Telecom, Other Industries Face Extra Scrutiny Over Lead Releases

Telecommunications and other industries already struggling with liabilities from lead they’ve allegedly released into the environment face a new challenge in tighter federal screening levels for contaminated soil.

The Environmental Protection Agency released last month updated guidance cutting in half the amount of lead contamination in residential soil that can trigger closer state and federal scrutiny and spur tighter cleanup requirements. If multiple sources of lead affect the same soil, an even tighter screening level kicks in.

Disposal, lead smelting, and other industries often will be near vacant lots, daycare centers, apartment building grounds, and other soils where children live, learn, and play, Tom Mariani, chief of the Department of Justice’s Environmental Enforcement Section, said Thursday at an Environmental Law conference.

Industries could see Superfund sites reopened and hazardous waste cleanup requirements made more stringent, he said.

Telecom companies may face additional questions about their lead-clad cable coverings that can hang from telephone poles that cross playgrounds, lawns, and other soils children play on, Tom Neltner, an attorney and national director of Unleaded Kids, a new nonprofit organization focused on protecting children, said during an interview.

AT&T Corp., Bellsouth Telecommunications LLC., and Verizon Communications Inc. already began to face increased EPA scrutiny of their lead releases and lawsuits from shareholders and individuals following an investigation published last year by the Wall Street Journal.

Soil lead levels the EPA has measured near telecommunication cables in Pennsylvania that were lower than the agency’s old screening level of 400 parts per million (ppm) can exceed the agency’s new levels of 200 ppm or the 100 ppm recommendation that applies if a community also faces lead exposures from water, air, or other sources.

Immediate Impacts

The telecom industries’ decades long use of cables to provide a service that society wanted will raise interesting, practical questions, said Jennifer Giblin, a Wiley Rein LLP partner specializing in Resource Conservation and Recovery Act (RCRA), Comprehensive Environmental Response Compensation, and Liability Act (CERCLA or Superfund), and other laws.

Meanwhile the EPA’s screening levels already are affecting sites, Neltner and Giblin said.

The City of Durham, N.C., has fenced off parts of public parks that have lead contamination exceeding the EPA’s new screening levels, Neltner said. And the EPA announced on Jan. 26 that screening levels will be used at an East Helena, Mont., Superfund site, Giblin said.

The guidance will be used by all EPA regions as part of their thought process in deciding how to address both CERCLA and RCRA regulated sites, she said. Given lead’s ubiquity, Giblin predicted the de facto level that could trigger scrutiny will be 100 ppm.

Reopening Cleanups

The guidance can “look backwards” at sites where cleanups previously occurred to determine whether they pose too great a concern to children, Mariani said.

While screening levels aren’t clean up standards, the investigations they trigger can lead to reopened Superfund sites and more rigorous RCRA cleanups, he said.

Provisions of CERCLA and RCRA allow previous cleanup decisions to be revisited based on new information, said Walter Mugdan, an attorney who recently retired as EPA Region 2’s Deputy Regional Administrator.

The agency has decided there are no safe levels of lead prompting the updated screening levels, he said during the Environmental Law conference.

Reopening a closed CERCLA site can bring in new potentially responsible parties, Giblin said. If, for example, health concerns about solvents were the primary driver for cleaning up a contaminated site, the responsible parties may have been companies that made, used, or disposed of the solvents, she said.

But other parties could be swept in for the additional cleanup if lead became the primary concern, Giblin said.

The EPA’s new screening levels for lead in residential soils are just one of multiple policies and regulations the agency is issuing that can affect a wide range of industries and public utilities, she said.

The EPA, after years of delay, “is doing a lot of good things,” for children, Neltner said.