High court says DEC revise spill rules

Posted: Sunday, February 03, 2002

ANCHORAGE (AP) -- The Alaska Supreme Court has ruled that state environmental regulators don't have a strong enough definition of a law requiring oil-transporting companies to keep the ''best available technology'' on hand to contain and clean up spills.

As a result of Friday's ruling, the Alaska Department of Environmental Conservation will have to either revise its regulations or ask the state Legislature to change the law.

Commissioner Michele Brown told the Anchorage Daily News that she and other agency officials were still digesting the opinion.

However, the ruling will have little immediate practical effect, she said. While officials decide which course to take, the agency will continue to monitor and enforce spill response capabilities of companies that produce or ship oil.

The Legislature passed Alaska's Oil Spill Pollution Control Act in 1980. It required oil producers and shippers to file contingency plans for cleaning up spills, using the ''best available technology.''

The statute was strengthened in 1990 -- a year after the Exxon Valdez oil spill -- with the addition of performance standards and allowable response times for containing and cleaning up spills.

To enforce the new law, DEC drew up regulations that said a company would be presumed to be using the ''best available technology'' if it could demonstrate that it could clean up a spill in the required time.

Tom Lakosh, a computer system administrator who has been tracking the industry and environmental regulators since the Exxon Valdez spill, wasn't satisfied with that standard. He filed suit in 1997, arguing the case himself.

Lakosh lost at the Superior Court level, but the Supreme Court sided with him on Friday. ''The court saw through DEC's specious argument that it had total discretion in determining what best available technology' means,'' he said.

Attorneys for the state argued the law's requirement was fulfilled by DEC regulations that required companies to keep on hand equipment that is ''appropriate and reliable'' for containing spills within the specified response time.

The Supreme Court disagreed, saying the Legislature meant what it said.

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