CERCLA, RCRA, And Vapor Intrusion: Does What Happens In Vegas Really Stay In Vegas?

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.

With regard to the RCRA citizen suit, the Ninth Circuit reversed the district court on procedural grounds because the defendants did not have an adequate opportunity to respond to plaintiffs' claims. With regard to the CERCLA claim, the Ninth Circuit ruled that the district court properly rejected the defendants' argument that, because the contamination occurred and remained in Nevada, application of CERCLA violated the Commerce Clause. The Ninth Circuit distinguished United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000), as cases involving non-economic activity. The panel held that soil and groundwater are articles of commerce and the regulation of these media through CERCLA is appropriate under the Commerce Clause, regardless of whether the contamination stayed in Nevada. While challengers to the applicability of CERCLA in localized contamination cases will want what happened in this Vegas case to stay in Vegas, they should not hold their localized breath.

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