ON OIL POLLUTION PREVENTION AND RESPONSE BETWEEN MINERALS MANAGEMENT SERVICE PACIFIC OUTER CONTINENTAL SHELF REGION U.S. DEPARTMENT OF THE INTERIOR AND THE CALIFORNIA DEPARTMENT OF FISH AND GAME, OFFICE OF OIL SPILL PREVENTION AND RESPONSE

WHEREAS, Congress enacted the Oil Pollution Act of 1990 (OPA) to protect the waters of the United States from oil pollution and to plan for the effective and immediate response in the event of an oil spill; and

WHEREAS, Congress has decided in a number of enactments, including OPA, not to preempt the various States from regulating certain matters associated with the protection of waters within their jurisdiction from oil pollution, which matters are also subject to regulation by the Minerals Management Service under OPA and other statutes; and

WHEREAS, Congress explicitly provided that the provisions of OPA do not: (1) preempt or affect the authority of any State to impose additional liability or requirements respecting oil discharges or other oil pollution within such a State or removal activities in connection with such a discharge; (2) affect the authority of any State to establish or continue a fund any purpose of which is to pay for oil pollution or the substantial threat of oil pollution costs or damages, or to require any person to contribute to such a fund; or (3) affect the authority to any State to impose any fine or penalty for violation of law relating to a discharge; and

WHEREAS, the State of California has enacted the Lempert-Keene-Seastrand Oil Spill Prevention and Response Act of 1990, hereinafter referred to as the California Act, to protect the waters of the State from oil pollution and to plan for the effective and immediate response, removal, abatement, and cleanup in the event of an oil spill and to augment State authority for the prevention and response to spills in waters under the jurisdiction of the State; and

WHEREAS, the California Act provides that the Administrator of the Office of Oil Spill Prevention and Response (OSPR) is appointed by and acts at the direction of the Governor. The Administrator acts as the chairperson of the State Interagency Oil Spill Committee (SIOSC) and coordinates actions through the State committee, the review subcommittee, and the Technical Advisory Committee; and

WHEREAS the Minerals Management Service (MMS), within the U.S. Department of the Interior, has responsibilities for promulgating and enforcing regulations for the safety of operations, protection of the environment, conservation of the natural resources of the Outer Continental Shelf (OCS), managing mineral leasing on the OCS, regulating mineral exploration, development and production activities on leased or leasable lands in the OCS, administering applicable pollution prevention laws, and imposing financial responsibility requirements for all offshore facilities in, on, or under the navigable waters of the United States; and

WHEREAS the MMS is responsible for ensuring that oil and gas exploration, development and production activities are conducted in a manner which prevents serious harm or damage to the coastal, marine, or human environment; and

WHEREAS, the Administrator, subject to the Governor, has the primary State authority to direct prevention, removal, abatement, response, containment and cleanup efforts, with regard to all aspects of any oil spill in the marine waters of the State, in accordance with any applicable marine facility or vessel contingency plan, and the State Marine Oil Spill Contingency Plan elements; and

WHEREAS, the Regional Director, MMS, Pacific OCS Region is the Federal representative within the State of California, exercising Federal authority under OPA and other Federal laws with respect to oil pollution planning and response for offshore facilities in waters subject to the jurisdiction of the United States in and outside the State of California; and

WHEREAS, marine oil spills require a rapid, efficient, and coordinated response and cleanup by Federal, State, and local agencies as well as from private entities to minimize the deleterious effects on human, wildlife, and other natural resources; and

WHEREAS, both the MMS and the OSPR recognize the critical roles each has within their respective areas of authority in preventing oil spills and in planning for and responding to oil spills; and

WHEREAS, the Parties recognize that cooperation between them in the implementation and exercise of their respective statutory and regulatory authority is essential to avoid conflict and unnecessary duplication; and

WHEREAS, the Parties believe and intend that by acting in a cooperative and coordinated manner, the effect will be an enhanced oil spill prevention and response effort in waters off the State of California;

NOW, THEREFORE, the Parties agree, to the extent permitted by law, and as consistent with their respective policies and available resources, to cooperate and to coordinate their efforts in implementing and exercising their respective statutory and regulatory duties related to oil spill prevention and response.

1.     PARTIES

   The Parties to this Memorandum of Agreement are the U.S. Department of the Interior's MMS, Pacific OCS Region (POCSR) and the California Department of Fish and Game, OSPR.

2.     PURPOSE OF AGREEMENT

   The purpose of this memorandum of agreement is to ensure that the Parties exercise their respective authorities regarding oil spill contingency planning, prevention, and response in a manner so as to avoid unnecessary duplication and conflict, and to ensure the best reasonably achievable protection from the impact of pollution incidents for the navigable waters of the United States which are within the State of California or may impact the marine waters of the State of California; subject to each Party's statutory, regulatory and policy requirements.

3.      DEFINITIONS

   Except where otherwise specifically defined in the context of its use herein, or where specifically set forth below, terms used in this Memorandum of Agreement (MOA) shall have the meaning as set forth in Federal law and applicable State law.

   Specific definitions:

   1. Coast Line: The line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters.
   2. Offshore Facility: The term "offshore facility" (or facility) describes a structure of any kind which is permanently or temporarily attached to the seabed seaward of the coast line and designed for the drilling, exploring, producing, storing, handling, transferring, processing, or transporting oil. The term excludes deepwater ports and their associated pipelines, but includes other pipelines used for one or more of these purposes. The term also excludes marine terminals where oil is transferred to and from tankers or barges.
   3. Oil: The term "oil" shall mean any kind of petroleum, petroleum-based liquid hydrocarbons, or petroleum products or any fraction or residues therefrom, including, but not limited to, crude oil, bunker fuel, gasoline, diesel fuel, aviation fuel, oil sludge, oil refuse, oil mixed with waste, and liquid distillates from unprocessed natural gas, or as otherwise provided under Federal and State law.
   4. Oil Spill Response Plan and Oil Spill Contingency Plan: The terms "oil spill response plan" and "oil spill contingency plan" both mean a plan that parties conducting offshore oil and gas operations must submit to the appropriate State and Federal agencies, in accordance with applicable regulations. For simplicity, the first term, oil spill response plan, will be used hereinafter.
   5. Outer Continental Shelf: The term Outer Continental Shelf (or OCS) shall mean all submerged lands lying seaward and outside of the area of lands beneath navigable waters as defined in section 2 of the Submerged Lands Act (43 U.S.C. 1301) and of which the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control.
   6. Pipeline: The term "pipeline" includes new and existing pipelines, rights-of-way, and any equipment, facility, or building used or intended for use in the transportation of oil.
   7. State Waters: The term "State waters" shall mean those navigable waters of the United States which lie seaward of the coast line within the jurisdiction of the State of California and over which the MMS has concurrent Federal authority for regulating oil spill response from offshore facilities.
   8. Unified Command Structure: The term "unified command structure" means the organizational plan for responding to an oil spill that combines the multiple authorities of the Federal On-Scene Coordinator, State On-Scene Coordinator, and the Responsible Party into one command function.
4.       INFORMATION SHARING

   The exchange of information between the Federal and State governments relative to historic pollution events and current risks is necessary to develop appropriate prevention and response strategies. Both Parties maintain information systems that are relevant to both historical and real-time incidents. The Parties require the fullest degree of information sharing from available and pertinent data bases in order to make accurate and timely decisions to prevent and/or respond to oil pollution. Transmissions of information shall be in accordance with procedures adopted by the Parties for that purpose.

   Action:

   1. The Parties agree, subject to limitations imposed by applicable laws and regulations, to share information from relevant studies.
   2. The MMS, Pacific Outer Continental Shelf Region (POCSR) and the OSPR will each advise the other of information it receives concerning events occurring in the navigable waters or involving offshore facilities that may impact the other Party when oil pollution or substantial threat of oil pollution results.
   3. The OSPR and MMS shall cooperate in the coordination and implementation of research and other informational programs of mutual benefit to both organizations. Cooperation will include granting access to and sharing of non-confidential data, providing joint funding for research programs of mutual interest where funding is available, and developing various analytical methodologies.
   4. The Parties agree to hold periodic meetings to discuss the progress made in implementing this information sharing agreement and to discuss future information sharing strategies. Meetings between the Parties shall be held at least once per year. In addition, the Parties agree to timely notify each other of events that may affect both organizations.
5.      OIL SPILL RESPONSE PREPAREDNESS

   The National Contingency Plan (NCP) establishes the response organization within the United States and requires tiered contingency planning efforts. The State, consistent with the NCP, defines its response organization through the State Hazardous Material Plan and addenda to the Oil Spill Contingency Plan elements.

   1. Planning Documents:
      1. National Oil and Hazardous Substances Pollution Contingency Plan:

         Action: The OSPR will work with the MMS to ensure State plans and policies for marine environmental protection are consistent with the NCP.

      2. Area Contingency Plan:

         The Area Committees, established by the President under the authority of OPA, are responsible for the development of Area Contingency Plans for those Areas under the direction of the Federal On-Scene Coordinator (FOSC). The Area Contingency Plans describe the responsibilities of owners, operators and Federal, State, and local agencies in responding to oil spills or threats of spills, list equipment and personnel available to respond, describe procedures for the use of dispersants and describe how the Area Contingency Plan integrates with other plans.

         Area Contingency Plans are adopted by amendments to the State Contingency Plan to facilitate and coordinate on-going work with local municipalities, and coastal counties. Through local grant programs, municipal and county governments are also included in State and Federal planning documents. The objective is to create consistency among the local, State, and National Contingency Plans.

         Action: The Parties agree to consult with each other to enhance contingency planning and to ensure that the Area Contingency Plans and Statewide Master Plan are consonant and uniform, subject to the requirements of existing laws.

      3. Facility Oil Spill Response Plans:

         Facility Oil Spill Response Plans are required by both Federal and State law. These plans describe facility capabilities to prevent and respond to pollution emergencies. The OSPR and the MMS will coordinate with the U.S. Coast Guard, the Research and Special Programs Administration (RSPA), and the U.S. Environmental Protection Agency (EPA) in assessing such facility plans.

         Action:

         1. Although the Parties recognize the need to independently review facility plans for compliance with their respective laws and regulations, the Parties agree to develop a system to coordinate and conduct, to the extent practicable, reviews of facility response plans in as much of a non-duplicative manner as is permitted by applicable laws, regulations and procedures.
         2. The OSPR shall accept, to the extent practicable, the MMS facility response plan requirements and shall prepare supplementary forms for parties to comply with OSPR requirements for facilities in State waters which are in addition to MMS requirements.
         3. The Parties will cooperate to ensure that, to the extent practicable, requirements for facility response plans are compatible and do not conflict. The Parties will also work together to determine the feasibility of the OSPR accepting MMS review of OCS facility response plans, subject to OSPR oversight.
   2. Government Committees

      The National Contingency Plan (NCP) directs the organization of government committees to prevent and respond to pollution emergencies.

      1. Area Committees:

         Area Committees were established by OPA to maximize State and local participation in contingency planning.

         Action: The Parties agree to coordinate local response planning by jointly participating in the Area Committee planning process. Both Parties are strongly committed to participating in Area Committee Plan development and the use of the Area Committees in conducting exercises and drills, consistent with the provisions of the NCP and applicable State contingency plan.

      2. The State Interagency Oil Spill Committee (SIOSC) is responsible for coordinating oil spill prevention, response, planning and policy setting at the State level.

         Action: The MMS, POCSR is invited to provide input and recommendations to the SIOSC.

   3. Drills and Exercises:

      Drills and exercises are required by both Parties to ensure the readiness and inter-operability of pollution response organizations. It is the intention of the Parties to encourage coordination, participation, and cross-training in periodic drills and exercises to facilitate a better understanding of each Party's duties and responsibilities as well as to ensure a combined, effective, familiar working relationship at oil spill incidents.

      Action:

      1. The Parties agree to cooperate in the planning, scheduling, design, conduct and evaluation of exercises on offshore facilities as time and resources permit.
      2. The Parties agree to make available, as time and resources permit, any published reports, including written, real-time, and post-drill reports, required by OPA and State statutes concerning evaluations of drills and recommended changes to the National, Area, State, or local Contingency Plans.
      3. The OSPR and MMS will cooperate on spill response drills and will each recognize drills conducted in State and Federal waters by the other agency. Operators will receive credit from both OSPR and MMS for any drill involving facilities seaward of the coast line, provided the drills are conducted in accordance with 30 CFR Part 250.43, 30 CFR Part 254, and applicable OSPR regulations.
6.    PREVENTION OF SPILLS
   1. Cooperative Implementation:

      The Parties are coordinating their efforts to prevent oil spills in the marine environment.

      Action:

      To the extent permitted under applicable laws, the Parties agree to cooperate in the execution of their respective regulatory responsibilities, to minimize duplication of effort, and seek to identify opportunities for innovative, optimal and effective implementation of oil spill prevention plans. Both Parties recognize the importance of encouraging cross-training in each other's regulations and rules including the areas of inspection and response. Each Party must exercise its own rulemaking implementation responsibilities independently and in accordance with applicable rulemaking procedures.

   2. Offshore Facility Inspections:

      Offshore facility inspections are conducted by both Parties to ensure compliance with pollution prevention and pollution response regulations.

      Action:

      1. Offshore Facility Inspection: The Parties will coordinate their respective inspection and monitoring activities to the extent practicable to utilize the resources of both Parties efficiently and effectively. Inspectors from both Parties may carry out inspections and other activities jointly where appropriate.
      2. The OSPR will promptly inform the appropriate MMS District Supervisor and the MMS will promptly inform the OSPR of any situation or circumstance relative to facilities whose operation or equipment may significantly increase the potential for an unauthorized discharge or create an unusual or an unacceptable risk to public health, safety, and the environment.
      3. The Parties agree to work together to avoid inconsistent requirements and to find ways to conduct offshore facility inspections in such a way that disruption to the industry is minimized and efficiency and safety maximized.
      4. In implementing any OSPR examination programs, the OSPR agrees to avoid conflicts and unnecessary duplication in reviewing Federal inspection programs by on-going consultation with the MMS.
      5. Review of inspection records: The Parties each agree to make inspection records and all applicable information obtained from their respective facility inspections available to the other. The Parties also agree to cooperatively review inspection results, subject to applicable laws, regulations, procedures, and the protection of information which, if disclosed, would prejudice enforcement action by a Party.
      6. Requirements in State Waters: The Parties will cooperate to establish consistent pollution prevention requirements, and to cooperatively monitor, examine and exchange information relative to those requirements, for facilities that operate in State waters.
      7. MMS and OSPR will, to the extent practicable, jointly develop inspection guidelines for use in ensuring that lessees operating in State waters comply with the provisions of both agencies' oil spill prevention and response regulations and other applicable permit conditions imposed by Federal, State, or local agencies.
      8. The MMS and OSPR will, to the extent practicable, jointly develop investigation guidelines for use in coordinating spill investigation strategies, establishing a method to conduct investigations and exchanging reports efficiently.
7. .    RESPONSE

   The Parties agree to work together within the framework of their respective authorities to ensure a coordinated effort with a minimum of duplication is undertaken in response to oil spills.

   1. Notification

      The Parties agree to provide the earliest possible notification of discharges and sightings of oil and hazardous substances and imminent threats of such discharges to each other in accordance with applicable law, regulations and policies and consistent with the National Oil and Hazardous Substances Pollution Contingency Plan.

   2. Natural Resource Protection

      Both Parties recognize the importance of protecting and preserving natural resources in responding to an oil spill event. Both Parties agree that response strategies and procedures will be established through the Unified Command Structure (UCS) in accordance with applicable laws, regulations, policies, and procedures.

   3. Response Monitoring and Technology

      For spills from offshore platforms and associated pipelines, both Parties agree that the strategies and methods used to clean up oil and oily debris shall be established through the UCS. The UCS will decide what level of action is required by the responsible party, and may decide to direct the cleanup operations by the responsible party or to assume responsibility for the cleanup operation.

      Action:

      1. Both Parties agree to provide timely input and recommendations to the FOSC through the UCS, to the extent practicable, on dispersant usage, in-situ burning, bioremediation, and other nonmechanical cleanup technologies.
      2. Both Parties agree that decisions to discontinue cleanup operations and demobilize response activities shall be made through the UCS. The OSPR retains the authority to undertake remedial or mitigating actions beyond the response actions required by the National Contingency Plan.
   4. Public Information/Education:

      Both Parties agree to identify and implement channels through which both Parties can effectively share timely information and coordinate the dissemination of information, to the extent practical, during a response operation for a spill from an offshore facility. This provision does not preclude either Party from making independent responses to the media and the public.

8. I.    ENFORCEMENT

   Enforcement action by either Party may include civil and criminal penalties.

   Action:

   1. Subject to the requirements and limitations of applicable State and Federal law and Agency policy, the Parties agree to coordinate investigations of pollution incidents from offshore facilities and associated pipelines including, but not limited to, the sharing of information regarding witnesses, reports, analysis, and other available information that may assist in determining the cause of the incident.
   2. Enforcement action undertaken by each of the Parties must occur independently in accordance with applicable laws and regulations. The Parties agree that, to the extent they reasonably can, they will consult with each other as to intended enforcement action.
   3. The Parties agree to investigate the feasibility of the MMS providing to the Department of Fish and Game Petroleum Chemistry Laboratory Federal offshore oil samples for analysis.
9.     RULEMAKING
   1. Issuance of Regulations:

      The OPA and other Federal laws provide for the issuance of regulations pertaining to the prevention of oil spills from offshore facilities. The Director of the MMS has the authority to promulgate such regulations. Acting under its inherent regulatory authority and under authority not preempted by Federal law, the OSPR has the authority to promulgate regulations concerning oil spill prevention which do not conflict with and which are not otherwise preempted by Federal law. It is the intention of the Parties to maintain close communications to reduce conflict between each Party's regulations, permits, directives, and instructions.

      Action:

      1. The intent of this section is to avoid conflict and inconsistent rulemaking wherever possible, subject to applicable procedural rules, and to endeavor to provide a coordinated, response to oil pollution prevention planning and response. It is the intent of the Parties to endeavor under their respective authorities to assure the best reasonably achievable protection for the waters of the State.
      2. In addition to the respective Federal and State procedures for notice of opportunity to comment and consideration of existing rules, the Parties anticipate that through their participation on committees and day-to-day working communications, the concerns of each will be discussed and given due consideration.
      3. Facility Response Equipment Standards:

         Federal law governs the standards for response equipment for offshore facilities. State law authorizes the adoption of State standards for spill response equipment to be maintained on production facilities operating in waters of the State. OSPR rules must not be in conflict with Federal spill response equipment standards.

10.     FINANCIAL RESPONSIBILITY
    1. Both Parties agree to share information regarding the financial responsibility required of offshore facilities located within State waters, or operating in a manner or location that may impact State waters.
    2. Both Parties agree to provide a listing of all offshore facilities that have met the applicable financial responsibility requirements which includes the names of the owners or operators and the required amount of coverage.
    3. Both Parties agree to notify each other upon becoming aware of any modifications, changes, or rescissions of an offshore facility's financial responsibility status.
11.     TRANSPORTATION
    1. The MMS and OSPR agree to cooperate in the transport of each Party's personnel for the purposes of observing or participating in inspections, drills, or exercises conducted at facilities located in State waters, or operating in a manner or location that may impact State waters.
    2. Transportation via MMS-contracted helicopter will be provided to OSPR for an MMS inspection, drill or exercise, on a nonreimbursable basis, subject to helicopter space availability.
    3. The MMS will allow OSPR to utilize, on a reimbursable basis, MMS contracted helicopters for OSPR's oil spill inspections, drills, or exercises upon offshore facilities, subject to helicopter availability. If possible, OSPR shall provide the MMS with advance notice concerning the use of MMS helicopters. The costs will be dictated by the MMS's current helicopter contract.
12. .    MISCELLANEOUS
    1. This agreement represents a voluntary understanding between the MMS, POCSR and the OSPR.
    2. The terms of this agreement may be changed at any time by the Parties by a written amendment, signed by the Parties hereto or their successors, with or without notice to any other person.
    3. The agreement may be terminated by either Party upon 60-days notice to the other Party and without notice to any other person.
    4. No rights, duties, obligations, or liabilities enforceable at law are created by this agreement.
    5. No action based upon this agreement may be brought against the United States or the State of California by any person.
    6. This agreement does not alter, modify, abridge, or in any way affect any rights, duties, obligations, or liabilities of any person under the laws of the United States or the State of California.
    7. In the event that individual and severable portions of this agreement are found to be in conflict with either State or Federal law, regulations or policies, and, therefore, of no effect, the agreement will remain in effect without those provisions unless either Party notifies the other in writing that the entire agreement is terminated.
    8. Each Party agrees that it will be responsible for its own acts and the results thereof, and shall not be responsible for the acts of the other Party and the results thereof. Each party therefore agrees that it will assume all risk and liability to itself, its agents or employees, for any injury to persons or property resulting in any manner from the conduct of its own operations, and the operations of its agents or employees, under this Agreement: and for any loss, cost, damage, or expense resulting at any time from any and all causes due to any act or acts, negligence, or the failure to exercise proper precautions, of or by itself or its own agents or its own employees, while occupying or visiting the premises under and pursuant to the Agreement. The United States liability shall be governed by the provisions of the Federal Tort Claims Act (28 U.S.C. 2671-80).

       This MOA is effective upon signature by both Parties.