SEMS Enforcement – Sorting Out Who Is in Charge Offshore
One of the commenters on this blog made a very interesting point about some of the jurisdictional questions between agencies on SEMS:
How does the offshore industry interpret “operations and activities under BOEMRE jurisdiction”? It seems to me that this statement severely limits what needs to be included in a SEMS plan. For example, according to the BOEMRE website and their PowerPoint presentation, the line between what needs to be covered and not covered by a SEMS plan can be found in the MOA between the USCG and BOEMRE. By this logic (MOA-OCS 01), items such as fire protection, emergency lighting/generation, aircraft landing and refueling, crane operations, machinery spaces, means of escape and many more don’t have to be covered by SEMS. Also, what about marine crews and/or marine activities on a MODU or FOI, it looks like either of these don’t need to be included as well.
Clearly this is an area where there are enormous jurisdictional differences between agencies and the potential for companies to be caught between conflicting regulations. For example, the SEMS regulation itself has potential areas of conflict. For example, the very first section of the SEMS regulations (30 CFR 250.1900) says “Nothing in this subpart affects safety or other matters under the jurisdiction of the Coast Guard.” However, the regulation defines a contractor as “ anyone performing work for the lessee.” How should a vessel company interpret this? The Coast Guard makes the rules on who should be allowed to work on a vessel and what their training should be, but the SEMS rule says the operator must evaluate the contractor’s personnel under SEMS. This raises the real potential that the Coast Guard would hold personnel to one set of standards while the SEMS plan holds them to another. That’s a conflict.
The application to liftboats is a tangled web. In a public meeting in March, BOEMRE said at one point that vessels, including liftboats were under the jurisdiction of the Coast Guard. Later it said that liftboats performing activities covered under a SEMS plan are under BOEMRE’s jurisdiction. They would be considered facilities, meaning they need to have done a hazard analysis before they go on the job. BOEMRE specifically talked about coil tubing jobs done by liftboats, but the question of whether it also applies to plug and abandonment work, maintenance or any crane interaction with the a platform is left unanswered.
However, these kinds of conflicts are nothing new. The jurisdiction of the Coast Guard over vessel operations is very clear, yet BOEMRE has always required offshore leaseholders to report any injuries within the lease area and face potential penalties for incidents. In another area, the EPA recently started requiring vessels to have discharge plans and permits when they operate offshore, even though the Coast Guard already has rigorous regulations covering pollution discharges. Finally, OSHA’s role offshore is still a major source of confusion. Documents concerning OSHA jurisdiction on offshore oil and gas facilities tend to use words like “may” alot and when BOEMRE cites an OSHA regulation offshore it generally offers it as reference rather than a hard and fast requirement. Ironically, the SEMS rule may have the effect of completely taking OSHA out of the oil and gas world on the Outer Continental Shelf because the law says OSHA only applies where BOEMRE or the Coast Guard do not already have regulations in place. Because SEMS requires companies to address all safety elements, that may not leave any room for OSHA in the future.
For MODUS the potential conflict are even more confused by the fact that many of them are operating under international conventions and may be on an “international voyage.”
The industry can hope that this confusion is eventually cleared up between the agencies. Industry can also hope that BOEMRE will tread carefully to not overstep its authority and invite a legal challenge once the November 15th deadline comes and enforcement starts. But in the meantime, the industry can only try to find a balance to meet the spirit of the SEMs rules without winding up on the wrong side of Coast Guard regulations.