Department of Interior Issues Clarification on Offshore Wind Workplace Jurisdiction

On October 18, 2019, the U.S. Department of the Interior (Department) agencies Bureau of Ocean Energy Management (BOEM) and Bureau of Safety and Environmental Enforcement (BSEE) issued a clarification of their role in regulating workplace safety and health for offshore renewable energy facilities (other than hydrokinetic projects). In short, the agencies confirmed that they act as the principal federal agencies for regulating and enforcing safety and health requirements for facilities such as offshore wind projects.  

BOEM and BSEE base their jurisdiction on the Energy Policy Act of 2005, which gave the Department the authority to issue leases, rights of way, and rights-of-use and easements on the U.S. outer continental shelf for other energy sources in addition to oil and gas for the first time. That statute stated that Department “shall ensure that any activity . . . is carried out in a manner that provides for” safety, environmental protection and in furtherance of a number of other goals.

In the public notice issued on October 18, the Department asserts that its health and safety program for offshore wind installations preempts regulations and activities of the Occupational Safety and Health Administration, the U.S. Coast Guard, and adjacent state regulatory agencies. This statement will assist offshore wind developers who have noted the potential overlapping government jurisdictions.

Although the Department will collaborate and consult with OSHA on safety and health standards for the offshore wind industry and other renewable energy enterprises, the Department will be the agency to set and enforce the standards for offshore wind worker safety and health. The Department notes, though, that the U.S. Coast Guard retains its authority over the vessels that are engaged in renewable energy projects.

The Department’s offshore renewable energy regulations at 30 CFR part 585 do not include many specific requirements, but they do require entities to implement Safety Management System plans for their projects. The Department will review SMS plans as part of its licensing process, and will require entities to use their SMS plans to identify risks, manage those risks, and ensure worker and enterprise safety.

A copy of the Policy Statement is available here.