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Lakosh v. Alaska Dep't of Envtl. Conservation

ELR Citation: 32 ELR 20479
Nos. No. S-9619, 51 F.3d 280/(Alaska, 02/01/2002)

The court holds that two state regulations for determining whether an oil facility's oil discharge and prevention contingency plan provides for the use of best available technology are inconsistent with a statutory best available technology requirement and, thus, are invalid. As a proxy to an individualized best available technology determination for each contingency plan, the two regulations allow contingency plans that use appropriate and reliable oil spill technology that meets applicable performance standards to satisfy the best available technology requirements. However, Alaska Statute 46.04.030(e) requires that oil spill contingency plans use the best technology available, and the usual plain meaning of the term "best" connotes the selection of the most desirable technologies available. The court first holds that the two regulations seemingly defy the selection of the most desirable technologies by allowing all technologies that meet the applicable performance standards. Moreover, Alaska Statute 46.04.030(k) requires contingency plans to meet certain mandatory performance standards. The court next holds that because they stand as two different subsections of the same statute, 46.04.030(k)'s mandatory performance standards and 46.04.030(e)'s best available technology requirements stand as two separate requirements. The two regulations collapse these two separate requirements into one that only requires compliance with requisite performance standards. This interpretation effectively renders 46.04.030(e)'s best available technology requirement superfluous, and statutes should not be read to read words or provisions as such.

The full text of this decision is available from ELR (13 pp., ELR Order No. L-455).

Counsel for Appellant
Tom Lakosh
Law Offices of Tom Lakosh
10 E. 9th Ave., Anchorage AK 99501
(907) 563-7380

Counsel for Appellants
Breck C. Tostevin, Ass't Attorney General
Attorney General's Office
1031 W. 4th St., Ste. 200, Anchorage AK 99501
(907) 269-5100