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Berg v. Popham

Citation: 33 ELR 20083
No. No. 01-35807, 307 F.3d 1028/(9th Cir., 10/04/2002) certifying question to Alaska S. Ct.

The court certifies to the Alaska Supreme Court the question of whether a manufacturer who sells a useful product that uses hazardous substances may be liable as an arranger of hazardous substance disposal under Alaska Statute §46.03.822(a)(4) if the product, when used as designed and installed by the manufacturer, releases hazardous substances to a city sewer system. The state sought from a dry cleaning business remediation costs for the cleanup of percholoroethylene (PCE) emanating from sewer lines connected to the business. Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and §46.03.822(a)(4), the business subsequently sought contribution from the successor in interest to the manufacturer that sold and installed the business' dry cleaning equipment. According to the business, the manufacturer recommended that the business use PCE in the equipment and installed a PCE separator system that facilitated spillage and drainage of PCE to the city sewer. A district court dismissed the business' claims, but the business appealed the dismissal of the §46.03.822(a)(4) claim. The business argued that the plain language of §46.03.822(a)(4) allows for the suit against the manufacturer. The court first stays the suit pending certification to the Alaska Supreme Court. Unlike CERCLA arranger liability, the §46.03.822(a)(4) liability provision imposes strict liability on any person who arranged for the disposal or treatment of hazardous substances "owned or possessed by the person, other than domestic sewage, or by any other party or entity." The business claimed that the language "or by any other party or entity" includes the manufacturer. The manufacturer contends that there can be no arranger liability under §46.03.822(a)(4) for an entity that merely manufactures or sells useful machinery. The answer to this question depends on the Alaska Legislature's intended scope of arranger liability under §46.03.822(a)(4). The Alaska Supreme Court is the most appropriate body to undertake such an inquiry.