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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lakosh v. Alaska Dept. of Environmental Conservation (6/28/2002) sp-5589

Lakosh v. Alaska Dept. of Environmental Conservation (6/28/2002) sp-5589

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


TOM LAKOSH,                   )
                              )    Supreme Court No. S-9619
               Appellant,          )
                              )    Superior Court No.
          v.                  )    3AN-97-2572 CI
                              )
ALASKA DEPARTMENT OF          )
ENVIRONMENTAL            )
CONSERVATION , ARCO      )    OPINION ON REHEARING
MARINE, INC., BP OIL SHIPPING )
COMPANY, U.S.A., and               )
SEARIVER MARITIME, INC.,      )    [No. 5589 - June 28, 2002]
                              )
               Appellees.          )
                                                                )


          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, John Reese, Judge.

          Appearances:  Tom Lakosh, pro se,  Anchorage.
          Breck   C.   Tostevin,   Assistant   Attorney
          General,  Anchorage, and  Bruce  M.  Botelho,
          Attorney General, Juneau, for Appellee  State
          of   Alaska,   Department  of   Environmental
          Conservation.

          Before:   Fabe,   Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          BRYNER, Justice.


I.   INTRODUCTION

          In  1990,  after  the Exxon Valdez  spilled  more  than

230,000  barrels  of  crude oil into Prince  William  Sound,  the

Alaska  legislature  strengthened Alaskas oil  spill  contingency

plan statute by adding to the existing provisions, which required

the  use  of  best  available technology, a  new  provision  that

required  all  contingency  plans to  meet  a  set  of  specified

response   planning   standards.    After   the   Department   of

Environmental Conservation (DEC) adopted regulations to implement

the  new  response  standards and the best  available  technology

requirement, Tom Lakosh sued DEC, challenging two aspects of  its

regulation  defining  best  available technology.   The  superior

court granted summary judgment to the state, and Lakosh appealed.

Because  the challenged regulation conflicts with the authorizing

statute, we reverse and remand.

II.  FACTS AND PROCEEDINGS

          In  1980 the Alaska legislature, finding that it  is  a

matter  of  the  highest urgency and priority to protect  Alaskas

coastal and inside water, estuaries, wetlands, beaches, and  land

from  the damage which may be occasioned by the discharge of oil,

enacted Alaskas Oil Pollution Control Act.1  One provision of the

Act,  AS  46.04.030,  required persons engaged  in  various  oil-

related activities to file and obtain DECs approval of oil  spill

prevention and contingency plans.2

          As  originally  enacted, this statute  simply  required

that  oil spill prevention and contingency plans provide for  the

use  of the best available technology by the applicant.3  But  in

1990,  the  year  after the Exxon Valdez ran  aground  in  Prince

William  Sound,  the  legislature  strengthened  the  statute  to

require  that all contingency plans meet legislatively  specified

response  planning  standards  for containing,  controlling,  and

cleaning  up spills.4  At the same time, the legislature retained

a  slightly  modified  version of 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.5

          The   legislature  left  the  phrase   best   available

technology undefined but directed DEC to establish the procedures

and time limits applicable to agency review of contingency plans.6

To  address this directive, DEC formed a working group comprising

various stakeholders from the regulated industries, environmental

and  other  public  interest groups, local governments,  and  DEC

representatives.   The  group  held public  workshops,  published

notices  of  proposed  regulations  in  various  newspapers,  and

received  comments  regarding the regulatory definition  of  best

available  technology.  Tom Lakosh participated in the  workshops

and  submitted  written comments voicing his disapproval  of  the

regulations.   But the regulations were ultimately  adopted,  and

their  definition  of best available technology  took  effect  on

April 4, 1997.

          Lakosh  filed a declaratory judgment action in superior

court,   challenging  the  new  definition  of   best   available

technology   as   inconsistent  with  the  underlying   statutory

requirements  set out in AS 46.04.030(e).  Superior  Court  Judge

John  Reese  granted summary judgment in favor of DEC,  upholding

the  regulations.  Lakosh appeals, challenging two aspects of the

regulations definition of best available technology.

III. DISCUSSION

     A.   Standard of Review

          We  review  a grant of summary judgment de  novo.7   We

exercise   our   independent  judgment   to   determine   whether

administrative  regulations  are  valid  and  to  interpret   the

underlying  statutory  language.8  When  an  agency  has  adopted

regulations  under a delegation of authority from the legislature

and  using the process prescribed by the Administrative Procedure

Act,9  we  presume that the regulations are valid and  place  the

burden of proving otherwise on the challenging party.10  We limit

our review to whether the regulation[s] [are] consistent with and

          reasonably necessary to carry out the purposes of the statutory

provisions  .  .  .  .  [and]  whether  the  regulation[s]  [are]

reasonable and not arbitrary.11

          In  making  the consistency determination, we  use  our

independent  judgment unless the issue involves agency  expertise

or  the determination of fundamental policy questions on subjects

committed to an agency.12  If the issue involves agency expertise,

we  review under the reasonable basis standard and defer  to  the

agency  if  its interpretation is reasonable.13  We  also  employ

rational  basis  review  in  deciding  whether  a  regulation  is

necessary to implement the statute14 and whether a regulation  is

reasonable and not arbitrary.15

     B.   Statutory and Regulatory Provisions

          Alaska  Statute 46.04.030(a) provides that  [a]  person

may not cause or permit the operation of an oil terminal facility

in  the  state unless an oil discharge prevention and contingency

plan  for the facility has been approved by [DEC] and the  person

is  in  compliance with the plan.16  Moreover, subsection .030(k)

further requires that contingency plan holders be able to  comply

with  specified  standards.  The subsection sets  specific  spill

containment and cleanup response planning standards17 and commands

plan  holders  to  maintain,  or have available  under  contract,

sufficient  oil  discharge containment,  storage,  transfer,  and

cleanup  equipment,  personnel,  and  resources  to  meet   these

standards.18   DEC  has  adopted  regulations  setting  analogous

performance standards that plan holders must meet with respect to

oil spill prevention.19  And finally, subsection .030(e) requires

that oil spill contingency plans also provide for the use by  the

applicant of the best technology that was available at  the  time

the contingency plan was submitted or renewed.

          It  is this latter provision, subsection .030(e)s  best
available  technology requirement, that is in  controversy  here.
DEC  chose  to  adopt  a  three-tiered approach  for  determining
whether  a  contingency plan provides for the  use  of  the  best
available technology.20  The first tier of the definition, set out
in 18 AAC 75.445(k)(1), covers cleanup and containment technology
governed by the oil spill response planning standards mandated by
          AS 46.04.030(k); cleanup and containment technology included in
this  tier meets the best available technology requirement if  it
is   capable   of  complying  with  the  statutory  cleanup   and
containment standards  that is, if the technology as a  whole  is
appropriate  and reliable for the intended use  as  well  as  the
magnitude  of  the applicable response planning standard.21   The
second  tier of the definition, 18 AAC 75.445(k)(2), governs  oil
spill  prevention  technology,  which  is  governed  by  the  oil
pollution prevention performance standards found in 18 AAC 75.005
-  .080; with limited exceptions not relevant here, the oil spill
prevention  technology  in  this tier meets  the  best  available
technology   requirement  if  it  is  capable  of   meeting   the
performance  standards  in the applicable  oil  spill  prevention
regulations.22  The third tier of the definition, set out  in  18
AAC  75.445(k)(3),  covers remaining technology  not  subject  to
either   the   response  planning  standards  or  the  prevention
performance  standards; in this tier, DEC determines whether  the
best available technology requirement has been met by undertaking
a case-by-case evaluation based on specified criteria.23
          Thus,  the  challenged regulation  uses  individualized

analysis   to  determine  compliance  with  the  best   available

technology  requirement  only  for  those  residual  classes   of

technology  included in the third tier of the definition.24   For

technologies  covered in the first two tiers  those  involved  in

almost   all  oil  spill  prevention,  containment,  and  cleanup

activities   compliance with the applicable standards essentially

serves   as   a   proxy   for  the  best   available   technology

determination.

     C.   The Parties Arguments

          Lakosh  takes  issue with the first two tiers  of  DECs

three-tiered  method for determining whether  technology  is  the

best  available,  contending that they are inconsistent  with  AS

46.04.030(e).25   He  argues  that the  legislature  intended  to

require  a   state of the art quality of response equipment  that

necessarily   requires  a  comparative  analysis   of   available

technologies  an individualized analysis like one prescribed  for

third-tier technology in 18 AAC 75.445(k)(3).  In Lakoshs view, a

definition that categorically approves any technology capable  of

achieving   the   applicable  response  planning  or   prevention

performance standards  in other words, any technology appropriate

and  reliable to meet the standards  conflicts with the statutory

          intent to require that only the best available technology be

used.   Lakosh thus protests that the tier one and two  standards

set out in 18 AAC 75.445(k)(1) and (2) are static and contain  no

provisions  for requiring plan holders to employ state-of-the-art

technologies.

          But  DEC  responds  that the best available  technology

statute   leaves  it to the DEC to define what is best  available

technology.    In  DECs  view, requiring  that  a  technology  be

appropriate and reliable to meet the magnitude of the  applicable

response  planning  standard suffices to  define  best  available

technology  because  the  standards  themselves  are   the   most

demanding . . . standards in the world.  Indeed, DEC argues,  the

standards actually encourage innovation by allowing a plan holder

to use a new, different and more efficient technology to meet the

[applicable] standard rather than simply imposing a one-size-fits-

all  technological fix.26  Hence DEC urges us to recognize  that,

given the discretion delegated to it by the legislature, either a

standards-based test like those specified in the first two  tiers

of  the challenged regulation or an individualized analysis  like

the  one set out in the third tier can be used to determine  what

is best available technology.

     D.         The First Two Tiers of the Definition, Set Out in
          18  AAC 75.445(k)(1) and (2), Are Inconsistent with the
          Statutory Best Available Technology Requirement.
          
          In  addressing  the  parties arguments  we  must  first

consider whether to give deference to DECs interpretation of  the

best  available technology statute.  DEC contends that we  should

give  deference  to  its judgment because oil  spill  contingency

planning and the application of a best technology requirement  to

oil  spill  response technologies . . . and oil spill  prevention

technologies . . . implicate DECs specialized technical expertise

and  experience.  This argument has considerable merit, but  only

to the extent that the legislature actually granted DEC authority

to  define  best  available  technology.   DECs  selection  of  a

specific  definition from among the many potentially  encompassed

within  the general directive requiring best available technology

certainly involved the kind of technical expertise and experience

that courts are ill-equipped to second guess.  To the extent that

DECs  definition  of best available technology  lies  within  the

broad contours contemplated by the legislature, then, the agencys

judgment deserves considerable deference.27

          But  whether DECs definition lies within the limits  of

authority   delegated  by  the  legislature  raises  a  threshold

question   of   legislative  intent.   The   Alaska   legislature

specifically  required that a contingency plan must  provide  for

the  use  by  the  applicant  of the  best  technology  that  was

available  at  the  time the contingency plan  was  submitted  or

renewed.28   The  question whether DEC properly  interpreted  the

legislatures mandate in promulgating 18 AAC 75.445(k)(1) and  (2)

is  answerable through statutory interpretation or other analysis

of  legal  relationships  about  which  courts  have  specialized

knowledge  and  experience.29   Because  this  preliminary  legal

question  resides  within the traditional  province  of  judicial

review  and involves no technical expertise, we decide  it  using

our independent judgment.30

          In  contending that a basic conflict exists between the

statutory  best-available-technology mandate and DECs  regulation

implementing that mandate, Lakosh emphasizes the statutes 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.31   Here,  Lakosh argues, DEC effectively  ignored  the

legislatures  mandate  to select the most desirable  technologies

from  among  the larger universe of satisfactory technologies  by

defining  the  first  two tiers of best available  technology  to

include  essentially  all  suitable and  satisfactory  oil  spill

prevention and cleanup technologies.

          Under  18  AAC 75.445(k)(1), all oil spill  containment

and  cleanup  technologies that can satisfy the  containment  and

cleanup  response planning standards set out in  AS  46.04.030(k)

that  is,  all  that are appropriate and reliable to  meet  those

standards  are automatically deemed best.  Correspondingly, under

18 AAC 75.445(k)(2), all oil pollution prevention technology that

is  not  expressly made subject to individualized best  available

technology review is automatically deemed best as long as it  can

satisfy   that  is,  comply  with  the oil  pollution  prevention

performance  standards specified in 18 AAC 75.005 -  .080.   Both

the  first  and  second tiers of the regulation, then,  seemingly

defy  the  legislative intent implicit in the  usual  meaning  of

best:  the  intent to require a selection of the  most  desirable

technologies  from among a broader universe of technologies  that

would   be   suitable  and  satisfactory  to  comply   with   the

requirements  of a contingency plan  which include a demonstrated

ability to meet applicable standards.

          Of  course the plain meaning of best is not the end  of

the  story.   In construing statutory language, we have  rejected

the mechanical application of the plain meaning rule in favor  of

a  sliding scale approach under which [t]he plainer the statutory

language  is,  the  more  convincing  the  evidence  of  contrary

legislative  purpose or intent must be. 32  But  here,  both  the

legislative history and context of the best available  technology

statute support its plain meaning.

          In  revising  the  original oil  spill  prevention  and

contingency  plan  statute,  the  legislature  adopted   detailed

response  planning  standards  governing  spill  containment  and

cleanup  that  contingency plans must address when submitted  for

approval.33  DEC has subsequently adopted detailed oil  pollution

prevention  performance  standards  that  must  be  addressed  in

contingency plans.34  The legislature also specified that, before

DEC  may approve a contingency plan, the agency must ensure  that

the  applicant  for a contingency plan has access  to  sufficient

resources  to  protect  environmentally sensitive  areas  and  to

contain, clean up, and mitigate potential oil discharges from the

facility   or  vessel  as  provided  [by  the  response  planning

standards]  and  to ensure that the applicant complies  with  the

contingency  plan.35  DEC has likewise provided that  contingency

plan  applicants  and  holders are responsible  for  meeting  the

applicable requirements of the performance standards set  out  in

its  oil pollution prevention regulations.36  And the legislature

has  given  DEC  broad authority to require  plan  applicants  or

holders   to  demonstrate  their  ability  to  carry  out   their

contingency plans.37

          These    mandatory   standards   are   thus    baseline

requirements that all plan holders must be prepared to meet.  And

because the legislature adopted mandatory cleanup and containment

response planning standards at the same time that it required the

use of best available technology to carry out those standards, it

obviously did not intend to equate best available technology with

the  ability  to  meet  response planning standards;  rather,  it

intended   best   available  technology  to  be   an   additional

requirement.

          Because they stand as separate subsections in the  same

statute,  then,  AS  46.04.030(k)s  mandatory  response  planning

standards   and   AS  46.04.030(e)s  best  available   technology

requirement evince an intent to impose two separate requirements:

under  subsection  .030(k),  all contingency  plan  holders  must

          demonstrate their ability to comply with applicable standards;

and  under  subsection .030(e), all applicants must also  provide

that they will achieve this compliance  which is required as part

of  their  plans  by using the best technology that was available

at the time the contingency plan was submitted or renewed.

          The  first  two tiers of DECs best available technology

regulation  conflate  these separate requirements  by  collapsing

best   available   technology  into  compliance  with   requisite

standards.    Yet   this   interpretation   effectively   renders

AS    46.04.030(e)s   best   available   technology   requirement

superfluous, for if the legislature had wanted nothing more  than

to  require technology to provide an appropriate and reliable way

of  complying with applicable standards, it could as easily  have

omitted  subsection  .030(e)s best available technology  language

entirely and let the balance of section .030 stand on its own.

          We  decline  to  read  the  best  available  technology

provision in this way.  It is a well-recognized rule of statutory

construction that  the legislature intended every word, sentence,

or  provision  of  a  statute to have some  purpose,  force,  and

effect,  and  that  no  words or provisions are  superfluous.  38

Defining   best  available  technology  in  terms  of   statutory

minimums, then, cannot be consistent with the legislative  intent

of  requiring  that  plan holders provide for  the  use  of  best

available  technology.  And DEC points to no legislative  history

supporting a contrary interpretation.

          The legislature plainly required that plan holders meet

response  planning standards and provide for the use of the  best

available technology in contingency plans.  Because agencies  are

not  free  to disregard any of the standards the legislature  has

articulated,   DECs  regulations  must  reflect  both   statutory

requirements.39  Paragraphs (k)(1) and (k)(2) of  18  AAC  75.445

fail to reflect both requirements and are therefore deficient.

          Paragraph (k)(1) allows plan holders to meet  the  best

available  technology  requirement  for  oil  spill  cleanup  and

          containment by planning to use any reasonably satisfactory

technology  that is, any technology that would be appropriate and

reliable  to  meet the cleanup and containment response  planning

standards   mandated  by  the  response  planning   statute,   AS

46.04.030(k).  But as already indicated, AS 46.04.030(e) requires

an additional step: a selection of the best technology from among

all  that  is reasonably capable of meeting the response planning

standards.   Hence,  by  equating best  available  technology  to

appropriate  and  reliable  compliance  with  response   planning

standards,  the definition in paragraph (k)(1) of the  regulation

violates  AS  46.04.030(e)s command to select  the  best  of  all

available  technology  that is capable of  complying  with  these

standards.

           The  same conclusion holds true for the definition  of

best  available  technology set out in paragraph  (k)(2)  of  the

regulation,   which  effectively  equates  best   available   oil

pollution  prevention technology to technology that is reasonably

capable of meeting specified oil pollution prevention performance

standards.

          In  defense  of its regulation, DEC essentially  argues

that  the  applicable standards are a legitimate proxy  for  best

available technology  that good technology is bound to follow  if

standards are set sufficiently high.40  The challenged regulation

reflects  this approach.  But while we assume that DECs  approach

may   have   considerable  theoretical  merit,  it   is   legally

incompatible  with  the  approach  that  the  Alaska  legislature

adopted in AS 46.04.030(e) and (k), for the statute requires  DEC

to  insist on the use of best available technology in addition to

demanding compliance with applicable standards.  As DEC correctly

notes,  [t]he  [l]egislature did not choose  between  approaches.

Yet  DEC  fails  to  recognize that the  legislature  chose  both

approaches  and  that  this  decision  precludes  DEC  from  then

choosing one approach and ignoring the other.

          Though  we declare the challenged regulations  invalid,

          we emphasize the limited scope of our ruling.  We recognize of

course  that  the task of defining best available  technology  is

well outside the scope of the judiciarys responsibility and falls

squarely within DECs area of authority and expertise.  We readily

acknowledge  that  the  legislature has  vested  DEC  with  broad

discretion  to  decide  how best available technology  should  be

defined; and we believe that the agency is free to exercise  this

discretion not only in prescribing the methods for selecting  the

best from among all available technologies that are satisfactory,

but  also  in deciding how broadly the class of best technologies

should  be drawn  that is, how many of all available satisfactory

technologies  should be accepted as best.  But  as  a  matter  of

statutory interpretation we are nevertheless constrained to  hold

that DECs definition must at least include some winnowing process

that  AS 46.04.030(e) requires something more than accepting  all

available  technology that can appropriately and reliably  comply

with  oil spill prevention and cleanup standards.  We agree  with

Lakosh   that  DECs  current  definitions  fail  this   threshold

requirement.

IV.  CONCLUSION

          Because the definition of best available technology  in

18  AAC  75.445(k)(1) and (2) is contrary to AS 46.04.030(e),  we

REVERSE the superior courts summary judgment order and REMAND for

entry of judgment declaring the regulation invalid.

          In the Supreme Court of the State of Alaska



Tom Lakosh,                     )
                                ) Supreme Court No. S-09619
                                   Appellant(s),       )
                   v.           )            Order
                                )   Petition for Rehearing
Alaska Dept of Environmental    )
Conservation, et al.,           )
                                )
                                    Appellee(s).)        Date  of
Order: June 28, 2002
                                )
Trial Court Case # 3AN-97-02572CI

     Before:    Fabe, Chief Justice, Matthews, Eastaugh,  Bryner,
and Carpeneti, Justices.

     On  consideration  of the Petition for Rehearing,  filed  on
February 11, 2002,

     It is Ordered:

     1.   The Petition for Rehearing is Granted.

     2.    Opinion  No.  5531  issued on  February  1,  2002,  is
Withdrawn.

     3.   Opinion No. 5589, is Issued on this date in its place.


     Entered by direction of the court.

                                   Clerk of the Appellate Courts


                                   
                                   Marilyn May

cc:  Supreme Court Justices
     Judge Reese
     Trial Court Appeals Clerk
     West Publishing
     Other Publishers
Supreme Court Order on Petition for Rehearing
Re: Lakosh v. Alaska Dept of Envtl. Conservation
File No. S-9619
Page Two



Distribution:

     Breck C Tostevin
     Asst Attorney General
     1031 West Fourth Ave.,  #200
     Anchorage AK 99501

     Charles P Flynn
     Burr Pease & Kurtz PC
     810  N  Street
     Anchorage AK 99501

     Kevin D Callahan
     Patton Boggs LLP
     1031 West Fourth Avenue   #504
     Anchorage AK 99501

     Tom Lakosh
     P.O. Box 100648
     Anchorage AK 99510
_______________________________
     1    Ch. 116,  1(a)(1), SLA 1980.

     2     See former AS 46.04.030.  Under AS 46.04.030(a) & (k),
oil  discharge prevention and contingency plan[s]  are  plans  to
prevent,  contain, and clean up oil spills from oil tank vessels,
offshore oil exploration or production facilities, and large  oil
terminal facilities.

     3    Former AS 46.04.030(e).

     4    AS 46.04.030(k); see also ch. 191,  9, 10, SLA 1990.

     5    AS 46.04.030(e).

     6     AS  46.04.030(j); see also AS 46.04.070  ([DEC]  shall
adopt regulations that are necessary to carry out the purposes of
this  chapter and that do not conflict with and are not preempted
by federal law or regulations.); ch. 191,  10, SLA 1990.

     7     OCallaghan v. Rue, 996 P.2d 88, 94 (Alaska 2000);  Bd.
of  Trade, Inc. v. State, Dept of Labor, Wage & Hour Admin.,  968
P.2d 86, 89 (Alaska 1998).

     8     Lauth v. State, Dept of Health & Soc. Servs., 12  P.3d
181, 184 (Alaska 2000); Bd. of Trade, 968 P.2d at 89.

     9     See AS 44.62.  Because Lakosh does not argue that  DEC
violated  the  Administrative Procedure Act in  promulgating  the
regulations,  we need not analyze whether DEC complied  with  the
Acts provisions.

     10     OCallaghan, 996 P.2d at 95; Bd. of Trade, 968 P.2d at
89;  State,  Dept  of Revenue, Permanent Fund  Dividend  Div.  v.
Cosio,  858  P.2d 621, 624 (Alaska 1993); State v. Anderson,  749
P.2d  1342,  1344 (Alaska 1988); State v. Alyeska Pipeline  Serv.
Co., 723 P.2d 76, 78 (Alaska 1986).

     11     Kelly v. Zamarello, 486 P.2d 906, 911 (Alaska  1971);
accord  Lauth,  12 P.3d at 184; OCallaghan, 996  P.2d  at  94-95;
Anderson,  749 P.2d at 1343-44; Chevron U.S.A. Inc. v.  LeResche,
663 P.2d 923, 926-27, 930 n.15 (Alaska 1983).

     12    OCallaghan, 996 P.2d at 94.

     13    Id.

     14    Id. at 94-95.  However, reasonable necessity is not  a
requirement separate from consistency.  If it were, courts  would
be   required   to  judge  whether  a  particular  administrative
regulation is desirable as a matter of policy; this is a function
of  the agency.  State, Bd. of Marine Pilots v. Renwick, 936 P.2d
526, 531 (Alaska 1997) (citing Cosio, 858 P.2d at 624).

     15    OCallaghan, 996 P.2d at 95.

     16    Subsections .030(b) and (c) extend this requirement to
persons    operating   pipelines,   exploration   or   production
facilities, tank vessels, and barges.

     17    See AS 46.04.030(k)(1)-(5).  For example, a plan holder
must  be  able  to contain or control, and clean up  a  discharge
equal to the capacity of the largest oil storage tank at the [oil
terminal] facility within 72 hours.  AS 46.04.030(k)(1).

     18    AS 46.04.030(k)(1)-(5).

     19     See 18 Alaska Administrative Code (AAC) 75.005 - .080
(2001)   (setting  forth  requirements  for  personnel  training,
security measures, record-keeping, oil transfers, leak detection,
monitoring, operations, storage tanks, secondary containment, and
facility piping).

     20    DEC generally defined best available technology to mean
the  best proven technology that satisfies the provisions  of  18
AAC  75.425(e)(4) and 18 AAC 75.445(k).  18 AAC  75.990(9).   DEC
defined  technology to mean equipment, supplies, other resources,
and related practices .  18 AAC 75.990(130).

     21     18  AAC 75.445(k)(1); see also 18 AAC 75.430  -  .442
(establishing the standards and factors).

     22    See 18 AAC 75.445(k)(2).

     23     For  technology included in the third  tier,  18  AAC
75.445(k)(3) requires DEC to determine compliance with  the  best
available technology requirement by considering

               (A)  whether each technology is the best
          in  use  in other similar situations  and  is
          available for use by the applicant;

               (B)    whether   each   technology    is
          transferable to the applicants operations;

               (C)    whether  there  is  a  reasonable
          expectation  each  technology  will   provide
          increased   spill   prevention    or    other
          environmental benefits;

               (D)   the  cost  to  the  applicant   of
          achieving    best    available    technology,
          including consideration of that cost relative
          to  the  remaining years of  service  of  the
          technology in use by the applicant;

               (E)    the  age  and  condition  of  the
          technology in use by the applicant;

               (F)    whether   each   technology    is
          compatible   with  existing  operations   and
          technologies in use by the applicant;
     
               (G)   the practical feasibility of  each
          technology in terms of engineering and  other
          operational aspects; and
     
               (H)  whether other environmental impacts
          of  each technology, such as air, land, water
          pollution,  and  energy requirements,  offset
          any anticipated environmental benefits.
          
     24    See 18 AAC 75.425(e)(4) (listing the residual classes).

     25     Lakosh  does not dispute the criteria for  evaluating
third-tier technology under 18 AAC 75.445(k)(3).

     26    DEC further points to 18 AAC 75.447, which requires DEC
to  identify and evaluate breakthrough technologies by sponsoring
a  technology  conference at least once every five years  and  to
engag[e]  in studies, inquiries, surveys, or analyses [that  DEC]
believes  appropriate to the consideration of  new  technologies.
DEC argues that its reliance on a technologys appropriateness and
reliability to comply with performance standards will be rendered
more  meaningful  as a test of best available technology  because
DEC  will have this breakthrough technology information  at  hand
when evaluating whether prevention and contingency plans use best
available technology.

     27     See State, Bd. of Marine Pilots v. Renwick, 936  P.2d
526,  531  (Alaska 1997) (quoting Whaley v. State, 438 P.2d  718,
722  (Alaska 1968)) ([T]he well settled rule [ ] requires  courts
to   give   consideration  and  respect  to  the  contemporaneous
construction   of   a   statute  by  those   charged   with   its
administration, and not to overrule such construction except  for
weighty reasons.) (alterations in original).

     28    AS 46.04.030(e).

     29     Kelly v. Zamarello, 486 P.2d 906, 916 (Alaska  1971);
see  also Lauth v. State, Dept of Health & Soc. Servs.,  12  P.3d
181,  184  (Alaska 2000); Bd. of Trade, Inc. v.  State,  Dept  of
Labor, Wage & Hour Admin., 968 P.2d 86, 89 (Alaska 1998) (stating
that  the  court will not replace the agencys judgment  with  its
judgment, but will review for reasonableness, arbitrariness,  and
consistency);   State,  Commercial  Fisheries  Entry   Commn   v.
Templeton, 598 P.2d 77, 80-81 (Alaska 1979).

     30    See sources cited supra note 29.

     31     According  to Websters, for example,  best  means  1.
Exceeding all others in excellence, achievement, or quality: most
excellent  . . . 2. Most satisfactory, suitable, or useful:  most
desirable . . . .  Websters II New College Dictionary 105 (1999).

     32     Bd.  of Trade, 968 P.2d at 91 (quoting Muller  v.  BP
Exploration (Alaska), Inc., 923 P.2d 783, 787-88 (Alaska 1996)).

     33    AS 46.04.030(k) provides:

               Except  as  provided in (m) and  (o)  of
          this  section,  the  holder  of  an  approved
          contingency plan required under this  section
          shall   maintain,  or  have  available  under
          contract,  in its region of operation  or  in
          another  region  of  operation  approved   by
          [DEC],  singly or in conjunction  with  other
          operators,    sufficient    oil     discharge
          containment, storage, transfer,  and  cleanup
          equipment, personnel, and resources  to  meet
          the following response planning standards:

               (1)    for  a  discharge  from  an   oil
          terminal facility, the plan holder shall plan
          to  be  able to contain or control, and clean
          up  a discharge equal to the capacity of  the
          largest  oil  storage tank  at  the  facility
          within   72  hours,  except  that  if   [DEC]
          determines that the facility is located in an
          area  of high risk because of natural or man-
          made  conditions outside of the facility,  it
          may  increase  the  volume requirement  under
          this  paragraph so that the contingency  plan
          must  be  designed  for a  response  that  is
          greater  in amount than the capacity  of  the
          largest oil storage tank at the facility;

               (2)  for a discharge from an exploration
          or  production  facility or a  pipeline,  the
          plan  holder shall plan to be able to contain
          or   control,  and  clean  up  the  realistic
          maximum oil discharge within 72 hours;

               (3)  for a discharge of crude oil from a
          tank  vessel  or oil barge, the  plan  holder
          shall  plan to be able to contain or control,
          and   clean   up  a  realistic  maximum   oil
          discharge as provided in (A), (B), and (C) of
          this paragraph:

               (A)   for  tank vessels and  oil  barges
          having  a  cargo volume of less than  500,000
          barrels, the plan holder shall maintain at  a
          minimum   in   the   region   of   operation,
          equipment,  personnel,  and  other  resources
          sufficient to contain or control,  and  clean
          up a 50,000 barrel discharge within 72 hours;

               (B)   for  tank vessels and  oil  barges
          having  a cargo volume of 500,000 barrels  or
          more,  the  plan holder shall maintain  at  a
          minimum   in   its   region   of   operation,
          equipment,  personnel,  and  other  resources
          sufficient to contain or control,  and  clean
          up  a  300,000  barrel  discharge  within  72
          hours;

               (C)    in   addition  to   the   minimum
          equipment,  personnel,  and  other  resources
          required  to be maintained within the  region
          of operation by (A) or (B) of this paragraph,
          a  plan  holder shall maintain, either within
          or  outside  of  the plan holders  region  of
          operation,  additional equipment,  personnel,
          and other resources sufficient to contain  or
          control,  and  clean up a  realistic  maximum
          discharge within the shortest possible  time;
          the  plan  holder must demonstrate  that  the
          equipment,  personnel,  and  other  resources
          maintained outside the plan holders region of
          operation  are accessible to the plan  holder
          and  will  be deployed and operating  at  the
          discharge site within 72 hours;

               (4)   for a discharge from a tank vessel
          or oil barge carrying noncrude oil in bulk as
          cargo, the plan holder shall plan to be  able
          to  contain  or  control 15  percent  of  the
          maximum  capacity of the vessel or  barge  or
          the    realistic   maximum   oil   discharge,
          whichever  is  greater, within 48  hours  and
          clean  up  the discharge within the  shortest
          possible   time  consistent  with  minimizing
          damage to the environment;

               (5)   for  a  discharge subject  to  the
          provisions  of  (1) - (3) of this  subsection
          that  enters  a  receiving environment  other
          than  open  water, the time  requirement  for
          clean up of the portion of the discharge that
          enters  the  receiving  environment  may,  in
          [DECs]  discretion,  be within  the  shortest
          possible   time  consistent  with  minimizing
          damage to the environment.

DEC  has retained and elaborated these standards in 18 AAC 75.430
- .442.

     34    See 18 AAC 75.005 - .080.

     35    AS 46.04.030(e).

     36    18 AAC 75.005.

     37    See AS 46.04.030(e)(1) - (3).

     38    Kodiak Island Borough v. Exxon Corp., 991 P.2d 757, 761
(Alaska 1999) (quoting Rydwell v. Anchorage Sch. Dist., 864  P.2d
526, 530-31 (Alaska 1993)).

     39     Kalmakoff v. State, Commercial Fisheries Entry Commn,
693 P.2d 844, 853 (Alaska 1985).

     40    For commentary discussing whether standards like those
established in paragraphs (k)(1) and (k)(2) of 18 AAC 75.445  are
superior  to  traditional  best available  technology  standards,
compare  Bruce  A.  Ackerman  &  Richard  B.  Stewart,  Reforming
Environmental  Law, 37 Stan. L. Rev. 1333, 1354  (1985)  (arguing
for  a  change from technology-based standards to pollution-based
performance  standards)  with Howard  Latin,  Ideal  Versus  Real
Regulatory  Efficiency: Implementation of Uniform  Standards  and
Fine Tuning Regulatory Reforms, 37 Stan. L. Rev. 1267, 1267, 1273
(1985) (arguing that fine-tuning approaches like performance  and
response planning standards have not been proven effective).