CHAPTER 10 GOVERNMENTAL MONITORING OF MAJOR PROJECTS

• Jurisdiction: United States

Alaska Mineral Development
(Sep 1978)
CHAPTER 10
GOVERNMENTAL MONITORING OF MAJOR PROJECTS
Harry G. Brelsford
Associate General Counsel Alyeska Pipeline Service Company
Anchorage, Alaska

INTRODUCTION

While governmental regulation of private industry activities is certainly not new, the degree of State and Federal regulation and monitoring which accompanied the design and construction of the Trans-Alaska Pipeline is such that, at least initially, it is difficult for one not involved to imagine. The Pipeline was, to the best of my knowledge, the first really big major project so monitored, and is the basis for these observations. The Pipeline traverses eight hundred Alaska miles, crossing approximately five hundred miles of Federal land (including Military), approximately two hundred fifty miles of State of Alaska lands and fifty miles of private, or fee, land. To accomodate this passage from a land use stand point, an Agreement and Grant of Right-of-Way was obtained to authorize crossing Federal lands and a State Right-of-Way Lease for State lands; and, 129 right-of-way grants for fee lands were acquired, most of the latter by negotiations, but several through condemnation under State Law. During construction approximately 704 Land Use Permits (temporary, as distinguished from the permanent grants referred to above) were obtained (both State and Federal), some 570 access road grants and approximately 1400 permits (likewise State and Federal) of a technical nature were applied for and obtained. Also, some 450 Material Sites were contracted for and permitted.

Following the Prudhoe Bay discovery activities commenced for the construction of a transportation system, which after various studies was determined to best be a pipeline rather than transportation by train, boat or truck. Various federal and state agencies were involved in that decision, culminating in the study of a route by several of the interested companies. Application for a pipeline was initially made in June, 1969 and amended in December, 1969. However, the enactment of the National Environmental Policy Act produced certain problems and litigation which, while not within the scope of this paper, did cause a delay in the obtaining of necessary authorizations. See Wilderness Society vs. Hickel, 325 F. Supp., 422 (D.D.C. 1970), Wilderness Society vs. Morton, 479 F.2d 842 (D.C. Civ. 1973), cert. denied, 411 US 917 (1973), Domnich and Brody, The Alaska Pipeline: Wilderness Society v. Morton and The Trans-Alaska Pipeline Authorization Act, 23 Am. U.L. Rev. 337 (1973).

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The original study was undertaken by interested companies operating under what has become known as TAPS, and in August of 1970 Alyeska Pipeline Service Company was formed by eight interested shareholders which are generally referred to as the Owner Companies. There have been changes from those that were originally involved, and the present Owner Companies are Amerada Hess Pipeline Corporation, ARCO Pipe Line Company, BP Pipelines Inc., Exxon Pipeline Company, Mobil Alaska Pipeline Company, Phillips Alaska Pipeline Corporation, Sohio Pipe Line Company and Union Alaska Pipeline Company. After August, 1970, the Pipeline Project proceeded with Alyeska acting as Contractor and Agent for these Owner Companies.

A great deal of monitored work was accomplished following commencement of these earlier activities and during the litigation referred to above and on through enactment of the Trans Alaska Pipeline Authorization Act (PL 93-153). For example, the United States Geological Survey was heavily involved in seismic design criteria with regard to faults, earthquake zones and similar matters. Also, in 1970 an Inter-Agency Fish and Wildlife Advisory Team (IFWAT) was created from federal and state agencies to collect information regarding the hundreds of streams and watercourses along the route. Alyeska also participated in this study. The Department of the Interior had a Task Force operating out of Bureau of Land Management offices in Anchorage, Alaska during this period of time, staffed by various engineers, geologists, biologists, land personnel and administrative personnel, all of whom drew further support from additional Federal agencies such as Federal communications experts and Federal Aviation Administration personnel.

On November 16, 1973 the Trans Alaska Pipeline Authorization Act (PL 93-153, 87 Stat. 584) became law. 43 USC § 1651 et seq. That Act directed "the Secretary of the Interior and other appropriate Federal officers and agencies to issue and take all necessary action to administer and enforce rights-of-way, permits, leases, and other authorizations that are necessary for or related to the construction, operation, and maintenance of the trans-Alaska oil pipeline system,...". The Act contained provisions for waiver of procedural requirements in order to accomplish the purposes of the Act, and provided that no further Impact Statements under NEPA would be required (Alyeska had submitted a Project Description and an Impact Statement had issued by the Department of the Interior on March 20, 1972; these comments comprise approximately twenty volumes and are probably still avaialable for background material).

The Act also contained provisions for a liability fund for oil spill clean up, and provisions relative to non-discrimination

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in the construction of the Pipeline. It is interesting to note that the enforcement of non-discrimination under the TAPS Act is by Department of Interior regulations.

In January, 1974 the United States and the "Permittees" (the Owner Companies) entered into the Federal Right-of-Way Grant. That document consists of several parts: first, some 41 sections covering the grant itself and limitations as to the use, width, location, duration and use charge; requirements relative to construction plans and quality assurance, compliance with Notices to Proceed (which will be noted hereinafter) and other orders, various general sections concerning reimbursement of Department expense, non-discrimination provisions, training of Alaskan Natives, and Native and other subsistence; next, certain basic Exhibits (Pipeline Route, Military Land Requirements, Federal Power Site Requirements), and two which are of particular interest to this paper, namely, the Stipulations to the Agreement and the Cooperative Agreement between the United States and the State of Alaska. Somewhat contemporaneously with the Federal enactment and Right-of-Way Grant, the State of Alaska was dealing with the proposed Pipeline as to State lands. Several important Acts were passed by the State Legislature. See Alaska Statutes, Chapter 35, the "Right-of-Way Leasing Act", enacted as Chapter 72, SLA 1972 and amended in 3FSSLA 1973; see also...