Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

corrections@akcourts.gov. 

THE SUPREME COURT OF THE STATE OF ALASKA 

WILLIAMS ALASKA PETROLEUM, 

INC. and THE WILLIAMS 

COMPANIES, INC., 

Appellants, 

v. 

STATE OF ALASKA; FLINT HILLS 

RESOURCES, LLC; and FLINT HILLS 

RESOURCES ALASKA, LLC, 

Appellees. 

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Supreme Court No. S-17772 

uperior Court No. 4FA-14-01544 CI 

 P I N I O N 

o. 7658 – May 26, 2023 

S

O

N

Appeal from the Superior Court of the State of Alaska, 

Fourth Judicial District, Fairbanks, Warren W. Matthews, 

Judge pro tem. 

Appearances: David H. Shoup, Tindall Bennett & Shoup, 

P.C., Anchorage, and Tristan L. Duncan and Mathew L. 

Larsen, Shook, Hardy & Bacon L.L.P., Kansas City, 

Missouri, for Appellants. Laura Fox and Steven E. Mulder, 

Assistant Attorneys General,Anchorage, and Treg R. Taylor, 

Attorney General, Juneau, for Appellee State of Alaska. 

James N. Leik, Perkins Coie LLP, Anchorage, and Jan M. 

Conlin and Mathew R. Korte, Ciresi Conlin LLP, 

Minneapolis,Minnesota,for AppelleesFlintHillsResources, 

LLC and Flint Hills Resources Alaska, LLC. 

Before: Winfree, Chief Justice, Maassen, Carney, 
 

 

Henderson, Justices, and Eastaugh, Senior Justice.* 

[Borghesan, Justice, not participating.] 

CARNEY, Justice. 

I.	 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
 

II.	 BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
 

A.	 Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
 

B.	 Statutory Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
 

C.	 Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
 

III.	 STANDARDS OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
 

IV.	 DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
 

A.	 State’s Statutory Claims Against Williams. . . . . . . . . . . . . . . . . . . . . . 17
 

1.	 The superior court did not err when it concluded that sulfolane is a
 

hazardous substance under AS 46.03.826(5). . . . . . . . . . . . . . . 17
 

2.	 The superior court did not err by awarding response costs to the
 

State and Flint Hills.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
 

3.	 The superior court did not err by awarding damages for loss of
 

access to groundwater due to sulfolane contamination.. . . . . . . 38
 

4.	 It was error to issue injunctive relief by reference to supporting
 

documents, but the superior court did not err by granting declaratory
 

relief.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
 

a.	 Challenges to the injunctive relief. . . . . . . . . . . . . . . . . . 50
 

b.	 Challenges to the declaratory relief. . . . . . . . . . . . . . . . . 53
 

5.	 Williams’s right to due process was not violated. . . . . . . . . . . . 56
 

6.	 Imposing civil liability for past releases was not an unconstitutional
 

taking. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
 

B.	 Flint Hills’s Contractual Indemnification And Statutory Contribution
 

Claims Against Williams . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
 

1.	 Overview of the Purchase Agreement’s indemnification and
 

remedies provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
 

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

Constitution and Alaska Administrative Rule 23(a). 

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2.	 The superior court did not erroneously conclude that the Purchase
 

Agreement limited Flint Hills’s liability. . . . . . . . . . . . . . . . . . . 69
 

3.	 The superior court did not err by concluding Williams retained
 

responsibility for offsite sulfolane.. . . . . . . . . . . . . . . . . . . . . . . 71
 

4.	 The superior court did not err by concluding that Flint Hills could
 

pursue contribution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
 

5.	 The superior court’s contribution allocations were not erroneous.
 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
 

a.	 The court did not err by allocating statutory contribution for
 

offsite sulfolane to Williams.. . . . . . . . . . . . . . . . . . . . . . 83
 

b.	 The superior court adequately considered DEC’s earlier non-


regulation of sulfolane when it allocated damages. . . . . 83
 

c.	 The superior court did not penalize Williams for “defending
 

itself.”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
 

d.	 The superior court did not err by not allocating responsibility 

to the State or by ignoring Williams’s equitable defenses.
 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
 

e.	 The superior court did not err by failing to allocate
 

responsibility to the City of North Pole. . . . . . . . . . . . . . 89
 

VI.	 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
 

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 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 

-3-	 7658
 
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 anddeclaratory relief, interpreting thepurchase contractbetween 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 

-4- 7658
 
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 from250,000-2,700,000 parts per billion (ppb). Williams did notreportits 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’stoxicity and cautioned 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 per- and polyfluoralkyl substances, commonly called 

“PFAS.”1 

 The PFAS in the foams included a wide range of synthetic chemicals; among 

1 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.”). 

-5- 7658
 
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 detailed 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 

2 Because the ingredients in the foamwereproprietary 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. 

-6- 7658
 
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 

 AlaskaStatute 46.03.760 authorizes 

civil damages7 for violation of the Act or a DEC regulation, order, or permit. The State’s 

3 AS 46.03.010-.900. 

4 AS 46.03.010 (declaring policy). 

5 AS 46.03.765. 

6 AS 46.03.710. 

7 “Damages include but are not limited to injury to or loss of persons or 

(continued...) 

-7- 7658
 
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 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 

7 (...continued) 

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. 

8 AS 46.03.760(a). 

9 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 

(continued...) 

-8- 7658
 
including “(1) direct and indirect costs associated with the abatement, containment, or 

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

Torecover uncappedactualdamagesfor aviolationunder AS46.03.760(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 

9	 (...continued) 

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 42U.S.C.9601 - 9657 (ComprehensiveEnvironmental 

Response, Compensation, and Liability Act of 1980) 

[CERCLA]; “hazardous substance” does not include 

uncontaminated crude oil or uncontaminated refined oil . . . . 

10 AS 46.03.760(d). 

11 AS 46.03.760(b). 

12 AS 46.03.780. 

13 See AS 46.03.760(d) and AS 46.03.822. 

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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 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 

(C) a substance defined as a hazardous substance under 

42 U.S.C. 9601(14).[15] 

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

15 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) anyimminently 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,
 

(continued...) 

-10- 7658
 
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 the additional costs of a function or service, including administrative 

expenses for the incremental costs of providing the function or service.”16 

The statuteexplicitlyholdsineffective any“indemnification, holdharmless, 

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 

15	 (...continued) 

. . . natural gas, . . . or synthetic gas usable for fuel (or 

mixtures of natural gas and such synthetic gas). 

16 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”). 

17 AS 46.03.822(g). 

18	 Id. 

19 AS 46.03.822(j). 

20	 Id. 

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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, 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 

AS46.03.822(j), and application ofthePurchaseAgreement’sEnvironmentalCap to any 

potential liability against Williams. 

-12- 7658
 
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 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 

21 377 P.3d 959, 973 (Alaska 2016). 

22 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 . . . 

fromthe [c]ontamination.’ FlintHills alsosought an orderrequiringWilliamsto perform 

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

23 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.”). 

-13- 7658
 
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 coststo Williams andordered 

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 

24 “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)). 

25 We discuss the relevant aspects of testimony and evidence presented when 

addressing each point on appeal. 

-14- 7658
 
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, claimingthe superior court erredonvariouspoints offact 

and law. 

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,” 

26 Burton v. Fountainhead Dev., Inc., 393 P.3d 387, 392 (Alaska 2017). 

27 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))). 

28 Janes v. Alaska Railbelt Marine, LLC, 309 P.3d 867, 875 (Alaska 2013). 

-15- 7658
 
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 

“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‘accordingto 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 

29 Id. 

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

31 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). 

32 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”). 

33 Oakly Enters., LLC v. NPI, LLC, 354 P.3d 1073, 1078 (Alaska 2015); see 

AS 46.03.822(j). 

34 OaklyEnters.,LLC, 354P.3d at1078 (quoting Guttchenv.Gabriel, 49 P.3d 

223, 225 (Alaska 2002)). 

35 Id. (quoting Native Vill. of Elim v. State, 990 P.2d 1, 5 (Alaska 1999)). 

-16- 7658
 
“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 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 concludedthatthe sulfolane released byWilliams 

36 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)). 

37 Afognak Joint Venture v. Old Harbor Native Corp., 151 P.3d 451, 456 

(Alaska 2007). 

38 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)). 

39 See AS46.03.822(a) (describingextenttowhichpersons are liable for costs 

associatedwith unpermitted releaseofhazardoussubstances); AS46.03.826(5) (defining 

(continued...) 

-17-	 7658
 
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 “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 

39 (...continued) 

“hazardous substance”). 

40 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)). 

41 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 

(continued...) 

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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 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 

41 (...continued) 

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))). 

42 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). 

-19- 7658
 
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,” 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 and substantial threat to public health or welfare, or to the 

43 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”). 

44 AS 46.08.040(a), .045. 

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environment,”45 a phrase that is virtually identical to the definition of “hazardous 

substance” in AS 46.03.826(5)(A). 

TheState introducedWilliams’swrittenemergencymedical carepolicy 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. 

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 

-21- 7658 

45 AS 46.08.040(a)(1)(A). 
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, 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 entitledto judicialdeference 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. 

-22- 7658
 
The State’s 2014 complaint alleged that “[s]ulfolane is a hazardous substance within the 

meaningofAS46.03.745,AS46.03.900,AS46.03.826, and 18AAC75.990.” Williams 

initially admitted that allegation, but denied that DEC “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 

-23- 7658 

46 64 P.3d 152, 166 (Alaska App. 2003). 
oil and because sulfolane 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 

AS46.03.826(5)(C). Subsection .826(5)(C) defines ashazardous any “substancedefined 

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 sulfolanemetthehazardous substancedefinitions 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 one that “threaten[s] to occur 

immediately,”49 not one that may take time to develop. Quoting the court’s 

47 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”). 

48 42U.S.C.§9601(14) (governing disposal of hazardous and non-hazardous 

solid waste). 

49 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 

(continued...) 

-24- 7658
 
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 any party during five years of litigation”; 

that it runs counter to the plain language of the statute; that it “threatens to deprive a 

49 (...continued) 

ed. 1934)). 

50 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 well-being [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.”). 

-25- 7658
 
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 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 

51 526 P.2d 3 (Alaska 1974) (explaining circumstances under which 

environmental conservation statutesmightbeunconstitutionally vague). We addressfair 

notice and due process in part IV.A.5 below. 

-26- 7658
 
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.” 

Whenwe interpret a statute,wepresume “thatthe 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 “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. 

52 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)). 

53 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)). 

54 Id. (original alteration omitted) (quoting Rydwell, 864 P.2d at 528). 

55 See Burton v. Fountainhead Dev., Inc., 393 P.3d 387, 392 (Alaska 2017). 

56 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 

(continued...) 

-27- 7658
 
The undefined use of “imminent” in statutes and treaties, across diverse subject areas, 

has plagued legal scholars for decades.57 When the legislature enacted 

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 

56 (...continued) 

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. 

57 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). 

58 Imminent, BLACK’SLAWDICTIONARY (rev. 4th ed. 1968) (similarly defined 

in current 11th edition). 

59 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. 

60 Imminent, MERRIAM-WEBSTER’SCOLLEGIATE DICTIONARY (7th ed. 1963). 

61 Danger, id. 

-28- 7658
 
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 

“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 . . . 

62 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, 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, 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, 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))). 

63 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). 

-29- 7658
 
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 depositiontestimony, allegingshe concludedsulfolanewas ahazardoussubstance 

based only on studies 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 

developmentin zebrafish when exposedto a rangeofsulfolane 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 

-30- 7658 

64 AS 46.03.826(5)(A). 
Williams’s initial admission that sulfolane was a hazardous substance, which could shed 

light on Williams’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 sulfolane-handling practices 

at the refinery.66 

2.	 The superior court did not err by awarding response costs to the 

State and Flint Hills. 

AlaskaStatute46.03.822(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 “costs reasonably attributable to the 

65 In contrast tobindingjudicial admissions, “evidential admissions arewords 

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). 

66 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). 

-31-	 7658
 
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 awarding 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 

67 18 Alaska Administrative Code (AAC) 75.910(b) (2021). 

68 The court calculated expected cost for the piped water system — 

$72,228,154 —based on “payments fromescrow 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. 

-32- 7658
 
supportits assertion that “SiteCleanupRulesrequirethose 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 minimum protective actions 

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

69 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 

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

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

70 See AS 46.03.822(a) (imposing strict liability on responsible parties for 

damagesresultingfrom“unpermittedreleaseof ahazardoussubstance,” 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”). 

71 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));18AAC75.335(c)-(d) (describing requirementsofsite 

characterization report submitted to DEC and allowing DEC to “modify proposed 

cleanup techniquesor require additional cleanup techniquesfor the site as the department 

(continued...) 

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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 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 

71 (...continued) 

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”). 

72 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 ofdirectinvestigation, 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”). 

73 DEChad 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 

(continued...) 

-34- 7658
 
necessary for human or environmental health. For example, Williams claims there was 

no evidence demonstrating that “the low levels of sulfolane in North Pole areawells 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 DECto 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 circumstances. The superior court properly concluded 

that the statutes did not require the State to prove that the piped water system was 

necessary.76 

73 (...continued) 

exposure. 

74 See 18 AAC 75.345(b)(3) (allowing DEC to approve responsible party’s 

proposed alternative cleanup level). 

75 18 AAC 75.345(d). 

76 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 

(continued...) 

-35- 7658
 
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 costeffective remedy” and 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 

76 (...continued) 

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 concernfor thepotential publichealthand welfare impacts fromsulfolane 

contamination. 

77 “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 18AAC75.325(f)(1)(D)to supportits 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. 

-36- 7658
 
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 degradequickly, and that the uncertainty about effects of long-termexposure 

to sulfolane 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 longterm 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 

78 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”). 

-37- 7658
 
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 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 

-38-	 7658
 
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 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 

79 AS 46.03.760(a). 

80 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 

AS46.03.010(articulatingpolicyof 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”). 

-39- 7658
 
common use,”81 articulating the public trust doctrine for Alaska’s waters.82 “Waters” 

comprisingthepublic trust are broadly defined.83 Besides navigablewaters, 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 

81 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. 

82 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.”). 

83 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, 1198­

99 (Alaska 1973))). 

84 See AS 38.05.126 (recognizing constitutional right of public access to 

navigable and public water). 

85 AS 38.05.965(21). 

86 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 

(continued...) 

-40- 7658
 
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 groundwater for these needs because of the sulfolane contamination. 

86 (...continued) 

navigable waterways). 

87 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). 

88 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. . . .”). 

89 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”). 

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

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

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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 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 theviolation,” “reasonable costsincurred by the 

-42- 7658
 
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 harmthat 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 

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, 

91 AS 46.03.780(b). 

92 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 

(continued...) 

-43- 7658
 
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 tothe 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 claimsthatAS46.03.760(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 possible factors a court may 

consider “when applicable.”94 But it is unnecessary to decide because the extent of 

92 (...continued) 

of the pollutant” and “restoration of the environment”). 

93 Quoting AS 46.03.760(a)(1). 

94 The statute provides that the sumto 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 

(continued...) 

-44- 7658
 
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-half-mile 

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 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 ahazardoussubstance that exceeds the applicable cleanup 

94	 (...continued)
 

environment, and the degree to which the discharge degrades
 

existing environmental quality. . . .
 

AS 46.03.760(a). 

95 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))). 

-45-	 7658
 
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” 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” 

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

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

97 AS 46.03.760(b). 

-46- 7658
 
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 

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 

98 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.’ 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”). 

99 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). 

-47- 7658
 
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, 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 awardedinjunctiveanddeclaratoryrelieftotheState 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 

100 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.” 

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 

forPFASand other hazardoussubstance contamination during itstenure. Referralwould 

not have served the purposes of the primary jurisdiction doctrine. 

-48-	 7658
 
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 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 to 

i.	 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.” 

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a. Challenges to the injunctive relief 

Williams argues that awarding injunctive relief to the State was improper 

because the State “failed to put on evidence 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 short of requiring irreparable harm.104 Williams’s 

101 Lee v. Konrad, 337 P.3d 510, 517 (Alaska 2014) (“Equitable injunctive 

relief is an extraordinary remedy that is appropriateonly where theparty requesting relief 

is likely to suffer irreparable injury and lacks an adequate remedy at law.”). 

102 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))). 

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.”). 

104 See id. 

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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 violateAlaskaCivilRule 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 

105 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 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.”). 

(continued...) 

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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,theState arguesthatthe cases uponwhichWilliamsrelies 

in 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 

105 (...continued) 

Williams does notspecificallychallengeparagraph3(e)(ii) ofthe 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” atthe refinery —we consider any argument againstitinsufficiently briefed 

and therefore waived. 

106 879 F. Supp. 2d 1148 (D. Idaho 2012) (upholding as proper under Federal 

RuleofCivil Procedure65(d) trial court’sinjunction directing defendantstocomply 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). 

-52- 7658
 
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 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 

109 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. 

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

(continued...) 

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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 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 

109 (...continued) 

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). 

-54- 7658
 
identify any evidence that Flint Hills actually did use PFAS-containing products.111 

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 

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). 

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 the record. See Casciola v. F.S. Air Service, Inc., 

120 P.3d 1059, 1062-63 (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, 1079­

80 (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. 

-55- 7658
 
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 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 

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

process of law.” U.S. Const. amend. V. 

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. 

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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 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 

115 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))). 

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

1988). 

117 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 impose “compensatory liability” rather than “civil or criminal 

punishment.” We agree that sections .760, .780, and .822 are not intended to “punish” 

butrather to compensate for environmental damage. See AS46.03.760(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’SLAWDICTIONARY 

(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. 

119 Burton v. Fountainhead Dev., Inc., 393 P.3d 387, 392 (Alaska 2017). 

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. . . 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 offenses coming within 

its purview may reasonably be understood.”121 The regulation of economic activity — 

such as throughantipollution statutes —typically survives avagueness 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 

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.”). 

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. 

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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 abstract 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 

124 AS 46.03.900(20) (formerly AS 46.03.900(15)). 

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. 

128 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. 

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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 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 

129 Id. at 9-10. 

130 Id. at 12-13. 

131 The superior court rejected this argument in Williams’s cross-motion 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 

(continued...) 

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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 

131 (...continued) 

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. 

132 See id. (recognizing many reasons for agency lack of enforcement and 

finding lack of fair notice where only possible reason was acquiescence). 

133 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. 

(continued...) 

-61- 7658
 
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 attrial,the superior court concludedthat DECreasonablydetermined 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 arguesthatthe superior court’s own rulings deprived it ofdue 

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 

133 (...continued) 

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) (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). 

-62- 7658
 
without any support to be waived.135 And we do not see how the superior 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 argumentfails because it continuouslycharacterizesthe superior 

court’s interpretation as a “change in the law,” when it is not. Williams merely disagrees 

with the interpretation and the factual basis for concluding sulfolane is hazardous. 

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. 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. 

136 See Christopher, 567 U.S. at 161 (explaining court’s role in conducting 

statutoryinterpretationwhenagency adoptsinterpretation ofstatute thatdoesnot deserve 

deference). 

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. 

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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.	 FlintHills’sContractualIndemnificationAndStatutoryContribution 

Claims Against Williams 

Flint Hills sought indemnification from Williams under the terms of the 

Purchase Agreement for the remediation and litigation costs associated with the offsite 

sulfolane.140 Flint Hills also sought statutory contribution from Williams for those 

138 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. 

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 investment-backed 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). 

140 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. 

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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. Itfirst arguesthatFlintHills assumed responsibility fortheoffsite 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. 

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 thepurchase. ArticleXcross-referencesSection 10.2(a)(iv) ofthe “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 

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.” 

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. 

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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 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 atmonitoringwellslocated 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 

143 “Effective Time” refers to the closing date of asset transfer, March 31, 

2004. 

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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. 

The latter type of claimis “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 froma 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. . . ; 

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.” 

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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(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; 

(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 fromthe 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 

compliancewith regulationsincurred after theEffectiveTime 

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 

indemnificationobligations, thepartiesincluded adamages capfor indemnification, with 

a specific Environmental Cap of $32 million.146 And we previously 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: 

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.” 

147 Flint Hills I, 377 P.3d 959, 976 (Alaska 2016). 

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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 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 

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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 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 

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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 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 

148 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). 

(continued...) 

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The language in the Purchase Agreement is ambiguous. On one hand, its 

definition ofEnvironmentalCondition and the language aboutsuch conditions in Section 

10.2’s indemnification provisions appear to be extremely broad; they could therefore 

apply to both onsite and 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 languageof “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 

“EnvironmentalConditions,”possibly supporting thisnarrower 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 

148 (...continued) 

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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admission of extrinsic evidence than Alaska law,149 a 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 

149 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 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 acceptedmeaning’ unlessthe 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. 

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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. 

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 

wasresponsible for additionalpollution occurring on- and offsiteduringtheir 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 

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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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 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 Flint Hills to assume liability only for sulfolane contamination onsite 

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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. 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, 

152 In Flint Hills I, we determined that indemnification claims for 

environmental liabilities would be subject to the Cap. 377 P.3d at 976. 

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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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 parties’ 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 contractualindemnityforsulfolane contamination.” Becauseneither 

Williams nor FlintHills challenges the superior court’sinterpretation,wedonot consider 

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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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 

maximumamount of indemnifiable Damages” arising out ofSections10.2(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 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 

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”). 

156 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 

(continued...) 

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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 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 

156 (...continued) 

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). 

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); 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.”). 

159 See Benner v. Wichman, 874 P.2d 949, 956 (Alaska 1994) (implying nowrepealed 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”). 

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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. AndWilliamsmisconstrues 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 declaratory 

relief and specific performance because we determined that it still had an adequate legal 

160 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 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 generally indicating that an 

indemnificationagreement encompassing CERCLAliabilitybetweenresponsibleparties 

will control, is not always clear about whether such an agreement displaces contribution 

altogether or controls equitable allocation in a contribution action. See, e.g., Fina, Inc. 

v. ARCO, 200 F.3d 266, 273-74 (5th Cir. 2000) (allowing claim for contribution only 

after concluding that parties’ indemnification provision did not cover CERCLA claims); 

Kerr-McGee Chem. Corp., 14 F.3d at 326 (finding indemnity agreement between parties 

remained applicable in CERCLA action, but that result of indemnification and 

contribution would have been identical and therefore declining to reverse contribution 

award; also indicating that equitable allocation informed by indemnification agreement 

could be modified depending on parties’ ability to pay to avoid shifting cleanup costs 

onto public); Beazer E., Inc. v. Mead Corp. (Beazer I), 34 F.3d 206, 208-10, 218-19, 219 

n.10 (3d Cir. 1994) (reversing dismissal of contribution claim because indemnification 

claim did not cover CERCLA liability but implying that indemnification provisions, 

rather than equitable apportionment, would control if applicable); Beazer II, 412 F.3d at 

447 n.20 (revisiting issues between parties and interpreting Kerr-McGee to mean that 

when“indemnificationprovisiondid cover CERCLAliability, . . . no equitable allocation 

proceeding was required”); Olin Corp. v. Consol. Aluminum Corp., 5 F.3d 10, 16 (2d 

Cir. 1993) (recognizing that applicable indemnification provisions should be followed 

though they may incur “seemingly harsh result,” but failing to specify whether sole 

remedy available was indemnification or if contribution could be pursued, though result 

would be under parties’ indemnification provisions). 

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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 

claims sought identical relief to its legal claims, since its requests for declaratory 

judgment and specific performance essentially asked the court to order Williams to pay 

the same damages Flint Hills had requested in its indemnification and contribution 

claims.162 We did not conclude in Flint Hills I that indemnification and contribution 

were duplicative remedies or constituted identical relief. 

Unlike its claims for declaratory relief and specific performance vis-à-vis 

its claims for indemnification and statutory contribution,Flint Hills’s contribution claims 

are not duplicative of its legal indemnification claims. If available, indemnification 

might have enabled Flint Hills to recover entirely for the offsite sulfolane pollution that 

Williams caused or contributed to prior to the refinery purchase, without any equitable 

modifications, but subject to the Environmental Cap.163 By contrast, statutory 

contribution requires the superior court to weigh equitable factors which, besides the 

intent of the parties as evidenced by their contract, also includes the conduct of parties. 

Theparties’ indemnificationagreement, althoughinapplicable,served to informthe court 

about the parties’ intent, but it did not bind the court to the same result in its statutory 

contribution determination as it would reach under its contractual indemnification 

161 Flint Hills I, 377 P.3d at 974 (dismissing claims for declaratory relief and 

specific performance of contract that duplicated its financial contribution claims); see 

also 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.”). 

162 Flint Hills I, 377 P.3d at 974. 

163 “An express indemnity generally is not subject to equitable considerations 

or a joint legal obligation to the injured party; rather, it is enforced in accordance with 

the terms of the contracting parties’ agreement.” 41 AM. JUR. Indemnity § 7 (2022). 

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determination. 

For these reasons, the contract language expressly allows the statutory 

contribution remedy and doing so does not inappropriately provide Flint Hills an “endrun around” its contractual arrangements or inappropriately award an equitable remedy 

when a legal one was potentially available. The superior court did not err by granting 

Flint Hills statutory contribution from Williams under AS 46.03.822(j). 

5.	 The superior court’s contribution allocations were not 

erroneous. 

A party liable for the release of a hazardous substance under 

AS 46.03.822(j) “may seek contribution from any other person who is liable.”164 During 

a statutory contribution proceeding, “the court may allocate damages and costs among 

liable parties using equitable factors determined to be appropriate by the court.”165 

After Flint Hills sought contribution from Williams, the superior court 

made a series of findings regarding Flint Hills’s contribution claims. In relevant part, the 

court found: “Williams is strictly liable, jointly and severally, under AS 46.03.822 for 

hazardous substance releases as an owner and operator of the [refinery]”; “the harm 

caused by Williams[’s] sulfolane releases is not divisible or reasonably capable of 

apportionment” and thus Williams “is jointly liable for the entire amount of response 

costs.” Based on consideration of many equitable factors — including contractual 

indemnity clauses, proportions of sulfolane releases attributable to each party, the degree 

of cooperation by each party, and promptness of reporting sulfolane in the groundwater 

— the court found “Williams is responsible for 75% of the [offsite] sulfolane response 

costs, while Flint Hills is responsible for 25% of the costs, and the State is not 

164 AS 46.03.822(j). 

165 Id. 

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responsible for any of the costs.”166 

Williams appeals the superior court’s statutory contribution allocation 

under AS 46.03.822(j), arguing the court erred by (1) allocating anything for offsite 

sulfolane to Williams because the parties “had allocated full responsibility for sulfolane 

to Flint Hills under the Agreement”; (2) failing to properly consider DEC’s nonregulation of sulfolane prior to 2004; (3) penalizing Williams for defending itself; 

(4) “failing to allocate responsibility to the State and ignoring Williams[’s] equitable 

estoppel and laches defenses”; and (5) “failing to allocate responsibility to the City.” 

a.	 The court did not err by allocating statutory contribution 

for offsite sulfolane to Williams. 

We have affirmed the superior court’s conclusion that Williams retained 

responsibility for sulfolane that was offsite at the time of the Purchase Agreement and 

that Flint Hills could recover through statutory contribution in the absence of contractual 

indemnification. The court therefore did not err by allocating responsibility to Williams 

under the contribution provisions of AS 46.03.822(j).167 

b.	 The superior court adequately considered DEC’s earlier 

non-regulation of sulfolane when it allocated damages. 

Williams argues that the superior court erred when it “failed to compare the 

relative ‘culpability’ of Williams and Flint Hills given the very different regulatory 

environments in which each operated the refinery.” Namely, because sulfolane was not 

regulated as a hazardous substance when Williams released it, Williams argues the court 

erred by not reducing Williams’s culpability. Williams relies primarily on two cases for 

166 The court did not allocate any costs to the City of North Pole, which was 

not a party at the trial. 

167 SeeOaklyEnters., LLCv.NPI, LLC, 354 P.3d 1073, 1077,1082-83 (Alaska 

2015) (discussing and affirming broad, non-inclusive list of factors superior court 

considered in allocating responsibility for damages under subsection .822(j)). 

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support: Boeing Co. v. Cascade Corp. for the assertion that “[a] court should consider 

the care a party exercised ‘in light of the practices characteristic of the time’ and may 

reduce a party’s share if no rules or laws prohibited the practices at the time”;168 and 

Oakly Enterprises, LLC v. NPI, LLC for the assertion that “[a] court should also consider 

which party ‘knew or should have known’ of the contamination and which party ‘had the 

ability to control the [cause]’ at the time.”169 Williams argues that, had sulfolane been 

regulated before the Purchase Agreement, it would have been able to keep it onsite 

because it “kept all regulated contaminants onsite during its tenure.” 

Superior courts have broad discretion over which equitable factors to 

consider when allocating costs under both CERCLA and AS 46.03.822.170 A court may 

choose to reduce a party’s damages according to the party’s practices and prevailing 

circumstances at the time, but it is not required to. And as the State points out, neither 

Boeing Company nor Oakly Enterprises supports Williams’s position in this case. Even 

though sulfolane was not yet regulated as a hazardous substance, it would have been a 

pollutant under AS 46.03.900(20) and thus its unpermitted releases were prohibited 

under AS 46.03.710. As Williams conceded at trial, releasing sulfolane regardless of its 

official status as a hazardous substance was prohibited by law — a fact that counts 

against Williams rather than in its favor. The record demonstrates that Williams knew 

about the sulfolane releases during its tenure at the refinery due to its own negligence, 

but failed to address the ongoing releases. Williams knew sulfolane was at least toxic 

if not “hazardous.” Yet the “care” that Williams exercised included storing sulfolane168 207 F.3d 1177, 1187 (9th Cir. 2000). 

169 354 P.3d at 1077. 

170 E.g., id. at 1078, 1080-83 (applyingclear error standard of reviewto factual 

findings and abuse of discretion standard to decisions whether to admit or exclude 

evidence); Boeing Co., 207 F.3d at 1187. 

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containing waste in a leaky, decommissioned lagoon, some of whose many holes were 

crudely “patched” by nailing two-by-fours to the liner. Williams also unilaterally 

stopped the monitoring that DEC requested to help identify and address the source of the 

sulfolane leaks. That behavior was neither typical nor allowed at the time, and Williams 

knew of and was in control of the cause of the contamination, supporting the court’s 

decision to impose statutory contribution against Williams. 

c.	 The superior court did not penalize Williams for 

“defending itself.” 

Williams argues that the court erred because its “allocation expressly took 

into account Williams’[s] alleged ‘recalcitrance’ and ‘refusal to assist’ DEC.” Williams 

argues it was penalized for defending itself. Williams contends it was within its rights 

to refuse to provide alternative water and to indemnify Flint Hills, and claims it would 

be unconstitutional to penalize it for doing what the law plainly allows it to do.171 

TheStatequickly and correctlydismissesthis argumentby pointing out that 

“[a] party may be ‘within its rights’ to refuse to act until ordered by a court, but its 

choices can still weigh against it in equity.” Courts often consider the extent to which 

parties cooperate with regulators in this context.172 

171 We agree with the State that none of the cases Williams cites for support 

contradict the assertion that a party’s refusal to act can “weigh against it in equity.” 

Williams relies for support on an incomplete quote from a dissent, without identifying 

it as such, but omits the following paragraph of that dissent, which acknowledges 

“CERCLA strongly incentivizes voluntary compliance” and refers to a case that 

recognizes the court’s ability to impose fines when a responsible party willfully fails to 

comply with an EPA order without sufficient cause. McGinnes Indus. Maint. Corp. v. 

Phoenix Ins. Co., 477 S.W.3d 786, 801 (Tex. 2015) (Boyd, J., dissenting) (citing Gen. 

Elec. Co. v. Jackson, 610 F.3d 110, 114 (D.C. Cir. 2010)). 

172 See, e.g., Oakly Enters., 354 P.3d at 1077 & n.6 (allowing superior court 

to consider “the degree of cooperation by the parties with Federal, State or local officials 

(continued...) 

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Williams asserts in reply, without support, “thatWilliams cooperated in the 

initial investigation” and that “six years after the refinery’s sale, Williams was 

participating and willing to continue doing so, until the State abruptly stopped 

investigating and sued.” Our review of the record confirms that Williams conducted 

groundwater sampling for sulfolane for about a year before stopping the sampling 

without having identified the source of the sulfolane leak, contrary to DEC’s 

instructions.173 And Williams attended meetings with DEC and offered to pay for and 

conduct certain modeling, though it did not give the models to DEC. But Williams does 

not point to anything in the record indicating that it cooperated with DEC. Williams has 

not challenged the superior court’s findings of fact on this issue, including its extensive 

findings showing an overwhelming level of inaction by Williams even after it had 

received notice in 2010 that DEC would be treating sulfolane as hazardous. The court 

did not abuse its discretion by allocating costs against Williams in part for its lack of 

cooperation. 

d.	 The superior court did not err by not allocating 

responsibility to the State or by ignoring Williams’s 

equitable defenses. 

Williams argues that because the State admitted to being a “liable 

landowner under AS 46.03.822(a)” as an owner of the refinery lands, the court erred by 

not allocating some responsibility to the State under AS 46.03.822(j). Williams also 

argues that “the court should have allocated some .822(j) responsibility to the State” 

based on laches and equitable estoppel. 

172 (...continued) 

to prevent any harm to the public health or the environment,” among other equitable 

factors, when allocating responsibility for releases under AS 46.03.822(j) (quoting 

Lockheed Martin Corp. v. United States, 35 F. Supp. 3d 92, 123 (D.C. Cir. 2014))). 

173	 Flint Hills I, 377 P.3d 959, 963 (Alaska 2016). 

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Williams cites FDIC v. Laidlaw Transit, Inc.174 for support that the State 

should be allocated costs for sulfolane contamination, but that case does not support its 

argument. In Laidlaw we recognized that cleanup costs need not “be borne by all 

potentially responsible parties equally” and that courts can “distinguish among 

potentially responsible parties to avoid inequitable results.”175 And AS 46.03.822(j) 

expressly grants discretion to “allocate damages and costs among liable parties using 

equitable factors determined to be appropriate by the court.” Williams’s argument 

amounts to mere disagreement with how the court weighed these equitable factors. 

When it found that the State was without fault as a landowner, the superior 

court reasoned that “[n]o persuasive evidence was presented at trial to support an 

equitable allocation” to the State. Williams points to several factors it suggests indicate 

the State’s culpability. For instance, it asserts that the State had a “but-for causal role in 

allowing the sulfolane to remain in the ground throughout Williams’[s] tenure.” 

Williams seems to argue that, because it notified DEC of the sulfolane release in 2001 

and DEC told Williams only to keep tracking sulfolane through sampling because it was 

not then a regulated contaminant, Williams had no obligation to clean it up. But as early 

as November 2000 a representative from the Department of Natural Resources176 met 

with Williams and DEC to discuss the adequacy of Williams’s spill prevention efforts 

and the preparation of a characterization and corrective action plan. In that meeting, 

DNR told Williams that it might be in default on its lease because of the spills. 

Williams also alleges the State was indirectly responsible for sulfolane 

174 21 P.3d 344 (Alaska 2001), abrogated on other grounds by Buntin v. 

Schlumberger Tech. Corp., 487 P.3d 595 (Alaska 2021). 

175 Id. at 349-50. 

176 DNR was the State agency that managed the lease of the land underlying 

the refinery. 

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releases by allowing Flint Hills to turn off its pumping system in July 2017, which 

Williams claims “caus[ed]the sulfolane tomigrate offsite.” Although theState did allow 

Flint Hills to turn off the pumping system, sulfolane had already been detected offsite in 

October 2009. Furthermore, the court expressly considered this factor and found it to 

be outweighed by Williams’s “other negative conduct,” such as “mismanagement . . . of 

its waste fluid treatment and disposal systems” and “cessation of testing for sulfolane 

sources on the [R]efinery property.” Williams does not argue that the court erred when 

it weighed this fact about Flint Hills turning off the pumps in its equitable allocation 

decision. We are not persuaded the court erred by not allocating financial responsibility 

to the State as a landowner under these circumstances. 

Williams also argues that the superior court “inexplicably ignored 

Williams’[s] equitable estoppel defense and reasonable reliance on the State’s repeated 

written affirmations that sulfolane was not regulated and could be left in the ground.”177 

Williams alleges that the court “previously found this defense to be relevant to allocating 

damages under .822(j).” But the court previously explained that equitable defenses 

would be relevant, if at all, for allocation under subsection .822(j) rather than for 

establishing liability under subsection .822(a) because that would undermine the strict 

liability framework of the hazardous substance statute. And in any case the court did not 

explicitly find that Williams’s equitable estoppel defense was relevant for subsection 

.822(j) allocation. As the State points out, Williams does not provide any arguments 

undermining the court’s discretionary decision not to consider Williams’s defense of 

177 “Equitable estoppel requires proof of three basic elements: (1) ‘assertion 

of a position by conduct or word,’ (2) ‘reasonable reliance thereon,’ and (3) ‘resulting 

prejudice.’ In addition, equitable estoppel ‘will be enforced only to the extent that justice 

so requires.’ ” Beecher v. City of Cordova, 408 P.3d 1208, 1214 (Alaska 2018) (first 

quoting Jamison v. Consol. Utils., Inc., 576 P.2d 97, 102 (Alaska 1978); and then 

quoting Mun. of Anchorage v. Schneider, 685 P.2d 94, 97 (Alaska 1984)). 

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equitable estoppel. 

Williams also argues that laches “should have comparatively reduced 

Williams’[s] responsibility because” in earlier proceedings “the superior court found 

laches barred Flint Hills’[s] claims for equitable remedies against Williams due to its 

‘unconscionable delay’ in addressing sulfolane.” Williams then states, somewhat 

misleadingly, that the “factual findings upon which the court’s laches decision was made 

were affirmed on appeal” and should have preclusive effect. We earlier agreed that Flint 

Hills “reasonably should have concluded ‘long beforeMay 10, 200[8]’thatsulfolanehad 

migrated beyond the sampling disclosed in the Agreement.”178 But we explicitly did not 

reach the issue of Williams’s laches defense on Flint Hills’s equitable claims because 

these were not available in light of the legal remedies available by contract and statute.179 

Williams also challenges the court’s conclusion that Williams’s delayed reporting of 

discovering sulfolane in the groundwater was more problematic than Flint Hills’s nearly 

two-year delay in drilling monitoring wells. We see no abuse of discretion in allocating 

more responsibility to the party that waited five years to report its discovery that a 

relatively novel solvent had leached into the groundwater than to the party that delayed 

drilling “recommended monitoring wells” for about two years. 

e.	 The superior court did not err by failing to allocate 

responsibility to the City of North Pole. 

Williams next argues that “[t]he City was a significant source of sulfolane” 

and the court should have allocated responsibility to the City. The court did not rule on 

the City’s liability and prevented Williams from presenting evidence implicating the 

City’s contribution to the sulfolane plume. 

As both Flint Hills and the State point out, once the court deconsolidated 

178 Flint Hills I, 377 P.3d at 973 (alteration in original). 

179 Id. at 974. 

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the cases in June 2019 the City was no longer a party to these proceedings. While the 

cases were consolidated, Williams raised a contribution claim against the City, but the 

court dismissed it as untimely. Though in the State’s suit the court could have 

considered the City’s culpability as an equitable factor under AS 46.03.822(j), because 

Williams is “strictly liable, jointly and severally” under AS 46.03.822(a), the superior 

court did not abuse its discretion by failing to allocate costs to an absent party.180 

Williams also attempts to appeal the deconsolidation order. The Rules of 

Appellate Procedure require that an appeal brief contain a “short conclusion stating the 

precise relief sought”181 and that the argument section contain “the contentions of the 

appellant with respect to the issues presented” as well as a “heading indicating the 

subject matter” for “[e]ach major contention.”182 Williams asks in its statement of issues 

on appeal whether the superior court erred in deconsolidating the cases but does not 

request that the deconsolidation be reversed on appeal, and omits any mention of the 

orderfromits discussion heading. Williams claimsitwas prejudiced by deconsolidation, 

but fails to challenge the court’s detailed justifications for deconsolidating the cases. 

Williams adds in a heading in its reply brief that the superior court “erred by sua sponte 

deconsolidating the cases,” but again fails to cite to a rule or case indicating how the 

court erred. Williams waived its deconsolidation argument: we “consider as abandoned 

questions set forth in the Points but not argued in . . . [the] brief,”183 and an appellant’s 

180 See Laidlaw Transit, Inc., 21 P.3d at 349-50 (contemplating absentee 

responsible parties in AS 46.03.822(j) contribution claim and explaining how courts can 

“distinguish among potentially responsible parties to avoid inequitable results”). 

181 Alaska R. App. P. 212(c)(1)(I). 

182 Alaska R. App. P. 212(c)(1)(H). 

183 Reilly v. Northrop, 314 P.3d 1206, 1212 n.4 (Alaska 2013) (alteration in 

(continued...) 

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reply “brief may raise no contentions not previously raised in either the appellant’s or 

appellee’s briefs.”184 

VI. CONCLUSION 

For the reasons stated above, we 

AFFIRM the superior court’s conclusion that sulfolane is a hazardous 

substance under AS 46.03.822(a); 

AFFIRM the superior court’s award of response costs under AS 46.03.822 

to the State and Flint Hills for Williams’s offsite sulfolane releases; 

AFFIRM the superior court’s award of natural resource damages to the 

State for the loss of access to groundwater; 

AFFIRM the superior court’s interpretation of the Purchase Agreement’s 

indemnification provisions; 

AFFIRM the superior court’s contribution awards under AS 46.03.822(j); 

AFFIRM the superior court’s decision not to refer onsite PFAS 

contamination issues to DEC; and 

AFFIRM the superior court’s declaratory relief; but 

REMAND the superior court’s injunctive relief for further proceedings in 

light of this opinion. 

183 (...continued) 

original) (quoting Wetzler v. Wetzler, 570 P.2d 741, 742 n.2 (Alaska 1977)). 

184 Alaska R. App. P. 212(c)(3). 

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