Voggenthaler v. Maryland Square, No. 10-17520 (9th Cir. 2013)
Annotate this CaseThese five appeals concerned seepage over several decades of a toxic dry cleaning chemical into the ground under a Las Vegas shopping center. The court concluded that the application of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601 et seq., to soil and groundwater contamination in Nevada did not offend the Commerce Clause; Maryland Square had not shown that it qualified for an exception to CERCLA liability, and it was clearly responsible for reimbursement under Nevada state law; NDEP was entitled to summary judgment against the operator, SBIC, on the CERCLA and state law claims; the district court did not decide the issue raised by Maryland Square's motion for reconsideration, so remand was required to determine whether Maryland Square had Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq., liability for exposing the contamination to the elements; SBIC was liable to the previous owners under the indemnification provisions of the 1968 and 1982 leases; and the district court erred in holding Melvin Shapiro liable on his personal guaranty because the guaranty operated only prospectively and there was no evidence of spills occurring after he signed the guaranty.
Court Description: Environmental Law. The panel affirmed in part and reversed in part the district court’s judgments in litigation under the Comprehensive Environmental Response, Compensation, and Liability Act and the Resource Conservation and Recovery Act concerning seepage of a toxic dry cleaning chemical into the ground under a Las Vegas shopping center. The district court granted summary judgment in favor of neighboring homeowners who sought injunctive relief against the property owners of the shopping center and operators of the dry cleaning facility. The district court also granted summary judgment in favor of the Nevada Division of Environmental Protection, which sought to recover its cleanup costs. The panel largely affirmed the district court’s judgments. It affirmed the district court’s rejection of the contention that application of CERCLA to soil and groundwater contamination that occurred solely in Nevada violated the Commerce Clause. The panel vacated the grant of summary judgment under CERCLA against the current owner and remanded so that the owner might have an opportunity to make the additional showing that would be necessary to establish that it met an exception to CERCLA liability for bona fide prospective purchasers. The panel 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. The panel reversed the grant of summary judgment against a guarantor because there was no evidence of spills during the term of his guaranty.
The court issued a subsequent related opinion or order on October 4, 2013.
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