CERCLA, RCRA, and Vapor Intrusion: Does What Happens in Vegas Really Stay in Vegas?

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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.

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Compliance: Pending Vapor Intrusion Regulations Threaten Commercial Real Estate

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Much Shelist, P.C.
David L. Rieser

November 2, 2013

Burgeoning state regulations, upcoming federal guidance and new environmental auditing standards may make vapor intrusion a significant environmental concern for commercial property owners, buyers, developers and lenders. While this is not a new issue, enhanced scrutiny may place vapor intrusion at the crux of commercial real estate transactions. Fortunately, there are steps counsel can take to prevent it from becoming a major issue.

Exposure danger

Vapor intrusion refers to a process in which contaminants in the soil or groundwater beneath a building enter the structure with air that moves from the subsurface through cracks or crevices in the basement or lower floors. Typically, this only happens with volatile chemicals such as those associated with gasoline (i.e., benzene) or dry cleaning (i.e., TCE/PCE). Over time these contaminant vapors can accumulate and increase to what environmental agencies consider hazardous levels, especially in newer, more airtight buildings. Vapor intrusion can be dangerous, and in the most extreme example, houses in Hartford, Ill., have exploded due to gasoline vapor contamination. In a more typical setting, however, it is uncertain whether vapor levels present more than a theoretical risk.

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FTC aggressively enforcing improper “green” claims

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Seyfarth Shaw LLP
Meagan Noel Newman and Ilana R. Morady

November 12, 2013

The Federal Trade Commission’s enforcement of green marketing violations is in full swing.

Last year, the agency published final changes to its Guides for the Use of Environmental Marketing Claims, commonly known as the “Green Guides.” We had previously blogged in some detail concerning the revisions. Now, with the revised Green Guides in effect, the FTC is working hard to ensure compliance.

The FTC recently announced six enforcement actions based on alleged misleading and unsubstantiated environmental marketing claims. Five of the actions involve biodegradable plastics claims. The sixth action seeks to impose $450,000 in civil penalties in connection with environmental claims about paper plates and bags.  Interestingly, in some of these cases the actions were brought against companies who purchased an additive from another company that claimed the additive made the products biodegradable.

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EPA Raises Civil Penalty Amounts

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Ogletree Deakins
Elizabeth B. Partlow
November 7, 2013
On  November 6, 2013, the U.S. Environmental Protection Agency (EPA) published a final rule in the Federal Register raising the maximum penalties that the agency can impose for certain violations of environmental laws.
A maximum civil penalty is prescribed in each of the statutes EPA administers. The most common maximum per-day penalty in environmental statutes is $25,000. For example, the Toxic Substances Control Act, the Clean Water Act, the Safe Drinking Water Act, the Resource Conservation Act, the Clean Air Act, the Comprehensive Environmental Response, Compensation and Liability Act, and the Emergency Planning and Community Right-to-Know Act all include a $25,000 penalty limit.

The Debt Collection Improvement Act of 1996 (DCIA), however, required EPA to review the civil penalties contained in the statutes that the agency administers every four years and adjust them for inflation according to a formula set forth in the DCIA. In compliance with the DCIA, EPA has previously made penalty adjustments for inflation in 1996, 2004, and 2008. Over time, these adjustments raised the standard maximum per-day penalty from $25,000 to $37,500.

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