South-Western Legal Studies in Business

CERCLA Liability Tougher Under Alaska Law and Federal Law
Description The Alaska high court answered questions from the federal appeals court about the state's CERCLA law. The court noted that strict liability for clean up of improperly disposed waste is tougher under state law than federal law as a company that is an "arranger" of equipment that causes the release can be liable.
Topic Environmental Law
Key Words CERCLA; State Law; Contribution; Remediation
C A S E   S U M M A R Y
Facts The Bergs owned a dry cleaning business in Anchorage from the 1970s to the early 1980s. The business was a franchise of the Norge Corporation, that made and installed the equipment to company specifications. The equipment used the substance PCE. In 1988, the state discovered PCE in the soil around the business and notified the Bergs that they were liable for cleanup costs under Alaska's version of CERCLA. As owners of a facility from which there was a release of a hazardous substance, they were potentially responsible persons (PRPs). After incurring over $1 million in costs, the Bergs sought contribution from Maytag, the successor corporation to Norge. The district court dismissed the suit; the Bergs appealed. The appeals court asked the Alaska high court to clarify liability under Alaska's CERCLA.
Decision

Questions answered. The manufacturer, Norge, was a PRP as an arranger for disposal of hazardous waste under state law if it was involved in the disposal of PCE. That strict liability arises because it made, sold, or installed a product that was intended to direct a hazardous substance into a city's sewer system, as that would be considered disposal. Even though Norge did not operate the business directly, it provided the equipment, which mandated the use of PCE, designed the disposal system, and provided technical advice on use and maintenance. This so-called "arranger liability" is broader than it is under federal law, but that was intended to be the case by the Alaska legislature.

Citation Berg v. Popham, --- P.3d --- (2005 WL 629755, Sup. Ct., Alaska, 2005)

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