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...