Baker & Hostetler LLP
María R. Coor
November 14, 2013
In Voggenthaler v. Maryland Square LLC, 724 F.3d 1050 (9th Cir. 2013), the defendants argued that contamination that happened in Vegas, stayed in Vegas, and therefore the Commerce Clause barred the application of CERCLA. The district court disagreed. The Ninth Circuit affirmed the district court’s decision, joining the Second Circuit and the Eleventh Circuit in upholding the applicability of CERCLA as constitutional even when contamination and/or its direct impacts are local. See United States v. Olin Corporation, 107 F.3d 1506 (11th Cir. 1997); Freier Westinghouse Electric Corporation, 303 F.3d 176 (2d Cir. 2002).
Contamination from a former dry cleaning operation located at a Las Vegas shopping center prompted the Nevada Division of Environmental Protection (“NDEP”) to remediate the site. During this remediation, NDEP learned of potential vapor intrusion stemming from the contamination and notified nearby homeowners. Two district court actions and several appeals followed. A group of homeowners filed a RCRA citizen suit seeking an injunction ordering the owners of the shopping center and the operators of the former dry cleaning facility to clean up the contamination. NDEP filed an action seeking recovery of incurred and future costs under CERCLA and state law. The district court awarded plaintiffs summary judgment in both cases.