan). Without listing every approval requirement, the following are the most significant:
(a) Management plans. Prior to final certification, the ANGTS applicants must provide a "detailed overall management plan" for OFI approval (Section 5 of the Decision, Condition 1.1.). Thus, at the outset the applicant's overall strategy for executing the project will be scrutinized.
(b) Execution contracts. Several aspects of the contracts with execution contractors (the prime contractor for any given pipeline spread) must be approved by the OFI (Section 5 of the Decision, Conditions I.2, 1.3, 1.7, and 1.8). These include contract form (if other than fixed-price), bonding and other prequalification requirements, labor relations procedure, and dispute procedures.
(c) Cost and schedule control. The applicants must provide the OFI with detailed “cost and schedule control techniques" (Id., Condition 1.4.). This entails, for example, manpower, material, logistical, and equipment planning.
(d) Operating strategies. The OFI must approve the applicants' operating strategies. Equipment supply, repair facilities, and spare-part inventories are among the items to be reviewed (Id., Condition 1.6.).
(e) Design review. The OFI's technical oversight is manifested most in approving the “final design, design-cost esti
mate, and construction schedule" for the ANGTS applicants (Id., Condition 1.5.). Because construction may not start until final design is approved, this review is perhaps the OFI's primary means for assuring proper design and planning, as well as assuring the reasonableness of the design-cost estimate.
(1) Quality control and assurance. The OFI must approve the procedures proposed for quality control and quality assurance during construction (Id., Condition I.9.). Apart from these procedures, the OFI must approve technical construction specifications and seismic monitoring systems, to assure pipeline safety and integrity of design, as well as approve plans to assure environmental protection (Id., Safety and Design Conditions II.2 and II.6; Environmental Condition III.2.).
(g) Procurement review. As part of the bilateral agreement with Canada relative to ANGTS, the OFI, along with the Northern Pipeline Agency in Canada, is charged with endeavoring “to ensure that the supply of goods and services to (ANGTS) will be on generally competitive terms" (Decision, Section 7, paragraph 7(a)). Because sanctions for violation include reopening bids, procurement review occurs during the planning process, not afterthe-fact. This review is accomplished through detailed reciprocal procedures, which were established by a "diplomatic exchange of notes” and subsequently given regulatory approval by the FERC.
8 1500.305 Cost control.
In addition to the cost-control purpose and effect of monitoring (8 1500.302) and systems approval ($ 1500.304), the OFI has additional and more direct cost-control functions.
(a) The Incentive Rate of Return, developed by the Federal Energy Regulatory Commission (FERC), is to be administered by the OFI during planning and construction, Determination of Incentive Rate of Return, Order No. 31, Docket No. RM78–12, issued June 8, 1979. The OFI will rule on design changes prior to its approval of the final design during planning and construction (Determination of Incentive Rate of Return. Order No. 31, Docket No.
RM78-12, issued June 8, 1979. The OPI 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 de gation 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
(1) Dredged and fill material permits timely basis during construction (Sec (Section 404 of CWA). Enforcement of tion 5 of the Decision, Finance Condi- permits regulating the discharge in wation IV.2.).
ters of the U.S. of dredged materials 1500.306 Enforcement of Federal
and pollutants that comprise fill mate
(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 Agency. Such enforcement functions of the
Such enforcement functions of the Sec
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 Elimination System permits (Section
Act of 1968 and related regulations. 402 of the Clean Water Act of 1977
This entails a comprehensive oversight (CWA)). These permits are required for
program to assure quality of construc
tion and pipeline integrity. the discharge of pollutants into waters 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 major nontransportation oil storage at
requirements for structures like microcamps 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 the 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, (1) 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 503-611 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 18- (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 18 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.