Litigation likely over EPA wildfire cleanup, attorneys say

With the announcement that Will Rogers State Beach will be used as a staging area to process waste from the Palisades fire, and similar plans to process waste from the Eaton fire drawing criticism from San Gabriel Valley residents, attorneys say litigation is likely - but not without significant hurdles for claimants.

"Civil litigation by folks over this type of 'not in my backyard' is always a possibility," said Norman A. Dupont of Aleshire & Wynder LLP in Westlake Village.

An environmental and municipal attorney who lost his home in the Palisades fire, Dupont has been involved in cases surrounding issues with the Stringfellow Acid Pits toxic waste dump in Jurupa Valley, the BKK Corporation Landfill in Monterey Park and several smaller landfills.

"There have been numerous similar suits," Dupont said in a phone call on Friday. "I'm not going to prejudge the lawsuit because I haven't seen it, but a difficulty may be that the government agencies are going to say this was a national disaster, it was declared a state disaster area, a federal disaster area, and people had to move fast."

The U.S. Environmental Protection Agency announced on Wednesday that Will Rogers State Beach will serve as a temporary site for hazardous materials collected from the fires. Following the announcement, newly sworn-in EPA Administrator Lee Zeldin defended the decision.

"EPA for a very long time has been doing projects where we're handling hazardous material," Zeldin said last Thursday, according to KNX News. "It's very important that the hazardous material that we are handling is not touching the ground on these sites. We're going to continue that best practice to make sure that we're doing everything we can to clean the land, air and water."

Zeldin has also expressed optimism that the agency would meet a 30-day deadline on the cleanup set by the Trump administration.

"We set a 30-day goal. We're doing everything we can to possibly meet it," he said.

The truncated deadline has drawn skepticism from some attorneys and experts.

"There's no way," Brian J. Panish of Panish Shea Ravipudi LLP in Los Angeles said of the deadline, noting that cleanup of the August 2023 Hawaii wildfires stretched over multiple months.

"In Hawaii, they said it was the most complex disaster EPA and FEMA ever dealt with - and this is by far much larger," Panish said in a phone call on Friday.

Dupont also expressed uncertainty over the deadline, noting, "In my experience, when you think you've got to the bottom of a pile of waste material, maybe you haven't quite gotten to the bottom of it."

"You're talking about two- or three-story homes that have been reduced by the fire to rubble, and that's a lot of stuff to pick up," he said. "So, whether the 30-day time period is realistic, I can't give you an opinion."

Albert C. Lin, a law professor at UC Davis specializing in environmental and natural resources law, called the deadline "extremely ambitious given the complexity and scale of the problem."

"It's one thing if you just have one type of waste, but you have all sorts of stuff in the ashes and whatever they need to clear out where it could be very different, depending on whether you're dealing with a residence, or whether you've got explosive hazards or something with an [electric vehicle] or whether you have a business that was involved in chemical protection that got burned up," Lin said in a phone call on Thursday.

Despite the ambitious timeline, Panish agreed that plaintiffs looking to sue the government for a rushed cleanup would not have an easy time.

"That would be very difficult, because of the governmental immunities that they're entitled to and the fact that they're doing mandatory acts of cleanup that are required by the federal law," Panish said.

"Federal law prescribes obligations and duties of the federal agencies, and they have to follow those rules and regulations," he added. "Usually, you can't sue for them exercising their discretion and their mandatory functions that they need to do."

Despite these hurdles, Joseph F. C. DiMento, a law professor at UC Irvine, said litigation is highly likely.

"The absence of a centralized place for addressing serious homeowner and commercial business concerns makes these removal and staging decisions in my view a ripe area for litigation," DiMento said in an email on Friday.

"Smaller disasters have generated deep concerns, and this one is of remarkable proportions," he continued. "Clean up can take up to many months if not a couple years. Add to this, and I don't want to exaggerate it, a few aggressive lawyers who may be motivated by other than true altruism. I predict both individual and class action lawsuits.

"The nature of the toxicity is something that I believe neighbors have just started to realize with EPA and the Army Corp. activity while some individuals will be hiring their own private contractors, making for potential neighbor to neighbor conflicts," DiMento added.