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Voggenthaler v. Maryland Square LLC

ELR Citation: 43 ELR 20177
Nos. 10-17520 et al., (9th Cir., 07/26/2013)

The Ninth Circuit affirmed in part and reversed in part a lower court decision granting summary judgment in favor of homeowners and the Nevada Division of Environmental Protection in a CERCLA and RCRA case involving soil and groundwater contamination under a Las Vegas shopping center. The homeowners sought injunctive relief against the property owners of the shopping center and the operators of the dry cleaning facility; the state agency sought to recover its cleanup costs. The lower court properly rejected the defendants' contention that application of CERCLA to soil and groundwater contamination that occurred solely in Nevada violates the Commerce Clause. The generation and disposal of waste in connection with the operation of a business are economic activities properly regulated under the Commerce Clause. The U.S. Supreme Court has emphasized that the federal government has a significant interest in groundwater because groundwater is found in multistate aquifers and facilitates irrigated farming that supplies markets worldwide. The Supreme Court has also held that Congress, under the Commerce Clause, can regulate commercial activities, even where the economic impact of the individual defendant's actions were far smaller than in this case. Nevertheless, the court vacated the grant of summary judgment under CERCLA against the current owner and remanded so the owner may have an opportunity to make the additional showing that would be necessary to establish that it meets an exception to CERCLA liability for bona fide prospective purchasers. The court also reversed on procedural grounds the grant of summary judgment under RCRA against the current owner and the operators because those defendants did not have an adequate opportunity to respond to plaintiffs' claims. Last, the court reversed the grant of summary judgment against one guarantor because there is no evidence of spills during the term of his guaranty.