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8 ALTERNATIVE POLICIES FOR DISPOSING OF OFFSHORE PLATFORMS As discussed in Chapter 4, the United States may have the flexibility within international law to develop, adopt, and administer rules for platform disposition that address the unique concerns of the U.S. outer continental shelf (OCS), especially the large number of aging platforms of relatively modest size in the Gulf of Mexico. In summary terms, the rules or policy can take one of two alternative forms: (1) The government can implement a literal interpretation of the 19S8 Convention on the Continental Shelf and require that all platforms be removed at the end of their useful life. Current U.S. policy approximates this in that there have been very few exceptions to this rule, and all exceptions have been specifically permitted uses. (2) Alternatively, the government can implement a discretionary policy, determining whether platforms should be kept or removed on a case-by-case basis in accordance with accepted criteria. Such a policy of coastal state discretion is consistent with one of the main themes of the new Law of the Sea Convention, under which coastal states have new-found rights in the exclusive economic zone. Following is a summary assessment of the alternatives. STRICT REMOVAL POLICY A strict removal rule would be predictable in that it would maintain the existing order. Moreover, it would be acceptable from the maritime safety standpoint and also from the standpoint of naval operations. User groups favoring strict removal will include commercial fishermen who want to reestablish bottom areas for trawling, as well as minimize any obstruction that could entangle mid-water trawls, bottom longlines, trap gear, and other equipment. - ~ strict removal policy is not compatible with alternative uses of platforms, such as fishing reefs for enhancement purposes. Also, some platforms--up to 7 percent of the total (Categories IV and V)--will be very costly to remove, while the public benefit from their removal is marginal. Another factor arguing against a strict removal policy is the fact that a few platforms, especially subsea template foundations 66

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67 and North Sea-type concrete gravity-base structures, will be very difficult to remove. A strict removal policy would generally eliminate negotiated solutions and the economic efficiency they may provide. A DISCRETIONARY POLICY Two approaches to a discretionary policy are suggested for the sake of completeness. In the first approach, the government would empower each owner to make his own removal decision. In the second, the government would make decisions on the disposition of offshore platforms on a case-by-case basis; it would require that some platforms be removed and would allow others to be kept on the OCS i n accordance with accepted guidelines. Owner Discretion With this alternat ive , platform removal decisions would be made by the owner on an economic basis. The underlying assumption is that if the location of the platform is deemed acceptable from navigation safety, environmental, and naval operations standpoints at the time of installation, then leaving the platform in place for an indeterminate length of time is not a publ i c concern . A policy of owner discretion runs counter to the state of practice in the United States and other countries, as well as international law. However, such a policy is conceivable in countries where the government has significant ownership interests in offshore platforms. A major difficulty with such a policy in the United States is that it does not take into account public interests such as marine environ- mental protection and safety. The effect that such a policy would have is not clear. Since the owners would still be liable for platforms, it is likely that many platforms would continue to be removed. At best, the net effect of the policy is unpredictability concerning platform removal. At worst, there could be a proliferation of abandoned platforms, which could adversely affect public safety. Ultimately, the government could inherit a great deal of unwanted liability. Government Discretion This alternative calls for removal decisions to be made by the government on a case-by-case basis. To be equitable, determinations would have to be made in accordance with guidelines that would be adopted in advance both nationally and internationally.

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68 Such a policy of government discretion appears to be consistent with the practice of other countries and emerging international law. It would enable the dedication of platforms to alternate uses. It would also allow exceptions to the complete removal to shore for a few of the largest deep-water platforms, where few or no public benefits would result. For the majority of U.S. platforms--Categories I-III comprise 93 percent of the total--the ultimate disposition would still be removal to shore because it is less costly to remove to shore than to address the residual liability if the platform is left in place; it is difficult to obtain permission for ocean draping; and there is a paucity of opportunities for some alternative uses. Nevertheless, this policy would likely result in a limited number of structures left in place in whole or in part. This could have some negative effect on navigation safety, naval operations, and commercial fishing. The government would probably assume some additional responsibility and perhaps liability by approving all or part of a structure to be left in place. A concern is that some would view relief as a ''no-cost break" for the oil industry. Furthermore, the relief might be inequitably distributed, unless there were strict guidelines for implementing the policy. In assessing the case-by-case alternative, it is instructive to consider what the guidelines for platform disposition decisions might entail. Several criteria were suggested during the Law of the Sea negotiations [Such removal shall have due regard to fishing, the protection of the marine environment and the rights and duties of other states. (Article 60, Law of the Sea Convention), but these are hardly adequate for regulatory guidance. The committee's assessment of issues points to the following guidelines for case-by-case decision making: Presumption at the time of installation that platforms installed on the OCS are to be removed unless the goverment, on the basis of information available, deems otherwise. All steel structures in water depths less than 200 feet are to be removed to shore unless they are dedicated to an alternative, permi tted use ~ such as a f i sh i ng reef that conforms to the Nat i anal Fi shins Enhancement Act of 1984) . Approvals of plans and designs for final disposition of all other structures or parts thereof, including deep-water fixed steel platforms, subsea template installations, and concrete platforms, are to be established on a case-by-case basis, preferably at the time of original approval for emplacement, with final decision on disposition subject to review at the time of disposition. Consideration is to be given to cost of removal versus public benefit of removal, ultimate assumption of liability, safety and freedom of surf ace and subsurface navigation, possible alternative uses, and potential interference with other uses of the sea and seafloor. In any event, all platforms should be removed to a depth sui table for the safety of surface navigation, unless those portions of the structure above Iraq surface or in the upper water column are permitted for another use.

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A 69 With regard to implementation of this policy in the Gulf of Mexico, an alternative for the largest fixed steel structures located far offshore that would address engineering and cost concerns, legal and safety issues, and possibly environmental considerations would be removal to a depth sui table for safety of surface and subsurface navigation; the removed structures could then be disposed of in a designated ocean dump-site. An alternat ive for subsea template foundat ions would be to reduce their vertical profile with explosives, and then abandon them. If a template foundation is abandoned in an area of bottom trawl fishing, then level i ng or bur i al could be requ i red . If case-by-case decision making is to work, some solution must be found for the problem of tort liability. Complete removal of a ashore removes the tort liability burden completely from the owner. Complete removal and ocean dumping, given faithful compliance with the EPA permit, has the same effect. None of the other methods of disposition affords the same degree of protection from continuing liability. This reduces their practical value as alternatives, and impairs the effectiveness of case-by-case decision making. Indemnification of former owners by the government is the most effective means of addressing this problem. platform with disposition

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