Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Parks Hiway Enterprises, LLC v. CEM Leasing Inc. (2/4/00) sp-5236

Parks Hiway Enterprises, LLC v. CEM Leasing Inc. (2/4/00) sp-5236

     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.


                              )    Supreme Court No. S-8593
             Appellant,       )
                              )    Superior Court No.
     v.                       )    4FA-95-2117 CI
individually and operating as )
             Appellees.       )    [No. 5236 - February 4, 2000]

          Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
                      Dale O. Curda, Judge.

          Appearances:  Peter J. Aschenbrenner, Sheila
          Doody Bishop, Aschenbrenner Law Offices, Inc.,
Fairbanks, for Appellant.  Daniel T. Quinn, Gregory R. Henrikson,
Richmond & Quinn, Anchorage, for Appellees.

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

          MATTHEWS, Chief Justice.

          After Parks Hiway's groundwater was contaminated by fuel
leaking from an adjacent service station, it sued the station's
fuel supplier, Petroleum Sales.  The superior court granted summary
judgment to Petroleum Sales, finding its relationship to the
contamination too remote to impose statutory or common law
liability.  Parks Hiway now appeals the court's dismissal of its
various claims.  Because we agree with the superior court's
findings, we affirm.   
          Phillip and Genevieve Carboy have owned and operated the
Gold Hill Service Station in Fairbanks since 1981.  Throughout the
Carboys' ownership, Gold Hill maintained up to three underground
storage tanks on its property to hold gasoline.  Although the
Carboys checked their tanks periodically for leaks, they failed to
comply with regulations requiring tank operators to report the
tanks' registration numbers, proof of financial responsibility, and
proof of testing to the state.     
          From 1981 until 1994, Petroleum Sales, Inc., supplied
petroleum products to Gold Hill.  When Gold Hill required addi-

tional fuel, Phillip Carboy would telephone Petroleum Sales and
place an order.  Petroleum Sales would then deliver the product to
Gold Hill and directly fill the appropriate tanks.  Carboy did not
instruct Petroleum Sales' delivery personnel on how to fill the
tanks during this process.
          Gold Hill and Petroleum Sales are independent, separately
owned, unaffiliated companies.  Petroleum Sales did not oversee,
manage, or operate the Gold Hill station and did not construct,
install, maintain, or test the station's tanks.  Moreover, Gold
Hill never asked or authorized Petroleum Sales to perform any such
          Parks Hiway Enterprises, LLC, owned the parcel adjacent
to the Gold Hill station.  In 1994 the Alaska Department of
Environmental Conservation (the Department) determined that benzene
had contaminated the groundwater under Parks Hiway's property.  The
Department identified Gold Hill as a probable source of the
pollution.  Gold Hill promptly removed its tanks, after which
investigators discovered that the soil and groundwater surrounding
the tank area were heavily contaminated with petroleum components.
The rate of leakage was estimated at approximately one to two
quarts per month over a twenty-year period.  
           Parks Hiway subsequently ceased drawing drinking water
from its well.  Parks Hiway suffered economic loss as a result of
this action.
          Parks Hiway sued the Carboys in 1995 and settled with
them in 1996.  In 1997 Parks Hiway filed an amended complaint
naming Petroleum Sales as a defendant.  Parks Hiway's amended
complaint also named as defendants CEM Leasing, Inc., James E.
Weymiller, Steven C. Winquist, and Phillip M. Tannehill.  We refer
to these defendants collectively as "Petroleum Sales." The
complaint alleged that Petroleum Sales was responsible for the soil
and groundwater contamination of Parks Hiway's property, and it
asserted claims under strict liability, nuisance, trespass, and
negligence theories.
          Petroleum Sales moved for summary judgment in March 1997.
The superior court granted Petroleum Sales' motion on December 16,
1997.  Parks Hiway subsequently moved both for reconsideration and
to file an amended complaint.  The superior court agreed to
reconsider its ruling.  But in its January 23, 1998, order granting
final judgment to Petroleum Sales, the court ultimately denied both
of Parks Hiway's motions.
          Parks Hiway appeals the superior court's grant of summary
judgment to Petroleum Sales, the denial of its motion to submit an
amended complaint, and the court's refusal to strike two affidavits
Petroleum Sales submitted during the summary judgment proceedings. 
     A.   Standard of Review
          We review grants of summary judgment de novo. [Fn. 1]  We
will affirm the ruling if no genuine issues of material fact exist
and the moving party is entitled to judgment as a matter of law.
[Fn. 2]  We draw all reasonable inferences of fact in favor of
Parks Hiway as the non-moving party. [Fn. 3]  Because this case
involves various questions of law, we are not bound by the lower
court's decision and will instead adopt the rule of law "most
persuasive in light of precedent, reason, and policy."[Fn. 4]
     B.   The Superior Court Did Not Err by Granting Summary
Judgment to Petroleum Sales on Parks Hiway's Statutory Strict
Liability Claims.

          Alaska Statute 46.03.822 imposes strict liability on the
owners and transporters of hazardous substances for unpermitted
releases of the substance. [Fn. 5]  Parks Hiway argues on appeal
that the superior court erred by refusing to characterize Petroleum
Sales as an "owner,""person having control,"or "transporter"of
the fuel. 
          1.   Petroleum Sales was not an "owner"or "person
having control"under AS 46.03.822(a)(1).

          Alaska Statute 46.03.822(a)(1) imposes strict liability
on "the owner of, and the person having control over, the hazardous
substance at the time of the release." The superior court found
subsection .822(a)(1) inapplicable to Petroleum Sales, ruling that
the company neither owned nor controlled the fuel when it leaked
from Gold Hill's tanks and contaminated the underlying groundwater.
Parks Hiway challenges the court's conclusion, arguing that
Petroleum Sales still retained control over the fuel even after
title had passed to Gold Hill.
               a.   Petroleum Sales was not an "owner"of the fuel
at the time of the release.

          Alaska's hazardous substance statute defines "owner"for
purposes of AS 46.03.822(a)(1) in circular terms. [Fn. 6]  Other
courts confronting the equally circular definition of "owner"under
the corresponding Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) provision have given the
term its ordinary meaning. [Fn. 7]  The superior court employed a
title theory of ownership for purposes of AS 46.03.822(a)(1), under
which the "owner"is the person holding title to the fuel upon its
transfer into Gold Hill's tanks.  The court relied on Redwing
Carriers, Inc. v. Saraland Apartments, which interpreted the term
"owner"for purposes of CERCLA liability as the party holding title
to the polluted site. [Fn. 8]  Parks Hiway offers no authority
supporting a contrary definition. 
          We agree with the superior court.  As a movable good, the
fuel that Petroleum Sales supplied to Gold Hill was governed by AS
45.02, Alaska's version of the Uniform Commercial Code (UCC). [Fn.
9]  Alaska Statute 45.02.401(2) provides that "unless otherwise
explicitly agreed, title passes to the buyer at the time and place
at which the seller completes performance with reference to the
physical delivery of the goods." Title to -- and thus, ownership
of -- the fuel therefore transferred to Gold Hill when Petroleum
Sales deposited it into the latter's tanks. [Fn. 10]  Because
Petroleum Sales owned neither the fuel nor the facility from which
the fuel leaked when the contamination of Parks Hiway's groundwater
occurred, Petroleum Sales is not an "owner"under AS
               b.   Petroleum Sales was not the person "having
control over the [fuel] at the time of the release."

          Alaska Statute 46.03.826(4) defines "having control over
a hazardous substance"as  
          producing, handling, storing, transporting, or
refining a hazardous substance for commercial purposes immediately
before entry of the hazardous substance into the atmosphere or in
or upon the water, surface, or subsurface land of the state, and
specifically includes bailees and carriers of a hazardous

          Echoing the superior court, Petroleum Sales reasons
persuasively that it was not the person "having control"over the
fuel when the soil and groundwater contamination occurred. 
Petroleum Sales had no operational or maintenance rights or
responsibility at Gold Hill, and it owned neither the fuel nor the
tanks into which the fuel was pumped.  The supplier's control over
its product thus terminated upon the fuel's transfer into Gold
Hill's storage tanks. [Fn. 11]  
          Parks Hiway argues that the definition of person "having
control"in AS 46.03.826(4) -- which includes persons who handle or
transport a hazardous substance immediately before its release --
effectively modifies the liability requirement under AS
46.03.822(a)(1) that the person have control "at the time of the
release." (Emphasis added.)  It characterizes the delivery of fuel
to the Gold Hill station as "a continuous process of pollution"in
which "Petroleum Sales is putting fuel into the system, [and] some
of the fuel is going out of the system." Under Parks Hiway's
"continuous process of pollution"theory, Petroleum Sales thus had
control immediately before the fuel began to leak from Gold Hill's
defective tanks.   
          This argument remains factually dubious in light of the
extremely slow and virtually undetectable rate of leakage from Gold
Hill's tanks.  That only one to two quarts of fuel leaked from the
tanks each month undercuts Parks Hiway's assertion that the fuel
was appreciably spilling out of the tanks as Petroleum Sales filled
          Parks Hiway's argument also fails under two separate
rules of statutory construction.  First, under the doctrine of
ejusdem generis, we interpret the general definition of "having
control"in AS 46.03.826(4) in light of the more specific language
found in AS 46.03.822(a)(1). [Fn. 12]  Second, Parks Hiway's
interpretation would render AS 46.03.822(a)(1)'s phrase "at the
time of the release"largely meaningless, violating our preference
for a construction that gives effect to all statutory provisions.
[Fn. 13] 
               c.   Legislative history
          Parks Hiway contends that the legislative history of AS
46.03.822 reveals the legislature's intent to extend strict
liability to fuel suppliers.  But Petroleum Sales cites substantial
legislative history indicating that the legislature did not intend
to impose strict liability on fuel suppliers for releases occurring
after delivery.  Various committees discussing AS 46.03.822
emphasized that the statute "was not intended to make fuel
distributors liable for later spills of fuel,"and that "[i]f the
transporter put the fuel in the tank he was told, he would not be
liable." Thus, after "sell[ing] the product to another entity, the
distributor would not be responsible for another entity's spill."
Moreover, at least one legislator noted the statute's intent to
"protect the transporters of hazardous wastes once they had
delivered the substance." This legislative history is contrary to
Parks Hiway's contention.
          Parks Hiway's arguments concerning AS 46.03.822(a)(1) are
without merit.  We accordingly reject its attempt to hold Petroleum
Sales strictly liable under that provision.
          2.   Petroleum Sales was not an "operator"under AS

          Alaska Statute 46.03.822(a)(2) imposes strict liability
upon "the operator of a . . . facility, from which there is a
release." Parks Hiway argues that the superior court erred by
refusing to hold Petroleum Sales liable as an "operator"of the
Gold Hill station.  It claims that Petroleum Sales had sufficient
control over Gold Hill's tanks to incur operator liability under
subsection .822(a)(2).
          The term "operator"is statutorily defined in relevant
part as "any person . . . operating the facility,"[Fn. 14] a
circular definition providing little guidance to the present
inquiry. [Fn. 15]  However, the overwhelming majority of federal
courts construing the equally circular definition of "operator"
under CERCLA have concluded that the term should be given its
ordinary and natural meaning, [Fn. 16] and have required a showing
that the potentially liable party exercised actual control over the
facility, i.e., "someone actively involved in running the facility,
typically on a day-to-day, managerial basis."[Fn. 17]  In United
States v. Bestfoods, the Supreme Court defined an "operator"under
CERCLA as "someone who directs the workings of, manages, or
conducts the affairs of the facility"; "an operator must manage,
direct, or conduct operations specifically related to pollution,
that is, operations having to do with the leakage or disposal of
hazardous waste, or decisions about compliance with environmental
regulations."[Fn. 18]
          In construing "operator"for purposes of AS
46.03.822(a)(2) we are not bound by the various definitions
provided above.  However, the combined weight of the numerous
jurisdictions employing the "actual control"test under CERCLA is
a strong endorsement of that approach, which we find persuasive. 
The actual control test is also supported by our "common usage"
approach to statutory construction, under which we construe
statutory terms in accordance with their ordinary meaning. [Fn. 19] 
The legislative history discussed supra also supports an
interpretation of "operator"that would exclude petroleum suppliers
from that definition. [Fn. 20]     
          Petroleum Sales did not exercise the actual control
requisite to "operator"liability under section AS 46.03.822(a)(2). 
It did not oversee, control, or manage the Gold Hill station, and
its only interaction with the station's tanks involved refilling
them as requested by Gold Hill.  We accordingly reject Parks
Hiway's argument on this issue. 
          3.   Petroleum Sales was not a "transporter"under AS

          Alaska Statute 46.03.822(a)(5) imposes strict liability
upon "any person who accepts or accepted any hazardous substances,
other than refined oil, for transport to disposal or treatment
facilities, vessels or sites selected by the person, from which
there is a release . . . of a hazardous substance."[Fn. 21]  Parks
Hiway contends that the superior court erred by refusing to find
Petroleum Sales liable as a transporter under this section. 
          The superior court correctly ruled that Petroleum Sales
was not a "transporter"as a supplier of gasoline (a "refined
oil"), within the meaning of AS 46.03.822(a)(5).  Parks Hiway
ignores the court's rationale on appeal and instead asserts that
subsection .822(a)(5)'s exemption for suppliers of "refined oil"
was intended to apply only to common carriers.  Neither the statute
itself nor the legislative history Parks Hiway relies upon,
however, makes such a distinction.  Parks Hiway has therefore
failed to present the "strong showing"necessary to contradict the
statute's facially unambiguous language. [Fn. 22]  
          In sum, Parks Hiway has failed to show that AS 46.03.822
extends liability to fuel suppliers for contamination occurring
after sale and delivery of their product.  We therefore reject its
attempt to hold Petroleum Sales strictly liable as an "owner,"
operator,""person having control,"or "transporter"under this
     C.   The Superior Court Did Not Err by Rejecting Parks Hiway's
Trespass Theory of Liability.

          Trespass is an unauthorized intrusion or invasion of
another's land, [Fn. 23] including subsurface areas. [Fn. 24] 
Trespass liability may result from an actor's intentional,
negligent, or ultrahazardous conduct. [Fn. 25]
          The superior court rejected Parks Hiway's attempt to hold
Petroleum Sales liable for common law trespass, ruling that
Petroleum Sales did not own or control the fuel when it
contaminated the groundwater beneath Parks Hiway's property.  Parks
Hiway challenges this ruling, arguing that ownership of the
invading substance is irrelevant for purposes of trespass liability
where the actor "sets in motion"the release of the substance.
          This court has not addressed the issue of whether a
supplier of a substance is liable for trespass when, after delivery
to the buyer, the substance escapes and invades neighboring land. 
Parks Hiway cites no authority explicitly recognizing a cause of
action against the supplier under such circumstances. [Fn. 26] 
          Several cases have held that courts do not impose
trespass liability on sellers for injuries caused by their product
after it has left the ownership and possession of the sellers. [Fn.
27]  The courts in City of Bloomington v. Westinghouse Electric
Corp., [Fn. 28] Jordan v. Southern Wood Piedmont Co., [Fn. 29] Town
of Hooksett v. W.R. Grace & Co., [Fn. 30] and City of Manchester v.
National Gypsum Co. [Fn. 31] accordingly refused to hold suppliers
liable for trespass under facts roughly analogous to the present
          The general consensus thus suggests that ownership or
control of the intruding instrumentality is dispositive of an
actor's trespass liability.  Because its ownership and control over
the fuel terminated upon the product's transfer into Gold Hill's
tanks, Petroleum Sales bears no trespass liability for the fuel's
subsequent migration. 
          Moreover, "a trespass action will exist if there is a
direct causal relation between the conduct of the actor and the
intrusion of foreign matter upon the possessor's land."[Fn. 32] 
Actors therefore assume liability only when they "set[] in motion
a force which, in the usual course of events, will damage property
of another."[Fn. 33]  As a supplier of gasoline to Gold Hill,
Petroleum Sales merely performed a delivery function which, "in the
usual course of events,"would not contaminate neighboring
property.  The direct causal connection required to establish
trespass is thus absent from the present case.  We accordingly
reject Parks Hiway's trespass argument.
     D.   The Superior Court Did Not Err by Rejecting Parks Hiway's
Attempt to Hold Petroleum Sales Strictly Liable Under the Common
Law Doctrine of Ultrahazardous Activity.

          Strict liability attaches to actors engaged in
ultrahazardous activities. [Fn. 34]  An activity is ultrahazardous
if it "(a) necessarily involves a risk of serious harm . . . which
cannot be eliminated by the exercise of the utmost care, and (b) is
not a matter of common usage."[Fn. 35]  "What facts are necessary
to make an activity ultrahazardous . . . is a matter for the
judgment of the court"rather than the jury. [Fn. 36]  In Matomco
Oil Co. v. Arctic Mechanical, Inc., we suggested that hauling
gasoline as freight represents an ultrahazardous activity for which
strict liability would apply. [Fn. 37]
          The superior court, however, ruled that although
transporting gasoline is an "ultrahazardous activity,"strict
liability would attach only to harm arising "from the risk which,
being incapable of elimination by utmost care, makes the activity
ultrahazardous." Reasoning that transporting fuel was deemed
ultrahazardous due solely to gasoline's inherent volatility, the
superior court refused to extend strict liability to harm falling
outside the scope of the risk of explosion.  The court thus
rejected Parks Hiway's attempt to hold Petroleum Sales strictly
liable for environmental damage resulting from the fuel's delivery.
We agree with the superior court's reasoning. [Fn. 38]  
          On appeal, Parks Hiway refines its argument to assert
that transporting gasoline to defective tanks should constitute an
"ultrahazardous"activity warranting strict liability.  Parks Hiway
relies upon City of Northglenn v. Chevron U.S.A., Inc., [Fn. 39]
and Yommer v. McKenzie, [Fn. 40] which held operators of large
underground gasoline storage facilities strictly liable for the
contamination of neighboring property.  But the persuasive value of
Northglenn and Yommer to the present case remains extremely
limited, as both opinions involved facility owners rather than
suppliers or transporters of gasoline.  
          In the analogous case of City of Bloomington v.
Westinghouse Electric Corp., the court refused to hold a seller of
products containing toxic components strictly liable where the
contamination occurred after the buyer's purchase. [Fn. 41] 
Emphasizing that even strict liability contains a causation
element, the court reasoned that "the harm . . . was not caused by
any abnormally dangerous activity of [the seller] but by the
buyer's failure to safeguard its waste."[Fn. 42]  The Bloomington
court was thus "unwilling to extend the doctrine of strict
liability for an abnormally dangerous activity to the party whose
activity did not cause the injury."[Fn. 43] 
          We agree with Bloomington and refuse to hold Petroleum
Sales strictly liable for contamination occurring after it
delivered its product to Gold Hill.  As in that case, Parks Hiway's
injury resulted from Gold Hill's failure to properly maintain its
tanks rather than Petroleum Sales' delivery of the fuel.
     E.   The Superior Court Did Not Err by Refusing to Hold
Petroleum Sales Liable for Private Nuisance.

          Private nuisance liability results from an intentional
and unreasonable interference with another's use and enjoyment of
his or her own property. [Fn. 44]  Unintentional conduct may also
warrant nuisance liability if negligent, reckless, or abnormally
dangerous. [Fn. 45]  To incur liability, an actor's conduct must be
a substantial factor in causing the nuisance. [Fn. 46]
          The superior court rejected Parks Hiway's private
nuisance theory, reasoning that "[o]ne who has no control over
property at the time of the nuisance cannot be held liable
therefor." Echoing the court, Petroleum Sales accurately cites
numerous cases that have refused to extend nuisance liability to
hazardous material vendors uninvolved in the operation of the
facility from which the pollution eventually migrated. [Fn. 47] 
These courts agree that "liability for damage caused by a nuisance
turns on whether the defendants were in control over the
instrumentality alleged to constitute the nuisance."[Fn. 48] 
Moreover, at least one court has noted the absence of cases holding
manufacturers liable for nuisance claims arising from the use of
their products after sale. [Fn. 49]  The Restatement likewise
couches its nuisance liability rule in terms of "the possessor of
[the] land"from which the nuisance emanates. [Fn. 50]
          Against this apparent judicial consensus, Parks Hiway
cites Shockley v. Hoechst Celanese Corp. [Fn. 51] and Northridge
Co. v. W.R. Grace & Co. [Fn. 52]  Shockley involved a manufacturer
who "knowingly delivered rusty, aging, and leaking barrels of
hazardous chemicals"to a waste disposal site operated by another
entity. [Fn. 53]  Because the condition causing the nuisance, i.e.,
the leaking barrels, existed when the manufacturer delivered them
to the property from which the contamination ultimately emanated,
the court concluded that the manufacturer had satisfied the
Restatement's "substantial factor"test. [Fn. 54]  The present case
is distinguishable from Shockley because here the fuel delivered
was not defective, whereas the barrels in Shockley were.  
          Northridge involved a suit for private nuisance against
an asbestos manufacturer whose product was installed in a shopping
mall. [Fn. 55]  The Wisconsin appellate court affirmed the
manufacturer's nuisance liability, reasoning that "one who has
erected a nuisance will be responsible for its continuance, even
after he has parted with the title and the possession."[Fn. 56] 
          Northridge is distinguishable from the present case
because there is no evidence that Petroleum Sales had any reason to
know that a nuisance would result from filling Gold Hill's tanks. 
Moreover, Petroleum Sales did not "erect a nuisance"by delivering
gasoline to Gold Hill's leaking tanks; the defective tanks, rather
than the fuel migrating from them, constituted the nuisance.
          Petroleum Sales did not control either Gold Hill's tanks
or the fuel when the contamination of Parks Hiway's groundwater
occurred.  It was therefore not a substantial factor in creating
the alleged nuisance and should bear no liability.
     F.   The Superior Court Did Not Err by Rejecting Parks Hiway's
Negligence Claim.

          The tort of negligence consists of four separate and
distinct elements: (1) duty, (2) breach of duty, (3) causation, and
(4) harm. [Fn. 57]  The existence and extent of a duty is a
question of law. [Fn. 58]  The superior court rejected Parks
Hiway's negligence claim at the threshold level, ruling that
Petroleum Sales owed no affirmative duty to investigate the status
of Gold Hill's tanks before transferring fuel into them.  The court
adopted a rule requiring claimants to show that a petroleum
supplier had actual knowledge of the tanks' defect.
          Parks Hiway argues on appeal that (1) negligence requires
only constructive knowledge; and (2) AS 46.03.822(b)(1)(B)(ii), 18
AAC 78.040(b)(4), and 42 U.S.C. sec. 6991a(a)(5) impose a duty upon
Petroleum Sales to investigate and confirm the integrity of Gold
Hill's tanks before filling them.
          We decline to address whether a petroleum supplier's
negligence liability requires actual or constructive knowledge of
the tanks' defective condition, [Fn. 59] however, because Parks
Hiway has not presented sufficient evidence to create a genuine
issue of fact even under the "constructive knowledge"approach. 
The statutory and regulatory scheme cited by Parks Hiway imposes no
affirmative duty upon petroleum suppliers to confirm the structural
integrity of a customer's tank before depositing fuel into it. 
First, 18 AAC 78.040(b)(4) expressly applies only to station
owners, requiring them to inform distributors of the owner's tank
registration numbers. [Fn. 60]  Second, contrary to Parks Hiway's
assertion, AS 46.03.822(b)(1)(B)(ii) does not impose a duty to
exercise reasonable care to prevent the negligent acts of third
parties; instead, it provides a defensive escape hatch for
otherwise liable parties. [Fn. 61]  Third, 42 U.S.C. sec. 6991a(5)
merely requires Petroleum Sales to inform Gold Hill of the
station's tank notification requirements under federal law; [Fn.
62] it does not obligate suppliers to verify the integrity of the
tank itself.  Contrary to Parks Hiway's assertion, none of the
statutes and regulations cited above impose a duty on petroleum
suppliers to "investigate[] the public record."
          Drawing all reasonable inferences in Parks Hiway's favor,
Petroleum Sales owed no duty to investigate the soundness of the
tanks under the circumstances of this case.  We accordingly affirm
the rejection of Parks Hiway's negligence claim. [Fn. 63]
          As a fuel distributor with no ownership, authority, or
control over the Gold Hill Service Station, and no reason to know
that Gold Hill's tanks were leaking, Petroleum Sales is not liable
for contamination caused by the leaking tanks.  We therefore AFFIRM
the superior court's ruling in all respects.


Footnote 1:

     See Nielson v. Benton, 903 P.2d 1049, 1052 (Alaska 1995).

Footnote 2:

     See Voigt v. Snowden, 923 P.2d 778, 781 (Alaska 1996).

Footnote 3:

     See Bishop v. Municipality of Anchorage, 899 P.2d 149, 153
(Alaska 1995).  

Footnote 4:

     Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).

Footnote 5:

     The text of AS 46.03.822 provides in relevant part:

               (a) Notwithstanding any other provision
or rule of law and subject only to the defenses set out in (b) of
this section, the exception set out in (i) of this section, the
exception set out in AS 09.65.240, and the limitation on liability
provided under AS 46.03.825, 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:
                    (1) the owner of, and the person
having control over, the hazardous substance at the time of the
release or threatened release . . . .
                    (2) the owner and the operator of a
vessel or facility, from which there is a release, or a threatened
release . . . . 
                    . . . .
                    (5) any person who accepts or
accepted any hazardous substances, other than refined oil, for
transport to disposal or treatment facilities, vessels or sites
selected by the person, from which there is a release, or a
threatened release that causes the incurrence of response costs, of
a hazardous substance.

Footnote 6:

     AS 46.03.826(8) defines "owner and operator"for purposes of
AS 46.03.822(a)(1) in relevant part as "in the case of facility,
any person owning or operating the facility." The statute fails to
define "owner of hazardous substances."

Footnote 7:

     See Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d
1489, 1498 (11th Cir. 1996); Edward Hines Lumber Co. v. Vulcan
Materials Co., 861 F.2d 155, 156 (7th Cir. 1988).

Footnote 8:

     Redwing, 94 F.3d at 1498-99.  Redwing's persuasiveness is
somewhat diminished by a slight difference between the federal
statute implicated there and the Alaska statute at issue in the
present case.  The CERCLA provision imposing liability on "owners"
addresses specifically "owner[s] and operator[s] of a vessel or a
facility,"42 U.S.C. sec. 9607(a)(1) (emphasis added), while AS
46.03.822(a)(1) addresses the "owner of, and the person having
control over, the hazardous substance." (Emphasis added.)

Footnote 9:

     See Sinka v. Northern Commercial Co., 491 P.2d 116, 118
(Alaska 1971) (sale of petroleum products governed by UCC). 

Footnote 10:

     See Estate of Lewis v. State, Commercial Fisheries Entry
Comm'n, 892 P.2d 175, 183-84 (Alaska 1995) (buyer owned goods upon
accepting delivery from seller) (citing AS 45.02.401); see also In
re Crysen/Montenay Energy Co., 902 F.2d 1098, 1101-02 (2d Cir.
1990) (title to crude oil passed to buyer in delivery contract when
seller delivered and tendered oil at buyer's terminal). 

Footnote 11:

     See Edward Hines Lumber Co. v. Vulcan Materials Co., 861 F.2d
155, 156-58 (7th Cir. 1988) (supplier of chemicals not liable as
"owner or operator"under CERCLA) (but see note 8, supra (noting
difference between CERCLA and AS 46.03.822 definition of "owner"));
City of Manchester v. National Gypsum Co., 637 F. Supp 646, 656
(D.R.I. 1986) (seller of asbestos products lacked control over
products after manufacture and sale to buyer); Town of Hooksett
Sch. Dist. v. W.R. Grace & Co., 617 F. Supp. 126, 133 (D.N.H. 1984)
(seller retained no control over asbestos products where buyer
purchased products and brought them onto its premises). 

Footnote 12:

     See State Farm Fire & Cas. Co. v. Bongen, 925 P.2d 1042, 1046
(Alaska 1996) (holding that specific statutory terms will control
more general terms absent clear indication to contrary) (citing
Black's Law Dictionary (6th ed. 1990)). 

Footnote 13:

     See Homer Elec. Ass'n v. Towsley, 841 P.2d 1042, 1045 (Alaska
1992) (citing Alascom, Inc. v. North Slope Borough, Bd. of
Equalization, 659 P.2d 1175, 1178 n.5 (Alaska 1983)). 

Footnote 14:

     AS 46.03.826(8)(A)(ii).

Footnote 15:

     See 4 William H. Rodgers, Jr., Environmental Law sec. 8.12

Footnote 16:

     See id.; see also United States v. Bestfoods, 524 U.S. 51, 66
(1998); East Bay Mun. Util. Dist. v. United States Dep't of
Commerce, 142 F.3d 479, 484 (D.C. Cir. 1998).

Footnote 17:

     East Bay, 142 F.3d at 485 (adopting "actual control"test
employed by First, Second, Third, Fifth, Sixth, Seventh, Eighth,
Ninth, and Eleventh Circuits).

Footnote 18:

     Bestfoods, 524 U.S. at 66-67.

Footnote 19:

     "The goal of statutory construction is to give effect to the
legislature's intent, with due regard for the meaning the statutory
language conveys to others.  In this respect, we have repeatedly
stated that unless words have acquired a peculiar meaning, by
virtue of statutory definition or judicial construction, they are
to be construed in accordance with their common usage." McDowell
v. State, 957 P.2d 965, 970 (Alaska 1998) (quoting Tesoro Alaska
Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 905 (Alaska

Footnote 20:

     We decline Parks Hiway's invitation to follow Shell Oil Co. v.
Meyer, 684 N.E.2d 504 (Ind. App. 1997), rev'd in part, 705 N.E.2d
962 (Ind. 1998).

Footnote 21:

     AS 46.03.822(a)(5) (emphasis added).

Footnote 22:

     "Where a statute's meaning appears clear and unambiguous, . .
. the party asserting a different meaning bears a correspondingly
heavy burden of demonstrating contrary legislative intent."
University of Alaska v. Tumeo, 933 P.2d 1147, 1152 (Alaska 1997)
(citing Lagos v. City and Borough of Sitka, 823 P.2d 641, 643
(Alaska 1991)); see also University of Alaska v. Geistauts, 666
P.2d 424, 428 n.5 (Alaska 1983). 

Footnote 23:

     See Brown Jug, Inc. v. International Bhd. of Teamsters, 688
P.2d 932, 938 (Alaska 1984) (citing Restatement (Second) of Torts
sec.sec. 163, 165 (1965)).  

Footnote 24:

     See Restatement (Second) of Torts sec. 159 (1965).

Footnote 25:

     See Restatement (Second) of Torts sec.sec. 158, 165 (1965).

Footnote 26:

     Parks Hiway's reliance upon McDowell v. State, 957 P.2d 965
(Alaska 1998), is misplaced.  In McDowell, this court determined
the appropriate statute of limitations for trespass actions, but
noted the "limited nature"of its holding.  Id. at 969-70 n.8.  We
did not consider there "whether contamination resulting from
unintentional acts would satisfy the elements of a trespass claim."

          The other cases Parks Hiway cites -- Shockley v. Hoechst
Celanese Corp., 793 F. Supp 670, 674 (D.S.C. 1992), Burt v.
Beautiful Savior Lutheran Church of Broomfield, 809 P.2d 1064
(Colo. App. 1990), and Lever Bros. Co. v. Langdoc, 655 N.E.2d 577
(Ind. App. 1995) -- are inapposite because they involved defendants
who owned or controlled the trespassing instrumentality.  Fortier
v. Flambeau Plastics Co., 476 N.W.2d 593, 598 (Wis. App. 1991), is
likewise distinguishable, as it involved defendants who dumped
their hazardous waste into a municipal landfill rather than selling
and transferring control to a buyer. 

Footnote 27:

     See, e.g., City of Bloomington v. Westinghouse Elec. Corp.,
891 F.2d 611, 615 (7th Cir. 1989).

Footnote 28:

     Id. (holding chemical manufacturer not liable for trespass
where product caused contamination after sale and delivery to

Footnote 29:

     805 F. Supp. 1575, 1582-83 (S.D. Ga. 1992) (holding chemical
supplier not liable for trespass by product after sale and delivery
to buyer).  

Footnote 30:

     617 F. Supp. 126, 133 (D.N.H. 1984) (holding supplier of
asbestos products not liable for trespass where contamination
occurred after sale to buyer; supplier's ownership and control of
products ceased at time of sale).  

Footnote 31:

     637 F. Supp. 646, 656 (D.R.I. 1986) (supplier of asbestos
products not liable for trespass where contamination occurred after
sale to buyer; supplier's ownership and control over products
ceased at time of sale).  

Footnote 32:

     Lever Bros. Co. v. Langdoc, 655 N.E.2d 577, 582 (Ind. App.
1995) (emphasis added).

Footnote 33:

     Burt v. Beautiful Savior Lutheran Church of Broomfield, 809
P.2d 1064, 1067 (Colo. App. 1990) (emphasis added).

Footnote 34:

     See Matomco Oil Co. v. Arctic Mech., Inc., 796 P.2d 1336,
1341-42 (Alaska 1990).   

Footnote 35:

     Id. at 1341-42 n.13 (citing Restatement of Torts sec. 520
(1938)).  We have adopted the First Restatement's "ultrahazardous"
standard over the "abnormally dangerous"test of the Second
Restatement.  Id. at 1341 n.12; State Farm Fire & Cas. Co. v.
Municipality of Anchorage, 788 P.2d 726, 729 (Alaska 1990).    

Footnote 36:

     Matomco, 796 P.2d at 1341 (quoting Restatement of Torts sec.
cmt. h (1938)).  Compare Yukon Equip., Inc. v. Fireman's Fund Ins.
Co., 585 P.2d 1206, 1208-09 (Alaska 1978) (strict liability
applicable in all cases involving explosives) with State Farm Fire
& Cas. Co. v. Municipality of Anchorage, 788 P.2d at 729 (operation
of water delivery systems not ultrahazardous) and Matomco, 796 P.2d
at 1341-42 (welding, buffing, or grinding of petroleum tankers not

Footnote 37:

     796 P.2d at 1341 n.11 (citing Siegler v. Kuhlman, 502 P.2d
1181, 1184-85 (Wash. 1972), cert. denied, 411 U.S. 983 (1973))
(noting Washington court's conclusion that "hauling gasoline as
freight 'takes on uniquely hazardous characteristics'").

Footnote 38:

     See Restatement of Torts sec. 519 cmt. b (1938).  We also find
noteworthy that the legislature expressly exempted gasoline
transporters from strict liability under AS 46.03.822(a)(5).

Footnote 39:

     519 F. Supp. 515, 515-16 (D. Colo. 1981). 

Footnote 40:

     257 A.2d 138, 140-42 (Md. App. 1969) (applying less stringent
"abnormally dangerous"standard of Second Restatement).

Footnote 41:

     891 F.2d 611, 615-16 (7th Cir. 1989) (applying Second
Restatement's "abnormally dangerous"standard).

Footnote 42:

     Id. at 615.

Footnote 43:

     Id. at 616. 

Footnote 44:

     See Restatement (Second) of Torts sec. 822(a) (1965).

Footnote 45:

     See Restatement (Second) of Torts sec. 822(b) (1965).  Alaska
statutorily defines private nuisance as "a substantial and
unreasonable interference with the use and enjoyment of real
property, including water." AS 09.45.255. 

Footnote 46:

     See Restatement (Second) of Torts sec. 834 (1965).

Footnote 47:

     See Tioga Pub. Sch. Dist. No. 15 of Williams County v. U.S.
Gypsum Co., 984 F.2d 915, 920-21 (8th Cir. 1993); City of
Bloomington v. Westinghouse Elec. Corp., 891 F.2d 611, 614 (7th
Cir. 1989); Montana Pole & Treating Plant v. I.F. Laucks & Co., 775
F. Supp. 1339, 1348 n.10 (D. Mont. 1991); Town of Hooksett Sch.
Dist. v. W.R. Grace & Co., 617 F. Supp. 126, 133 (D.N.H. 1984);
City of Manchester v. National Gypsum Co., 637 F. Supp 646, 656
(D.R.I. 1986).

Footnote 48:

     City of Manchester, 637 F. Supp. at 656; U.S. Gypsum, 984 F.2d
at 920.   

Footnote 49:

     See City of Bloomington, 891 F.2d at 614.

Footnote 50:

     Restatement (Second) of Torts sec. 839 (1965).

Footnote 51:

     793 F. Supp. 670 (D.S.C. 1992), rev'd in part on other
grounds, 996 F.2d 1212 (4th Cir. 1993).

Footnote 52:

     556 N.W.2d 345 (Wis. App. 1996). 

Footnote 53:

     793 F. Supp. at 674.

Footnote 54:

     See id. 

Footnote 55:

     556 N.W.2d at 351.

Footnote 56:

     Id. (quoting Lohmiller v. Indian Ford Water-Power Co., 8 N.W.
601, 602 (Wis. 1881)).

Footnote 57:

     See Lyons v. Midnight Sun Transp. Servs., Inc., 928 P.2d 1202,
1204 (Alaska 1996) (citing Alvey v. Pioneer Oilfield Servs., Inc.,
648 P.2d 599, 600 (Alaska 1982)).

Footnote 58:

     See Mulvihill v. Union Oil Co., 859 P.2d 1310, 1314 n.4
(Alaska 1993).

Footnote 59:

     The superior court relied on Citizens & S. Trust Co. v.
Phillips Petroleum Co., 385 S.E.2d 426, 428-29 (Ga. App. 1989),
which noted that a petroleum supplier's negligence may only be
established by showing the supplier's actual knowledge of the
storage facility's defects.  Other cases, however, have at least
tacitly recognized that liability will attach where fuel suppliers
have constructive knowledge of the facility's defect.  See, e.g.,
Nodine v. Terpening Trucking Co., 407 N.Y.S.2d 277, 278 (N.Y. App.
Div. 1978); Harris v. Northwest Natural Gas Co., 588 P.2d 18, 20
n.5 (Or. 1978).

Footnote 60:

     18 AAC 78.040(b)(4) provides in relevant part:

                         (b)  The owner or operator shall ensure
                         . . . .
                         (4) the distributor is provided with the
                    UST registration number before the transfer is
                    made . . . .
          Subsection (b)(4) may imply a duty on the part of a distributor not
to make deliveries to unregistered tanks.  But the tanks in this
case were all registered. 

Footnote 61:

     AS 46.03.822(b)(1)(B)(ii) provides in relevant part:

                         (b) In an action to recover damages or
                    costs, a person otherwise liable under this
                    section is relieved from liability under this
                    section if the person proves
                         (1) that the release or threatened
                    release of the hazardous substance to which
                    the damages relate occurred solely as a result
                         . . . .
                         (B) except as provided under AS
                    46.03.823(c) and 46.03.825(d), an intentional
                    or negligent act or omission of a third party,
                    other than a party or its agents in privity of
                    contract with, or employed by, the person, and
                    that the person
                         . . . .
                         (ii) took reasonable precautions against
                    the act or omission of the third party and
                    against the consequences of the act or
                    omission . . . .
                    Footnote 62:
                         42 U.S.C. sec. 6991a(5) (1994) provides
                    relevant part: "[A]ny person who deposits
                    regulated substances in an underground storage
                    tank shall reasonably notify the owner or
                    operator of such tank of the owner's
                    notification requirements pursuant to this
                    Footnote 63:
                         Parks Hiway also raises two procedural
                    claims of error.  It argues that the court
                    should have stricken certain affidavits and
                    should have allowed it to file a third amended
                    complaint after summary judgment was granted. 
                    We have reviewed these claims and find no
                    abuse of discretion.