Section 46.03.822. Strict liability for the release of hazardous substances.

   (a) Notwithstanding any other provision or rule of law and subject only to the defenses set out in (b) of this section, the exception set out in (i) of this section, the exception set out in AS 09.65.240, and the limitation on liability provided under AS 46.03.825, the following persons are strictly liable, jointly and severally, for damages, for the costs of response, containment, removal, or remedial action incurred by the state, a municipality, or a village, and for the additional costs of a function or service, including administrative expenses for the incremental costs of providing the function or service, that are incurred by the state, a municipality, or a village, and the costs of projects or activities that are delayed or lost because of the efforts of the state, the municipality, or the village, resulting from an unpermitted release of a hazardous substance or, with respect to response costs, the substantial threat of an unpermitted release of a hazardous substance:
        (1) the owner of, and the person having control over, the hazardous substance at the time of the release or threatened release; this paragraph does not apply to a consumer product in consumer use;
        (2) the owner and the operator of a vessel or facility, from which there is a release, or a threatened release that causes the incurrence of response costs, of a hazardous substance;
        (3) any person who at the time of disposal of any hazardous substance owned or operated any facility or vessel at which the hazardous substances were disposed of, from which there is a release, or a threatened release that causes the incurrence of response costs, of a hazardous substance;
        (4) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by the person, other than domestic sewage, or by any other party or entity, at any facility or vessel owned or operated by another party or entity and containing hazardous substances, from which there is a release, or a threatened release that causes the incurrence of response costs, of a hazardous substance;
        (5) any person who accepts or accepted any hazardous substances, other than refined oil, for transport to disposal or treatment facilities, vessels or sites selected by the person, from which there is a release, or a threatened release that causes the incurrence of response costs, of a hazardous substance.
   (b) In an action to recover damages or costs, a person otherwise liable under this section is relieved from liability under this section if the person proves
        (1) that the release or threatened release of the hazardous substance to which the damages relate occurred solely as a result of
             (A) an act of war;
             (B) except as provided under AS 46.03.823(c) and 46.03.825(d), an intentional or negligent act or omission of a third party, other than a party or its agents in privity of contract with, or employed by, the person, and that the person
                  (i) exercised due care with respect to the hazardous substance; and
                  (ii) took reasonable precautions against the act or omission of the third party and against the consequences of the act or omission; or
             (C) an act of God; and
        (2) in relation to (1)(B) or (C) of this subsection, that the person, within a reasonable period of time after the act occurred,
             (A) discovered the release or threatened release of the hazardous substance; and
             (B) began operations to contain and clean up the hazardous substance.
   (c) For purposes of (b)(1)(B) of this section, a third party or an agent of a third party is in privity of contract with the person who is otherwise liable, if the third party or its agent and the person are parties to a land contract, deed, or other instrument transferring title or possession of the real property on which the facility in question is located, unless that property was acquired by the person after the disposal or placement of the hazardous substance on, in, or at the facility, and the person establishes that the person has satisfied the requirements of (b)(1)(B) of this section and establishes that
        (1) at the time the person acquired the facility the person did not know and had no reason to know that a hazardous substance that is the subject of the release or threatened release was disposed of on, in, or at the facility;
        (2) the person is a governmental entity that acquired the facility by escheat, or through another involuntary transfer or acquisition, or through the exercise of eminent domain authority by purchase or condemnation;
        (3) the person is a corporation organized under 43 U.S.C. 1601 et seq. (Alaska Native Claims Settlement Act) that acquired the facility under those sections;
        (4) the person acquired the facility by inheritance or bequest; or
        (5) the person is a state governmental entity and the state acquired the facility under Public Law 85-508 (Alaska Statehood Act).
   (d) To establish that a person had no reason to know that the hazardous substance was disposed of on, in, or at the facility, as provided in (c)(1) and (l) of this section, the person must have undertaken, at the time of voluntary acquisition, all reasonable inquiries into the previous ownership and uses of the property consistent with good commercial or customary practice in an effort to minimize liability. For purposes of this subsection a court shall take into account all relevant facts, including
        (1) any specialized knowledge or experience the person has;
        (2) the relationship of the purchase price to the value of the property if it were uncontaminated;
        (3) commonly known or reasonably ascertainable information about the property;
        (4) the obviousness of the presence or likely presence of contamination at the property; and
        (5) the ability to detect contamination by appropriate inspection.
   (e) This section does not diminish the liability of a person who previously owned or operated a facility or vessel and who would otherwise be liable. If the person obtained actual knowledge of the release or threatened release of a hazardous substance at the facility or vessel and subsequently transferred ownership to another without disclosing that knowledge, the person is liable under (a)(2) of this section, and a defense under (b)(1)(B) of this section is not available to the person.
   (f) This section does not diminish the liability of a person who, by an act or omission, caused or contributed to the release or threatened release of a hazardous substance that is the subject of the action relating to the facility or vessel.
   (g) An indemnification, hold harmless, or similar agreement, or conveyance of any nature is not effective to transfer liability under this section from the owner or operator of a facility or vessel or from a person who might be liable for a release or substantial threat of a release under this section. This subsection does not bar an agreement to insure, hold harmless, or indemnify a party to the agreement for liability under this section. This subsection does not bar a cause of action that an owner, operator, or other person subject to liability under this section, or a guarantor, has or would have, by reason of subrogation or otherwise against another person.
   (h) The state, a municipality, a village, a person who acts as a volunteer and is engaged in a response action under the direction of the federal or state on-scene coordinator, and a vessel of opportunity engaged in a response action under the direction of the federal or state on-scene coordinator are not liable under this section for costs or damages as a result of actions taken in response to an emergency created by a release or threatened release of a hazardous substance generated by or from a facility or vessel owned by another person unless the actions taken by the state, the municipality, the village, the volunteer, or the vessel constitute gross negligence or intentional misconduct.
   (i) In an action to recover damages and costs, a person otherwise jointly and severally liable under this section is relieved of joint liability and is liable severally for damages and costs attributable to that person if the person proves that
        (1) the harm caused by the release or threatened release is divisible; and
        (2) there is a reasonable basis for apportionment of costs and damages to that person.
   (j) A person may seek contribution from any other person who is liable under (a) of this section during or after a civil action under (a) of this section or after the issuance of a potential liability determination by the department. Actions under this subsection shall be brought under the Alaska Rules of Civil Procedure and are governed by state law. In resolving claims for contribution under this section, the court may allocate damages and costs among liable parties using equitable factors determined to be appropriate by the court. This subsection does not diminish the right of a person to bring an action for contribution in the absence of a civil action under (a) of this section.
   (k) A unit of state or local government that acquired ownership or control of a vessel or facility through bankruptcy, foreclosure, deed in lieu of foreclosure, tax delinquency proceeding, abandonment, escheat, the exercise of eminent domain authority by purchase or condemnation, or circumstances in which the governmental unit involuntarily acquired title by virtue of its function as a sovereign is not liable as an owner or operator under this section unless the governmental unit has caused or contributed to the release or threatened release of a hazardous substance at or from the facility or vessel, in which case, the governmental unit is subject to liability under this section in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity. A hazardous substance release shall be determined to have occurred as provided in this section. For purposes of this subsection, "caused or contributed to the release or threatened release of a hazardous substance"
        (1) does not include the failure to prevent the passive leaching or migration at or from a facility or vessel of a hazardous substance in the air, land, or water that had first been released to the environment by a person other than the governmental unit that acquired the facility or vessel;
        (2) does not include the exercise or failure to exercise regulatory or enforcement authority;
        (3) after the ownership or control of the facility or vessel has been acquired by the governmental unit, includes
             (A) the spilling, leaking, pumping, pouring, emptying, injecting, escaping, or dumping of a hazardous substance from barrels, tanks, containers, or other closed receptacles; or
             (B) the abandonment or discarding of barrels, tanks, containers, or other closed receptacles containing a hazardous substance.
   (l) For purposes of determining liability in an action to recover damages or costs under this section, a person who acquires a facility and who, upon discovering a release or threatened release on, in, or at the facility that occurred before acquisition of the facility, who had no reason to know that a hazardous substance was disposed of on, in, or at the facility, and who, upon discovering the release or threatened release, acted in accordance with (b)(2) of this section to begin operations to contain and clean up the hazardous substance, may not be held liable under this section unless the person has caused or contributed to the release or threatened release of the hazardous substance, in which case, the person is subject to liability under this section in the same manner as any other person. For purposes of this subsection, "caused or contributed to the release or threatened release of the hazardous substance"
        (1) does not include the failure to prevent the passive leaching or migration at or from a facility of a hazardous substance in the air, land, or water that had first been released into the environment by a person other than the person that acquired the facility;
        (2) after the ownership or control of the facility has been acquired by the person includes
             (A) the spilling, leaking, pumping, pouring, emptying, injecting, escaping, or dumping of a hazardous substance from barrels, tanks, containers, or other closed receptacles; or
             (B) the abandonment or discarding of barrels, tanks, containers, or other closed receptacles containing a hazardous substance.
   (m) In this section, 
        (1) "damages" has the meaning given in AS 46.03.824 and includes damage to persons or to public or private property, damage to the natural resources of the state or a municipality, and damage caused by acts or omissions of a response action contractor for which the response action contractor is not liable under AS 46.03.823 or 46.03.825;
        (2) "potential liability determination" means an administrative determination issued by the department notifying a person of the person's potential liability under (a) of this section as the result of the release or threatened release of hazardous substances and includes a
             (A) letter notifying the person that the person is a potentially responsible party;
             (B) notice to a person of state interest in a release or threatened release of a hazardous substance;
             (C) request to the person for site characterization or cleanup;
             (D) notice of violation; and
             (E) similar notification by the department of a person's potential liability under this section.

Authorities

9.65.240;46.03.760;46.03.823;46.03.825;46.03.826;46.03.822;46.03.828;46.03.870

Notes

Implemented As

18 AAC 75.320
18 AAC 75.325
18 AAC 75.330
18 AAC 75.333
18 AAC 75.360
18 AAC 75.910
18 AAC 75.990
18 AAC 78.088
18 AAC 78.600

References

AS 9.65.240 .240">Sec. 09.65.240. Liability of the state and regional educational attendance areas for release of hazardous substances.
AS 46.03.760 Civil action for pollution; damages.
AS 46.03.823 Hazardous substance response action contractors.
AS 46.03.825 Oil spill response action contractors.
AS 46.03.826
AS 46.03.826 Definitions for AS 46.03.822 - 46.03.828.
AS 46.03.828 Other rights of action not affected.
AS 46.03.870 Actionable rights.

History

(Sec. 1 ch 122 SLA 1972; am Sec. 13 ch 220 SLA 1976; am Sec. 2 ch 39 SLA 1989; am Sec. 9, 10 ch 83 SLA 1991; am Sec. 1, 3 ch 92 SLA 1991; am Sec. 2 - 5 ch 83 SLA 1992; am Sec. 14 ch 71 SLA 1997; am Sec. 1, 2 ch 91 SLA 1999; am Sec. 62 ch 56 SLA 2005; am Sec. 1, 2 ch 15 SLA 2006)