Interior Department policy statement on OCS workplace safety jurisdiction

The United States Department of the Interior has published a policy statement clarifying that the Interior Department -- and not OSHA -- will will act as the principal federal agency for the regulation and enforcement of safety and health requirements for renewable energy facilities located in ocean waters on the Outer Continental Shelf or OCS. In an October 17 press release, the Department's Bureau of Ocean Energy Management described the policy statement as "a major milestone in advancing the renewable energy program on the OCS."

Under the federal Outer Continental Shelf Lands Act, as amended by the Energy Policy Act of 2005, the Secretary of the Interior is authorized to oversee renewable energy activities on the OCS, including issuing leases, rights-of-way, and rights-of-use and easements on the OCS for activities that produce, or that support the production, transportation, or transmission of, energy from sources other than oil and gas, not otherwise authorized by other laws. The Secretary is also authorized by statute to issue regulations; the Department interprets this authorization as extending to regulating the safety of activities conducted on renewable energy leases.

Acting under this authority, the Department has already adopted regulations that include safety-related requirements. For example, its rules require regulated entities to implement a Safety Management System (SMS) for activities conducted on renewable energy leases on the OCS, and require self-conducted and agency-conducted inspections, incident and equipment failure reporting, and give the Department enforcement tools including stop-work orders, cancellation of the lease or grant, and civil penalties. In the recent policy statement, the Department clarifies that it "will act as the principal Federal agency for the regulation and enforcement of safety and health requirements for OCS renewable energy facilities."

Crucially, the statement articulates the Department's position that its regulatory program preempts the applicability of Occupational Safety and Health Administration (OSHA) regulations, because the Department considers its regulation "to occupy the field of workplace safety and health for personnel and others on OCS renewable energy facilities". At the same time, the Department asserted that it will "collaborate and consult with OSHA on the applicability and appropriateness of workplace safety and health standards for the offshore wind industry and other offshore renewable energy industries", and "continue to collaborate with the USCG to share relevant safety and training information and promote safety on the OCS."

The public notice of the policy statement notes that it "does not apply to workplace safety and health requirements for OCS marine hydrokinetic (i.e., wave, tidal, and ocean current) energy projects, for which operational requirements are within the jurisdiction of the Federal Energy Regulatory Commission, or OCS renewable energy facility support vessels, which are under the authority of the United States Coast Guard (USCG)."

However, for offshore wind or other renewable energy facilities located on the Outer Continental Shelf, the Department's policy statement provides increased regulatory certainty as to which workplace health and safety standards apply.