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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).
