Candee Wilde, Greenberg Traurig

Philadelphia’s Riverwards—Kensington, Fishtown and Port Richmond—lie in the path of redevelopment pressure. They were also once home to 14 secondary lead smelters. Those smelters left a legacy of elevated lead concentrations in soils. The city of Philadelphia is a principal environmental regulator with respect to that lead. The city’s approach and legal framework may be unfamiliar to some developers in Philadelphia, and a misstep in regulatory compliance can cause unforeseen construction delays or other development impediments.

The accelerated change in the Riverwards has unraveled significant environmental issues.

During the operation of lead smelter facilities, smokestacks scattered lead dust throughout the neighborhoods, and lead ultimately accumulated in surrounding soils. Left alone, the high concentrations of lead did not pose an apparent problem for residents in these neighborhoods. However, recent construction and demolition has disturbed soils and exposed underlying contamination, raising concern with local residents.

Lead, which has a tendency to remain in soils and may leach into groundwater, can be toxic to humans and animals. At risk populations include children, who experience adverse health effects to their brains and nervous systems, and pregnant women. The Environmental Protection Agency (EPA) sets standards for lead levels in residential paint, dust and soil. The EPA considers soils to be a lead hazard for children if lead is in excess of 400 parts per million (ppm) in soils where children play and 1200 ppm average in other soils, see the Toxic Substances Control Act (TSCA) Section 403, 15 U.S.C. Section 2683; 40 C.F.R. Section 745. ,In the Riverwards, recent investigations into soil contamination have confirmed the presence of lead in soils significantly above these levels. Additionally, several cases have been reported of lead poisoning in children from inhalation of lead particles in construction dust (or in some instances, actually playing on construction dirt piles or dust-covered playgrounds).

Despite the growing concern for residents of the Riverwards, no one agency has taken responsibility for systemically addressing pervasive soil contamination. However, the city of Philadelphia has begun to address some of the concern. The city does not regulate soils per se, but it does have general police power to address any significant health threats to residents of Philadelphia including lead risks should the city need to use these powers. Additionally, the city’s Department of Public Health (DPH) Air Management Services (AMS) regulates airborne emissions of lead. The city’s primary efforts historically have been addressed to lead-based paint exposures in children, in part because the city has viewed lead-based paint as a higher risk to children than exposure from soils surrounding the city’s former smelter sites, see ”Lead and Healthy Homes Program,” http://www.phila.gov/health/childhoodlead/.

Recently the city has expanded its regulations of fugitive dust and dust from construction and demolition activities to address airborne lead contamination in areas like the Riverwards. The city’s guidance on these matters can be found in the Air Management Regulations I, II, III of the Air Pollution Control Board. Pursuant to these regulations: “No person shall cause or permit the handling, transporting, storing, or disposing of any substance or material which is likely to be scattered by the wind, or is susceptible to being wind-borne, without taking effective precautions or measures to prevent air contamination.” Additionally, for construction and demolition activities, contractors must take specific precautions, including providing advance public notification to occupants of nearby properties, obtaining a dust control permit, and  following general work practice standards, such as wetting construction materials and soils, using tools equipped with dust collection/extraction systems, and covering stored and transported soils. Additional air sampling requirements are imposed for certain demolitions.

The intent of the city’s regulations is to prohibit developers from allowing lead-containing dust to become airborne; however, there are issues with the city’s ability to enforce these regulations. First, there is the problem that the city’s enforcement is primarily driven by complaints, and not routine inspections or site supervision. With the increased number of new construction and demolition sites in the city and the limited inspector resources at AMS, there is no practical way the city can systematically inspect these sites. Second, the nature of a dust-related violation makes it difficult to prove without direct observation that a violation existed. An inspector cannot issue a violation unless he or she has witnessed the conduct in question. While AMS claims it will send out an inspector within one hour from a complaint, construction dust is likely to have settled by that point.

The city’s lack of resources should not be seen as a free pass for developers who have yet to embrace the city’s recommended dust control practices. Developers in the Riverwards are no doubt aware of the public outcry against bad construction practices. Not surprisingly, given the increased awareness of impacts from lead contamination in the Riverwards, citizens have become more involved in monitoring development in the area. Residents and neighborhood associations are actively engaging with city council members and the city (as well as other regulatory agencies) to address major redevelopments in the area. They are also social media savvy. One organization, “Get the Lead OUT,” uses social media as a platform to share accounts and photos of irresponsible demolition and construction practices, as well as residents’ efforts to engage with the city on these concerns.

Riverwards citizens are not only calling AMS when they notice a dust violation, but have developed a shrewder focus on contaminated sites. One venue citizens have used to raise concern for development projects is the Board of License and Inspection Review (BLIR), which is the city’s administrative board hearing appeals of violations issued from certain city departments. As an illustration, in May of this year the Olde Richmond Civic Association (ORCA), filed an appeal and accompanying 49-page brief with BLIR challenging a developer’s demolition permit obtained from the Department of Licenses and Inspections (L+I) for the Cattie Galvanizing Co. building known locally as the Galvo. ORCA’s brief alleged, among other things, that there is significant lead contamination at the Galvo and that residents should be given sufficient time to perform baseline sampling of neighboring properties prior to demolition in order determine eventually whether the demolition caused any increase in contamination. At the BLIR hearing, ORCA was successful in delaying the demolition. While demolition will likely commence in time, the developer of the Galvo may be subject to a legal battle in the Court of Common Pleas if the results of ORCA’s testing demonstrate the demolition caused property damage to surrounding properties.

Undoubtedly, the Riverwards community will continue to be active on this issue as development in the neighborhoods progresses. As a consequence, developers in the area should not only pay attention to the city’s regulations and guidance, and obtain all applicable permits for a project, but should be prepared to address citizens’ concerns that may rise to the level of a BLIR appeal or even a complaint in the Court of Common Pleas if not handled carefully. It is clear, however, that prudent development practices and public relations skills are critical to smoother development in the Riverwards.

Candee Wilde practices in the environmental group of Greenberg Traurig. She resides in the Philadelphia office. Prior to joining the firm, she prosecuted code violations and handled appeals for the city of Philadelphia.