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The EPA’s cautious steps toward a new guideline for cleaning up lead-contaminated soil in American cities could open up disputes between the agency and companies that would foot the cleanup bills.
States and the Environmental Protection Agency are concerned that existing lead concentrations—or “background” lead levels—in cities may be higher than other areas because of decades of industrial activity.
Setting new lead guidelines for urban areas could prevent states and the EPA from cleaning up entire cities. But location-specific guidelines could give the companies responsible for cleanup another reason to dispute their portion of the bill.
“Establishing background is a bone of contention,” said Bart Seitz, a partner in the Washington office of Baker Botts LLP.
Lead contamination can affect almost every organ and system in the human body, according to the EPA. New guidelines for lead remediation not only would affect companies but also states and municipalities that haven’t found companies willing to pay for cleanup.
To determine existing levels of lead in urban areas, the EPA’s Region 4 office and the Kentucky Department for Environmental Protection are sampling soil in cities including Louisville, Ky.; Raleigh, N.C.; and Memphis, Tenn., for lead and other metals.
The study may take another year to finish, though the researchers plan to publish their preliminary data at the end of 2017, said Sheri Adkins, an environmental scientist consultant in the superfund program at the Kentucky Department for Environmental Protection. That data could help regions determine background lead levels and further inform site cleanup practices.
Adkins presented the preliminary findings at the Oct. 27 meeting of the Association of State and Territorial Solid Waste Management Officials in Arlington, Va.
The EPA has determined that lead in soil presents a hazard if it is found at more than 400 parts per million in children’s play areas.
EPA Region 4’s soil tests at various sites in Chattanooga found the mean concentration of lead was about 60 parts per million. But in some residential areas of the city, concentrations ranged from 100 to 400 parts per million.
“Typically, in most urban settings, you’ve got a whole litany of historical operations,” Seitz told Bloomberg Environment. Those operations, such as lead foundries, can leave behind higher concentrations of lead in larger areas of urban soil.
“Who’s ultimately responsible for that is often a fight, a battle the [potentially responsible party] has to get into,” he said.
At the urban sites where he has worked with potentially responsible parties on cleanup, Seitz said background levels for contaminants haven’t had much influence on cleanup.
“EPA’s rule of thumb at those sites has been pretty consistent. They don’t really allow us to argue for a higher cleanup level based on background,” he said.
The EPA might be wary of allowing lead to remain in soil just because it has been there for decades, he said.
“I’d be a little doubtful that EPA would accept that type of background determination, because it could write off the cleanup for whole swaths of neighborhoods,” Seitz said.
Adkins said one impetus of the study was the Black Leaf site in Louisville, a former pesticide manufacturing site whose pollutants—including arsenic and lead, as well as toxic pesticides—had spread to nearby residential neighborhoods.
The concentration of lead the state found in the soil was higher than the amount the EPA considers safe for residential neighborhoods but not high enough for the EPA to take emergency action or start cleanup.
By setting a background level, states could assess whether soil at a particular site is more contaminated than historical records show, potentially indicating more recent sources. That data would help states and the EPA prioritize sites and metals or chemicals for cleanup. Lead is a naturally occurring metal found in the soil at hundreds of sites around the country.
“We’re never going to have enough money to clean up all the lead,” Dana Stalcup, deputy director of EPA’s Office of Superfund Remediation and Technology Innovation, said at the meeting.
Existing guidelines could require large urban areas to be remediated if states or the EPA start testing soil, according to Tim Frederick, human health risk assessor for EPA’s Region 4.
“Are we going to start digging in Chattanooga and not stop until we’ve dug up the whole city?” Frederick asked at the meeting.
Cleanup guidelines shouldn’t change just because of the contamination’s ZIP code, Lisa Evans, senior counsel for Earthjustice, told Bloomberg Environment.
Under the superfund law, “determining whether cleanup should or should not occur is health-based,” she said. Lead can affect behavior and fetal growth when in the human body at certain concentrations, according to the EPA.
“Background levels in this instance seem irrelevant,” she said.
Stephen Lester, science director at the Center for Health, Environment and Justice, said lead guidelines “should be based on its potential to cause adverse health effects,” and that communities living near contamination should be considered.
“The people who have to live with these exposures need to be part of the conversation [and] be part of the decisionmaking process, to decide what level can remain there or what level needs to be removed,” he told Bloomberg Environment.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
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