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Supreme Court tells DEC to amend definitions Justices agree with Tom Lakosh that Department of Environmental Conservation regulations at odds with state statutes in definition of best available technology Kristen Nelson PNA Editor-in-Chief
The Alaska Supreme Court ruled Feb. 1 in favor of Tom Lakosh’s challenge to the Department of Environmental Conservation’s regulations for oil spill contingency plans.
The Supreme Court said it agrees with Lakosh that DEC’s definition of best available technology in its regulations is contrary to that specified by the Legislature in statute. It reversed a Superior Court ruling in favor of the state and declared the regulation invalid.
The state’s 1980 Oil Pollution Control Act required that oil spill prevention and contingency plans “provide for the use of the best available technology by the applicant.”
The court said that in 1990, after the Exxon Valdez oil spill, the Legislature strengthened the statute to require that all contingency plans meet legislatively specified performance standards for containing, controlling and cleaning up spills. The Legislature also modified the best available technology requirement, specifying that contingency plans “must provide for use … of the best technology that was available at the time the contingency plan was submitted or renewed.” Regulations effective in 1997 The Legislature left the phrase “best available technology” undefined, the court said, but directed DEC to “establish the procedures and time limits applicable to agency review of contingency plans.”
The agency adopted regulations in 1997. Lakosh challenged the new definition of best available technology in the regulations in Superior Court and appealed to the Supreme Court after the lower court found in favor of the state.
Alaska Statute 46.04.030 (k) requires that contingency plan holders comply with specified standards for spill containment and cleanup. Subsection .030 (e) requires that oil spill contingency plans “provide for the use by the applicant of the best technology that was available at the time the contingency plan was submitted or reviewed.”
The court said DEC adopted a “three-tier” approach in defining best available technology in its regulations. The first two tiers, for cleanup and containment technology and for oil spill prevention technology, DEC said technology meets the best available technology requirement if it can meet required performance standards.
The third tier covers remaining technology — not subject to either cleanup or prevention performance standards. There DEC determines if best available technology criteria is met “by undertaking a case-by-case evaluation based on specified criteria,” the court said. Definitions inconsistent with statute The court said it should give DEC deference in its interpretation “only to the extent that the Legislature has actually granted DEC authority to define best available technology.” The court said the Legislature “specifically required” the use of best available technology. Lakosh emphasized, the court said, the statute’s use of the word best. “As commonly defined, the superlative ‘best’ posits a universe of suitable or satisfactory candidates and denotes selection of a smaller group of those most desirable within that universe.”
The Legislature adopted mandatory performance standards at the same time it required the use of best available standards to meet those standards. Because those requirements are separate subsections of the statute this indicates that the Legislature was requiring both the “ability to comply with applicable performance standards” and use of best available technology, the court said.
“The first two tiers of DEC’s best available technology regulation conflate these separate requirements by collapsing best available technology into compliance with requisite performance standards,” the court said, effectively rendering the statutory “best available technology requirement superfluous…” If the Legislature had wanted ‘appropriate and reliable’ technology, the court said, it could have easily omitted the best available technology language entirely. Standards a proxy The court said “DEC essentially argues that performance standards are a legitimate proxy for best available technology — that good technology is bound to follow if performance standards are set sufficiently high.” The court said that while it assumes “DEC’s approach may have considerable theoretical merit, it is legally incompatible with the approach that the Alaska legislature adopted … the statute requires DEC to insist on the use of best available technology in addition to demanding compliance with performance standards.”
The court said that while it finds the regulations invalid, “we emphasize the limited scope of our ruling.” DEC does have the authority and expertise to define best available technology, and the court said it believes the agency has the authority both to prescribe methods to select “the best from among all available technologies that are satisfactory” and to decide how many satisfactory technologies should be accepted as ‘best.’
But, the court said, “DEC’s definition must at least include some winnowing process” and “requires something more than accepting all available technology that can ‘appropriately and reliably’ comply with oil spill prevention and cleanup performance standards.” What’s next DEC spokesman Charles Fedullo told PNA: “We’re going to look at regulatory changes that could fix it, and some changes to contingency plans. We don’t think it changes anything that’s in place now. We’re still analyzing it and if we find that those changes don’t fix it, we could ask the Legislature to clarify their intent.”
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