CSSB 343(RES): "An Act clarifying the term 'best technology' required for use in oil discharge prevention and contingency plans; affirming existing Department of Environmental Conservation regulations defining 'best technology' and oil discharge prevention and contingency plans approved using those regulations; and providing for an effective date."
00 CS FOR SENATE BILL NO. 343(RES) 01 "An Act clarifying the term 'best technology' required for use in oil discharge 02 prevention and contingency plans; affirming existing Department of Environmental 03 Conservation regulations defining 'best technology' and oil discharge prevention and 04 contingency plans approved using those regulations; and providing for an effective 05 date." 06 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 07 * Section 1. The uncodified law of the State of Alaska is amended by adding a new section 08 to read: 09 LEGISLATIVE FINDINGS, INTENT, AND PURPOSE. (a) The legislature finds 10 that 11 (1) AS 46.04.030(a) - (c) provide that certain facilities may not operate 12 without first securing an oil discharge prevention and contingency plan that has been 13 approved by the Department of Environmental Conservation;
01 (2) AS 46.04.030(k) provides that the holder of an approved contingency plan 02 must meet certain response planning standards; 03 (3) AS 46.04.030(e) provides that the holder of a contingency plan must have 04 access to sufficient resources to protect environmentally sensitive areas and to meet the 05 requirements of AS 46.04.030(k), including the response planning standards; 06 (4) AS 46.04.030(e) also provides that the contingency plan must provide for 07 the use by the applicant of "the best technology that was available at the time the contingency 08 plan was submitted or renewed"; 09 (5) under AS 46.04.030(j) and 46.04.070, the Department of Environmental 10 Conservation adopted regulations at 18 AAC 75.445(k), effective April 4, 1997, that 11 established a reasonable three-tiered process for defining what was meant by best available 12 technology; 13 (6) those regulations were developed using a negotiated rulemaking process 14 that occurred over a period of several years, involved a facilitator, and included numerous 15 stakeholders from throughout the state; 16 (7) more than 100 contingency plans have been issued under those 17 regulations; 18 (8) on February 1, 2002, the Alaska Supreme Court held that the regulation 19 defining best available technology, although having considerable theoretical merit, is contrary 20 to the court's interpretation of the legislature's intent in enacting AS 46.04.030(e) and (k), and 21 therefore invalidated 18 AAC 75.445(k)(1) and (2); 22 (9) the Alaska Supreme Court's recent ruling potentially jeopardizes the status 23 of existing contingency plans, the timely issuance of new contingency plans, and the timely 24 renewal of existing contingency plans; 25 (10) the Alaska Supreme Court's recent ruling has little or no positive benefit 26 to the environment or the state; the negative consequences of the ruling include 27 (A) the creation of uncertainty for all existing contingency plan 28 holders; 29 (B) a depletion of Department of Environmental Conservation 30 appropriations if the department conducts new reviews of existing contingency plans; 31 (C) substantial delay and uncertainty for persons seeking renewals of
01 existing contingency plans; 02 (D) delay and uncertainty for persons seeking new contingency plans; 03 and 04 (E) a negative effect on the development of the state's natural 05 resources. 06 (b) It is the intent of the legislature to 07 (1) clarify that the Department of Environmental Conservation's 1997 08 regulations meet the legislature's intent with respect to application of best available 09 technology through reliance on proven, appropriate, and reliable technology meeting the 10 response planning standards in AS 46.04.030(k) and the use of performance standards set in 11 regulation or other specific criteria for determining best available technology; and 12 (2) create a solution to the uncertainty caused by the Alaska Supreme Court's 13 recent ruling. 14 (c) The purpose of this Act is to overrule Lakosh v. Alaska Department of 15 Environmental Conservation, Op. No. 5531 (Supreme Court file number S-9619) (February 1, 16 2002), which invalidated parts of the Department of Environmental Conservation's best 17 available technology regulations. 18 * Sec. 2. AS 46.04.030(e) is amended to read: 19 (e) The department may attach reasonable terms and conditions to its approval 20 or modification of a contingency plan that the department determines are necessary to 21 ensure that the applicant for a contingency plan has access to sufficient resources to 22 protect environmentally sensitive areas and to contain, clean up, and mitigate potential 23 oil discharges from the facility or vessel as provided in (k) of this section, and to 24 ensure that the applicant complies with the contingency plan. If a contingency plan 25 submitted to the department for approval relies on the services of an oil spill primary 26 response action contractor, the department may not approve the contingency plan 27 unless the primary response action contractor is registered and approved under 28 AS 46.04.035. The contingency plan must provide for the use by the applicant of the 29 best technology that was available at the time the contingency plan was submitted or 30 renewed. The department shall identify the prevention and response technologies 31 that are subject to a best available technology determination. The department
01 may find that any technology meeting the response planning standards in (k) of 02 this section or a prevention performance standard established under 03 AS 46.04.070 is the best available technology. The department may prepare 04 findings and maintain a list of those technologies that are considered the best 05 available. The department may require an applicant or holder of an approved 06 contingency plan to take steps necessary to demonstrate the applicant's or holder's 07 [ITS] ability to carry out the contingency plan, including 08 (1) periodic training; 09 (2) response team exercises; and 10 (3) verifying access to inventories of equipment, supplies, and 11 personnel identified as available in the approved contingency plan. 12 * Sec. 3. The uncodified law of the State of Alaska is amended by adding a new section to 13 read: 14 TRANSITION: EXISTING BEST AVAILABLE TECHNOLOGY REGULATIONS. 15 The regulations relating to the determination of best available technology for use in oil 16 contingency plans adopted by the Alaska Department of Environmental Conservation before 17 the effective date of this section remain in effect as valid regulations implementing this Act. 18 The Alaska Department of Environmental Conservation may administer and enforce those 19 previously adopted regulations relating to the determination of best technology for use in 20 contingency plans. 21 * Sec. 4. The uncodified law of the State of Alaska is amended by adding a new section to 22 read: 23 TRANSITION: APPROVED OIL DISCHARGE PREVENTION AND 24 CONTINGENCY PLANS. A contingency plan that, on the effective date of this Act, has 25 been approved by the Department of Environmental Conservation under AS 46.04.030 26 remains in effect, and the plan holder may continue to operate under that plan until the plan is 27 revoked under AS 46.04.030(f) or until it expires, whichever first occurs. 28 * Sec. 5. The uncodified law of the State of Alaska is amended by adding a new section to 29 read: 30 RETROACTIVITY. The amendment to AS 46.04.030(e) made by sec. 2 of this Act is 31 retroactive to April 4, 1997.
01 * Sec. 6. This Act takes effect immediately under AS 01.10.070(c).