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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Berg v. Popham (03/18/2005) sp-5879

This has been WITHDRAWN - see Opinion # 5896

Berg v. Popham (03/18/2005) sp-5879

     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

DAVID BERG and MARGE BERG,    )
                              )    Supreme Court No. S-10815
               Appellants,         )
                              )    U.S. District Court No. CV-00-
00151 JWS
     v.                       )    Ninth Circuit No.  01-35807
                              )
DAVID and TSUKIKO POPHAM,     )    O P I N I O N
d/b/a ALLADIN CLEANERS, and   )
NORGE CORPORATION, and its         )     [No.  5879 -  March  18,
                                   2005]
successors in interest MAGIC CHEF  )
CORPORATION, MAYTAG                )
CORPORATION, ABC INC.,             )
ABC CO., and ABC CORP.,            )
                              )
               Appellees.          )
                              )


          Certified  Question from  the  United  States
          Court  of  Appeals for the Ninth  Circuit  on
          Appeal from the United States District  Court
          for the District of Alaska,  John W. Sedwick,
          Judge.

          Appearances:  Michael W. Flanigan, Walther  &
          Flanigan, Anchorage, for Appellants.   Joseph
          R.D.   Loescher,  Hughes  Thorsness   Powell,
          Anchorage,  and  I.  Franklin  Hunsaker   and
          Christopher Angius, Bullivant Houser  Bailey,
          Portland, Oregon, for Appellees.

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

          CARPENETI, Justice.
     

I.   INTRODUCTION

          The  Ninth  Circuit  has certified  the  following  two

questions to this court:

          1. Alaska Statute section 46.03.822(a)(4), in

          contrast  to 42 U.S.C.  9607(a)(3),  contains

          the word or preceding the phrase by any other

          party  or  entity.  In light of the inclusion

          of  the word or, does section 46.03.822(a)(4)

          require  that  a  person own,  possess,  have

          authority  to  control, or  have  a  duty  to

          dispose  of the hazardous substance  that  is

          released,  before that entity can be  subject

          to arranger liability as is required under 42

          U.S.C.  9607(a)(3)?

          2.  If the answer to Question 1 is no, may an

          entity be subject to arranger liability under

          Alaska Statute section 46.03.822(a)(4) if  it

          manufactures,  sells, and installs  a  useful

          product  that, when used as designed, directs

          a  hazardous  substance into the  city  sewer

          system?[1]

Because  we find that AS 46.03.822(a)(4) was intended to be  more

inclusive  than its federal counterpart, we hold that the  answer

to  the  first  question  is no, and the  answer  to  the  second

question is yes.

II.  FACTS AND PROCEEDINGS

          David  and  Marge Berg owned and operated the Boni-Park

laundry  and dry cleaning business in Anchorage from  1972  until

1978.   David and Tsukiko Popham purchased the business  in  1978

and  operated  it until they resold the company to the  Bergs  in

1980.   The  Bergs  owned and operated the business  again  until

1983, when they sold the business to the Jaeger family.

          From  the pleadings, it appears that Boni-Park was part

of  a  franchise  arrangement  with  the  Norge  Corporation,   a

manufacturer of dry cleaning equipment.  According to the  Bergs,

a  Norge dealer in Anchorage designed the layout of the equipment

and  installed the equipment in accordance with Norge manuals and

installation  materials.  The Bergs claim  that  Norge  personnel

          visited Boni-Park several times to check whether the facility was

being  run in accordance with Norge practices and procedures  and

that  these  personnel  assured them that  the  Norge  equipment,

including   the  dry  cleaning  facilities,  had  been  correctly

installed and were being correctly operated.

          The  Norge dry cleaning equipment at Boni-Park used the

hazardous substance Perchlorethylene (PCE or Perc) as a  cleaning

solvent  that  was  mixed  with water  during  the  dry  cleaning

process.   A water/Perc separator was then used to recapture  the

PCE  while  the  separated water was flushed through  a  drainage

system  into  the local sewer lines.  A vaporization process  was

also  used periodically to cleanse any oil and dirt residue  that

had  accumulated during recycling of the PCE.  This  vaporization

process yielded a PCE-contaminated sludge, which was also flushed

into the sewer lines.  There is no allegation that the defendants

provided  PCE to Boni-Park, but only that they arranged  for  the

disposal  of  waste  byproducts generated  by  the  dry  cleaning

process.

          At  some  point, PCE escaped into the environment  from

Boni-Parks  premises  or from the sewer pipes  leading  from  the

property,  perhaps through underground leaks.  The  Bergs  assert

that, throughout the time they owned and operated Boni-Park, they

used  and  maintained  the  dry  cleaning  equipment  exactly  as

specified by Norge, and that they never spilled PCE.  Because  we

do   not  address  factual  disputes  in  answering  a  certified

question,  we assume for the purposes of this decision  that  the

Bergs are correct when they contend that the release of PCE could

only  have  been  through  the  factory-designed,  approved,  and

installed drain lines.

          In  1987  or  1988 the State of Alaska  discovered  the

presence  of PCE in the soil near Boni-Park.  The state  notified

the  Bergs that they were potentially responsible persons  (PRPs)

under AS 46.03.822 (section .822), Alaskas version of the federal

Comprehensive Environmental Response, Compensation, and Liability

Act  (CERCLA).2   Alaska Statute 46.03.822 makes the owners of  a

facility from which there is a release of a hazardous substance a

class  of  PRPs, strictly liable to the state for  the  costs  of

cleanup and remediation.3  The Bergs were compelled to pay into a

cleanup  fund  with other PRPs as part of the remediation  effort

for  this  site.   The Bergs sued their insurer to  obtain  these

funds.   Section  .822  also allows PRPs  to  obtain  damages  or

contribution from other parties who contributed to the release of

the  hazardous  substance.4   The  Bergs  settlement  with  their

insurer  allowed the insurer to seek contribution, indemnity,  or

similar relief from any responsible parties.

          After  allegedly  incurring over $1  million  in  costs

associated  with  the PCE cleanup, the Bergs sought  contribution

from  the  Maytag  Corporation  and Norges  other  successors-in-

interest (hereinafter referred to collectively as Maytag).   They

sued  under  a  theory of so-called arranger liability  under  AS

46.03.822(a)(4) or U.S.C.  9607(a)(3).  Maytag removed  the  case

to  the  federal  district court, which granted in  part  Maytags

motion  to  dismiss because it held that arranger  liability  was

inapplicable to Maytag under CERCLA or section .822.5  On  appeal

to  the Ninth Circuit, the Bergs did not contest the dismissal of

their  CERCLA  claim,  but they argued that  the  district  court

erroneously   interpreted   section  .822s   arranger   liability

provision.6  The Ninth Circuit certified the two questions  above

to to clarify Alaska law on this issue.7

III. STANDARD OF REVIEW

          In  deciding a question of law upon certification  from

another court under Appellate Rule 407(a), we must stand  in  the

shoes  of  the  certifying  court, yet exercise  our  independent

judgment.8     A   certified   question   necessarily    involves

determinative  questions of Alaska law  for  which  there  is  no

controlling  precedent.9  Therefore, we must select the  rule  of

law  that  is most persuasive in light of precedent, reason,  and

policy.10

IV.  DISCUSSION

     A.   The First Certified Question

          The  first certified question asks whether, considering

the  slight difference between the language of section  .822  and

CERCLA,  a person or entity must own, possess, have authority  to

control,  or  have a duty to dispose of a hazardous substance  in

order   to   be  susceptible  to  arranger  liability  under   AS

46.03.822(a)(4).  The meaning of this provision is a question  of

first impression.

          CERCLA imposes strict liability on:

          any  person  who by contract,  agreement,  or

          otherwise arranged for disposal or treatment,

          or  arranged with a transporter for transport

          for   disposal  or  treatment,  of  hazardous

          substances owned or possessed by such person,

          by any other party or entity, at any facility

          or  incineration vessel owned or operated  by

          another  party or entity and containing  such

          hazardous substances, and . . .[11] from which

          there  is a release, or a threatened  release

          which   causes  the  incurrence  of  response

          costs, of a hazardous substance[.][12]

By contrast, AS 46.03.822(a)(4) imposes strict liability on:

          any  person  who by contract,  agreement,  or

          otherwise arranged for disposal or treatment,

          or  arranged with a transporter for transport

          for   disposal  or  treatment,  of  hazardous

          substances owned or possessed by the  person,

          other  than domestic sewage, or by any  other

          party  or  entity, at any facility or  vessel

          owned  or operated by another party or entity

          and  containing  hazardous  substances,  from

          which  there  is a release, or  a  threatened

          release   that   causes  the  incurrence   of

          response costs, of a hazardous substance[.]

(Emphasis added.)

          Both  parties acknowledge that CERCLA is the source  of

section  .822s so-called arranger liability provision,  but  they

differ  on how closely section .822s meaning was meant  to  track

that   of   CERCLA.    While  42  U.S.C.    9607(a)(3)   and   AS

46.03.822(a)(4)  contain  nearly  identical  wording,  the  Ninth

Circuit  has  noted  a small but potentially  pivotal  difference

between  the two provisions.  Alaskas legislature added the  word

or to section .822 before by any other party or entity.

          The  parties devoted much of their briefing to debating

the  significance  of this difference.  Maytag  argues  that  the

missing or in CERCLA is merely the result of sloppy drafting, and

should be read into the provision by common sense.  As the  words

of  the two provisions are nearly identical, Maytag urges  us  to

interpret  subsection .822(a)(4) as imposing the  same  thing  as

subsection 9607(a)(3):  strict liability for anyone who  arranged

for  disposal or treatment of a hazardous substance that he owned

or  possessed.  By arguing that the arranger liability provisions

of  CERCLA  and section .822 are worded essentially  identically,

Maytag  implies  that federal CERCLA case law  should  be  strong

persuasive  authority as to the interpretation of  section  .822s

arranger liability.  Maytag then points to federal cases that  it

believes would not support arranger liability here.

          The   Bergs  argue  that  federal  law  is  essentially

different   from   state   law  because   of   their   linguistic

dissimilarities, and that Alaskas statute is broader than CERCLA,

creating arranger liability for any person who . . . arranged . .

. for . . . treatment of hazardous substances, owned or possessed

by  the  person . . . or by any other party or entity  .  .  .  .

(Emphasis  added.)  The Bergs contend that federal cases  are  of

little help in interpreting section .822.

          While  federal case law interpreting a federal  statute

does  not  control our decision in interpreting a state  statute,

the  Alaska  legislature  intended  that  CERCLA  be  used  as  a

framework for interpreting section .822.13  Accordingly, we  look

first  to  the federal cases for guidance.  Although CERCLA  does

not  define  the  term arranged, federal courts have  established

basic  rules  for  determining arranger liability.   The  Supreme

Court  has  noted  that Congress intended that CERCLA  contain  a

sweeping  remedy  for  hazardous  waste  contamination.14   Other

federal  courts have noted that a broad construction  of  CERCLAs

arranged for clause is consistent with Congresss overall  purpose

in  enacting  CERCLA15  or  have interpreted  arranger  liability

liberally, in light of CERCLAs  overwhelmingly remedial scheme. 16

The  all-inclusive phrase, by contract, agreement, or  otherwise,

following the word arranged further indicates the broad potential

scope  of  this provision.17  In determining arranger  liability,

federal courts look beyond the defendants characterization of the

transaction  at issue,18 and instead examine the  facts  of  each

individual case.19

          Our   review  of  the  federal  cases,20  however,  has

disclosed no federal decision involving facts truly analogous  to

those  of  the present case.21  And while Alaska law is generally

modeled on CERCLA, it is clear that there are differences between

the  two statutes in several respects.  We thus turn to a  closer

inspection of the two statutory schemes,22 with special attention

to the text and legislative history of section .822.

          Neither  AS  46.03.822(a)(4)  nor  CERCLA  defines  the

phrase  arranged for.  However, there is an important  difference

between section .822 and CERCLA.  While CERCLA lists four classes

of  persons potentially responsible for the release of  hazardous

substances,  subsection  .822(a) lists five.   Those  potentially

responsible under  9607(a) are: (1) the owner and operator  of  a

vessel  or  a  facility  from  which  hazardous  substances  were

released; (2) the owner or operator of a facility where hazardous

substances  were  disposed  of, at  the  time  of  disposal;  (3)

arrangers;   and  (4)  transporters  of  hazardous  substances.23

          Subsection .822(a)(1) adds to CERCLAs classes of PRPs the owner

of,  and  the person having control over, the hazardous substance

at  the  time  of  the  release.   Our  principles  of  statutory

construction  militate against interpreting a statute in a manner

that   renders  other  provisions  meaningless.  24    Thus,   in

interpreting   subsection   .822(a)(4),   we   cannot   disregard

subsection  .822(a)(1)  or render it redundant.   Because  Alaska

treats  as  PRPs  those  who  have ownership  and  control  of  a

hazardous  substance  as  well  as  those  who  arrange  for  its

disposal, these classifications cannot be synonymous.

          This difference between Alaska and federal law reflects

our  legislatures  intent  to  expand  liability  beyond  CERCLAs

standards, even if section .822s legislative history is silent as

to  the  interpretation  and application  of  arranger  liability

specifically.    While  section  .822  was  modeled   on   CERCLA

generally,  it  was  revised in the months  following  the  Exxon

Valdez  catastrophe, so its scope would be broader than  that  of

its  forebear.25  One commentator noted that, under  the  revised

section .822, persons merely responsible for managing or handling

a  hazardous substance could face liability for its release  even

after the substance has left their control.26

          In  light  of  the  textual  distinctions  between  the

federal  and  state statutes, and based upon our  review  of  the

legislative  history  of section .822, we  adopt  a  standard  of

arranger  liability  that  is broader  than  that  of  the  Ninth

Circuit.   Like  most courts assigning arranger  liability  under

CERCLA,  we hold that arranger liability under AS 46.03.822(a)(4)

requires  some actual involvement in the decision to  dispose  of

waste27 that was substantial or integral.  However, we note  that

actual  involvement  in  a  decision  to  dispose  of  waste  can

encompass involvement in deciding how to dispose of waste  or  in

facilitating  such  disposal.  Involvement  in  deciding  how  to

dispose of waste can, in turn, include actions such as designing,

installing,  or  connecting a system that disposes  of  waste  on

          behalf of a third party.

          Our  interpretation of AS 46.03.822(a)(4) finds support

in  a  state case with facts similar to this one, R.R.  Street  &

Co.,  Inc.  v.  Pilgrim Enterprises, Inc.28  Pilgrim  was  a  dry

cleaner seeking to recover PCE cleanup costs from Street, its dry-

cleaning  equipment supplier.29  The Texas appellate  court  held

that Street was an arranger under the Texas equivalent of CERCLA.30

The  court noted that the federal circuit courts agree that there

must be a nexus between the potentially responsible party and the

disposal  of the hazardous substance, and that, [g]enerally,  the

nexus must be premised on the conduct of the party in respect  to

the  disposal of the hazardous waste.31  As the court summarized,

[a]lmost all courts that have held defendants liable as arrangers

have found that the defendant had some actual involvement in  the

decision to dispose of waste.32  Because the defendant gave direct

advice  .  . . as to how to dispose of waste containing  PCE,  it

thus  had  some actual involvement in the decision to dispose  of

the waste.33

          We  find  the  reasoning  of  the  Texas  court  to  be

persuasive,  particularly since the facts of this case  are  very

similar.   Like  the supplier in R.R. Street, Norge  visited  and

inspected  the Bergs business and provided service and  technical

advice.34   While Norge did not actually conduct tests  involving

PCE,  it  did connect the dry cleaning equipment to the  plumbing

system.  We apply the actual involvement standard articulated  in

R.R. Street because this standard conforms with the intent of the

Alaska  legislature  when it revised section .822  and  broadened

arranger liability.

     B.   The Second Certified Question

          Having  decided  that a person need not  own,  possess,

have  authority  to  control, or have a  duty  to  dispose  of  a

hazardous  substance in order to be subject to arranger liability

under  section  .822,  we  turn  next  to  the  second  certified

question.  This question asks whether a person or entity  lacking

          ownership, possession, authority, or a duty to dispose can be

liable  for making, selling, or installing a useful product  that

purposely directs hazardous substances into the environment.35

          Federal  courts  have  limited  arranger  liability  by

reading  arranged  in the context of for disposal  or  treatment.

They  have consistently held that a manufacturer who does nothing

more than sell a useful, albeit hazardous, product to an end user

has  not arranged for disposal of a hazardous substance.36  Under

this  useful  product  exception, even a company  distributing  a

hazardous chemical that later causes environmental harm can avoid

liability  as an arranger under CERCLA.37  In classifying  useful

products, federal courts have recognized several basic standards.

A  newly manufactured chemical incorporated into other downstream

products   is   considered  useful;  thus,  [s]elling   hazardous

substances  as  part  of  a  complete, useful  product  does  not

generally  make a party a responsible person.38  Similarly,  used

substances   or  products  containing  hazardous  materials   are

considered useful and are not disposed of when sold for  reuse.39

Even   arranging  the  sale  of  hazardous  byproducts  of  other

manufacturing processes can fall within the useful  exception  to

CERCLA  liability if such substances are themselves intended  for

other  productive uses.40   The key inquiry is often whether  the

alleged  arrangers intent was to dispose of waste or  to  sell  a

product.41

          Essentially, the second certified question asks whether

AS  46.03.822(a)(4) includes CERCLAs useful product exception  to

arranger  liability.   We  have never  addressed  that  doctrine,

either  in  reference to CERCLA or in applying  this  states  own

environmental laws.  But the Alaska legislature clearly  intended

section  .822  to contain some exception from arranger  liability

for  useful products.  Legislators voiced concern that if section

.822  was too broad, it would lead to exorbitant insurance  costs

and deter commerce, particularly the supply of goods and services

to   rural   communities.42   The  legislature  enacted   a   law

          specifically designed to avoid imposing liability on virtually

everyone  in  the  chain  of commerce who  had  ever  handled  [a

released hazardous] substance, even if that person had absolutely

nothing to do with the release.43  Thus, section .822 represents a

compromise  between the goal of controlling hazardous  waste  and

the  desire  to  ensure  that useful products  are  available  to

consumers.44

          While  many  federal cases discuss the  useful  product

exception,  none of the cases cited by Maytag, nor  any  that  we

could find, applied the doctrine to shield a party whose products

or  services were known to facilitate another partys disposal  of

hazardous  materials;  instead,  most  federal  cases  apply  the

exception to shield suppliers of tangible physical goods  put  to

further productive use by their recipients.45  But this case deals

with  machines  and  services specifically  designed  to  release

hazardous substances as part of their essential function.  As  we

noted  above, the water/Perc separator flushed waste  water  into

sewer  lines, and post-vaporization PCE-contaminated  sludge  was

also  flushed into sewer lines.  Thus, we are not persuaded  that

the  useful  product  exception  to  section  .822  liability  is

applicable in this case.

          Furthermore,  the history of section  .822  shows  that

Alaskas  useful product exception is narrower than CERCLAs.   The

legislature noted that it would not go nearly as far as CERCLA in

limiting the liability of persons dealing in useful substances.46

Specifically, section .822s sponsors noted that, while CERCLA was

the model for section .822 generally, CERCLA is directed only  at

wastes,  while section .822 was drafted in such a  way  that  all

harmful substances are treated the same.47

          Thus, while we recognize a useful product exception  to

arranger  liability under section .822, this exception  does  not

protect  from  arranger  liability under  AS  46.03.822(a)(4)  an

entity  manufacturing, selling, and installing a  useful  product

that   is  intended to direct a hazardous substance into  a  city

          sewer system.

     B.   The Bergs Other Contribution Claims Need Not Be Addressed.

          The  Bergs also argue that the overriding issue in this

case  is  whether  they can maintain a state  contribution  claim

under AS 46.03.828, AS 09.16.010-040, or AS 09.17.080 in addition

to  section .822.  Because we were asked by the Ninth Circuit  to

resolve  only  two questions concerning the proper interpretation

of  AS  46.03.822, we decline the invitation to determine whether

the  Bergs have a claim for contribution under other sections  of

the  Alaska Statutes.  While we may reformulate a question as  we

see  fit,48  we  decline  to address issues  not  raised  by  the

certifying court.49

V.   CONCLUSION

          1.   Alaska  Statute 46.03.822(a)(4) does  not  require

that  a person own, possess, have authority to control, or a duty

to  dispose  of  a hazardous substance for that  person  to  face

arranger  liability  for the release of that substance.   Rather,

under AS 46.03.822(a)(4), any person who was actually involved in

a  decision to dispose of, or a decision on how to dispose of,  a

hazardous substance may be liable.

          2.    The   provider  of  a  useful  product   is   not
automatically liable under AS 46.03.822(a)(4) for the  subsequent
release of a hazardous substance related to that product.  But an
entity  may  be liable if it manufactures, sells, or  installs  a
useful  product  that is intended to direct,  and  when  used  as
designed, directs a hazardous substance into a city sewer system.
_______________________________
     1    Berg v. Popham, 307 F.3d 1028, 1029 (9th Cir. 2002).

     2    42 U.S.C.  9601-9675 (West 2004).

     3    AS 46.03.822 states in relevant part:

          (a)  . . . the following persons are strictly
          liable,  jointly and severally, for  damages,
          for   the  costs  of  response,  containment,
          removal, or remedial action incurred  by  the
          state, a municipality, or a village, and  for
          the   additional  costs  of  a  function   or
          service,  including  administrative  expenses
          for  the  incremental costs of providing  the
          function or service, that are incurred by the
          state, a municipality, or a village, and  the
          costs  of  projects  or activities  that  are
          delayed or lost because of the efforts of the
          state,  the  municipality,  or  the  village,
          resulting  from an unpermitted release  of  a
          hazardous  substance  or,  with  respect   to
          response costs, the substantial threat of  an
          unpermitted release of a hazardous substance:
          . . . .
               (2)  the  owner  and the operator  of  a
          vessel  or  facility, from which there  is  a
          release, or a threatened release that  causes
          the  incurrence  of  response  costs,  of   a
          hazardous substance[.]
          
     4    AS 46.03.822(j) provides:

          A person may seek contribution from any other
          person  who  is  liable  under  (a)  of  this
          section during or after a civil action  under
          (a)  of  this  section.  Actions  under  this
          subsection shall be brought under the  Alaska
          Rules of Civil Procedure and are governed  by
          state   law.    In   resolving   claims   for
          contribution  under this section,  the  court
          may  allocate damages and costs among  liable
          parties using equitable factors determined to
          be appropriate by the court.  This subsection
          does  not  diminish the right of a person  to
          bring  an  action  for  contribution  in  the
          absence  of a civil action under (a) of  this
          section.
          
     5    Berg, 307 F.3d at 1029-30.

     6    Id. at 1030.

     7    Id. at 1029, 1031-32.

     8    FDIC v. Laidlaw Transit, Inc., 21 P.3d 344, 346 (Alaska
2001).

     9    Id.

     10    Kallstrom v. U.S., 43 P.3d 162, 165 (Alaska 2002).

     11    42 U.S.C.  9607(a)(3).

     12    42 U.S.C.  9607(a)(4).

     13    See Bill Review letter from Douglas B. Baily, Attorney
General,  to Governor Steve Cowper on H.B. 68 (May 11, 1989),  in
Alaska  State  Archives, Series 1185, Record Group  91,  Box  No.
7892, File No. 883-89-0039.

     14     Pennsylvania v. Union Gas Co., 491 U.S. 1, 21  (1989)
(plurality  opinion)   (overruled on other  grounds  by  Seminole
Tribe of Florida v. Florida, 517 U.S. 44 (1996)).

     15     Morton Intl, Inc. v. A.E. Staley Mfg. Co.,  343  F.3d
669, 676 (3d Cir. 2003).

     16     U.S.  v. Vertac Chem. Corp., 966 F. Supp. 1491,  1501
(E.D. Ark. 1997) (quoting U.S. v. Aceto Agric. Chems. Corp.,  872
F.2d 1373, 1381 (8th Cir. 1989)).

     17    See Morton, 343 F.3d at 676.

     18    Id. at 677.

     19     Concrete Sales & Servs., Inc. v. Blue Bird Body  Co.,
211 F.3d 1333, 1336 (11th Cir. 2000).

     20    The Ninth Circuit demands actual exercise of control by
someone  within a defendant entity, U.S. v. Shell  Oil  Co.,  294
F.3d  1045, 1058 (9th Cir. 2002), because [n]o court has  imposed
arranger  liability on a party who never owned or possessed,  and
never  had  any authority to control or duty to dispose  of,  the
hazardous materials at issue.  Id. at 1058 (quoting U.S. v.  Iron
Mountain Mines, Inc., 881 F. Supp. 1432, 1451 (E.D. Cal.  1995)).
The  Second Circuit has suggested that actual involvement in  the
decision   to  dispose  of  waste,  Gen.  Elec.  Co.   v.   AAMCO
Transmissions,  Inc.,  962  F.2d 281,  286  (2d  Cir.  1992),  is
sufficient. Id. at 286-87. The Seventh Circuit imposes  liability
if  a defendant intended to arrange for the disposal or treatment
of the harmful substance,  Amcast Indus. Corp. v. Detrex Corp., 2
F.3d  746, 751 (7th Cir. 1993), while the Sixth Circuit looks  at
whether there is a contract or agreement or if the defendant  has
taken any affirmative acts to dispose of the hazardous substance.
U.S.  v. Cello-Foil Prods., Inc., 100 F.3d 1227 (6th Cir.  1996).
The  Sixth  Circuit  explained that an intent-based  standard  of
liability does not contradict CERCLAs strict liability.   Id.  at
1232.   The  defendants state of mind only determines whether  he
arranged  for  disposal or treatment.  Id.  Once  the  intent  to
arrange  is determined, that arranger is strictly liable for  any
harms  resulting from the arrangement.  Id.  The Eleventh Circuit
is  flexible and will consider several factors, none of which  is
dispositive, including the intent to dispose of the substance  at
the  time  of  the  transaction, whether the defendant  made  the
crucial decision to place hazardous substances in the hands of  a
particular  facility,  and  whether the  defendant  knew  of  the
disposal.   Concrete Sales & Servs., Inc., 211  F.3d  at  1336-37
(internal citations omitted).

     21     The  cases  cited by Maytag involve factual  settings
substantially different from the instant dispute:  Iron  Mountain
Mines,  Inc., 881 F. Supp. at 1435-37, 1449, 1451-52 (governments
construction and management of dams regulating flow of  waterways
polluted by mining runoff does not constitute arranging  for  the
disposal of runoff); Gen. Elec. Co. v. AAMCO Transmissions, Inc.,
962  F.2d  281,  283-88  (2d Cir. 1992) (oil  companies  did  not
arrange  for  disposal  of  waste  oil  from  affiliated  service
stations,  where oil companies had supplied fresh oil, equipment,
and inspection services, but did not require service stations  to
collect and resell waste oil); Edward Hines Lumber Co. v.  Vulcan
Materials  Co.,  685  F.  Supp.  651,  652-56  (N.D.  Ill.  1988)
(defendant  who  designed, constructed,  and  installed  chemical
system  in  wood  treatment plant but  did  not  decide  how  the
hazardous  substance would be disposed of after its use  did  not
arrange for disposal of chemicals).

     22    See Flisock v. State, Div. of Ret. & Benefits, 818 P.2d
640,  643  (Alaska  1991) (holding that statutory  interpretation
begins with language of statute).

     23    42 U.S.C.  9607(a) (West 2004).

     24     Rollins v. State, Dept of Revenue, Alcoholic Beverage
Control  Bd., 991 P.2d 202, 208 (Alaska 1999) (quoting M.R.S.  v.
State, 897 P.2d 63, 66 (Alaska 1995)).

     25    See Bill Review letter, supra, n.14.

     26     Committee Minutes, Senate Judiciary Committee hearing
on  H.B. 68 (May 2, 1989) (comments of Dennis Kelso, Commissioner
of Department of Environmental Conservation).

     27     See Gen. Elec. Co. v. AAMCO Transmissions, Inc.,  962
F.2d  281,  286  (2d. Cir. 1992) (noting that almost  all  courts
assigning  arranger  liability  require  actual  involvement   in
decision to dispose of waste).

     28    81 S.W.3d 276 (Tex. App. 2001).  In addition to relying
on  R.R.  Street, the Bergs also attempt to argue that  Cipri  v.
Bellingham  Frozen Foods, Inc., 596 N.W.2d 620  (Mich.  Ct.  App.
1999),  weighs in their favor as well.  However, Cipri  does  not
significantly  widen  CERCLA-type arranger liability  beyond  the
federal case law.  Instead, it seems to follow the federal  cases
looking at the intent and primary purpose behind a transaction to
determine  if  it  was an arrangement for disposal  of  hazardous
substances.   Cipri,  596  N.W.2d at 626-27.   More  importantly,
Cipris  facts  are  not  analogous  to  the  present  case.   The
defendant  in  Cipri not only arranged for the  disposal  of  the
physical substances that damaged the plaintiffs property, but  it
actually produced, owned, and disposed of the substances.   Cipri
v.  Bellingham Frozen Foods, Inc., 539 N.W.2d 526, 527-28  (Mich.
Ct. App. 1995).

     29    Street, 81 S.W.3d at 284-85.

     30    The court noted that no prior Texas case had discussed
arranger liability under that states version of CERCLA.   Because
the  Texas statute had wording that was substantially similar  to
CERCLA, the court stated it would presume, absent some indication
to  the  contrary,  that the legislature intended  to  adopt  the
construction placed on that wording by the federal courts.   R.R.
Street & Co., Inc., 81 S.W.3d at 290.

     31    Id. at 291.

     32    Id. (quoting Gen. Elec. Co., 962 F.2d at 286).

     33    Id. at 295.

     34    Street, 81 S.W.3d at 284.

     35      The  parties did not brief this issue,  but  instead
devoted their attention to the first certified question and other
issues not raised by the Ninth Circuit.

     36    See, e.g., City of Merced v. Fields, 997 F. Supp. 1326,
1332  (E.D.  Cal.  1998) (citing 3550 Stevens  Creek  Assocs.  v.
Barclays  Bank  of California, 915 F.2d 1355, 1361-62  (9th  Cir.
1990))  (noting  that  the Second, Fifth, Seventh,  and  Eleventh
Circuits  have ruled similarly).  See also U.S. v.  Union  Corp.,
277  F. Supp.2d 478, 490 (E.D. Pa. 2003) (noting that the Fourth,
Sixth, Ninth, and Eleventh Circuits are in agreement).

     37    In City of Merced the court indicated that the sale of
PCE  alone  was insufficient to impose liability under 42  U.S.C.
9607(a).  997 F. Supp. at 1332.

     38     U.S.  v. Petersen Sand & Gravel, Inc., 806  F.  Supp.
1346, 1354 (N.D. Ill. 1992).

     39     Pneumo Abex Corp. v. High Point, Thomasville & Denton
R.  Co.,  142 F.3d 769, 775 (4th Cir. 1998) (sale of  used  wheel
bearings to foundry for recycling was sale of useful product, not
disposal).

     40     See, e.g., Petersen Sand & Gravel, Inc., 806 F. Supp.
at  1354-55 (applying useful product exception to sale of fly ash
for use in road construction).

     41     New York v. Solvent Chem. Co., Inc., 225 F. Supp.  2d
270, 281-82 (W.D.N.Y. 2002).  See also Florida Power & Light  Co.
v.  Allis  Chalmers Corp., 893 F.2d 1313, 1319 (11th  Cir.  1990)
(upholding    summary   judgment   for   defendant    transformer
manufacturers where plaintiff failed to show sale of transformers
was  attempt  to dispose of hazardous chemicals contained  within
transformers).

     42    Committee Minutes, Senate Special Committee on Oil and
Gas  hearing  on  H.B.  68 (April 12, 1989);  Committee  Minutes,
Senate Judiciary Committee hearing on H.B. 68 (May 2, 1989).

     43     Floor  Memo  for H.B. 68, Senate Judiciary  Committee
(undated), in Alaska State Archives, Box #17568.

     44     Committee Minutes, Senate Judiciary Committee hearing
on H.B. 68 (May 2 & 4, 1989).

     45     See e.g., Florida Power & Light Co., 893 F.2d at 1319
(upholding    summary   judgment   for   defendant    transformer
manufacturers where plaintiff failed to show sale of transformers
was  attempt  to dispose of hazardous chemicals contained  within
transformers);  U.S. v. Consol. Rail Corp., 729  F.  Supp.  1461,
1469-73  (D. Del. 1990) (no arranger liability for defendant  who
shipped  waste  coal  tar to be used for pressure  treating  wood
where  defendants  did not make crucial decision  to  dispose  of
hazardous  substances or allow third parties to do  so  in  their
stead);  City of Merced v. Fields, 997 F. Supp. 1326, 1332  (E.D.
Cal.  1998) (manufacturer cannot be liable under CERCLA for  mere
sale of useful chemical to user).

     46     Floor  Memo  for H.B. 68, Senate Judiciary  Committee
(undated), in Alaska State Archives, Box #17568.

     47     See comments of Senator Jan Faiks, Committee Minutes,
Senate Judiciary Committee hearing on H.B. 68 (May 2, 1989).

     48     Victor v. State Farm Fire & Cas. Co., 908 P.2d  1043,
1044  n.2  (Alaska 1996) (citing 17A Charles A.  Wright  et  al.,
Federal Practice & Procedure  4248, at 177-178 (1988).

     49    See FDIC v. Laidlaw Transit Inc., 21 P.3d 344, 349 n.19
(Alaska  2001)  (declining  to  address  issues  not  raised   by
certifying court).