Petition for Writ of Certiorari — Williams Alaska Petroleum, Inc., et al., Petitioners v. Alaska, et al.

Supreme Court briefSep 25, 2023

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APPENDIX

TABLE OF CONTENTS

Appendix A:

Appendix B:

Appendix C:

Appendix D:

Alaska Supreme Court opinion,

May 26, 2023 .................................................... 1a

Trial court summary judgment opinion,

September 13, 2018..................................... 101a

Trial court post-trial opinion,

January 3, 2020 ........................................... 140a

Trial court final judgment,

March 23, 2020 ........................................... 338a

APPENDIX A

SUPREME COURT OF THE STATE OF ALASKA

No. S-17772

WILLIAMS ALASKA PETROLEUM, INC. AND

THE WILLIAMS COMPANIES, INC.,

APPELLANTS

STATE OF ALASKA; FLINT HILLS RESOURCES, LLC;

AND FLINT HILLS RESOURCES ALASKA, LLC,

APPELLEES

Filed: May 26, 2023

BEFORE: Winfree, Chief Justice, Maassen, Carney,

Henderson, Justices, and Eastaugh, Senior Justice* [Borghesan, Justice, not participating.]

CARNEY, Justice.

I. INTRODUCTION

Following the release of hazardous substances that

contaminated local groundwater, the State and the previous and current owners of a refinery litigated contract and

statutory claims for damages, contribution, and injunctive

Sitting by assignment made under article IV, section 11 of the

Alaska Constitution and Alaska Administrative Rule 23(a).

(1a)

relief under Alaska’s environmental conservation statutes. The superior court rejected the previous owner’s

claims against the State and the current owner, found the

previous owner strictly liable, and ordered it to pay damages to the State and make contribution to the current

owner for its remediation costs. The court also issued injunctions requiring the previous owner to perform and

pay for various ongoing remediation and cleanup efforts.

The previous owner appeals many of the superior court’s

findings of fact and conclusions of law. The previous

owner contends that the superior court erred by concluding the substance at issue was hazardous, awarding response costs to the State and the current owner, awarding

damages for loss of groundwater access, issuing improper

injunctive and declaratory relief, interpreting the purchase contract between the former and current owners to

hold the former owner responsible for the substances released, and improperly allocating damages. The previous

owner also contends that the decision violated its right to

due process and was an unconstitutional taking. We affirm the superior court’s decision except that we remand

the grant of injunctive relief for more specificity as required by rule.

II. BACKGROUND

A. Facts

Williams Alaska Petroleum, Inc. and The Williams

Companies, Inc. (collectively Williams) owned and operated a North Pole refinery beginning in 1977. The refinery

is on State-owned land which Williams leased. Williams

began using sulfolane as a purifying solvent in its refining

process in 1985. Sulfolane is highly soluble in water,

meaning it can easily seep into groundwater when released onto the ground and into waterways, and it has low

volatility, meaning it will not readily evaporate and instead remains in groundwater without attaching to the

soil.

Williams allowed sulfolane to migrate into the groundwater at the refinery through various means. Sulfolane

was recycled to the extent feasible, but due to its high solubility some remained dissolved in water from refinery

processes and was diverted into the wastewater system.

Due to poor upkeep—with documented foot-wide tears in

wastewater lagoon linings and some holes “repaired” by

“pulling [the] liner together and punching with . . . pieces

of lumber”—several wastewater storage units leaked sulfolane into the soil and groundwater. There were also direct sulfolane spills. Williams had multiple accidental releases of sulfolane-containing solutions, resulting in the

release of hundreds of gallons of solution with sulfolane

concentrations ranging from 66% to 100%.

Sulfolane was detected in groundwater at the refinery

in 1996 when Williams’s lab manager found sulfolane in

groundwater samples in concentrations ranging from

250,000-2,700,000 parts per billion (ppb). Williams did not

report its 1996 detection of sulfolane in groundwater to

the Alaska Department of Environmental Conservation

(DEC) until five years later in October 2001, when Williams’s consultant Shannon & Wilson prepared a report

for Williams’s 2002 Site Characterization and Corrective

Action Plan to address earlier environmental concerns

about the refinery. By 2001 sulfolane was generally

known in the scientific community to “exhibit[] low levels

of toxicity,” but there otherwise was a dearth of available

information about sulfolane, and DEC did not regulate it

as a hazardous substance. DEC advised Williams about

this uncertainty regarding sulfolane’s toxicity and cau-

tioned Williams about sulfolane’s high mobility in groundwater. DEC instructed Williams to continue sampling the

groundwater until it found the contamination source.

DEC informed Williams it could reduce sampling frequency if its data were not changing and it could not find

a source. Williams was not able to determine the specific

source and stopped sampling altogether in July 2002.

Williams also used aqueous foams as part of its fire response practices. These foams at the time contained perand polyfluoralkyl substances, commonly called “PFAS.”1

The PFAS in the foams included a wide range of synthetic

chemicals; among the chemicals were perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA).2

Testing of the groundwater and soil at the refinery shows

that, at the time of trial, they contained several PFAS, including PFOA and PFOS.

On March 31, 2004 Williams sold the refinery to Flint

Hills Resources, LLC and Flint Hills Resources Alaska,

LLC (collectively Flint Hills). The parties to the sale

signed an Asset Sale and Purchase Agreement they

agreed would be governed by Texas law. It contained de-

See 4 LAWRENCE G. CETRULO, TOXIC TORTS LITIGATION GUIDE

§ 48:1 (2022-23 ed.) (“Per- and polyfluoroalkyl substances (PFAS) is

a general term used to describe a group of over 5,000 different synthetic chemicals that are used in industrial and commercial applications throughout the world, most commonly to repel water and oil, to

combat high temperatures, and to reduce the effects of friction.”).

Because the ingredients in the foam were proprietary information, the exact compounds contained in the foams were not known

at the time. An expert witness testified at trial that, based on safety

information provided by the manufacturer, the PFAS presumably included PFOA. Williams admitted the foams contained PFAS and

PFOS, but stated it did not know whether they contained PFOA.

tailed provisions about the assumption or retention of liabilities related to all aspects of the refinery’s operations,

including environmental liabilities. The parties agreed to

hold harmless and indemnify each other for costs arising

from their respective retained liabilities. Williams agreed

to retain most environmental liabilities arising from its

operations at the refinery, excepting specific matters

listed on a Disclosure Schedule.

In an effort to ensure more certainty about future indemnification obligations, the parties included a limit on

indemnifiable damages with a specific Environmental

Cap of $32 million. They further agreed that for claims

“arising out of” the Purchase Agreement, the remedies

listed in the Purchase Agreement would be exclusive, with

certain exceptions including claims for equitable relief.

Williams agreed to purchase a $50 million environmental

liability insurance policy and paid $2.4 million in premiums.

The Purchase Agreement also specified that Flint

Hills was responsible for future sulfolane releases at the

refinery beginning April 1, 2004. DEC informed Flint

Hills in October 2004 that it considered sulfolane a regulated contaminant and would be adopting cleanup standards.

By April 2019 the sulfolane in the groundwater had

laterally travelled, creating a plume approximately two

miles wide, three and a half miles long, and over three

hundred feet deep, and spreading offsite from the refinery. The plume then extended into the City of North

Pole’s groundwater, and it is expected that sulfolane will

continue to flow from the refinery site. Flint Hills and the

State have taken a variety of steps to mitigate damages

from the groundwater sulfolane plume, including providing alternative interim water, well-testing, community

outreach, and drafting site characterization and corrective action plans. The most significant step has been expanding the City’s piped water system.

B. Statutory Background

The legislature passed the Environmental Conservation Act3 to “conserve, improve, and protect [Alaska’s]

natural resources and environment and control . . . pollution, in order to enhance the health, safety, and welfare of

the people of the state.”4 The statutes empower a court to

issue injunctions and impose damages on violators.5

Alaska Statute 46.03.710 prohibits polluting or adding

“to the pollution of the air, land, subsurface land, or water

of the state.”6 Alaska Statute 46.03.760 authorizes civil

damages7 for violation of the Act or a DEC regulation, order, or permit. The State’s available damages for a violation of the Act are limited to “$100,000 for the initial violation” and “$5,000 for each day after that on which the

violation continues.”8 Subsection .760(a) also provides that

the assessments

shall reflect, when applicable,

1) reasonable compensation in the nature of liquidated damages for any adverse environmental

effects caused by the violation, which shall be

AS 46.03.010-.900.

AS 46.03.010 (declaring policy).

AS 46.03.765.

AS 46.03.710.

“Damages include but are not limited to injury to or loss of persons or property, real or personal, loss of income, loss of the means of

producing income, or the loss of an economic benefit.” AS 46.03.824.

AS 46.03.760(a).

determined by the court according to the toxicity, degradability, and dispersal characteristics of the substance discharged, the sensitivity

of the receiving environment, and the degree to

which the discharge degrades existing environmental quality;

2) reasonable costs incurred by the state in detection, investigation, and attempted correction of

the violation;

3) the economic savings realized by the person in

not complying with the requirement for which

a violation is charged.

In addition to the damages allowed by subsection

.760(a), subsection .760(d) allows uncapped liability in

cases of oil pollution or releases of hazardous substances

for actual damages caused to the state by a violation of

AS 46.03.740-.750,9 including “(1) direct and indirect costs

associated with the abatement, containment, or removal

of the pollutant; (2) restoration of the environment to its

AS 46.03.740 (prohibiting the discharge of “petroleum, acid, coal

or oil tar, lampblack, aniline, asphalt, bitumen, or a residuary product

of petroleum, into, or upon the waters or land of the state” except as

permitted). Alaska Statute 46.03.745 prohibits the uncontrolled release of a “hazardous substance as defined in AS 46.09.900.” Alaska

Statute 46.09.900(4) defines “hazardous substance” as

(A) an element or compound that, when it enters into or on

the surface or subsurface land or water of the state, presents

an imminent and substantial danger to the public health or

welfare, or to fish, animals, vegetation, or any part of the natural habitat in which fish, animals, or wildlife may be found;

or (B) a substance defined as a hazardous substance under 42

U.S.C. 9601 - 9657 (Comprehensive Environmental Response, Compensation, and Liability Act of 1980) [CERCLA]; “hazardous substance” does not include uncontaminated crude oil or uncontaminated refined oil . . . .

former state; (3) amounts paid as grants . . . and (4) all

incidental administrative costs.”10 The statute cautions

that “actions under this section may not be used for punitive purposes, and sums assessed by the court must be

compensatory and remedial in nature.”11 Section .780 provides that if a violation “causes the death of fish, animals,

or vegetation or otherwise injures or degrades the environment of the state,” the violator may be additionally liable up to the “amount equal to the sum of money required to . . . replenish a damaged or degraded resource,

or to otherwise restore the environment of the state to its

condition before the injury.”12

To recover uncapped actual damages for a violation

under AS 46.03.760(d), the State must bring a civil action

under AS 46.03.822, which provides for strict liability for

the release of hazardous substances.13 Subsection .822(a)

holds persons strictly liable if they owned or had control

over the hazardous substance at the time of release, or

owned or operated the facility where the hazardous substance was released or disposed.14 For the State to recover

damages under subsection .822(a), it must demonstrate

that the released substance is a “hazardous substance” as

defined by AS 46.03.826(5):

(A) an element or compound which, when it enters into

the atmosphere or in or upon the water or surface or

subsurface land of the state, presents an imminent and

AS 46.03.760(d).

AS 46.03.760(b).

AS 46.03.780.

See AS 46.03.760(d) and AS 46.03.822.

AS 46.03.822(a)(1)-(3).

substantial danger to the public health or welfare, including but not limited to fish, animals, vegetation, or

any part of the natural habitat in which they are found;

(B) oil; or

In addition to allowing the State to recover uncapped

actual damages, AS 46.03.822 holds persons “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

42 U.S.C. 9601(14) defines “hazardous substance” under CERCLA as

(A) any substance designated pursuant to section

311(b)(2)(A) of the Federal Water Pollution Control Act [33

U.S.C. 1321(b)(2)(A)], (B) any element, compound, mixture,

solution, or substance designated pursuant to section 9602 of

this title, (C) any hazardous waste having the characteristics

identified under or listed pursuant to section 3001 of the Solid

Waste Disposal Act [42 U.S.C. 6921] (but not including any

waste the regulation of which under the Solid Waste Disposal

Act [42 U.S.C. 6901 et seq.] has been suspended by Act of

Congress), (D) any toxic pollutant listed under section 307(a)

of the Federal Water Pollution Control Act [33 U.S.C.

1317(a)], (E) any hazardous air pollutant listed under section

112 of the Clean Air Act [42 U.S.C. 7412], and (F) any imminently hazardous chemical substance or mixture with respect

to which the Administrator has taken action pursuant to section 7 of the Toxic Substances Control Act [15 U.S.C. 2606].

The term does not include petroleum, . . . natural gas, . . . or

synthetic gas usable for fuel (or mixtures of natural gas and

such synthetic gas).

10a

the additional costs of a function or service, including administrative expenses for the incremental costs of providing the function or service.”16

The statute explicitly holds ineffective any “indemnification, hold harmless, or similar agreement . . . to transfer

liability . . . from the owner or operator of a facility.”17

However, the statute allows for indemnification and hold

harmless agreements between liable parties to shift financial responsibility.18 Once liability is determined by the

court, parties “may seek contribution from any other person who is liable under (a) of this section.”19 To resolve a

claim for contribution, “the court may allocate damages

and costs among liable parties using equitable factors determined to be appropriate by the court.”20

C. Proceedings

In March 2014 the State sued Williams and Flint Hills

seeking declaratory relief, injunctive relief, and damages

resulting from discharges of oil and sulfolane. The State

alleged that sulfolane is a hazardous substance as defined

by Alaska’s environmental conservation statutes and administrative code. In its answer, Williams denied that its

sulfolane releases were unlawful; asserted various legal,

AS 46.03.822(a). Subsection .822(b) which relieves persons from

liability if certain narrow conditions arise, is inapplicable. See AS

46.03.822(b) (releasing liability if the release occurred solely because

of an act of war; “an intentional or negligent act or omission of a third

party”; or an “act of God”).

AS 46.03.822(g).

Id.

AS 46.03.822(j).

Id.

11a

equitable, and constitutional defenses; and made counterclaims against the State. Williams claimed the State was

a responsible landowner under AS 46.03.822(a) and could

not “transfer its liability” to Williams because it had not

regulated sulfolane during Williams’s tenure at the refinery. Williams also claimed that DEC was ordinarily and

grossly negligent in supervising the refinery during Flint

Hills’s tenure, allowing sulfolane to migrate off the refinery property, which in turn resulted in damages to Williams that it should be able to recover in contribution under AS 46.03.822(j).

Flint Hills similarly denied liability under the Act and

asserted legal, equitable, procedural, and constitutional

defenses in its answer. Flint Hills claimed the State and

Williams were responsible parties under AS 46.03.822(a),

and Flint Hills counterclaimed against the State for contribution under AS 46.03.822(j). It also crossclaimed

against

Williams

seeking

contribution

under

AS 46.03.822(j) and indemnification under the terms of

the Purchase Agreement, specific performance of the

Purchase Agreement, and declaratory judgment regarding Flint Hills’s right to contribution and indemnification

from Williams. Williams in turn asserted crossclaims

against Flint Hills, claiming that Flint Hills had breached

the Purchase Agreement, was unjustly enriched by improperly seeking coverage from Williams’s environmental

insurance policy, and was ordinarily and grossly negligent

in allowing sulfolane contamination. Williams sought damages for breach of contract, declaratory judgment that it

was entitled to indemnification under the Purchase

Agreement, contribution under AS 46.03.822(j), and application of the Purchase Agreement’s Environmental Cap

to any potential liability against Williams.

12a

The City of North Pole also filed suit that year. Its

case and a case brought by a North Pole resident against

Williams and Flint Hills in 2010 were consolidated with

the State’s suit. After PFAS contamination was discovered at the site, the State and Flint Hills filed additional

claims against Williams.

In 2016 we ruled in Flint Hills Resources Alaska, LLC

v. Williams Alaska Petroleum, Inc. (Flint Hills I) that

Flint Hills’s claims against Williams for contractual indemnification and statutory contribution under

AS 46.03.822(j) were time-barred with respect to onsite

sulfolane contamination, but not offsite sulfolane contamination.21 We also determined that because Flint Hills’s

claims against Williams for declaratory and injunctive relief were “equitable remedies . . . identical to the legal

remedies Flint Hills sought in its statutory and contractual claims,”22 it had not been error for the superior court

to dismiss the equitable claims.23

In February 2017 Flint Hills reached a settlement

with the State and the City, agreeing to partially fund an

377 P.3d 959, 973 (Alaska 2016).

Id. at 974 (“Flint Hills sought a judgment from the court declaring that Williams must indemnify Flint Hills under the [Purchase]

Agreement and that Williams ‘is obligated to contribute to Flint Hills

all [s]tatutory [d]amages that have resulted . . . from the [c]ontamination.’ Flint Hills also sought an order requiring Williams to perform

under the terms of the [Purchase] Agreement.” (lowercase alterations in original)).

See Knaebel v. Heiner, 663 P.2d 551, 553 (Alaska 1983) (“One who

seeks the interposition of equity must generally show that he either

has no remedy at law or that no legal remedy is adequate.”).

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extension of piped water to affected residents. The superior court accordingly dismissed with prejudice the

State’s and Flint Hills’s claims against each other.

The State and Flint Hills added claims against Williams for offsite PFAS soon after it was discovered in late

2018, but because discovery deadlines had passed the parties agreed the court would refer the offsite PFAS claims

to DEC under the doctrine of primary jurisdiction.24 Williams moved to defer onsite PFAS issues to DEC under

the same doctrine, but the superior court denied the motion, finding it was “primarily made for purposes of delay”

and would not facilitate the “orderly and reasonable coordination of the work of agencies and courts” after “five

years of active litigation.”

In June 2019 the superior court deconsolidated the

State’s and the City’s cases against Williams.

The State’s case against Williams proceeded to a

bench trial. Over 16 days each side called lay and expert

witnesses and admitted thousands of pages of exhibits

into evidence.25 The court issued a lengthy memorandum

decision and final judgment, concluding that sulfolane is a

hazardous substance and that Williams is strictly, jointly,

and severally liable for its sulfolane release as well as for

onsite PFAS and oil releases. The court allocated 75% responsibility for offsite sulfolane costs to Williams and or-

“Primary jurisdiction is a judicially created prudential doctrine

that applies ‘to claims properly cognizable in court [but] that contain

some issue within the special competence of an administrative

agency.’ ” Seybert v. Alsworth, 367 P.3d 32, 39 (Alaska 2016) (alteration in original) (quoting Reiter v. Cooper, 507 U.S. 258, 268 (1993)).

We discuss the relevant aspects of testimony and evidence presented when addressing each point on appeal.

14a

dered it to pay damages for that portion of the State’s response and oversight costs, as well as for natural resource

damages caused by the loss of the public’s access to

groundwater due to sulfolane contamination. The court

held Williams responsible for 75% of future State costs related to the piped water system and held further that the

State could recover from Williams that portion of “DEC’s

future oversight costs.” The court additionally ordered

Williams to abide by Alaska statutes and DEC regulations

related to monitoring, reporting, and cleanup of offsite

sulfolane and onsite PFAS. The court found that Flint

Hills was not responsible for PFAS contamination at the

refinery.

The superior court then turned to Flint Hills’s claims

against Williams to recover costs for responding to the

contamination. The court determined that Williams had

retained liability for offsite sulfolane existing on the date

Flint Hills acquired the refinery. The court found that,

although Flint Hills could not recover its costs for responding to the contamination through the Purchase

Agreement’s indemnification provisions, Flint Hills could

obtain statutory contribution under AS 46.03.822(j). The

court granted Flint Hills recovery from Williams for its

equitable share of past offsite sulfolane response costs, as

well as its share of future costs related to the piped water

system and other offsite sulfolane remediation costs. The

court also ordered Williams to indemnify, defend, hold

harmless, and reimburse Flint Hills for all onsite PFASrelated future claims and costs. And the superior court

dismissed all of Williams’s claims against the State and

Flint Hills.

Williams appeals, claiming the superior court erred on

various points of fact and law.

15a

III. STANDARDS OF REVIEW

We review the superior court’s factual findings for

clear error.26 “Clear error exists ‘when “after a thorough

review of the record, we come to a definite and firm conviction that a mistake has been made.” ’ ”27 Questions of

law, which include whether the superior court applied the

correct legal standard, are reviewed de novo.28

“We review a superior court’s evidentiary rulings for

abuse of discretion,” reversing only “evidentiary rulings

that are both erroneous and prejudicial.”29 Under this

standard, we ask “whether the reasons for the exercise of

discretion are clearly untenable or unreasonable.”30 We

also apply the abuse of discretion standard when we review grants or denials of injunctive relief31 and decisions

to “stay or dismiss a claim” under the primary jurisdiction

doctrine.32

Burton v. Fountainhead Dev., Inc., 393 P.3d 387, 392 (Alaska

2017).

Id. (quoting Laybourn v. City of Wasilla, 362 P.3d 447, 453

(Alaska 2015) (quoting 3-D & Co. v. Tew’s Excavating, Inc., 258 P.3d

819, 824 (Alaska 2011))).

Janes v. Alaska Railbelt Marine, LLC, 309 P.3d 867, 875 (Alaska

2013).

Id.

Burke v. Maka, 296 P.3d 976, 979-80 (Alaska 2013).

Lee v. Konrad, 337 P.3d 510, 517-18 (Alaska 2014); see also State

v. Galvin, 491 P.3d 325, 332 (Alaska 2021) (explaining that reviewing

an order for injunctive relief often also involves reviewing conclusions

of law and findings of fact).

Seybert v. Alsworth, 367 P.3d 32, 36 (Alaska 2016); see also Matanuska Elec. Ass’n v. Chugach Elec. Ass’n, 99 P.3d 553, 559 (Alaska

2004) (recognizing that “primary agency jurisdiction doctrine is one

of prudence, and not an absolute jurisdictional limitation”).

16a

“The superior court’s decision to allocate and apply

contribution to a damage award involves the interpretation and application of a statute.”33 We apply our independent judgment to questions of law, including “the interpretation and application of a statute,” as well as

“[w]hether the superior court applied an incorrect legal

standard.”34 “We interpret statutes ‘according to reason,

practicality, and common sense, taking into account the

plain meaning and purpose of the law as well as the intent

of the drafters.’ ”35

“The constitutionality of a statute and matters of constitutional or statutory interpretation are questions of law

to which we apply our independent judgment, adopting

the rule of law that is most persuasive in light of precedent, reason, and policy.”36

“Questions of contract interpretation are generally

questions of law which we review de novo; but fact questions are created when the meaning of contract language

is dependent on conflicting extrinsic evidence.”37 “Where

the superior court considers extrinsic evidence in interpreting contract terms, . . . we will review the superior

Oakly Enters., LLC v. NPI, LLC, 354 P.3d 1073, 1078 (Alaska

2015); see AS 46.03.822(j).

Oakly Enters., LLC, 354 P.3d at 1078 (quoting Guttchen v. Gabriel, 49 P.3d 223, 225 (Alaska 2002)).

Id. (quoting Native Vill. of Elim v. State, 990 P.2d 1, 5 (Alaska

1999)).

Dep’t of Revenue v. Nabors Int’l Fin., Inc., 514 P.3d 893, 898

(Alaska 2022) (quoting Premera Blue Cross v. State, Dep’t of Com.,

Cmty. & Econ. Dev., Div. of Ins., 171 P.3d 1110, 1115 (Alaska 2007)).

Afognak Joint Venture v. Old Harbor Native Corp., 151 P.3d 451,

456 (Alaska 2007).

17a

court’s factual determinations for clear error and inferences drawn from that extrinsic evidence for support by

substantial evidence.”38

IV. DISCUSSION

A. State’s Statutory Claims Against Williams

1. The superior court did not err when it concluded that sulfolane is a hazardous substance under AS 46.03.826(5).

To impose strict liability on Williams under

AS 46.03.822(a) for damages caused by sulfolane releases,

the superior court first needed to determine whether sulfolane is a hazardous substance.39 It concluded that the

sulfolane released by Williams satisfied all three statutory

definitions of hazardous substance under AS 46.03.826

(5).40 Williams argues that the superior court misinterpreted the law when it found that sulfolane met any of the

three statutory definitions of hazardous substance. We

disagree, and affirm the superior court’s determination

that sulfolane is a hazardous substance under the Act.

Several weeks before trial, the superior court issued a

memorandum tentatively adopting interpretations of

Nautilus Marine Enters., Inc. v. Exxon Mobil Corp., 305 P.3d

309, 315 (Alaska 2013) (quoting Villars v. Villars, 277 P.3d 763, 768

(Alaska 2012)).

See AS 46.03.822(a) (describing extent to which persons are liable

for costs associated with unpermitted release of hazardous substances); AS 46.03.826(5) (defining “hazardous substance”).

See AS 46.03.826(5) (defining hazardous substance as (A) a substance which poses imminent and substantial danger to public health

or welfare or natural environment when released, (B) oil, or (C) a substance defined in CERCLA’s definitions section at 42 U.S.C.

9601(14)).

18a

“hazardous substance” used in AS 46.03.822(a) and defined in subsection .826(5)(A). It later adopted those interpretations in its decision. The court construed “imminent

and substantial danger to the public health” to mean “a

reasonable medical concern about the public health

where, given the modifier ‘substantial,’ the nature of the

harm giving rise to concern is serious and, given the modifier ‘imminent,’ the threat of harm must be present, although the potential impacts may never develop or may

take time to develop.” The court primarily drew from several federal circuit court decisions interpreting federal

statutes with “imminent danger” requirements to cover

“potential” harms,41 as well as our decisions broadly interpreting AS 46.03.822.42

The superior court relied on the evidence presented at

trial to find that sulfolane “presents an imminent and substantial danger to the public health” under its interpretation of AS 46.03.826(5)(A) — that it “presents a reasonable

See Reserve Mining Co. v. EPA, 514 F.2d 492, 528-29 (8th Cir.

1975) (interpreting phrase “endangering the health or welfare of persons” from Federal Water Pollution Control Act to cover discharge

of “potentially harmful” substance that gave “rise to a reasonable

medical concern over the public health”); Maine People’s All. v.

Mallinckrodt, Inc., 471 F.3d 277, 296 (1st Cir. 2006) (holding that, under Resource Conservation and Recovery Act (RCRA), “an imminent

and substantial endangerment requires a reasonable prospect of a

near-term threat of serious potential harm”); Simsbury-Avon Pres.

Club, Inc. v. Metacon Gun Club, Inc., 575 F.3d 199, 210 (2d Cir. 2009)

(discussing “imminency” as used in RCRA to require only “a showing

that a ‘risk of threatened harm is present’ ” (quoting Dague v. City of

Burlington, 935 F.2d 1343, 1356 (2d Cir. 1991))).

See Berg v. Popham, 113 P.3d 604, 609 (Alaska 2005) (interpreting AS 46.03.822(a) to impose broader arranger liability than that imposed by CERCLA); Kodiak Island Borough v. Exxon Corp., 991

P.2d 757, 765 (Alaska 1999) (adopting a broad, flexible definition of

AS 46.03.822(a)’s cost clauses).

19a

medical concern, the nature of which is serious, and the

threat of which is present when sulfolane is released in the

environment.” The State called Dr. Ted Wu, a DEC employee and expert in toxicology and environmental chemistry who reviewed the evidence of contamination at the

refinery. He testified about a number of studies demonstrating sulfolane’s toxic effects when animals were exposed to it, which could indicate potential adverse effects

on humans. He testified that studies showed sulfolane exposure caused “convulsion[s] . . . in squirrel monkeys and

rats” and vomiting in squirrel monkeys, decreased kidney

and liver functions and white blood cell counts in guinea

pigs and rats, increased aggression in dogs, and increased

fetal absorption and deformation in fetuses in rats and

guinea pigs. Dr. Wu explained that squirrel monkeys were

more susceptible to sulfolane than were rodents, suggesting that humans could be even more susceptible than

squirrel monkeys. Dr. Wu also testified that sulfolane is

more toxic than about half of the hazardous substances already identified in DEC’s default groundwater cleanup

level table and that sulfolane travels in groundwater to

drinking water wells and thereby creates a risk to the

public.

The State also called Dr. Mary Beth Leigh, a professor of microbiology at the University of Alaska Fairbanks,

to provide expert testimony about her own experiments

that showed sulfolane was toxic to a bacterium commonly

used as a screening tool for toxicity to organisms. The

State called former DEC Commissioner Larry Hartig

and former North Pole Mayor Bryce Ward to testify

about sulfolane’s impact on public welfare and the factors

involved in gauging public welfare. Hartig testified that

he understood the legislature’s intent to be that public

welfare includes the people’s “overall health and welfare,”

20a

as well as their “economic well-being” and their “opportunity to have a living” and “subsistence.” Ward testified

about the negative impact sulfolane contamination had on

the North Pole community, causing residents to be upset

and concerned about the amount of sulfolane to which

they were unwittingly exposed.

Hartig also testified that DEC considered sulfolane a

hazardous substance in order to address the sulfolane

plume with funding from the Oil and Hazardous Substance Release Response Act Account.43 Funds from the

account are available expressly to cover State response

costs in the event of oil or hazardous substance releases.44

The definitions of “oil” and “hazardous substance” in the

enabling legislation are virtually the same as those in AS

46.03.826. To obtain funds from the response account, the

DEC commissioner must find that the oil or hazardous

substance released “poses an imminent environment,”45 a

phrase that is virtually identical to the definition of “hazardous substance” in AS 46.03.826(5)(A).

The State introduced Williams’s written emergency

medical care policy into evidence. The policy described

possible life-threatening effects of sulfolane if inhaled, ingested, or in contact with the skin or eyes. It listed “[c]ardiac arrhythmias, respiratory failure, pulmonary edema,

paralysis, brain damage, liver damage, lung tissue and

stomach tissue damage” as possible side effects from sulfolane exposure.

See AS 46.08.005-.080; AS 46.08.005 (establishing fund available

to respond to release of oil or hazardous substance “to reduce the

amount, degree, or intensity of a release or threatened release, and

for other related purposes identified in law”).

AS 46.08.040(a), .045.

AS 46.08.040(a)(1)(A).

21a

Williams presented deposition testimony from Stephanie Buss, a former DEC employee and toxicologist.

When asked to identify “every single fact . . . that would

indicate that sulfolane is and presents an imminent and

substantial danger to the public health and welfare,” Buss

stated that “toxicity studies . . . indicat[ed] adverse health

effects” and proceeded to identify various studies. She

also referred to studies indicating that sulfolane posed

dangers not only to public health and welfare, but also to

“fish and vegetation.”

Williams also called James Fish, a DEC employee and

project manager for the refinery contamination area. Fish

testified that the EPA had previously treated sulfolane as

a hazardous substance at a refinery in Puerto Rico. He

testified that the EPA’s approach to the Puerto Rican refinery supported DEC’s decision to consider sulfolane a

hazardous substance.

The superior court relied heavily on Dr. Wu’s testimony to determine that sulfolane is a hazardous substance under AS 46.03.826(5)(A) based on the danger it

posed to public health and welfare. It found Dr. Wu’s medical concerns about sulfolane were both “reasonable and

serious” and that “ [a]t a minimum, sulfolane exposure can

reduce white blood cell counts; at a maximum sulfolane

exposure can cause death.” The court also found it notable

that, while operating the refinery, Williams itself treated

sulfolane in its emergency medical care policy as though

it were life-threatening.

In addition to sulfolane’s demonstrated toxicity, the

superior court was troubled by its chemical properties as

well as the concentrations in which it had been released.

The court was not convinced that sulfolane concentrations

found in the environment after it was released were material to establishing whether sulfolane was hazardous,

22a

but it was persuaded that the concentrations at the time

of release “into the subsurface land and water of the State

presented an imminent and substantial danger to the public health and welfare.”

The court also found that DEC’s treatment of sulfolane as a hazardous substance under AS 46.03.826(5)(A)

was entitled to deference. The court reasoned that “Hartig accessed the [Oil and Hazardous Substance Release]

[R]esponse [A]ccount several times to address the sulfolane contamination,” and each time he had to determine

that “the contamination posed an imminent and substantial threat” to the public health and welfare or to the environment. The court found that these actions by DEC reflected “the agency’s conclusions both that sulfolane is a

hazardous substance and that the release at issue is posing an imminent and substantial threat to public health,

welfare, or the environment”; “DEC’s determination that

sulfolane is a hazardous substance is reasonable, supported by the record, and not an abuse of discretion”; and

DEC’s determination “is entitled to judicial deference and

it is therefore controlling in this case.” The court similarly

concluded that sulfolane is a hazardous substance because

it also “presents an imminent and substantial danger to

public welfare.” In its underlying findings the court specifically cited the testimony from former officials and scientists about sulfolane’s impacts on the public health and

welfare.

In addition to trial evidence, the superior court relied

on admissions in Williams’s pleadings to support its conclusion that sulfolane was a hazardous substance. The

State’s 2014 complaint alleged that “[s]ulfolane is a hazardous substance within the meaning of AS 46.03.745,

AS 46.03.900, AS 46.03.826, and 18 AAC 75.990.” Williams

initially admitted that allegation, but denied that DEC

23a

“considered sulfolane to be a hazardous substance under

any statute or regulation at any time during [Williams]’s

ownership and operation of the North Pole Refinery.”

Williams later amended its answer, retaining the sentence

denying DEC’s classification of sulfolane as a hazardous

substance, but instead asserting that the State’s allegation that sulfolane is a hazardous substance was a “legal

conclusion to which no response [was] required.” But Williams did not withdraw an earlier stipulation agreeing that

“Flint Hills is a liable landowner and operator under

AS 46.03.822(a) for sulfolane releases.”

The superior court gave some weight to Williams’s initial admission and its stipulation. The court found that

Williams’s “first answer constitute[d] an evidentiary admission that sulfolane is a hazardous substance, notwithstanding Williams’[s]” amended pleading, finding support

in Brigman v. State, which recognizes that “[c]ourts often

admit superseded or withdrawn pleadings in civil and

criminal cases on the theory that they constitute evidentiary admissions.”46 The court also found that Williams admitted that sulfolane is a hazardous substance when it

stipulated as to Flint Hills’s liability for sulfolane. The

court reasoned that “Flint Hills could not be liable under

AS 46.03.822(a) for sulfolane releases if sulfolane were not

a hazardous substance. If sulfolane is a hazardous substance when released by Flint Hills, it is a hazardous substance when released by Williams.”

In addition to holding Williams strictly liable under

AS 46.03.822 due to hazardous substance releases as defined in AS 46.03.826(5)(A), the court held Williams

strictly liable under section .822 because many of the releases were sulfolane mixed with oil and because sulfolane

64 P.3d 152, 166 (Alaska App. 2003).

24a

wastewater constituted a “petroleum-related byproduct”

under AS 46.03.826(5)(B) and AS 46.03.826(7).47 The court

found that sulfolane was “released as a constituent of Williams’[s] oil spills” and that “Williams had numerous spills

of gasoline containing sulfolane at the refinery.”

Finally, the court concluded that sulfolane is a hazardous substance under AS 46.03.826(5)(C). Subsection

.826(5)(C) defines as hazardous any “substance defined as

a hazardous substance under 42 U.S.C. 9601(14),” CERCLA’s expansive definition of hazardous substance that

includes “any hazardous waste having the characteristics

identified under or listed pursuant to section 3001 of the

Solid Waste Disposal Act [42 U.S.C. § 6921]” (a section

better known as the Resources Conservation and Recovery Act (RCRA)).48 The court found sulfolane met the hazardous substance definitions under AS 46.03.826(5)(C) because the EPA had treated it as hazardous waste under

RCRA when it was released at a refinery in Puerto Rico.

Williams argues that the superior court misinterpreted the law when it found that sulfolane met any of the

statutory definitions of hazardous substance in

AS 46.03.826(5). Regarding subsection .826(5)(A), Williams argues that the court’s definition of “imminent”

does not comport with dictionary or judicial definitions of

the word. It contends that an “imminent danger” must be

AS 46.03.826(5)(B) (defining “hazardous substance” to include

“oil”); AS 46.03.826(7) (defining “oil” to include “petroleum-related

product or by-product”).

42 U.S.C. § 9601(14) (governing disposal of hazardous and nonhazardous solid waste).

25a

one that “threaten[s] to occur immediately,”49 not one that

may take time to develop. Quoting the court’s memorandum adopting a tentative definition of hazardous substance, Williams alleges that the court improperly concluded that “imminent and substantial danger to public

health” meant only a “reasonable medical concern about

the public health.”50 Williams argues that this definition of

“imminent and substantial danger” has never been

“adopted by any court, applied by DEC, or advocated by

Quoting Meghrig v. KFC W., Inc., 516 U.S. 479, 485 (1996) (citing

WEBSTER’S NEW INTERNATIONAL DICTIONARY OF THE ENGLISH

LANGUAGE at 1245 (2d ed. 1934)).

This misrepresents the superior court’s definition. The court did

not conclude that an “imminent and substantial danger” meant only

a “reasonable medical concern about the public health,” but also that,

“given the modifier ‘substantial,’ the nature of the harm giving rise to

concern is serious and, given the modifier ‘imminent,’ the threat of

harm must be present, although the potential impacts may never develop or may take time to develop.”

Moreover, the court ultimately made separate findings that sulfolane presented an imminent and substantial danger to the public

health and welfare. Williams’s opening brief primarily argues against

the danger to public health finding. Its arguments about the public

welfare findings are limited to a single footnote in its opening brief

that simply incorporates “all the above reasons why sulfolane is not a

hazardous substance in the first instance.” Williams’s reply brief

claims that the arguments are interchangeable. Williams does not

challenge the court’s factual findings about the impact on North Pole

residents or its finding that residents’ concerns about “economic wellbeing [and] opportunity to have a living” are incorporated in the public welfare prong of the definition, and fails to adequately address this

issue. We thus consider Williams’s challenge to the court’s finding

waived. See Alaska R. App. P. 212(c)(1)(H) (requiring that argument

section “explain the contentions of the appellant . . . and the legal and

factual support for those contentions, with citations to the authorities,

statutes, and parts of the record relied on”); Casciola v. F.S. Air

Serv., Inc., 120 P.3d 1059, 1062 (Alaska 2005) (“We do not consider

arguments that are inadequately briefed.”).

26a

any party during five years of litigation”; that it runs

counter to the plain language of the statute; that it

“threatens to deprive a defendant of the constitutional

right to fair notice” under Stock v. State;51 and that it is

contrary to the legislative history. Williams also argues

that because the concentrations of sulfolane “had decreased dramatically and were nowhere near the ranges

cited by the court” by the time the plume reached drinking water wells, the court erred by finding that sulfolane

was hazardous at the time of release.

The State responds that Williams’s proposed definition of “imminent” is flawed because it would exclude substances causing delayed manifestations of harm, such as

birth defects or cancer. The State emphasizes that the

statute uses the word “danger” rather than “harm” to signify the possibility of harm, rather than the present existence of harm. And it argues that, even under Williams’s

proposed interpretation of AS 46.03.826(5)(A), trial evidence supports finding sulfolane is a hazardous substance.

The State points to the numerous studies demonstrating

sulfolane’s harmful effects on animals. The State asserts

that there is no legal support for Williams’s contention

that “whether a substance is hazardous should turn on its

concentrations in the environment after decades of dilution.”

Williams also asserts that the superior court improperly relied on evidence from Dr. Wu and DEC employee

Stephanie Buss because, although they indicated they believed sulfolane was a hazardous substance, they did not

526 P.2d 3 (Alaska 1974) (explaining circumstances under which

environmental conservation statutes might be unconstitutionally

vague). We address fair notice and due process in part IV.A.5 below.

27a

state explicitly that it “presents an imminent and substantial danger to public health.” Williams argues that it was

error to infer that sulfolane is a hazardous substance,

pointing to a ruling on the parties’ 2018 motions for summary judgment which discounted Dr. Wu’s affidavit for

not using these statutory terms. The State responds that

“[n]o rule of evidence says that witness testimony ‘must

be excluded’ and cannot be used to support a factual finding if it does not use particular words from a statutory

definition.” The State also points out that Williams did not

“cit[e] contrary evidence or explain [in its brief] why the

studies do not show that sulfolane is dangerous.”

When we interpret a statute, we presume “that the

legislature intended every word, sentence, or provision of

a statute to have some purpose, force, and effect, and that

no words or provisions are superfluous.”52 We apply a

“sliding-scale approach” to interpret the language: “[t]he

plainer the statutory language is, the more convincing the

evidence of contrary legislative purpose or intent must

be.”53 To the extent possible, we “interpret each part or

section of a statute with every other part or section, so as

to create a harmonious whole.”54 Whether a substance

meets the legal standard of “hazardous substance” is a

Kodiak Island Borough v. Exxon Corp., 991 P.2d 757, 761

(Alaska 1999) (quoting Rydwell v. Anchorage Sch. Dist., 864 P.2d 526,

530-31 (Alaska 1993)).

State v. Planned Parenthood of the Great Nw., 436 P.3d 984, 992

(Alaska 2019) (quoting State v. Fyfe, 370 P.3d 1092, 1095 (Alaska

2016)).

Id. (original alteration omitted) (quoting Rydwell, 864 P.2d at

528).

28a

“question of law to which we apply our independent judgment.”55

We are not persuaded by Williams’s arguments. The

two key issues are whether “imminent” dangers under AS

46.03.826(5)(A) can include non-immediate dangers and

whether the facts support concluding sulfolane is a hazardous substance.

Turning to the first issue, we note that because the

parties do not discuss the legislative history of the statute,56 we look primarily to the plain meaning of the statute. The undefined use of “imminent” in statutes and treaties, across diverse subject areas, has plagued legal scholars for decades.57 When the legislature enacted

See Burton v. Fountainhead Dev., Inc., 393 P.3d 387, 392 (Alaska

2017).

Williams alludes to its October 2019 response to the court’s interpretation of “imminent and substantial danger,” when Williams did

engage in a legislative history analysis. However, it makes no arguments now on appeal beyond (1) asserting that AS 46.03.826(5)(A) was

enacted prior to subsection .826(5)(C) and thus could not have been

designed to expand subsection .826(5)(C); and (2) making conclusory

statements that the court’s interpretation of imminent and substantial danger “finds no support in the statutory text or the legislative

history.” “[A] party’s briefing must contain its own arguments and

may not merely incorporate arguments from other documents.”

McCormick v. Chippewa, Inc., 459 P.3d 1172, 1180 (Alaska 2020). We

conclude Williams’s legislative history arguments were insufficiently

briefed and thus waived.

See, e.g., Authority of the President Under Domestic and International Law to Use Military Force Against Iraq, 26 Op. O.L.C. 143,

182-84 (2002) (discussing ambiguities of “imminent” in international

law, including temporal elements, probabilities that threat will materialize, and magnitude of harm that threat would cause such that immediacy is no longer required).

29a

AS 46.03.826(5)(A), Black’s Law Dictionary defined “imminent” as something “[n]ear at hand; mediate rather

than immediate; . . . impending; on the point of happening;

threatening.”58 It defined “danger” as “[j]eopardy; exposure to loss or injury; peril.”59 Similarly, Merriam-Webster’s Collegiate Dictionary defined “imminent” as “ready

to take place”60 and “danger” as “exposure or liability to

injury, pain, or loss.”61 While an “imminent danger” is

thus typically some harm that is threatening to occur immediately, the fact that harm ultimately did not occur

does not mean that the harm was not imminent at one

point. Federal case law cited by the superior court and

both parties supports this interpretation of “imminent

danger.”62 The court’s interpretation of “imminent”—that

Imminent, BLACK’S LAW DICTIONARY (rev. 4th ed. 1968) (similarly defined in current 11th edition).

Danger, id. (similarly defined in current 11th edition). Black’s

Law Dictionary also provides a definition for “imminent danger,” but

it applies to the use of self-defense and seems inapplicable to environmental harms.

Imminent, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY

(7th ed. 1963).

Danger, id.

See Meghrig v. KFC W., Inc., 516 U.S. 479, 485-86 (1996) (interpreting RCRA’s “imminent and substantial endangerment” provision

as requiring threat of danger to be then-present even if impact may

not be felt until later); Reserve Mining Co. v. EPA, 514 F.2d 492, 52829 (8th Cir. 1975) (interpreting phrase “endangering the health or

welfare of persons” from Federal Water Pollution Control Act to

cover discharge of “potentially harmful” substance that gave “rise to

a reasonable medical concern over the public health”); Maine People’s All. v. Mallinckrodt, 471 F.3d 277, 296 (1st Cir. 2006) (holding

that, under RCRA, “an imminent and substantial endangerment requires a reasonable prospect of a near-term threat of serious potential harm”); Simsbury-Avon Pres. Club, Inc. v. Metacon Gun Club,

30a

“the threat of harm must be present, although the potential impacts may never develop or may take time to develop”—aligns with the plain definition of statutory terms

as well as federal case law interpreting like terms.

Williams’s factual and evidentiary challenges to the

hazardous substance conclusion also fail to withstand

scrutiny. Williams does not cite any case law or rules of

evidence to support its argument that expert testimony

must exactly track the relevant statutory text at issue.63

Alaska Evidence Rule 702(a) allows qualified experts to

rely on their “scientific, technical, or other specialized

knowledge” to express opinions that will “assist the trier

of fact to understand the evidence or to determine a fact

in issue.” There is no indication that it would be improper

for the trier of fact to rely on expert testimony if the expert fails to repeat verbatim the statutory language at issue while offering an opinion. Dr. Wu’s and Buss’s testimony demonstrated that sulfolane, “when it enters . . . in

or upon the water or surface or subsurface land[,] . . . presents an imminent and substantial danger to the public

health . . . including . . . to fish, animals, vegetation, or any

part of the natural habitat in which they are found.”64 Dr.

Wu testified extensively about sulfolane’s toxic effects on

animals exposed to it. And Williams mischaracterizes

Buss’s deposition testimony, alleging she concluded sulfolane was a hazardous substance based only on studies

Inc., 575 F.3d 199, 210 (2d Cir. 2009) (stating “imminency” standard

in RCRA “requires a showing that a ‘risk of threatened harm is present’ ” (quoting Dague v. City of Burlington, 935 F.2d 1343, 1356 (2d

Cir. 1991))).

See Marcia V. v. State, Off. of Child.’s Servs., 201 P.3d 496, 508

(Alaska 2009) (rejecting argument that expert testimony must recite

statutory language).

AS 46.03.826(5)(A).

31a

showing that “sulfolane has the potential to have adverse

effects.” (Emphasis omitted). But Buss also discussed a

study showing “significant impacts of high concentrations

of exposure.” Her deposition testimony indicates that she

believed sulfolane posed an imminent and substantial danger to the public health or welfare, but she clarified that

none of the studies to which she referred used those words

so she avoided saying that a study made such an explicit

finding. That Dr. Wu and Buss never expressly stated

“sulfolane presented an imminent and substantial danger

to public health” did not preclude the superior court from

making such a finding, especially in light of the ample evidence suggesting that fact. The superior court did not err

by relying on Dr. Wu’s and Buss’s testimony when making

its findings.

Other testimony from Dr. Wu further supports finding

sulfolane presents an imminent and substantial danger to

the public health or welfare. He testified about studies

showing negative impacts on plants, earthworms, aquatic

invertebrates, and fish when exposed to sulfolane, including a study demonstrating impacts on embryonic development in zebrafish when exposed to a range of sulfolane

concentrations equivalent to concentrations found in

groundwater near refineries around the world. And the

fact that Williams itself treated sulfolane as a substance

with life-threatening characteristics while handling it further supports the court’s hazardous substance finding.

The superior court also did not abuse its discretion by

giving weight to Williams’s initial admission that sulfolane

was a hazardous substance, which could shed light on Wil-

32a

liams’s own beliefs about whether sulfolane was hazardous.65 Williams failed to refute the inferences that could be

drawn from its earlier admission, especially when those

inferences were supported by Williams’s own sulfolanehandling practices at the refinery.66

2. The superior court did not err by awarding

response costs to the State and Flint Hills.

Alaska Statute 46.03.822(a) imposes strict liability on

those responsible for the unpermitted release of hazardous substances for a range of costs, including response

costs. “Response costs” are defined by regulation as

In contrast to binding judicial admissions, “evidential admissions

are words or conduct admissible in evidence against the party making

them, but subject to rebuttal or denial.” 29A AM. JUR. 2D Evidence

§ 769; see 2 KENNETH S. BROUN ET AL., MCCORMICK ON EVIDENCE

§ 254 (8th ed. 2020) (defining “judicial admission”). “Evidentiary admissions may also be made in pleadings that have been superseded,

amended, or withdrawn; answers to interrogatories; and other statements made pursuant to the . . . Rule of Evidence governing statements by opposing parties.” 29A AM. JUR. 2D Evidence § 769. Admissions constituting opinion, such as a conclusion of law,

normally include an application of a standard to the facts.

Thus, they reveal the facts as the declarant thinks them to

be, to which the . . . legal or moral standard involved in the

statement was applied. In these circumstances, the factual

information conveyed should not be ignored merely because

the statement may also indicate the party’s assumptions

about the law.

BROUN, supra, § 256 (citations omitted); see also Cikan v. ARCO

Alaska, Inc., 125 P.3d 335, 341 (Alaska 2005).

Because we affirm the superior court’s conclusion that sulfolane

is a hazardous substance under AS 46.03.826(5)(A), it is not necessary

for us to address the extent to which sulfolane may also be defined as

a hazardous substance under subsections AS 46.03.826(5)(B) and (C).

33a

“costs reasonably attributable to the site or incident” including “the costs of direct investigation, containment and

cleanup, removal, and remedial actions associated with an

incident or site undertaken by the department . . . as well

as the costs of oversight.”67

The superior court found that the State’s and Flint

Hills’s plans to “provide alternative water in the form of a

piped water expansion project [were] reasonable and not

arbitrary or capricious.” There was expert testimony that

groundwater remediation would likely cost at least $6 million more than expanding the piped water system, and

would take decades to achieve. The court found “Williams

. . . liable for the estimated costs of the piped water system, $72,228,154, as an appropriate response cost under

.822(a).”68 Other response costs included those incurred

by Flint Hills to deliver bulk and bottled water in the interim and to drill new public wells after sulfolane was detected in the City’s source wells. The interim water deliveries were part of a project costing $27.67 million, and the

new City source wells cost $4.39 million.

Williams argues that the superior court erred by

awarding the State response costs for the piped water

system and new wells, claiming the piped water system

was unnecessary, not cost-effective, and unreasonable.

Williams also argues the superior court erred by award-

18 Alaska Administrative Code (AAC) 75.910(b) (2021).

The court calculated expected cost for the piped water system—

$72,228,154—based on “payments from escrow to date by the State

of $11,599,681 and $44,378,473 from Flint Hills; an additional $16.25

million is expected to be required to complete the project.” It then

determined that Williams was equitably responsible for 75% of the

State’s and Flint Hills’s future costs related to the piped water system.

34a

ing Flint Hills costs for bottled water to North Pole residents, contending that new wells for the City and “providing alternative water to residents on an interim basis”

were unnecessary.

Williams points to several environmental conservation

regulations to support its assertion that “Site Cleanup

Rules require those responsible for contamination to take

only those actions ‘necessary to protect human health,

safety, and welfare, and the environment.’ ”69 But as the

State points out, the standard in the site cleanup regulations differs from that required by statute.70 The regulations mainly focus on what the responsible party must do

to remedy contamination it has caused, which could be

read to require only that the responsible party take the

Quoting 18 AAC 75.335 (requiring responsible party to generate

site characterization plans prior to hazardous substance cleanup), and

also citing 18 AAC 75.345 (requiring cleanup to meet specific levels),

.360 (specifying cleanup operation requirements for responsible

party), .380 (detailing responsible party’s reporting and site closure

requirements), and .990 (chapter definitions, including “cleanup

level”).

See AS 46.03.822(a) (imposing strict liability on responsible parties for damages resulting from “unpermitted release of a hazardous

substance,” including “costs of response, containment, removal, or remedial action, . . . and for the additional costs of a function or service,

including administrative expenses for the incremental costs of providing the function or service”); AS 46.03.824 (“Damages include but are

not limited to injury to or loss of persons or property, real or personal,

loss of income, loss of the means of producing income, or the loss of

an economic benefit.”); see also Kodiak Island Borough v. Exxon

Corp., 991 P.2d 757, 765 (Alaska 1999) (construing, in dicta, “subsection .822(a)’s statement of specific compensable costs to be exemplary

and inclusive, not definitive or exclusive” and “adopt[ing] a literal and

inflexible view of subsection .822(a)’s cost clauses would be fundamentally inconsistent with what we perceive to be the legislature’s primary intent in enacting these provisions: to hold responsible parties

strictly liable for all provable spill-related harms”).

35a

minimum protective actions “necessary.”71 But when considered in light of the policy behind the Environmental

Conservation Act and its enabling regulations, it is more

likely that the provisions Williams cites operate to establish a baseline cleanup level for the responsible parties,

and not a ceiling for the State to respond to the contamination.72 The State incurred costs as a result of Williams’s

See 18 AAC 75.990(17) (defining “cleanup” to include “removal of

a hazardous substance from the environment, restoration, and other

measures that are necessary to mitigate or avoid further threat to human health, safety, or welfare, or to the environment” (emphasis

added)); 18 AAC 75.335(c)-(d) (describing requirements of site characterization report submitted to DEC and allowing DEC to “modify

proposed cleanup techniques or require additional cleanup techniques for the site as the department determines to be necessary to

protect human health, safety, and welfare, and the environment”); 18

AAC 75.345(c) (allowing DEC to set more stringent groundwater

cleanup levels than those currently published if it “determines that a

more stringent cleanup level is necessary to ensure protection of human health, safety, or welfare, or of the environment”); 18 AAC

75.345(d) (allowing DEC to “require a responsible person to provide

an alternative source of drinking water for the affected parties or implement other institutional controls . . . until a cleanup level is established” when “toxicity information is insufficient to establish a

cleanup level for a hazardous substance or a pollutant that ensures

protection of human health, safety, and welfare, and of the environment”).

See 18 AAC 75.910(b) (holding responsible parties liable for “response costs” and defining response costs as “costs reasonably attributable to the site or incident” including “costs of direct investigation, containment and cleanup, removal, and remedial actions associated with an incident or site undertaken by the department . . . as well

as the costs of oversight”); see also AS 46.03.760(d) (holding responsible person “liable to the state . . . for the full amount of actual damages caused to the state by the violation, including” costs for abatement, containment, restoration, and emergency response costs); AS

46.03.780 (allowing for broad recovery when hazardous substance release “injures or degrades the environment”).

36a

hazardous substance releases and Williams is therefore

strictly liable for them.

Williams further argues that the piped water system

was unnecessary because DEC had not established a

cleanup level required to make the groundwater safe for

human consumption73 and the court had not made findings

that piped water was necessary for human or environmental health. For example, Williams claims there was no evidence demonstrating that “the low levels of sulfolane in

North Pole area wells have caused adverse health effects.” The State again points to the text of AS 46.03.822,

where the extent of liability and recovery is untethered to

findings of “necessity” or “cleanup levels.” The State argues that Williams could have proposed a cleanup level74

and Williams’s failure to participate “in the regulatory

process . . . puts it in a poor position to now raise regulation-based objections to DEC’s response.” Furthermore,

regulations expressly allow DEC to require a responsible

person to provide alternative water sources when “toxicity information is insufficient to establish a cleanup level

for a hazardous substance or a pollutant.”75 And, as discussed below, feasibility studies showed that alternatives

to the piped water system such as remediating the

groundwater would be costly, difficult to implement, uncertain to succeed, and could pose additional risks. Thus

establishing a level to which groundwater concentrations

would need to have been returned was irrelevant in these

DEC had not yet set cleanup levels because of uncertainty about

its toxicity data for sulfolane. In 2015 the EPA recommended that

DEC refrain from doing so until the EPA had completed its own toxicity studies evaluating the health effects of sulfolane exposure.

See 18 AAC 75.345(b)(3) (allowing DEC to approve responsible

party’s proposed alternative cleanup level).

18 AAC 75.345(d).

37a

circumstances. The superior court properly concluded

that the statutes did not require the State to prove that

the piped water system was necessary.76

Williams next argues that the piped water system is

not cost-effective, and thus is not “practicable” as required by regulation.77 Williams alleges that “[n]either the

State nor Flint Hills offered any evidence that the piped

water system was the most cost-effective remedy” and

While Williams alleges that the State had ulterior motives in its

pursuit of the piped water system—to “save face with the public” and

to remedy other nonsulfolane contamination problems with well water—our review of the record reveals no such bad-faith motives.

In contrast, Williams’s argument borders on bad faith when it selectively relies on a DEC employee’s testimony to claim that the State

sought “to remedy water quality issues unrelated to sulfolane that

make the well water ‘unpalatable without treatment.’ ” The employee,

referring to aesthetic differences, said the water was “a little unpalatable without treatment.” And Williams’s references to other contamination are unsupported by the record and are irrelevant to assessing the response costs the State incurred out of concern for the

potential public health and welfare impacts from sulfolane contamination.

“Practicable” is defined as “capable of being designed, constructed, and implemented in a reliable and cost-effective manner,

taking into consideration existing technology, site location, and logistics in light of overall project purposes.” 18 AAC 75.990(93). The definition “does not include an alternative if the incremental cost of the

alternative is substantial and disproportionate to the incremental degree of protection provided by the alternative as compared to another

lower cost alternative.” Id.

Williams cites 18 AAC 75.325(f)(1)(D) to support its assertion. In

relevant part, this section instructs a responsible person, “to the maximum extent practicable, . . . [to] prevent, eliminate, or minimize potential adverse impacts to human health, safety, and welfare, and to

the environment, onsite and offsite, from any hazardous substance remaining at the site.” 18 AAC 75.325(f)(1)(D). Williams mischaracterizes this as a requirement for DEC, rather than the responsible party.

38a

that State witnesses conceded that this was not a factor

DEC considered. While the State mostly focuses on the

absence of any statute requiring that it prove piped water

is the most cost-effective remedy, it also points to witness

testimony discussing the benefits of piped water over

other alternatives. The State noted that its permanency,

cost, safety, and reliability made piped water superior to

delivering bottled water or to “restor[ing] the aquifer to

its natural condition.” Williams’s sole proposal besides doing nothing was to conduct air sparging, a form of remediating the aquifer that DEC, as well as Flint Hills’s environmental contractor, had already considered and determined would be costly, ineffective, and could pose additional risks to the community.

Williams further asserts that the piped water system’s

cost was exorbitant rather than cost-effective because

“[o]nly 86 private wells . . . in recent years” recorded

measurements of at least 20 ppb of sulfolane. Williams

therefore calculated the cost of the piped water amounted

to “over $837,000 per affected well.” The State responds

that the statute imposes strict liability for actual damages

and response costs rather than for only the most cost-effective measures taken.78 Flint Hills points to trial testimony tending to show cost-effectiveness for the piped water system was considered both in its design and at trial.

The record also reveals that the sulfolane plume is migrating and not expected to degrade quickly, and that the uncertainty about effects of long-term exposure to sulfolane

See AS 46.03.760(d) (holding responsible party “liable to the state

. . . for the full amount of actual damages caused to the state by the

violation, including” costs for abatement, containment, restoration,

and emergency response costs); AS 46.03.780 (allowing for broad recovery when hazardous substance release “injures or degrades the

environment”).

39a

justifies preventative measures such as the piped water

system.

Even if the statutes or regulations required that response costs be “necessary” and cost-effective, the State

persuasively argues that the record supports such a finding. The superior court found that the piped water system

would be “reasonable and not arbitrary or capricious” as

an alternative water source because it is a common solution for large-scale groundwater contamination, offers an

effective long term solution, would require less maintenance, and would be more convenient. Furthermore, testimony from Williams’s own experts supports finding that

the interim bottled water deliveries and piped water system design were reasonable.

The record supports the superior court’s decision to

hold Williams liable for the response costs for the piped

water system, interim water provisions, new wells, and

public outreach. The court did not clearly err by finding

they were reasonable resolutions to the sulfolane groundwater contamination. We affirm the award of response

costs to the State and Flint Hills for Williams’s sulfolane

releases under AS 46.03.822.

3. The superior court did not err by awarding

damages for loss of access to groundwater

due to sulfolane contamination.

The superior court determined there was a “component of natural resources damage” from sulfolane “that

[was] not addressed by the provision of alternative water

supplies,” i.e., “loss of the right of the public to have access

to uncontaminated groundwater.” The court noted that

some people might prefer using well water, and it noted

that if the sulfolane plume migrates—as is predicted—to

areas beyond the piped water system, the impact might

40a

create further burdens given the “inconveniences and limitations” of installing water filtration systems for well water in those areas. The court explained that, while in some

instances it might not be strictly necessary for residents

to use groundwater since they might have alternatives,

Williams’s sulfolane releases had affected people’s access

to groundwater due to pollution and this was an “uncompensated ‘adverse environmental effect’ ” per AS

46.03.760(a)(1) which was “deserving of reasonable compensation.” The court awarded $2,533,125 to the State for

Williams’s 75% responsibility for the groundwater-related damages.

Williams claims that awarding damages based on the

public’s loss of “the option to choose” to access uncontaminated groundwater was error. Williams argues, first, that

no such right to uncontaminated groundwater exists under state law and that the court based this right only on

“its speculation that ‘[s]ome people may prefer well water,’ ” for which there was no evidence. Williams further

argues that even if a right to access uncontaminated

groundwater existed, it is held by the public; thus, the

State is not harmed and cannot recover damages.

Williams is incorrect that the superior court based the

existence of the right solely on residents’ potential subjective preference for groundwater. The court noted that

preference but also considered other reasons why access

to groundwater was important to the public. For instance,

areas not served by the piped water system would have

limited and costly means for access to clean water.

Williams is also incorrect that there is no basis in state

law to award damages for the loss of access to groundwater. Liability for such contamination is explicitly laid out

in AS 46.03.760. The statute provides that a person who

violates the Act is liable to the State for damages in the

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form of a civil assessment.79 Even if there were no independent right of access to clean groundwater, the State

could pursue damages for harm to this natural resource

based on Williams’s violations of the Act.

Furthermore, Williams’s argument that the State cannot pursue legal action for harm to a right held by the public ignores the State’s role as trustee of public trust resources. As we have explained, “[t]he public trust doctrine

provides that the State holds certain resources (such as

wildlife, minerals, and water rights) in trust for public use,

‘and that government owes a fiduciary duty to manage

such resources for the common good of the public as beneficiary.’ ”80 Alaska’s Constitution provides that “[w]herever occurring in their natural state, . . . waters are reserved to the people for common use,”81 articulating the

AS 46.03.760(a).

Kanuk ex rel. Kanuk v. State, Dep’t of Nat. Res., 335 P.3d 1088,

1099-1100 (Alaska 2014) (quoting Baxley v. State, 958 P.2d 422, 434

(Alaska 1998)); see also AS 46.03.010 (articulating policy of environmental conservation statutes to “enhance the health, safety, and welfare of the people . . . and their overall economic and social wellbeing,”

and to coordinate resource management “to the end that the state

may fulfill its responsibility as trustee of the environment for the present and future generations”).

Alaska Const. art. VIII, § 3. These rights are subject to appropriation and reservation rights. Id. at § 13. Alaska’s Water Use Act,

codified at AS 46.15.010-.270, reiterates these provisions and regulates water appropriation and reservation. AS 46.15.030.

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public trust doctrine for Alaska’s waters.82 “Waters” comprising the public trust are broadly defined.83 Besides navigable waters, this includes “public water,”84 which is defined as “all other water, whether inland or coastal, fresh

or salt, that is reasonably suitable for public use and utility.”85 Thus, groundwater is a public trust resource over

which the State serves as trustee.86

See Kanuk, 335 P.3d at 1099 (“We have frequently compared the

state’s duties as set forth in [a]rticle VIII to a trust-like relationship

in which the state holds natural resources such as fish, wildlife, and

water in ‘trust’ for the benefit of all Alaskans.” (quoting Brooks v.

Wright, 971 P.2d 1025, 1031 (Alaska 1999))). See also AS 46.03.010(b)

(“It is the policy of the state . . . to develop and manage the basic resources of water, land, and air to the end that the state may fulfill its

responsibility as trustee of the environment for the present and future generations.”).

Owsichek v. State, Guide Licensing & Control Bd., 763 P.2d 488,

492 (Alaska 1988) (“A careful reading of the constitutional minutes

establishes that the provisions in article VIII were intended to permit

the broadest possible access to and use of state waters by the general

public.” (quoting Wernberg v. State, 516 P.2d 1191, 119899 (Alaska

1973))).

See AS 38.05.126 (recognizing constitutional right of public access

to navigable and public water).

AS 38.05.965(21).

Some other jurisdictions also recognize groundwater as a public

trust resource, such as Hawai’i, In re Water Use Permit Applications, 9 P.3d 409, 445 (Haw. 2000), and Vermont, Vt. Stat. Ann. tit. 10,

§ 1390(5). But some jurisdictions have not extended the doctrine or

have limited its applicability. See, e.g., Env’t L. Found. v. State Water

Res. Control Bd., 237 Cal. Rptr. 3d 393, 402 (Cal. App. 2018) (holding

public trust doctrine applicable to groundwater extraction only where

such extraction impacts navigable waterways).

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The trust relationship serves as a basis for the State’s

authority to manage the use of and access to trust resources for “beneficial uses or public purposes.”87 The

public trust doctrine has been used to restrain governmental use of public resources,88 but it also enables the

State to recover damages from third parties for harm to

trust resources.89 To make a public trust claim, the government must show that a party caused unreasonable interference with the public’s ability to enjoy a public trust

resource.90

The superior court found that the public’s ability to

use and enjoy the groundwater was affected by sulfolane

contamination. The court noted that “[c]lean water is critically important to the City” and “more than 7,000 people

rely on the groundwater for domestic and commercial water needs.” The public could no longer safely use the

State, Dep’t of Nat. Res. v. Alaska Riverways, Inc., 232 P.3d 1203,

1211-12 (Alaska 2010); see also Brooks v. Wright, 971 P.2d 1025, 1030

(Alaska 1999).

See Kanuk ex rel. Kanuk v. State, Dep’t of Nat. Res., 335 P.3d

1088, 1102 (Alaska 2014) (“[O]ur past application of public trust principles has been as a restraint on the State’s ability to restrict public

access to public resources. . . .”).

Owsichek v. State, Guide Licensing & Control Bd., 763 P.2d 488,

495 n.12 (Alaska 1988) (describing In re Steuart Transp. Co., 495 F.

Supp. 38, 40 (E.D.Va.1980) as illustrative of public trust basis for “federal and state governments to recover damages for migratory waterfowl killed in oil spill”); see also Allan Kanner, The Public Trust Doctrine, Parens Patriae, and the Attorney General as the Guardian of

the State’s Natural Resources, 16 DUKE ENV’T L. & POL’Y F. 57, 94

(2005) (citing case law from New Jersey, Maine, and Maryland to support claim that “[t]he right of a state to recover compensatory damages for the destruction of natural [resources] is well established”).

Kanner, supra note 90 at 59 (citing WILLIAM H. RODGERS,

HORNBOOK ON ENVIRONMENTAL LAW 176 (1977 & Supp. 1984)).

44a

groundwater for these needs because of the sulfolane contamination. Although the exact nature of the risk posed

by sulfolane remains to be understood, there was extensive information in the record to support the superior

court’s conclusion that it presented a danger to public

health and welfare. There was also sufficient evidence in

the record that the contamination was caused by “unreasonable” conduct. Williams itself treated sulfolane as a

hazardous substance and was aware of potential, if not yet

established, environmental impacts. And at least by 1996,

Williams was aware that sulfolane was entering the

groundwater. Yet Williams used inappropriate

wastewater treatment practices, such as directing sulfolane into the wastewater treatment system despite being warned by the sulfolane manufacturer not to do so and

knowingly using corroded sumps and leaky wastewater

lagoons. Williams unreasonably interfered with the public’s use of groundwater resources, and the State could

properly pursue damages for that interference.

Williams also argues that even if a right to uncontaminated groundwater exists, awarding damages for its violation would result in an unlawful double assessment of

penalties. Williams points out that the superior court determined that imposing damages for the cost of restoring

the aquifer to its original condition in addition to imposing

damages for the cost of the piping system would be an “inappropriate double assessment of damages.” Williams

contends that it would therefore be irrational for the court

to award both damages for the piping and damages to

compensate the public for the loss of the option to choose

well water as that, too, would be an inappropriate double

assessment.

We disagree with Williams’s characterization of the

damages as a double assessment. The relevant statutes

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provide for specific forms of recovery for violations of

AS 46.03. Subsection .760(a) provides for civil assessments within a determined range to reflect “reasonable

compensation in the nature of liquidated damages for any

adverse environmental effects caused by the violation,”

“reasonable costs incurred by the state in detection, investigation, and attempted correction of the violation,”

and “economic savings realized by” the violator due to

their noncompliance. (Emphasis added.) Section .780 allows costs for restoration following harm to natural resources, providing for damages in “an amount equal to the

sum of money required to restock injured land or waters,

to replenish a damaged or degraded resource, or to otherwise restore the environment of the state to its condition

before the injury.”91

The superior court explained that the piped water system “substantially replaced the damaged aquifer” in “an

economic usage sense,” and for this reason awarding the

cost of restoring the aquifer in addition to the cost of the

piping would be a double recovery. The court also determined that awarding restoration costs twice, under both

subsection .760(d) and subsection .780(b), would be duplicative because these were the same categories of loss.

However, the superior court found that the public’s

loss of its ability to access uncontaminated groundwater

was an independent harm that was not addressed by

providing alternate water supplies. We agree. The superior court explained that the loss of access is an independent harm: the plume might migrate further to areas that

do not have piping and, consequently, alternatives would

be inconvenient and limited. New construction or uses—

including subsistence uses like growing food—within the

AS 46.03.780(b).

46a

existing plume but outside the piping area will be affected

by the limited alternative ways to obtain clean water. Furthermore, the damages awarded for loss of groundwater

were neither restoration damages covered by section .780

nor a cost expended by the State in “attempted correction

of the violation”92 under subsections .760(a)(2) or .760(d);

rather, the groundwater damages were compensation for

a distinct “adverse environmental effect[]” provided for in

subsection .760(a)(1). Awarding damages based on the

loss of groundwater access was not duplicative or unfounded, and the superior court did not abuse its discretion by awarding compensation for this loss.

Williams raises a third challenge to the superior

court’s award under section .760. Williams contends that,

even if a groundwater access right exists, it could only be

compensated as natural resource damages under section

.780. Williams does not explain why section .760 would not

apply. The language in subsection .760(a)(1) allowing compensation for “any adverse environmental effects” is

broad and allows for recovery related to the groundwater

access issue.

Williams further claims that AS 46.03.760(a)(1) “requires a specific finding on the ‘degree to which [Williams’s releases of sulfolane] degraded the existing environmental quality.’ ”93 Williams contends that the superior

court did not, and could not, make such a finding. We have

not had occasion to interpret whether this subsection requires such a finding, or whether it is only one of many

See AS 46.03.760(a)(2); see also AS 46.03.760(d) (detailing responsible party’s liability for state’s costs “associated with the abatement,

containment, or removal of the pollutant” and “restoration of the environment”).

Quoting AS 46.03.760(a)(1).

47a

possible factors a court may consider “when applicable.”94

But it is unnecessary to decide because the extent of degradation in this case was established: previously potable

water had been determined to be unusable for drinking

and related purposes throughout the three-and-a-halfmile long—and spreading—plume.

It is unclear why Williams claims the court “could not”

have made a finding on the degree of degradation. Even if

true, that argument is unpersuasive because Williams

fails to understand the purpose of liquidated damages in

redressing environmental violations. As the superior

court explained, liquidated damages may be used when

the measure of actual damages is uncertain.95 The uncertainty often inherent in determining the environmental

impacts of pollution is, in part, a reason that liquidated

damages were made available by the legislature. It would

be nonsensical in this statutory context to preclude an

award of liquidated damages due to uncertainty as to the

exact degree of degradation. The civil assessment statute

The statute provides that the sum to be assessed for a violation

shall reflect, when applicable,

(1) reasonable compensation in the nature of liquidated damages

for any adverse environmental effects caused by the violation,

which shall be determined by the court according to the toxicity,

degradability, and dispersal characteristics of the substance discharged, the sensitivity of the receiving environment, and the degree to which the discharge degrades existing environmental

quality. . . .

AS 46.03.760(a).

See Henash v. Ipalook, 985 P.2d 442, 447 (Alaska 1999) (discussing various roles for liquidated damages, including as penalty to assist

in deterrence or as compensation for damages that are “too obscure

and difficult of proof” (quoting Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 583-84 (1942))).

48a

provides for liquidated damages within a predetermined

range, limited by a ceiling established by the legislature,

to enable an award for damages that are uncertain and

difficult to value. The court’s choice of damages within

that range was guided by factors listed in the statute and

does not reflect an abuse of discretion.

Williams adds that there can be no finding that sulfolane “contaminated” the aquifer because 18 AAC

75.990(22) defines “contaminated groundwater” as water

“containing a concentration of a hazardous substance that

exceeds the applicable cleanup level.” It claims that because no such cleanup level has been set, there is no “contamination” of the groundwater and instead the State was

given a “free pass to recover without an objective standard.” This argument is unpersuasive. As discussed, 18

AAC 75 regulates and facilitates site cleanup. It does not

purport to define or set out the measures for all potential

damages available under the environmental conservation

statutes. Thus, applying a definition of “groundwater contamination” drawn from these cleanup regulations is

largely irrelevant to determine whether the aquifer was

contaminated in violation of a provision of AS 46.03. The

superior court correctly said as much in its orders. Second, the provisions that are related to cost recovery in 18

AAC 75.910 were promulgated pursuant to AS

46.03.760(d) and AS 46.03.822 (as well as other statutes

not relevant here). To the extent that definitions from the

administrative regulations apply to damages assessments

in AS 46.03, they would apply only to the calculation of

“actual damages caused to the state by the violation” associated with remediation and restoration under AS

46.03.760(d), rather than to liquidated damages for “any

adverse environmental effects caused by the violation”

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under subsection .760(a)(1).96 Williams acknowledges as

much, stating that “18 AAC 75.910 expressly covers

claims under 46.03.760(d).”

As a final challenge to the access-to-groundwater

damages award under section .760, Williams argues that

the assessment of liquidated damages against it, covering

the eighteen and a half years that Williams operated the

refinery, is punitive rather than “compensatory and remedial in nature” as required by the civil assessments statute.97 Williams claims that punitive damages are not permitted and that it “lawfully” used sulfolane because “DEC

allowed Williams to leave it in the ground . . . and never

once told Williams it was violating the law by doing so.”

We are not persuaded. When Williams reported it had detected sulfolane in the refinery groundwater, DEC experts expressed uncertainty and some concern about the

substance, for which there was a paucity of toxicity information. DEC admitted its lack of information and advised

Williams to monitor its releases while DEC investigated

the hazardous nature of sulfolane. These actions are not

equivalent to permitting sulfolane releases. Moreover, as

the State correctly argues, Williams’s use of sulfolane

may have been allowed, but its releases into the soil and

water were not; such releases would have required a permit that Williams did not obtain.98

And as the State points out, subsection .760(a) “does not even use

the word ‘contamination,’ ” and instead uses the term “adverse environmental effect.”

AS 46.03.760(b).

The superior court concluded likewise in an order denying summary judgment to both Williams and the State for various claims:

“ ‘[U]npermitted’ means without ‘the authority of a valid permit issued by the department or by the Environmental Protection Agency.’

50a

We note that CERCLA’s regulatory scheme and analogous state statutes such as AS 46.03.822 impose strict liability, even retroactively, and are constructed so that polluters—not the public—bear the risk of uncertainty that

the substances they use or dispose of may later be considered hazardous and subject polluters to liability.99 Holding

businesses liable for pollution caused by activities from

which they profited is not punitive, but is rather a compensatory remedy to spread costs among responsible parties so they are not borne solely by the public. For these

reasons, it is not punitive to assess damages over the entire period of Williams’s refinery operations in North

Pole.

In sum, the superior court did not err by assessing

damages under subsection .760(a) for the adverse effect of

sulfolane pollution on groundwater and its impact on the

public’s ability to access the groundwater for consumption. The superior court also properly interpreted the

scope of damages permitted by sections .760 and .780,

made the requisite factual findings without clear error,

Because [Williams] has conceded that it did not have a permit issued

by the DEC or EPA to release sulfolane, its release of that substance

was unpermitted.” And testimony at trial demonstrates that Williams’s employees knew they did not have the requisite permits to release sulfolane. See AS 46.08.900 (defining “release” and “permitted

release”).

See United States v. Ne. Pharm. & Chem. Co., 810 F.2d 726, 732

(8th Cir. 1986) (finding CERCLA applies retroactively); Kodiak Island Borough v. Exxon Corp., 991 P.2d 757, 762 (Alaska 1999) (finding section .822 analogous to CERCLA in imposing retroactive liability); see also Burlington N. & Santa Fe Ry. Co. v. United States, 556

U.S. 599, 622 (2009) (Ginsburg, J., dissenting) (discussing CERCLA’s

polluter pays principle).

51a

and properly exercised its discretion when determining

awards that were neither duplicative nor punitive.

4. It was error to issue injunctive relief by reference to supporting documents, but the superior court did not err by granting declaratory relief.

The superior court awarded injunctive and declaratory relief to the State and Flint Hills under AS 46.03.765

for PFAS-related claims.100 The court found “PFOS and

PFOA are hazardous substances” under AS 46.03.822 and

are “[t]he compounds encompassed by the acronym

PFAS.” The court also found that no evidence was presented at trial that “PFAS-related products were used or

PFAS releases occurred during Flint Hills’[s] tenure at

the [refinery].” It therefore declared Flint Hills was not a

responsible party under section .822 for onsite PFAS contamination at the refinery. The superior court concluded

in paragraph 3(a) of the judgment that Williams was

“strictly, jointly, and severally liable for sulfolane, [and]

PFAS . . . releases, including liability for the State’s future

AS 46.03.765 affords the court “jurisdiction to enjoin a violation

of this chapter . . . or of a regulation, a lawful order of the department,

or permit, approval, or acceptance, or term or condition of a permit,

approval, or acceptance issued under this chapter.”

100

Williams also argues that the superior court erred when it chose

not to refer onsite PFAS claims to DEC under the doctrine of primary jurisdiction. When the superior court properly has jurisdiction,

its decision to refer an issue to an executive agency is plainly within

its discretion and is informed by factors such as judicial economy and

administrative expertise. See Seybert v. Alsworth, 367 P.3d 32, 39

(Alaska 2016). The superior court did not abuse its discretion, especially in light of years of pretrial litigation of this issue and DEC’s

determination that Williams was responsible for PFAS and other hazardous substance contamination during its tenure. Referral would not

have served the purposes of the primary jurisdiction doctrine.

52a

response costs.” It therefore declared in paragraph 3(b)

that the State could recover 75% of its future costs related

to the piped water system. In paragraph 3(d) of the judgment, the court further ordered Williams to “perform and

pay for remediation and cleanup efforts as directed by

DEC with respect to sulfolane groundwater contamination beyond the . . . Refinery property and with respect to

PFAS contamination at the Refinery property.” And under paragraph 3(e), the superior court ordered Williams

perform monitoring and reporting of sulfolane

groundwater contamination beyond the . . . Refinery property boundary required under

[DEC] approved plans;

ii.

address PFAS soil and groundwater contamination at the Refinery property in accordance

with DEC requirements, including characterization, monitoring, reporting, containment, and

cleanup; [and]

iii.

otherwise comply with DEC’s site cleanup

rules, including 18 AAC 75 and other applicable

state laws, for sulfolane contamination beyond

the Refinery property and PFAS contamination at the Refinery property.

Additionally, the court ordered Williams to “indemnify,

defend, hold harmless, and reimburse Flint Hills for 100%

of all future costs, expenses, claims, and damages incurred related to [onsite] PFAS contamination.”

a. Challenges to the injunctive relief

Williams argues that awarding injunctive relief to the

State was improper because the State “failed to put on ev-

53a

idence that irreparable injury would result absent injunctive relief.” While we have recognized that irreparable

harm and inadequate remedies at law are required elements for common law injunctive relief,101 the State argues that AS 46.03.765 grants the court “jurisdiction to

enjoin a violation” of Title 46, Chapter 3, negating the

need for the State to show either element.102 In its reply,

Williams argues that AS 46.03.765 permits only “temporary or preliminary relief” and is meant to provide DEC

“with a tool to stop a polluter from continuing to release

contaminants until final relief may be obtained.” But the

statute does not prohibit permanent injunctions; it merely

provides additional requirements for temporary or preliminary relief due to the reduced opportunity for due process in such situations,103 further indicating that permanent injunctions—which do not entail those same due process concerns—are permitted. And even those additional

requirements for temporary or preliminary relief fall

Lee v. Konrad, 337 P.3d 510, 517 (Alaska 2014) (“Equitable injunctive relief is an extraordinary remedy that is appropriate only

where the party requesting relief is likely to suffer irreparable injury

and lacks an adequate remedy at law.”).

101

See LeDoux v. Kodiak Island Borough, 827 P.2d 1121, 1123

(Alaska 1992) (“Where a statute specifically authorizes injunctive relief, the plaintiff need not show either irreparable injury or lack of an

adequate remedy at law.” (quoting Carroll v. El Dorado Ests. Div.

No. 2 Ass’n, Inc., 680 P.2d 1158, 1160 (Alaska 1984))).

102

103

See AS 46.03.765 (“In actions brought under this section, temporary or preliminary relief may be obtained upon a showing of an imminent threat of continued violation, and probable success on the

merits, without the necessity of demonstrating physical irreparable

harm.”).

54a

short of requiring irreparable harm.104 Williams’s arguments that the injunction should be vacated for failing to

meet necessary elements are therefore unpersuasive.

Williams next argues that paragraphs 3(d) and 3(e) of

the court’s final judgment violate Alaska Civil Rule 65(d)

for being too “vague” and “open-ended.” Civil Rule 65(d)

provides in relevant part that “[e]very order granting an

injunction . . . shall set forth the reasons for its issuance;

shall be specific in terms; [and] shall describe in reasonable detail, and not by reference to the complaint or other

document, the act or acts sought to be restrained.” First,

Williams argues paragraph 3(d) of the judgment is impermissibly vague because: (1) “it identifies no ‘remediation

and cleanup efforts’ that Williams must undertake and the

Judgment refers to documents that did not yet exist”;

(2) “the injunction’s geographic scope to remedy and

clean up sulfolane is apparently limitless”; and (3) “there

is no time limit on Williams’[s] obligations, which exposes

Williams to liability for future costs to remedy releases to

which it played no part.” Williams challenges paragraph

3(e) of the injunction for similar reasons: it “broadly purports to make Williams responsible forever for sulfolane

contamination ‘beyond the Refinery property,’ ” and “incorporates all ‘applicable’ Alaska laws, without further

guidance or specificity” leaving Williams unable to determine exactly what conduct is required.105

104

See id.

See Hughey v. JMS Dev. Corp., 78 F.3d 1523, 1531 (11th Cir.

1996) (explaining Federal Rule of Civil Procedure 65 regarding injunctions “serves to protect those who are enjoined” by ensuring “an

ordinary person . . . should be able to ascertain from the document

itself exactly what conduct is proscribed” (quoting 11A CHARLES

ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL

105

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The State argues that the order satisfies Civil Rule

65(d)’s specificity requirements by drawing comparisons

to an Idaho federal district court opinion—Idaho Conservation League v. Atlanta Gold Corp.106 The State argues

that, similar to Idaho Conservation League, the court

properly ordered Williams “into compliance . . . without

directing every step . . . because the duration of the contamination is indefinite and Williams’[s] violations are

longstanding and serious.”107 The State next argues that

the “site clean-up rules—which the judgment refers to—

are specific enough to put Williams on notice of what it

must do,”108 a fact demonstrated after the judgment when

“Williams managed to twice submit—and gain approval

of—monitoring and characterization plans.” Third, the

State argues that the cases upon which Williams relies in

PRACTICE AND PROCEDURE § 2955 (1995))); see also Fed. R. Civ. P.

65(d) (“Every order granting an injunction and every restraining order must: (A) state the reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detail—and not by referring

to the complaint or other document—the act or acts restrained or required.”).

Williams does not specifically challenge paragraph 3(e)(ii) of the

judgment. To the extent paragraph 3(e)(ii) is distinct from paragraph

3(d)—both require PFAS cleanup but the latter requires PFAS

“characterization, monitoring, reporting [and] containment” at the

refinery—we consider any argument against it insufficiently briefed

and therefore waived.

106

879 F. Supp. 2d 1148 (D. Idaho 2012) (upholding as proper under

Federal Rule of Civil Procedure 65(d) trial court’s injunction directing defendants to comply with existing Clean Water Act permits without more specificity because parties, not court, are better placed to

determine exact method of compliance).

107

Cf. id. at 1164.

108

See 18 AAC 75.325-.390 (describing in detail site cleanup rules

and site characterization plans).

56a

labelling the injunction as an “obey the law” injunction are

distinguishable. Finally, the State disregards Williams’s

concerns over the injunction’s geographically and temporally unlimited reach because the sulfolane plume is similarly unlimited. Williams replies that the State fails to

show that “the injunction meets Rule 65(d)’s specificity

requirements” and that the distinctions between the cases

Williams cites and the facts at issue are immaterial.

We agree that the injunctive relief did not satisfy Civil

Rule 65(d)’s specificity requirements. Rule 65(d) requires

that injunctions “describe in reasonable detail, and not by

reference to the complaint or other document, the act or

acts sought to be restrained.” The paragraphs of the judgment that Williams challenges—paragraphs 3(d), 3(e)(i),

and 3(e)(iii)—do not describe on their own, with reasonable specificity, the remediation and cleanup efforts Williams will need to undertake. The court’s accompanying

Memorandum of Decision includes more specificity, but

the parties do not discuss whether it is specific enough to

satisfy Rule 65(d) or whether mere reference to the Memorandum of Decision satisfies Rule 65(d). We remand the

judgment for injunctive relief for more clarity and to explicitly incorporate—not by reference—the language

from the Memorandum of Decision, statutes, administrative code, and other documents to which the superior

court refers.

b. Challenges to the declaratory relief

Williams next challenges the superior court’s declaratory orders on PFAS at paragraph 3(a) of the court’s final

judgment. Williams argues that the court improperly declared Williams liable for PFAS generally when only

PFOS and PFOA were ever mentioned at trial; that “the

57a

State and Flint Hills only presented evidence that Williams used a product that included PFOS,” and that Flint

Hills should shoulder some of the blame for PFAS.109

As Williams acknowledges, “ ‘PFAS’ is not a single

substance, but an umbrella term referring to a diverse

category of man-made chemicals,” including PFOS,

PFOA, and more.110 At trial, Williams representative

Randy Newcomer testified that between 1991 and 2000

Williams used only one company’s brand of aqueous foams

in its fire response practices, and he agreed that the foams

contained “perfluoroalkyl substances” including—but not

necessarily limited to—PFOS. Dr. Wu also testified that

the company’s foams marketed and sold during that time

As it did with respect to the injunctive relief discussed above,

Williams argues that the declaratory relief for PFAS improperly extends into the future. Because the court’s order holds Williams liable

for future costs related to the PFAS it released prior to the trial date,

this portion of the court-awarded relief is sufficiently specific and

does not improperly extend into the future.

109

Williams also argues that the “declaratory relief in favor of Flint

Hills already was rejected because Flint Hills had an adequate remedy at law.” For support, Williams cites a 2017 pretrial order dismissing Flint Hills’s “claims for declaratory judgment and specific performance” against Williams as barred by res judicata in light of Flint

Hills I, 377 P.3d 959 (Alaska 2016). But the declaratory relief sought

in Flint Hills I concerned sulfolane rather than PFAS, did not involve

State claims, and was dependent on the availability of other legal remedies. Id. at 973-74. Williams does not explain how these important

differences would justify barring declaratory relief based on res judicata and we see no reversible error on this issue. See Patterson v. Infinity Ins. Co., 303 P.3d 493, 497 (Alaska 2013) (“A judgment is given

res judicata effect by this court when it is (1) a final judgment on the

merits, (2) from a court of competent jurisdiction, (3) in a dispute between the same parties (or their privies) about the same cause of action.” (quoting Angleton v. Cox, 238 P.3d 610, 614 (Alaska 2010))).)

110

See supra note 1 (defining PFAS).

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listed “organic fluorochemicals” as an ingredient, another

phrase for the “PFAS class of compounds,” including

“PFOS and PFOA.” In addition, Williams admitted that

“releases of . . . perfluorochemicals occurred” during its

tenure at the refinery. There was also contemporary evidence of PFAS contamination more broadly, not just

PFOS, in the soil and groundwater at the refinery.

Though Williams points to evidence suggesting that Flint

Hills could have used PFAS during its tenure at the refinery, Williams fails to identify any evidence that Flint Hills

actually did use PFAS-containing products.111

Williams does not raise the argument that Flint Hills should be

liable under AS 46.03.822 for PFAS contamination due to its status as

current owner of the facility from where PFAS was released. See

AS 46.03.822(a)(2), .826(9) (assigning liability to owner of facility from

which hazardous substance is released and defining “release” broadly

such that PFAS “leaching” from the refinery could fall within definition); see also AS 46.03.822(c) (maintaining liability for refinery owners that purchased property with knowledge of earlier releases of

hazardous substance).

111

On appeal, Williams points to several sections of the record purporting to show that “Flint Hills used substantial amounts of ‘PFAS’

in fire-training exercises and ‘hot work’ at the refinery.” Some of that

“evidence” consists of Williams’s own proposed findings of fact and

testimony from some of its own witnesses speculating about the

source of PFAS detections that occurred “upgradient” (i.e., in the opposite direction of water seepage) of firefighting areas. Williams also

cites a 2018 DEC report detailing PFAS sampling at the refinery that

indicates Flint Hills purchased firefighting foams, but not that those

foams contained PFAS. Williams additionally points us to a lengthy

2013 environmental report without explaining its relevance, but that

report was excluded from trial on hearsay grounds and in any event,

it suggests Flint Hills purchased foams without PFOS or PFOA.

To the extent there may have been evidence tying Flint Hills to

PFAS contamination at the refinery, we consider the argument

waived for insufficient briefing and failure to cite relevant evidence in

59a

Because the record shows that Williams released

PFAS during its tenure, the burden was on Williams to

prove that it did not use particular PFAS chemicals or to

establish that another entity was also liable.112 The superior court did not err when it declared that no evidence

was presented demonstrating Flint Hills used PFAS during its time at the refinery, and that Flint Hills was not a

responsible party under AS 46.03.822 for PFAS contamination.

5. Williams’s right to due process was not violated.

Williams argues that DEC’s enforcement action and

the superior court’s finding of liability under section .822

and subsection .826(5)(a) violated the Due Process Clause

of the U.S. Constitution113 and article I, section 7 of the

Alaska Constitution114 because Williams did not have “fair

notice” that its conduct was prohibited.

Williams implies that the hazardous substance statutes and regulations are too vague to make it clear

the record. See Casciola v. F.S. Air Service, Inc., 120 P.3d 1059, 106263 (Alaska 2005); Alaska R. App. P. 212(c)(1)(H).

112

See AS 46.03.822; Oakly Enters., LLC v. NPI, LLC, 354 P.3d

1073, 107980 (Alaska 2015) (“The burden of proof is on the party seeking to avoid joint and several liability . . . .”). Williams had access to

the list of PFAS present in the soil and groundwater at the refinery,

and does not identify any place in the record where it challenged or

otherwise indicated it would challenge its liability for specific PFAS.

“No person shall be . . . deprived of life, liberty, or property,

without due process of law.” U.S. Const. amend. V.

113

114

“No person shall be deprived of life, liberty, or property, without

due process of law. The right of all persons to fair and just treatment

in the course of legislative and executive investigations shall not be

infringed.” Alaska Const. art. I, § 7.

60a

whether sulfolane fell within the definition and whether

Williams could be liable for its release. Williams claims it

relied on agency statements to understand its responsibility. Williams specifically contends that “DEC told Williams that sulfolane was not a hazardous substance and

not regulated” and that DEC actually “allowed sulfolane

to stay in the ground.” As a result it claims that “DEC’s

actions and communications gave Williams no notice that

its conduct created a substantial risk of actual harm.” Williams also claims that the superior court’s “eve-of-trial interpretation” of the terms “hazardous substance” and

“imminent and substantial danger” violated the principles

of fair notice because they were a “reversal” of DEC’s initial position and a prior superior court decision in the

case.

Due process requires that a party be given fair notice

before it can be subjected to liability,115 at least with regard to “criminal or serious civil penalties.”116 Williams’s

potential multi-million dollar liability and remediation duties qualify as “serious civil penalties.”117 Whether the constitutional requirements of due process were met is a legal

See State, Dep’t of Revenue v. Nabors Int’l Fin., Inc., 514 P.3d

893, 899 (Alaska 2022) (explaining that lack of fair notice, such as

through statutory vagueness, “violates the first essential of due process of law” (quoting Halliburton Energy Servs. v. State, Dep’t of

Lab., Div. of Lab. Standards & Safety, Occupational Safety & Health

Section, 2 P.3d 41, 51 (Alaska 2000))).

115

VECO Int’l, Inc. v. Alaska Pub. Offs. Comm’n, 753 P.2d 703, 714

(Alaska 1988).

116

See id. at 706 (civil penalty of $72,600 imposed for alleged violations of Alaska Campaign Disclosure Act considered “serious civil

penalty”). The State argues that this case does not require fair notice

because the hazardous substance statute operates remedially to im117

61a

question that we review de novo,118 but factual determinations such as those regarding the meaning of DEC’s communications are reviewed for clear error.119

Fair notice is a principle of “basic fairness” which requires that “a statute . . . give adequate notice to the ordinary citizen of what is prohibited.”120 In other words, a

statute must not be so vague that people cannot know

what they must do or are prohibited from doing. We have

explained that even if a statute might in some contexts be

too vague to give adequate notice, it “may still pass muster if: (a) there can be no question as to its applicability to

the particular offense involved, and (b) a construction may

be placed upon the statute so that in the future the type of

pose “compensatory liability” rather than “civil or criminal punishment.” We agree that sections .760, .780, and .822 are not intended to

“punish” but rather to compensate for environmental damage. See

AS 46.03.760(b) (requiring that civil assessments be “compensatory

and remedial in nature” rather than punitive). But a “penalty” can be

narrowly or broadly defined. See Penalty, BLACK’S LAW DICTIONARY

(11th ed. 2019) (first describing a penalty as “[p]unishment imposed

. . . for either a wrong to the state or a civil wrong (as distinguished

from compensation for the injured party’s loss)” but then broadly defining civil penalty as “fine assessed for a violation of a statute or regulation”). We assume without deciding that the large statutory assessments awarded against Williams may be considered “penalties”

to which fair notice requirements apply.

118

See Nabors Int’l Fin., Inc., 514 P.3d at 898.

Burton v. Fountainhead Dev., Inc., 393 P.3d 387, 392 (Alaska

2017).

119

120

Stock v. State, 526 P.2d 3, 8 (Alaska 1974); see also F.C.C. v. Fox

Television Stations, Inc., 567 U.S. 239, 253 (2012) (“A fundamental

principle in our legal system is that laws which regulate persons or

entities must give fair notice of conduct that is forbidden or required.”).

62a

offenses coming within its purview may reasonably be understood.”121 The regulation of economic activity—such as

through antipollution statutes—typically survives a

vagueness challenge as long as there is “legislative language which is not so conflicting and confused that it cannot be given meaning in the adjudication process.”122

In Stock v. State we analyzed whether the broad antipollution provision in AS 46.03.710 was void for vagueness.123 Section .710 states that “[a] person may not pollute

or add to the pollution of the air, land, subsurface land, or

water of the state.” “Pollution” in turn is defined as

the contamination or altering of waters, land or subsurface land of the state in a manner which creates a

nuisance or makes waters, land or subsurface land unclean, or noxious, or impure, or unfit so that they are

actually or potentially harmful or detrimental or injurious to public health, safety or welfare, to domestic,

commercial, industrial, or recreational use, or to livestock, wild animals, bird, fish, or other aquatic life.[124]

We acknowledged there might be borderline or de

minimis cases when the application of the statute might

be unclear, but we refused to analyze the statute in so ab-

121

Stock, 526 P.2d at 8 (internal citations omitted).

122

Lazy Mountain Land Club v. Matanuska-Susitna Borough Bd.

of Adjustment & Appeals, 904 P.2d 373, 383 (Alaska 1995) (quoting

Williams v. State, Dep’t of Revenue, 895 P.2d 99, 105 (Alaska 1995));

see also id. (explaining civil penalties and economic regulation are

“subject to a less strict vagueness test” than, for instance, speech

(quoting Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455

U.S. 489, 498-99 (1982))).

123

526 P.2d at 7-13.

124

AS 46.03.900(20) (formerly AS 46.03.900(15)).

63a

stract a manner to determine if it was void for vagueness.125 Instead, we looked specifically at the act for which

Stock was convicted: discharging raw sewage into a

stream running through residential areas.126 This act obviously fell within the statutory definition of “pollution”;

even Stock’s counsel admitted that a reasonable person

would know this.127 We acknowledged that the term “potentially harmful” in the definition of “pollution” might be

vague enough to require a narrowing construction, and we

added an element requiring foreseeability which would be

used in future applications.128 But we affirmed the superior court’s finding that Stock had violated the provision

because Stock’s conduct so clearly fell within the “hard

core” of prohibited conduct.129 Additionally, we explained

that the need for environmental protection, the increasing

number of laws and regulations governing disposal of substances used during commercial activity, and the need for

the legislature to make broad statutes to balance economic growth with environmental protection all supported our conclusion that the antipollution provisions at

issue were not unconstitutionally vague on their face and

125

Stock, 526 P.2d at 9-10 (“Courts have often recognized that the

possibility of difficult or borderline cases will not invalidate a statute

where there is a hard core of cases to which the ordinary person would

doubtlessly know the statute unquestionably applies.”).

126

Id. at 10.

127

Id. at 9-11.

Id. at 9-10. We determined that “the statute prohibits acts which

a reasonable person would foresee as creating a substantial risk of

making water actually injurious to the statutorily protected interests.” Id. at 10.

128

129

Id. at 9-10.

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that Stock was clearly on notice that discharging raw sewage into waterways was improper.130

In Williams’s case, it is possible that the hazardous

substance provisions of section .822 and the statutory definition of hazardous substances in subsection .826(5) could

be vague in some instances. But the superior court’s findings about sulfolane lead us to conclude sulfolane falls

within the “hard core” of the definition of hazardous substance. And Williams itself treated sulfolane as hazardous. Furthermore, Williams may have been allowed to use

sulfolane, but it knew that it was not permitted to simply

dispose of the substance in any manner it wished. These

facts indicate that Williams was on notice of the potential

for liability under a gamut of antipollution statutes, including those related to hazardous substances. We conclude that the statute is not so impermissibly vague that

it violates Williams’s right to due process.

We also disagree that DEC’s communications or actions prior to litigation resulted in a lack of fair notice to

Williams.131 DEC’s failure to pursue an enforcement

130

Id. at 12-13.

131

The superior court rejected this argument in Williams’s crossmotion for summary judgment because it determined that fair notice

would be required only when an agency “depart[ed] from its long-established regulations or adjudications.” But fair notice requirements

apply even when there have not been regulations or adjudications on

point. The U.S. Supreme Court has recognized that while agencies

have enforcement discretion and interpretive latitude, if the statutory

interpretations are unreasonable or if the conspicuous inaction appears to be for no reason other than acquiescence, “the potential for

unfair surprise is acute.” Christopher v. SmithKline Beecham Corp.,

567 U.S. 142, 158 (2012). Agency actions beyond regulations and adjudications serve to inform regulated entities and therefore are relevant to the fair notice inquiry. However, as we discuss below, DEC

did not cause Williams unfair surprise.

65a

action with regard to sulfolane was not “acquiescence”132

to or approval of Williams’s conduct. In its communications with Williams, DEC acknowledged that sulfolane

was not then regulated as a hazardous substance because

very little was known about it and there was a “lack of

EPA reviewed toxicity data,” and DEC said it first needed

to gather more information regarding sulfolane and the

pollution issuing from the refinery. It required Williams

to conduct further monitoring and stated that it would follow up with further clarification or action. Though Williams claims DEC’s communications constituted “written

determinations” that sulfolane did not pose a hazard,

DEC communicated that sulfolane was not regulated at

the time, not that it had ultimately concluded it was not

hazardous. We conclude the superior court did not clearly

err when it found DEC had not promulgated prior interpretations about sulfolane in legal briefs, regulations, or

adjudications that Williams might have relied on to claim

sulfolane was not hazardous.133

See id. (recognizing many reasons for agency lack of enforcement and finding lack of fair notice where only possible reason was

acquiescence).

132

The cases Williams cites as support for its argument are distinguishable on several grounds, including their stricter CERCLA context that requires the listing of substances EPA deems hazardous

(whereas AS 46.03.822 does not), and their conclusions that notice was

lacking only when the court found the statute ambiguous and official

agency interpretations or guidance were conflicting. See Massachusetts v. Blackstone Valley Elec. Co., 67 F.3d 981, 988, 993 (1st Cir.

1995) (denying, as violation of fair notice, summary judgment to EPA

in enforcement action based on EPA’s categorization of ferric ferrocyanide as “ cyanide” under CERCLA, because unclear if regulatory

background indicated it should be so categorized and because EPA

took inconsistent official positions on categorization); Rollins Env’t

Servs. (NJ) Inc. v. U.S. E.P.A., 937 F.2d 649, 654 (D.C. Cir. 1991)

133

66a

Agencies are free to create and change policies for

matters within their purview, as DEC did when it decided

to regulate sulfolane and treat Williams as a responsible

party. An agency should indicate that it is changing its position and demonstrate good reasons for such a change,

but it does not need to “provide detailed justifications for

every change” and it is not the court’s role to ask whether

the chosen policy is better or best—only whether it conforms to reason.134 Based on the evidence presented at

trial, the superior court concluded that DEC reasonably

determined sulfolane to be a “hazardous substance” and

that unpermitted disposal was a violation of the antipollution provisions of Title 46, Chapter 3. We see no error with

that conclusion.

Williams also argues that the superior court’s own rulings deprived it of due process because the court promulgated an “eve-of-trial interpretation of ‘hazardous substance’ ” and “imminent and substantial danger” under

section .822 and subsection .826(5) that contradicted “both

the DEC position on sulfolane during 2001-2003 . . . and

the intervening decision of the same court.” Williams does

not cite case law to support its claim, does not specify exactly how the superior court acted unlawfully, and does

not indicate how it was prejudiced. We consider arguments that are given cursory treatment without any support to be waived.135 And we do not see how the superior

(concluding it would violate requirements of fair notice to impose penalty on company because statute was ambiguous and EPA gave conflicting advice to private parties about how to comply with statute).

134

F.C.C. v. Fox Television Stations, Inc., 567 U.S. 239, 250 (2012).

135

See Hagen v. Strobel, 353 P.3d 799, 805 (Alaska 2015). Furthermore, “eve-of-trial” is a misleading portrayal of the court’s actions.

67a

court carrying out its obligation to interpret the relevant

statute—issuing rulings on a matter of law that was consistently contested throughout the proceedings—could

have worked unfair surprise on Williams or violated its

right to fair notice.136

6. Imposing civil liability for past releases was

not an unconstitutional taking.

Williams argues that the superior court’s interpretation of AS 46.03.826(5)(A) is an unconstitutional regulatory or judicial taking under the U.S. and Alaska Constitutions.137 Williams argues the judgment imposes severe,

unforeseeable retroactive liability, which it could not have

anticipated because the superior court’s interpretation of

the relevant statutes was a “change in law.” Because this

imposition of liability is linked to an identified property

interest and it was accomplished for a public purpose, Williams argues it constitutes a compensable taking.

Williams’s argument fails because it continuously

characterizes the superior court’s interpretation as a

“change in the law,” when it is not. Williams merely disa-

The court informed the parties eleven days before trial and approximately five weeks before the close of trial how it planned to interpret

the statute. Trial courts are under no obligation to issue such memoranda about tentative interpretations of the law ahead of trial, and

doing so could only have assisted Williams in preparing its case.

See Christopher, 567 U.S. at 161 (explaining court’s role in conducting statutory interpretation when agency adopts interpretation

of statute that does not deserve deference).

136

137

“[N]or shall private property be taken for public use, without

just compensation.” U.S. Const. amend. V. “Private property shall not

be taken or damaged for public use without just compensation.”

Alaska Const. art. I, § 18.

68a

grees with the interpretation and the factual basis for concluding sulfolane is hazardous. Similarly, Williams mischaracterizes DEC’s communications as having previously “expressly advised Williams that sulfolane was not

a concern” but now determining it to be a hazardous substance. As discussed above, the superior court made factual findings that DEC never expressly authorized the releases, and these findings are not clearly erroneous.138 Finally we note that Williams’s irresponsible waste management and sulfolane releases are not conduct linked to

“reasonable investment-backed expectations” that takings jurisprudence seeks to protect.139

B. Flint Hills’s Contractual Indemnification and

Statutory Contribution Claims Against Williams

Flint Hills sought indemnification from Williams under the terms of the Purchase Agreement for the remedi-

Because there was no “change in law” and no retroactive liability

imposed here, we need not reach the arguments of Williams and the

State concerning whether retroactive liability under the hazardous

substance statute effects an unconstitutional taking.

138

139

State, Dept. of Nat. Res. v. Arctic Slope Reg’l Corp., 834 P.2d

134, 139 (Alaska 1991) (quoting Ruckelshaus v. Monsanto Co., 467

U.S. 986, 1005 (1984)) (explaining that DNR’s use of proprietary information from oil companies did not upset reasonable investmentbacked expectations because it did not affect company’s actions or investments); see Penn Cent. Transp. Co. v. City of New York, 438 U.S.

104, 124 (1978); see also Arctic Slope, 834 P.2d at 140-45 (further finding no unfair surprise given statute authorizing DNR use and concluding regulatory statute was legitimate use of state’s police power

for public welfare).

69a

ation and litigation costs associated with the offsite sulfolane.140 Flint Hills also sought statutory contribution

from Williams for those costs.141 The superior court determined that the Purchase Agreement terms barred Flint

Hills’s claim for indemnification because it had contributed to the sulfolane pollution, but that Flint Hills could

seek contribution pursuant to AS 46.03.822(j).

Williams disputes the superior court’s interpretation

of the Purchase Agreement. It first argues that Flint Hills

assumed responsibility for the offsite sulfolane. Williams

also contends that the Purchase Agreement’s indemnification provision is the sole remedy available to Flint Hills

and therefore the superior court erred by allowing statutory contribution. Williams also argues that any award

against it—whether through indemnity or contribution—

is subject to the Environmental Cap negotiated in the

Purchase Agreement. Because the superior court did not

err when it interpreted the parties’ allocation of liabilities

and the remedies in the Purchase Agreement, we affirm

the court’s determinations regarding Flint Hills’s claims

against Williams.

We again note that the hazardous substance statute holds ineffective any “indemnification, hold harmless, or similar agreement . . .

to transfer liability. . . from the owner or operator of a facility.”

AS 46.03.822(g). But the statute also allows for indemnification and

hold harmless agreements between liable parties to shift financial responsibility. Id.

140

141

AS 46.03.822(j) enables liable parties to “seek contribution from

any other person who is liable under (a) of this section.” To resolve a

claim for contribution, “the court may allocate damages and costs

among liable parties using equitable factors determined to be appropriate by the court.”

70a

1. Overview of the Purchase Agreement’s indemnification and remedies provisions

Article X142 of the Purchase Agreement contains detailed provisions regarding financial liability between the

parties for litigation or damages incurred following the

purchase. Article X cross-references Section 10.2(a)(iv) of

the “Disclosure Schedule” appended to the Purchase

Agreement. That section of the Disclosure Schedule, entitled “Known Environmental Matters,” begins with a sentence fragment stating, “Any and all costs of clean-up,

monitoring, corrective actions and compliance with regulations incurred after the Effective Time with respect to

contamination specifically identified in the referenced figures, tables and text described below.” The following sentence adds detail, stating that “Buyer has agreed to assume full responsibility for all existing, known contamination at the Real Property specifically identified in the referenced figures, tables and text described below.” The

Disclosure Schedule also provides that

Buyer understands and acknowledges that the levels

of Hazardous Materials measured in monitoring wells

and contained in the figures, tables, and text below will

vary over time, and that Buyer is responsible for such

normal variations, as well as any changes in such contamination resulting from Buyer’s actions or omissions after the Effective Time. . . . [T]he Buyer further

understands that the data is representative of site conditions and can be used to support reasonable conclusions about present contaminant concentrations at the

142

The Purchase Agreement refers to articles using Roman numerals but sections within using ordinary Arabic numerals. Thus it refers

to the article as “Article X,” but sections within the Article as “Section

10.2,” for example.

71a

locations sampled and contaminant contours outside

those locations.

Listed in the Disclosure Schedule is a table entitled

“Sulfolane Data (July 2001 September 2001) for North

Pole Refinery.” The table indicates varying concentrations of sulfolane were detected at monitoring wells located on the refinery property, including near the property boundaries.

Section 10.2(a)(iii) of the Purchase Agreement states

that “Seller shall indemnify, defend and hold Buyer . . .

harmless, from and against any and all Damages incurred

by [Buyer] in connection with or arising or resulting from

. . . the possession, ownership, use, or operation of the Assets prior to the Effective Time.”143 However, that provision’s general language is qualified by various exceptions.

Specifically, that subsection provides that Seller shall

have no duty to indemnify under this Section 10.2(a)(iii)

(A) with respect to Buyer’s obligations under Section[] . . .

10.2(b)(v)(C)[144] [matters set forth on the Disclosure

Schedule] . . . , (B) to the extent that Damages are caused

or contributed to by Buyer’s operations, actions or omissions after the Effective Time and/or (C) with respect to

any Environmental Claim.

“Effective Time” refers to the closing date of asset transfer,

March 31, 2004.

143

144

Section 10.2(b) covers indemnification by the Buyer and states

that “Buyer shall indemnify, defend and hold Seller . . . harmless,

from and against any and all Damages incurred by [Seller] in connection with or arising . . . from . . . (v)(C) any and all costs of cleanup,

monitoring, corrective actions and compliance with regulations incurred after the Effective Time with respect to the matters set forth

on . . . the Disclosure Schedule.”

72a

The latter type of claim is “covered exclusively by the

provisions of Section 10.2(a)(iv).”

Section 10.2(a)(iv), which governs and serves to define

“Environmental Claims,” states that Williams will indemnify Flint Hills for damages arising from a broad enumerated list “except to the extent that Damages are caused or

contributed to by Buyer’s operations, actions or omissions

after the Effective Time.” The matters listed for which

Williams retains responsibility include in relevant part:

(A)

any Environmental Condition[145] existing

prior to the Effective Time, at, on or under

or arising, emanating, or flowing from any

of the Assets, or from the property underlying the Real Property, whether known or

unknown as of the Effective Time [including

damages to third parties “arising therefrom.”], . . . but excluding (i) any and all

costs of cleanup, monitoring, corrective actions and compliance with regulations incurred after the Effective Time with respect to the matters set forth on Section

10.2(a)(iv) of the Disclosure Schedule. . . ;

(B)

[damages to third parties] arising out of or

related to any Environmental Condition to

the extent (i) not located on the Assets or the

property underlying the Real Property and

(ii) existing prior to the Effective Time;

145

The Purchase Agreement defines “Environmental Condition” as

“any condition existing on, at or originating from, each property included within the Assets which constitutes, (a) a Release on, at or

from such property of any Hazardous Materials or (b) a violation of

any applicable Environmental Laws or any Environmental Permits.”

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(C)

payment of penalties and fines assessed or

imposed by any Governmental Authority

arising out of or related to any Environmental Condition existing prior to the Effective

Time; and

(D)

any Damages that arise, directly or indirectly, from the Release, generation, use,

presence, storage, treatment and/or recycling of any Hazardous Materials or Petroleum Products by Seller or from the possession, use, ownership, or operation of the Assets prior to the Effective Time, or by a

third party if any such Hazardous Materials

or Petroleum Products were generated or

used by Seller . . . but excluding (i) any and

all costs of cleanup, monitoring, corrective

actions or compliance with regulations incurred after the Effective Time with respect to the matters set forth on Section

10.2(a)(iv) of the Disclosure Schedule. (Emphasis added.)

In an effort to ensure more certainty regarding the extent of future indemnification obligations, the parties included a damages cap for indemnification, with a specific

Environmental Cap of $32 million.146 And we previously

146

Section 10.4(b) provides that “the maximum amount of indemnifiable Damages which may be recovered by [Buyer] from Seller . . .

and by [Seller] from Buyer arising out of, resulting from or incident

to the matters enumerated in Section 10.2(a) or Section 10.2(b) shall

be the Environmental Cap with respect to any and all Environmental

Claims.”

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concluded that the Cap applies to all environmental liabilities.147

The parties further agreed that remedies provided in

the Purchase Agreement would be exclusive, with certain

exceptions. Section 10.5 of the Agreement states:

Except for (a) any equitable relief, including injunctive

relief or specific performance to which any Party

hereto . . . may be entitled, . . . the indemnification provisions of this Article X shall be the sole and exclusive

remedy of each Party . . . with respect to any and all

Actions or Damages arising out of this Agreement

from and after the Closing.

2. The superior court did not erroneously conclude that the Purchase Agreement limited

Flint Hills’s liability.

The superior court considered both the language of

the contract and testimony regarding the circumstances

of negotiation and determined that Flint Hills had assumed responsibility only for sulfolane that was known

and onsite at the time of purchase. This meant that Williams had a duty to indemnify Flint Hills for offsite sulfolane contamination—though this duty was potentially

limited by Flint Hills’s own actions, the Environmental

Cap, and the remedies provisions of the contract.

The superior court noted that the Purchase Agreement’s Disclosure Schedule was entitled “Known Environmental Matters” and referred to “contamination specifically identified” in the Disclosure Schedule. The court

also noted that the Disclosure Schedule provided that

Flint Hills would be fully responsible for “[a]ny and all

147

Flint Hills I, 377 P.3d 959, 976 (Alaska 2016).

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costs of . . . corrective actions and compliance with regulations incurred” after the sale for “all existing, known

contamination at the Real Property,” which was specifically identified in the Disclosure Schedule. The court

found that “at the Real Property” supported the interpretation that Flint Hills assumed solely onsite contamination. (Emphasis added.) The court added that the studies

listed in the Disclosure Schedule “did not identify contamination that was not ‘at’ the Refinery property—i.e., outside the Real Property’s boundaries.”

The superior court also analyzed the language in Section 10.2(a)(iv)(A), which referred to liabilities that Williams retained for “any Environmental Condition . . . at,

on or under or arising, emanating, or flowing from any of

the Assets, or from the property underlying the Real

Property,” excluding the conditions on the Disclosure

Schedule. The court contrasted this subsection’s language

with that of 10.2(a)(iv)(B), which referenced Williams’s retained liability for harms arising from an Environmental

Condition “(i) not located on the Assets or the property

underlying the Real Property . . . .” The court concluded

that the onsite and offsite specifications meant subsection

(A) referred solely to onsite contamination, and by extension, so did the Disclosure Schedule. Therefore, the court

concluded that Williams retained liability for sulfolane

contamination existing offsite at the time of the asset

transfer, even if that contamination was caused by migration of a pollutant that had originated onsite and was disclosed in the Schedule.

Additionally, the superior court relied on trial testimony to clarify the assumption-of-liabilities issue. Representatives of both parties described an “our watch/your

watch” approach where each party would retain responsibility for issues caused during their operations, with the

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very narrow exceptions enumerated in the Disclosure

Schedule. Witnesses for both parties agreed that the Disclosure Schedule did not explicitly refer to offsite contamination, and the court concluded that the intent of the parties was that Flint Hills would assume liability for the sulfolane located onsite at the time of purchase.

Williams argues that the court misconstrued the plain

language of the Agreement when it concluded that Flint

Hills had not assumed liability for offsite sulfolane. First,

Williams claims the court incorrectly concluded that the

contract distinguished onsite/offsite sulfolane and that

Section 10.2(a)(iv)(A) excluded offsite matters. Williams

argues that subsection (A) in fact applies to both onsite

and offsite conditions, because it refers to conditions “at,

on or under or arising, emanating, or flowing from any

of the Assets or from the property.” It argues that “arising, emanating, or flowing from” would be superfluous if

it related solely to onsite conditions, which would have

been properly encapsulated by “at, on or under.” Similarly, Williams points to the broad definition of “Environmental Condition” in the contract—“any condition existing on, at or originating from, each property”—to support its contention that a disclosed substance might migrate offsite yet remain part of Flint Hills’s assumed responsibilities. Second, Williams argues that the superior

court erred by relying on extrinsic evidence to assist with

the interpretation of the Purchase Agreement. Williams

claims that reference to extrinsic evidence violated Texas

contract law governing the agreement.

We conclude that the superior court’s inferences about

the parties’ intent, based on extrinsic evidence, were supported by substantial evidence. We further conclude, from

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these inferences and from our de novo review of the contract language, that the superior court did not err by determining Williams retained liability for offsite sulfolane.

3. The superior court did not err by concluding

Williams retained responsibility for offsite

sulfolane.

We apply Texas law to the interpretation of the Purchase Agreement; the parties chose Texas law to govern

the Agreement and neither party disputes its application

here.148

The language in the Purchase Agreement is ambiguous. On one hand, its definition of Environmental Condition and the language about such conditions in Section

10.2’s indemnification provisions appear to be extremely

broad; they could therefore apply to both onsite and

See, e.g., Jarvis v. Aetna Cas. & Sur. Co., 633 P.2d 1359, 1363 n.5

(Alaska 1981) (declining to disturb parties’ choice of law); see also In

re Newport Plaza Assocs., L.P., 985 F.2d 640, 644 (1st Cir. 1993)

(“When opposing parties agree to the source of the substantive law

that controls their rights and obligations, and no jurisdictional concerns are present, a court is at liberty to accept such an agreement

without independent inquiry.”); Schiavone Constr. Co. v. Time, Inc.,

847 F.2d 1069, 1076 n.3 (3d Cir. 1988) (permitting parties and lower

courts’ consent as to choice of law to control when there is no reason

to disturb that agreement); Tidler v. Eli Lilly & Co., 851 F.2d 418,

421 (D.C. Cir. 1988) (allowing court to assume choice of law was correct since neither party raised the issue).

148

We see no obvious reason that applying Texas law to this case

would conflict with Alaska’s choice of law approach, which follows the

Second Restatement of Conflicts. See Peterson v. Ek, 93 P.3d 458, 464

n.11 (Alaska 2004). As we discuss below, it is unlikely that the resulting interpretations would differ under either Alaska’s or Texas’s interpretive approach, as both would admit the extrinsic evidence which

informed the superior court’s decision. See Tidler, 851 F.2d at 421

(permitting analysis of claims under laws of two states).

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offsite pollution. The carve-out for sulfolane in the Disclosure Schedule would, by extension, include sulfolane pollution that had migrated offsite prior to the purchase date.

On the other hand, the breadth of Section 10.2(a) might

apply only to Williams’s retained liabilities, while Flint

Hills’s assumed liabilities are instead narrowly tailored to

those “matters set forth” in the Disclosure Schedule only

for conditions “at” the property. In that case, Williams’s

reference to the broad definition of “Environmental Condition” and the language of “arising, emanating, or flowing from” would not apply to Flint Hills’s assumed responsibilities. Indeed, the Disclosure Schedule refers to the

matters set forth therein as “contamination” and not

“Environmental Conditions,” possibly supporting this

narrower construction. (Emphasis added.) In other

words, assuming responsibility for “existing, known contamination at the Real Property” would not necessarily

include assuming responsibility for the effects arising or

emanating from such contamination off the real property.

Because the contract language is ambiguous, it was

proper for the superior court to resort to extrinsic evidence. Though Texas law places greater restrictions on

the admission of extrinsic evidence than Alaska law,149 a

Under Alaska contract principles, the court’s duty is to “ascertain and give effect to the reasonable intentions of the contracting

parties.” Flint Hills I, 377 P.3d at 975 (quoting Est. of Polushkin ex

rel. Polushkin v. Maw, 170 P.3d 162, 167 (Alaska 2007)). The court

need not initially determine that the disputed language is ambiguous

to consider extrinsic evidence; instead, the court can look holistically

at the disputed language, other language in the contract, relevant extrinsic evidence, and case law interpreting similar provisions. Id.; see

also Nautilus Marine Enters., Inc. v. Exxon Mobil Corp., 305 P.3d

309, 316 (Alaska 2013) (“We have expressly rejected the ‘artificial and

unduly cumbersome’ two-step process used in other jurisdictions in

149

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court can use extrinsic evidence to resolve patent and latent ambiguities as long as those ambiguities are present

in the text.150 In other words, Texas law “does not prohibit

consideration of surrounding circumstances that inform,

rather than vary from or contradict, the contract text.”151

As we discuss below, we conclude that the superior court

adhered to Texas contract law’s requirements when it

used extrinsic evidence to resolve the ambiguities of Article X.

which ‘resort to extrinsic evidence can take place only after a preliminary finding of ambiguity.’ ” (quoting Alyeska Pipeline Serv. Co. v.

O’Kelley, 645 P.2d 767, 771 n.1 (Alaska 1982))). But extrinsic evidence

cannot be used to add or contradict contract terms. See Froines v.

Valdez Fisheries Dev. Ass’n, 75 P.3d 83, 87 (Alaska 2003).

Texas law is more restrictive. It indicates that a court’s “primary

objective is to ascertain and give effect to the parties’ intent as expressed in the instrument.” URI, Inc. v. Kleberg Cnty., 543 S.W.3d

755, 763 (Tex. 2018) (emphasis added). “Objective manifestations of

intent control,” and therefore courts should interpret language according to its “ ‘plain, ordinary, and generally accepted meaning’ unless the instrument directs otherwise.” Id. at 763-64 (quoting Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996)). However, the Texas Supreme Court has explained that the meaning of

words often “turns upon use, adaptation and context.” Id. at 764

(quoting Heritage Res., Inc., 939 S.W.2d at 121). This context is not

just gleaned from the language and structure of the contract itself,

but also from the “circumstances present when the contract was entered.” Id. (quoting Columbia Gas Transmission Corp. v. New Ulm

Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996)). Thus, while a court cannot

look to extrinsic evidence to add or modify contract terms—i.e., to

introduce solely subjective intent that has not been manifested objectively in the contract—it can use extrinsic evidence where the contract language is inherently ambiguous. Id.

150

URI, Inc., 543 S.W.3d at 764-65.

151

Id. at 767 (quoting Hous. Expl. Co. v. Wellington Underwriting

Agencies, Ltd., 352 S.W.3d 462, 469 (Tex. 2011)).

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Flint Hills Resources’ Alaska President Allen Lasater

testified that, based on his understanding of the parties’

intent at the time of contracting, Flint Hills did not assume responsibility for offsite contamination. He stated

that there was no offsite sulfolane contamination then

“known” and thus it was not included in the Disclosure

Schedule. Lasater essentially equated unknown to undisclosed, and therefore liability for those unknowns “remained with Williams.” He explained that this was a logical intent because Flint Hills needed to know the extent

of pollution in order to agree to continue running the refinery’s pollution remediation system consistent with

DEC’s compliance orders.

Williams representative Randy Newcomer qualified

references to known conditions as “known conditions

which were primarily onsite.” (Emphasis added.) He

stated that Flint Hills took responsibility for “known

cleanup” of “known contaminants” as described in the

Disclosure Schedule as of the Effective Date, after which

Flint Hills was responsible for additional pollution occurring on- and offsite during their ownership. Williams thus

remained responsible for the unknown conditions offsite

“caused . . . by Williams during its ownership.” Upon further questioning, Newcomer stated that there was a “your

watch/my watch kind of . . . thing” specifically for offsite

contaminants. He explained that if a known contaminant

offsite caused damage before the Effective Date, Williams

would take responsibility, but “[i]f it was something that

Flint Hills caused during their ownership of the [r]efinery,” then Flint Hills assumed responsibility. Newcomer

admitted that, as he understood the contract, Williams

would be obligated to indemnify Flint Hills for the portion

of sulfolane that had migrated off the property when Williams owned the refinery. But he said that further migration or contamination offsite after the Effective Date

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would be the responsibility of Flint Hills. On cross-examination, Newcomer emphasized that liabilities were defined by their known/unknown status rather than onsite/offsite.

The Williams Companies Senior Vice President Phillip

Wright, who was involved in the refinery sale negotiations, similarly testified that “as a general matter, we

agreed to a your watch/our watch type principle . . . in

which if the cause for a given contamination was generated while we were the owner and operator of the Refinery, we would be liable for those damages . . . and they

would retain liability for anything generated on their

watch which was during their ownership and operation of

the Refinery.” But he specifically stated that “those damages” Williams retained responsibility for would not “include the cleanup costs associated with migration of

known characterized contamination.” He testified that it

was Williams’s intent, expressed through the language of

the contract, that if the sulfolane migrated off the property, it was Flint Hills’s responsibility. He further added

that “[i]t wouldn’t have been possible for [Flint Hills] to

assume” the sulfolane “would be retained on site . . . because it was [in] the groundwater” and not in a “vessel.”

He stated that Williams representatives “assumed we

were dealing with a sophisticated player that understood

these matters and understood groundwater hydrology.”

Testimony from representatives of both parties presented competing interpretations of the contract. Ultimately, the determination of the parties’ intentions and

representations during negotiations are issues of fact

properly within the province of the superior court. The

court did not clearly err when it concluded as a factual

matter that the parties intended for Williams to retain responsibility for its portion of offsite sulfolane, and for

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Flint Hills to assume liability only for sulfolane contamination onsite and for any additional pollution it generated

after the purchase date which might migrate offsite.

Therefore we conclude as a matter of law that the Purchase Agreement language reflects that intent.

4. The superior court did not err by concluding

that Flint Hills could pursue contribution.

The superior court concluded that contractual indemnification was not available to Flint Hills because it had

“caused or contributed” to the offsite sulfolane contamination. And the court concluded that because indemnification was not available, Section 10.4(b)’s Environmental

Cap did not apply.152 But the court determined that Flint

Hills could pursue contribution from Williams under

AS 46.03.822(j). Exercising its discretion to allocate equitable responsibility among the parties,153 the court determined that Williams was required to contribute $52.5 million to Flint Hills’s offsite response costs, reflecting its equitable allocation of 75% of costs to Williams. The court

awarded $51.4 million for offsite sulfolane and $1.17 million for onsite PFAS contamination, plus prejudgment interest on both.

No party disputes the court’s determination that Flint

Hills was barred from pursuing contractual indemnity.

In Flint Hills I, we determined that indemnification claims for

environmental liabilities would be subject to the Cap. 377 P.3d at 976.

152

153

See AS 46.03.822(j) (“[T]he court may allocate damages and

costs among liable parties using equitable factors determined to be

appropriate by the court.”); cf. Lockheed Martin Corp. v. United

States, 35 F. Supp. 3d 92, 122 (D.D.C. 2014) (discussing court’s discretion to allocate contribution in CERCLA context), aff’d, 833 F.3d 225

(D.C. Cir. 2016).

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However, Williams contends that the superior court’s assessment of damages for offsite sulfolane was erroneous

because it exceeded the Environmental Cap of $32 million.

Williams claims that the Environmental Cap should apply

to all forms of damages, including statutory damages and

contribution allocations, rather than only to contractual

indemnification damages.154 Williams further argues that

statutory contribution is not available to Flint Hills because the Purchase Agreement made indemnification the

exclusive remedy for environmental damages claims. Williams argues that by failing to properly construe the exclusive remedies provision in Section 10.5, the superior

court “allowed Flint Hills to achieve an end-run around”

the indemnity bar. Williams asserts that, because money

damages are not equitable relief allowable under the Purchase Agreement and because we characterized contribution damages under AS 46.03.822(j) as a legal claim in

Flint Hills I, contribution should be barred by the Purchase Agreement. We disagree.

The Purchase Agreement at Section 10.2(a) provides

that Williams would indemnify Flint Hills “(iv) except to

the extent that Damages are caused or contributed to by

[Flint Hills’s] operations, actions or omissions after the

Effective Time.” The most natural reading of this language and the reading best supported by trial testimony

is what the superior court first concluded: “reflecting the

joint ‘my watch/your watch’ concept for liabilities, the par-

154

Williams also argues that the superior court made two other errors when it interpreted the Cap: the court determined that insurance

proceeds paid to Flint Hills were not relevant to the Cap, and it declined to enforce the Cap for public policy reasons. Because we conclude that the Cap does not apply to the contribution claim, we do not

address these arguments.

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ties’ cross-indemnity provisions included language clarifying their obligations to be limited to their own causes

and contributions of Environmental Conditions, excluding

reimbursement and exempting each from holding the

other harmless for contributions or conditions caused by

the other’s conduct.” However, the superior court later

determined that because Flint Hills contributed to some

of the sulfolane pollution during the period it operated the

refinery, as a matter of law “[t]his exception precludes

contractual indemnity for sulfolane contamination.” Because neither Williams nor Flint Hills challenges the superior court’s interpretation, we do not consider it further.

We agree with the superior court that, because Flint

Hills cannot pursue indemnification under the Purchase

Agreement, the Environmental Cap does not apply. Section 10.4’s “Limitations on Indemnification” states in subsection (b) that “the maximum amount of indemnifiable

Damages” arising out of Sections 10.2(a) and (b) that can

be recovered by “Indemnified Parties” is a Cap “with respect to any and all claims for indemnity.” (Emphasis

added.) This language makes clear that the Cap will apply

only to indemnification claims. Furthermore, Section 10.5

provides that “the indemnification provisions of this Article X shall be the sole and exclusive remedy of each

Party,” “[e]xcept for . . . equitable relief.” (Emphasis

added.) The Agreement makes clear that both parties understood equitable relief is not governed by the terms of

limitation in their private contract.155 It was not error for

155

Oakly Enters., LLC v. NPI, LLC, 354 P.3d 1073, 1080 (Alaska

2015) (discussing nature of statutory contribution remedy for recovering environmental remediation costs and explaining “contribution

claims essentially seek to allocate damages equitably among those

who share responsibility”).

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the court, when making contribution allocations, to take

into account the parties’ intended contractual allocations

without being limited by their express terms—in this

case, the Environmental Cap.156

Finally, the superior court did not err by concluding

that Flint Hills could pursue statutory contribution under

AS 46.03.822(j). In Flint Hills I, we referred to Flint

Hills’s indemnification claim and its statutory contribution claim under subsection .822(j) as “legal claims,” in

contrast with its “equitable claims” for declaratory judgment and specific performance.157 We did not, however,

reach the question whether statutory contribution constitutes a legal or equitable remedy. Contribution is an

equitable remedy.158 This is so regardless of whether it is

See AS 46.03.822(j). CERCLA case law supports this approach

and because Alaska’s hazardous substance statute is informed by

CERCLA, case law on that federal statute is persuasive—though not

dispositive—for resolving state law claims. Berg v. Popham, 113 P.3d

604, 606, 608 (Alaska 2005); see Lockheed Martin Corp., 35 F. Supp.

3d at 123, 143-44 (explaining court has “broad discretion” to make allocation determinations in CERCLA context and “the predominant

concern in equity is the intent of the parties”); Halliburton Energy

Servs., Inc. v. NL Indus., 648 F. Supp. 2d 840, 877, 880-81 (S.D. Tex.

2009) (explaining that even inapplicable indemnification provisions

can be considered to determine intent of parties to allocate contribution responsibility); Kerr-McGee Chem. Corp. v. Lefton Iron & Metal

Co., 14 F.3d 321, 326 (7th Cir. 1994) (considering parties’ intent as

expressed in their contractual arrangements to determine equitable

contribution allocations); Beazer E., Inc. v. Mead Corp. (Beazer II),

412 F.3d 429, 447 n.20 (3d Cir. 2005) (explaining that indemnification

provisions that do not apply directly are still factor to consider in contribution claim).

156

157

377 P.3d 959, 973-74 (Alaska 2016).

158

See McLaughlin v. Lougee, 137 P.3d 267, 275-79 (Alaska 2006)

(recognizing common law contribution need for fairness purposes);

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provided for by statute.159 Thus a claim for statutory contribution is not barred by the Purchase Agreement’s exclusive remedies provision.

Williams’s argument that contribution achieves an

“end-run around” the indemnity bar is unpersuasive. The

parties agreed they would still be able to pursue equitable

relief, “including injunctive relief or specific performance.” The word “including” indicates these examples

are illustrations rather than an exhaustive list of allowable

equitable relief. Contribution falls squarely into relief allowed even under the parties’ own contractual arrangement. And Williams misconstrues our previous decision

when it argues that contribution provides a duplicative

and thus inappropriate remedy once indemnification is

unavailable.160 In Flint Hills I, we denied Flint Hills de-

Oakly Enters., LLC, 354 P.3d at 1080 (explaining contribution claims

aim to equitably allocate damages among responsible parties); Deal

v. Kearney, 851 P.2d 1353, 1355-56 (Alaska 1993) (agreeing that

“claims for contribution, indemnity, or subrogation are . . . claims

grounded in equity”); Fellows v. Tlingit-Haida Reg’l Elec. Auth., 740

P.2d 428, 432 (Alaska 1987) (“Contribution is an equitable doctrine

adopted to remedy the unfairness of the common law rule allowing

one of several tortfeasors to bear responsibility for the entire loss.”).

See Benner v. Wichman, 874 P.2d 949, 956 (Alaska 1994) (implying now-repealed contribution statutes provided for “equitable contribution”); Arctic Structures, Inc. v. Wedmore, 605 P.2d 426, 430

(Alaska 1979) (discussing former contribution statute AS 09.16.020(3)

that expressly provided “principles of equity applicable to contribution generally shall apply”).

159

We do not decide whether contribution would have been available absent the parties explicitly permitting the pursuit of equitable

remedies. We have recognized a common law contribution remedy,

McLaughlin, 137 P.3d at 275-79, and a statutory contribution remedy

in the hazardous substance context, AS 46.03.822(j). But Alaska does

160

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claratory relief and specific performance because we determined that it still had an adequate legal remedy

through indemnification or contribution—even if some of

those legal remedies might be time-barred by the statute

of limitations.161 We noted that Flint Hills’s equitable

not have a general contribution statute, such as the proposed Uniform

Contribution Among Tortfeasors Act of 1955, that discusses the relation between indemnification and contribution. And even CERCLA

case law, though generall

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