Environmental groups sue DEC

Kristen Nelson, PNA editor-in-chief

A suit against the Department of Environmental Conservation asserts that DEC is not requiring Alaska Coastal Management Program consistency reviews for renewal or modification of oil discharge prevention and contingency plans, is using inappropriate standards in approving oil spill plans and has delegated authority to draft, modify and enforce regulations or standards to private parties and other governmental agencies.

The lawsuit, which seeks declaratory judgement, “appropriate orders and injunctive relief against the State’s illegal acts,” was filed in Superior Court in Anchorage July 9 by Trustees for Alaska on behalf of the Alaska Forum for Environmental Responsibility, the Northern Alaska Environmental Center, Cook Inlet Keeper and The Sierra Club.

On the issue of delegation of authority, plaintiffs say that DEC uses 25 assumptions for oil spill response plans developed by a project team of DEC employees, contractors or agents of Alyeska Pipeline Service Co., ARCO Alaska Inc., BP Exploration (Alaska) Inc., the North Slope Borough, the U.S. Coast Guard, the U.S. Environmental Protection Agency, the U.S. Department of the Interior’s Minerals Management Service and Alaska Clean Seas.

Plaintiffs argue that the 25 assumptions are used by DEC as though they were part of the agency’s regulations, but because the assumptions have not been adopted as regulations there has never been public notice and opportunity for public comment on the assumptions, which have been formalized in a “Guidance” document approved by DEC and Alaska Clean Seas and incorporated into Alaska Clean Seas’ technical manual.

Plaintiffs say modifications rejected

“Because there was no Project Team consensus that the assumptions should be altered, as required by the Guidance’s ‘Procedures for Proposed Changes,’ oil facility operators declined to adopt DEC’s changes to the assumptions,” plaintiffs said.

They also argue the Legislature has not authorized DEC to delegate its authority to private parties or to other governmental agencies:

“DEC’s explicit agreement in the Guidance binding it to a consensus-based process with oil industry representatives and other agencies, and its subsequent adherence to that agreement, is illegal because it is an unauthorized delegation of the trust obligations, statutory duties and discretion which the Legislature granted to DEC…”

Plaintiffs argue assumptions violate statutes, regulations

Assumptions about wind directions are also included in the Guidance, plaintiffs note, “without regard to established differences in wind and weather patterns.”

DEC’s “practice of allowing operators to rely on the assumptions is in violation” of state statute and DEC’s regulations, plaintiffs argue, and further state that if DEC’s interpretations of the Guidance are not inconsistent with its regulations, then the regulation itself is inconsistent with state statute.

Plaintiffs ask for ruling that DEC in violation

The court is also asked to rule “that DEC may not approve spill plans based on the Guidance because the Guidance and/or the assumptions contained in it are regulations that have not been adopted” in accordance with Alaska statute and that “in the Guidance DEC illegally delegated its trust obligations, statutory duties and discretion…”

Plaintiffs also ask the court to rule that assumptions in the Guidance that conflict with Alaska statute or regulations “may not be used to satisfy statutory and/or regulatory requirements, nor serve as the basis for approving a spill plan…” or rule that regulations are in conflict with Alaska statute and to find “that DEC is unlawfully withholding its modifications of the Guidance…” and failing to act as required under state statute.

DEC’s take on the suit

If facilities and response capabilities remain unchanged, then plan renewals are not submitted for ACMP review.

“If there is a change in operation,” he said, renewals will be sent through ACMP consistency review “on a case-by-case basis.”

On the issue of DEC’s discretionary authority, Dietrick said:

“They’re suggesting that we signed away our discretionary authority and we strongly disagree with that. We agree with them that we can’t sign away our authority… and deny that we have done that.”

An agency has discretion on technical matters, he said, and “we very much retain the final decision and we exercise our discretion and when an individual plan finally comes through the door we look at the whole thing… we haven’t given that away nor do we intend to give it away…”

The 25 assumptions

“It’s important to realize that this is oil spill planning that we’re talking about. Under state law, when you do planning, you’re preparing theoretical assumptions about a theoretical spill so that you can do theoretical planning.”

The Legislature determined, Dietrick said, that in oil spill planning you “take a typical scenario and use that as the basis of the plan” so that you have equipment to launch an initial response. But what’s being planned is a theoretical response, “it’s a planning exercise.”

The state has never had a spill that matched the spill theoretical, he said: “It’s the response that counts… the incident management team has to react to whatever the conditions are when the spill occurs.”

From a theoretical standpoint, he said, “are we required to create a potentially huge number of scenarios with a different set of wind conditions? … No we’re not… It’s just theoretical… What’s important is the capability of the incident management team… spill response is not just paper.”

One part of spill response is the contingency plan, and having gear and equipment to get started. The second part, he said, is having a “very competent incident management team that can roll out on an instant’s notice.”

“What they are confronted with has never been what’s in this plan.” They have to apply their “expertise and talent” to whatever direction the wind is blowing, Dietrick said, “and achieve containment and cleanup.”

The threshold for planning in the state’s statutes and regulations is that you “design for reasonably typical conditions,” Dietrick said.

Assumptions just one factor

On the issue of whether the 25 assumptions in the Guidance should be part of the division’s regulations, Dietrick said this is an “age-old question applied to any action an agency takes: to what extent do discretionary actions need to be codified?”

Usually, he said, that argument comes from industry, “who will say you can’t do that… it’s not in the regs…” Dietrick said the division’s contingency planning regulations are about 10 years old and are being reviewed for update.

He said existing regulations have been reviewed against statutory requirements.