Climbing out of the ash from the California fires: environmental compliance

October 20, 2017

Environment Law Alert

Author(s): Alison B. Torbitt

This alert discusses recommendations for residences, businesses and industrial facilities—affected by the recent California fires—regarding environmental concerns and compliance issues.

This last week brought devastation and heartbreak as California experienced some of the worst fires in its history. As we clean up the ash and rebuild, a quick reminder that clean-up sites may contain any number of hazardous materials, including but not limited to exposed asbestos, lead, dioxins and furans, chemical residues and heavy metals. Before anyone acts, please check with your insurance carrier for guidance. Next, everyone should wear appropriate personal protective equipment (PPE). Please see our Alert (available here) for more detail on this subject. Tips on salvaging and cleaning from the Federal Emergency Management Agency (FEMA) can be found here.

Residences, businesses and industrial facilities may also encounter more specific hazardous materials, including without limitation, televisions, computers, compressed gas cylinders, propane containers, batteries, transformers, paints, pesticides, fertilizers, ammunitions, lab equipment, heating and cooling equipment, appliances, automobiles, chemicals (bulk, pool, cleaning, garden, etc.), thermometers and more. These items will require extra care to protect human health and the environment, specifically to mitigate any dispersion to the air or run-off to surface waters. To assist with these efforts, the Department of Toxic Substances Control (DTSC) established an Emergency Response Program that provides 24-7 support to authorize the expenditure of state funds, provide oversight of hazardous materials contractors and coordinate emergency response activities. The DTSC’s Emergency Response Program usually dispatches agents to the front lines of such tragedies to inspect homes and businesses, generally under arranged access agreements, for hazardous materials and provides guidance on segregation of hazardous waste.

The exclusion found at Cal. Code of Regulations Title 22, Section 66701.1(c)(3) for permits for treatment and/or containment activities of hazardous wastes can be utilized for immediate responses to emergencies, such as the fires. In short, one who is properly trained, while wearing the appropriate PPE, should attempt to segregate hazardous materials from the ash and debris. If they can be safely segregated and managed separately, the appropriate containers for storage should be identified and then appropriate disposal sites utilized. For example, identifiable items that exhibit melting and/or smoke damage should be segregated and then sent to local hazardous waste collection sites or disposed of through your standard hazardous waste transporter. Items that are not distinguishable can be contained and disposed of at the municipal solid waste landfill (preferably lined) as a class three waste. For more information please see DTSC’s Emergency Guidance part 1 and part 2.

For businesses that are large quantity, small quantity and conditionally exempt small quantity generators, extra care should be taken regarding segregation and impacts on an individual basis. The DTSC can grant variances and emergency permits for affected businesses to transfer, treat, store and/or dispose of hazardous waste when they are not already permitted to do so, or outside the requirements of the current permit. Such variances and emergency permits generally allow for items like longer hazardous waste storage times, extensions, record exceptions, etc., with a subsequent formal authorization process. These temporary emergency permits have a 90-day duration and require the hazardous waste to pose an imminent and substantial endangerment to human health or the environment; therefore, it is crucial that businesses apply as soon as the need is identified.

Many may also encounter the bright red flame retardant that is dropped from the skies as a slurry to slow the spread of fire. The retardant most commonly used is Phos-Chek®, which contains ammonium phosphate, a salt, which causes it to stick to plants and subsequently repel flames. While the chemical’s Safety Data Sheet (SDS) labels it “practically non-toxic” for humans and pets (see data here), it can be lethal to aquatic life in lakes, creeks or rivers. Therefore, if feasible and allowed under your permits, hose it off into the process water treatment system or absorb with an oil-dry type product, sand, sawdust, etc. and dispose of as solid waste. If near a waterway or cleaning up large quantities, please contact your local regulator or environmental attorney for advice. And again, remember to wear proper PPE and subsequently wash all exposed clothes and skin to avoid irritation to eyes, lungs and skin.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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