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Adjudicatory hearings set on C-plans DEC commissioner grants hearing request by Lakosh on specific issues in tanker oil discharge prevention and contingency plans Kristen Nelson Petroleum News
Oil discharge prevention and contingency plans for Prince William Sound and Cook Inlet have been challenged and Larry Hartig, commissioner of the Department of Environmental Conservation, has granted requests by Tom Lakosh for adjudicatory hearings. Hartig limited those hearings to specific issues set out in May 27 orders.
Plans challenged include: the 2007 Prince William Sound tanker oil discharge prevention and contingency plans of Alaska Tanker Co. LLC, Chevron Shipping Co. LLC, Polar Tankers Inc., SeaRiver Maritime Inc. and Tesoro Alaska Petroleum Co.; the 2009 BP tank vessel operations oil discharge prevention and contingency plan; and the 2009 Tesoro Alaska Co. Cook Inlet vessel oil discharge prevention and contingency plan.
After the C-plans were reviewed and approved by DEC’s Division of Spill Prevention and Response, Lakosh requested informal reviews. None of the informal reviews resulted in any changes to the plans as approved by the division.
Lakosh then requested adjudicatory hearings. The division and four of the five plan holders filed responses.
In his order the commissioner said a request for hearing must identify how a requestor’s interest will be affected by the decision and must identify a disputed issue of material fact or a question of law for consideration at the hearing.
He said both the division and the shippers argued that since Lakosh has lost prior appeals on the same issues he shouldn’t be granted a hearing on the same issues, but Hartig said that while prior decisions “may be grounds for summary determination, … whether a prior decision bars re-litigation of the same factual dispute or legal question will be determined only after a hearing is granted on that issue.”
Hartig said a hearing is “not to evaluate or second-guess” the approval or disapproval of the C-plan, but “is held to determine whether that decision relied on any inaccurate information or faulty legal analysis,” giving the commissioner an opportunity to correct any mistake that may have been made in approving a C-plan, as well as allowing for “the creation of a focused record on appeal for any reviewing court” if the commissioner’s final decision is further appealed.
The appeal “Mr. Lakosh’s request is anything but clear and concise. Many of his statements are simply assertions of illegality or bad policy,” the commissioner said. However, it was “possible to glean some identifiable issues of disputed fact and disputed issues of law,” and hearing was granted on those specific issues.
Both the division and the shippers argued that Lakosh does not have standing to request an adjudicatory hearing, something established by regulation and requiring that the requestor be directly and adversely affected by the decision.
Lakosh based his standing on being an Alaska resident who intends to use Prince William Sound resources for hunting, fishing and recreating. He said in his appeal that his use of Prince William Sound resources was harmed by the Exxon Valdez oil spill and that there would be similar harm from any future oil spill, the commissioner said.
Statutes establishing the powers and responsibilities of DEC require oil spill prevention and contingency plans and say it is state policy that natural resources and the environment are protected “to enhance the health, safety, and welfare of the people of the state and their overall economic and social well-being.”
The commissioner said Lakosh’s interests in using Prince William Sound for hunting, fishing and recreation are intended to be protected by state law, but because this decision is about the approval of a C-plan, Lakosh’s interests are “not directly and substantively impaired” by approval of the C-plan.
Hartig said he exercised his discretion to relax the department’s regulatory requirements and grant a hearing to Lakosh, based on his “long-standing involvement in oil spill prevention and contingency issues.”
While many people use Prince William Sound, and are interested in protecting it from oil spills, few have been as active as Lakosh “in researching and commenting on oil spill prevention and mitigation issues, including C-Plans,” Hartig said.
“One goal of a standing requirement is to ensure that the litigant has a sufficient stake in the controversy to guarantee adversity. While Mr. Lakosh does not meet the standing requirements of this regulation, his long-standing interest in this area, and his history of litigating similar cases, demonstrates that he has the requisite adversity to fully prosecute these issues.”
Issues considered Hartig evaluated 17 issues raised by Lakosh and identified nine — some disputed issues of fact, some questions of law and some mixed — on which hearing is granted.
Issues identified for hearing are:
• Whether a C-plan must include plans for responding to a spill “in all areas of the Prince William Sound region of operation” and “in other regions of operation adjacent to federal waters in which the plan holders’ tank vessels operate”;
• Whether a best available technology analysis is required for each escort vessel rather than for the system as a whole;
• Whether the same response vessel may be listed in two or more separate C-plans;
• Whether the division was required to apply a best available technology analysis for booming vessels at sea, and if so what type of analysis;
• Whether the helicopter is capable of fulfilling its role in the C-plan;
• Whether the C-plan includes a list of all recovery equipment relied on, along with equipment specifications;
• Whether the C-plan adequately lists possible environmental conditions throughout Prince William Sound;
• Whether there are tides or currents not accounted for in a scenario and if so whether the C-plan is required to account for those tides or currents; and
• Whether the division is required to conduct a best available technology analysis for the two lines used on escort vessels and if so what type of analysis is required.
Hartig said Lakosh’s requests for hearings on the 2007 and 2009 C-plans involve overlapping issues, and the order on the 2007 C-plans is incorporated by reference into the orders on BP’s and Tesoro’s 2009 C-plans.
In requesting a hearing on BP’s 2009 C-plan, Lakosh added an issue, new Coast Guard regulations which become effective in 2011. Lakosh contends that the C-plan most either terminate before the new regulations become effective or the plan holder must amend its plan prior to the effective date. Hartig said whether a C-plan must “incorporate known future changes to the federal regulations and, if so, in what way those changes should be accounted for is a disputed question of law,” which will be considered at the hearing.
That issue is also included in the hearing request on Tesoro’s C-plan.
The commissioner said that the discussion of best available technology and list of equipment in the Tesoro hearing request is expanded beyond what was included in the other requests for hearing, and those issues are included in the hearing.
Another issue in the Cook Inlet plan included for hearing is whether Tesoro is required to include a response scenario for winter conditions in Cook Inlet, as well as an issue of whether Tesoro’s list of response equipment includes information required in state regulations.
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