Legacy Lead-Sheathed Telecommunications Cables: Status and Issues for Congress

Legacy Lead-Sheathed Telecommunications Cables: Status and Issues for Congress

December 26, 2023
Legacy Lead-Sheathed Telecommunications Cables: Status and
Issues for Congress
From the late 1800s through the 1950s, telecommunications
acquisitions in the U.S. telecommunications sector. Some
companies hung, buried, or placed under water extensive
lead-sheathed cables have been acquired by current
networks of cables containing lead sheaths― casing that
companies. Some cables may have multiple owners if
protects the wires―throughout the United States. By the
different companies acquired different parts of a network.
mid-20th century, companies began installing new cables
Some lead-sheathed cables may be abandoned and have no
that use non-lead sheathing, removing some legacy cables
owners. If removal or remediation efforts are required,
while leaving others in place. In July 2023, media reports
questions of responsibility and liability may be complex.
on lead-sheathed cables identified numerous sites across the
country where legacy cables exist and claimed that they
Potential Risks of Exposure to Lead
may be releasing lead into water and soils at potentially
The extent to which lead-sheathed telecommunications
harmful levels. This reporting led some stakeholders,
cables may contribute to overall human health and
environmental groups, and public officials—including some
environmental risks of lead, in comparison to other sources,
Members of Congress—to call for action. Subsequently,
would depend on exposures. Proximity to lead alone would
there were historic drops in U.S. telecom companies’ stock.
not necessarily be an indicator of risks. Site-specific
circumstances that would have a bearing on risks may
Within weeks of the July 2023 reports, AT&T, Verizon, the
include whether the lead in cable sheathing may be intact or
State of New York, and the U.S. Environmental Protection
may leach into the environment and contaminate soil,
Agency (EPA) said they would conduct testing at sites
groundwater, or surface water through which exposures
named by the media. Initial EPA and state agency tests
could potentially occur. As with any chemical, potential
have not identified public health risks that would require
risks would also depend on the exposure conditions,
immediate response or remediation. However, following the
including the route of exposure through which lead may
July media reports, plaintiffs have filed several class action
enter the human body (i.e., inhalation, ingestion, or skin
lawsuits against telecom companies challenging their
contact), the dose (i.e., concentration, frequency, and
failure to publicly disclose information about lead-sheathed
duration of exposure), and the characteristics of the exposed
cables and protect utility workers from lead exposure.
individual (e.g., age, genetics, and health of an individual at
the time of exposure). Age would be a significant risk
This issue may be of continued interest to Congress, as
factor for lead. The Centers for Disease Control and
constituents, utility workers, and advocacy organizations
Prevention and others have found that children up to the age
request information on cable locations and additional
of six are more susceptible to lead exposures primarily
testing of identified sites. If it is determined that legacy
because of developmental effects. The potential for human
lead-sheathed cables need to be removed or remediated, it
exposure to lead would also likely differ depending on
could cost telecommunications companies resources,
whether the cables are located at the surface, suspended
including time, staffing, and potentially billions of dollars.
above the surface, buried underground, or in underwater
With litigation ongoing, Congress could wait for these
areas, given differences in how individuals may encounter
cases to be decided before determining whether or not to
these environments. Ecological risks would also depend on
take any action. If Congress were to take action, one option
exposures among animal and plant species.
would be to direct new funds or redirect funds from existing
congressionally mandated broadband and 5G programs to
Environmental Remediation
assess, test, and potentially mitigate any risks that
Multiple federal and state statutes authorize actions to
subsequently emerge. Another option would be to rely on
investigate lead and other types of contamination and to
cable owners to undertake these activities and costs, which
remediate potential risks if warranted. At the federal level,
could be passed on to consumers.
for example, lead is a hazardous substance under the
Comprehensive Environmental Response, Compensation,
Who Owns What?
and Liability Act (CERCLA) of 1980, as amended. Subject
Some telecommunications companies assert that only small
to the availability of funding, EPA may take CERCLA
portions of their networks consist of lead-sheathed cables.
response actions to investigate and remediate the release, or
For example, AT&T estimated that lead-sheathed cables
substantial threat of a release, of lead into the environment
represent less than 10% of its copper cable footprint of
under the Superfund program at sites on nonfederal lands.
roughly 2 million miles. Verizon also reported that lead-
The state in which an individual site is located would have
sheathed cables make up a small percentage of its copper
a role in such actions through a coordinated framework
network. It may be challenging to identify the location and
under CERCLA. CERCLA established categories of
ownership of all lead-sheathed cables due to the breakup of
potentially responsible parties (PRPs), and PRPs may be
the Bell System in 1984 and subsequent mergers and
liable for response costs and natural resource damages.
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Legacy Lead-Sheathed Telecommunications Cables: Status and Issues for Congress
While determination of liability under CERCLA depends
on nonfederal lands under their respective laws and
on site-specific factors, if there were a response action to
jurisdictions. The federal and state roles in environmental
address risks of lead from a telecommunications cable,
remediation may raise policy questions for investigating
PRPs could include not only the company that installed and
potential lead contamination from telecommunications
operated the cable but also current and some past owners of
cables considering competing priorities for the use of
the site on which the cable is located. A party may qualify
federal resources among other types of contaminated sites
for a defense to or exemption from CERCLA liability in
where federal assistance may also be desired.
some situations. See CRS In Focus IF11790, Liability
Under the Comprehensive Environmental Response,
Class Action Lawsuits
Compensation, and Liability Act (CERCLA).
Several class action lawsuits have been filed against
telecommunications companies challenging their failure to
In addition to CERCLA, lead is listed as a hazardous waste
publicly disclose information about lead-sheathed cables.
under the Solid Waste Disposal Act (often referred to as the
As of December 2023, the majority of these challenges are
Resource Conservation and Recovery Act or RCRA).
based on violations of Sections 10(b) and 20(a) of the
Section 7003 of RCRA authorizes EPA to issue
Securities Exchange Act of 1934 (SEA). Section 10(b) of
enforcement orders for abating an imminent and substantial
the SEA prohibits fraud in connection with the purchase or
endangerment to human health or the environment resulting
sale of securities in contravention of Securities and
from the past or present handling, storage, treatment,
Exchange Commission rules. Section 20(a) provides that
transportation, or disposal of a solid or hazardous waste.
“every person who … controls any person liable” for a
However, this authority applies only to a discarded
violation of the SEA is jointly and severally liable for that
substance, which is a prerequisite for a substance to be
violation. The plaintiffs—shareholders in the
considered a solid or hazardous waste pursuant to the
telecommunications companies—claim that the companies
definitions of these terms under Section 1004 of RCRA.
knowingly released materially false information to the
The potential applicability of RCRA to a site where lead is
public by failing to disclose information about lead-
released into the environment from a telecommunications
sheathed cables. This, plaintiffs argue, artificially raised the
cable therefore would generally depend upon whether the
stock prices of the companies’ shares, causing investors
release may constitute discarding under this statute.
financial harm when information about the lead-sheathed
cables was later released (Brazinsky v. AT&T; General
If lead derived from lead-sheathed telecommunication
Retirement System of the City of Detroit v. Verizon;
cables were to migrate into groundwater or surface water,
Jankowski v. Verizon; McLemore v. Lumen Technologies,
enforcement actions under two other federal statutes might
Inc.; Meehan v. Verizon).
be used to mitigate potential impacts on water quality.
Section 1431 of the Safe Drinking Water Act grants EPA
Utility workers have also filed a class action complaint
“emergency powers” to issue orders for abating an
against Verizon for negligence in exposing the workers to
imminent and substantial endangerment to public health
the lead-sheathed cables. The workers argue that Verizon
when (1) a contaminant “is present in or is likely to enter a
was aware of the harm that its lead-sheathed cables caused
public water system or an underground source of drinking
and failed to protect workers from that harm. The workers
water” and (2) the appropriate state and local authorities
argue that lead is a “hazardous substance” under both
have not acted to protect public health. Section 504 of the
CERCLA and RCRA and that Verizon did not take the
Clean Water Act also grants EPA “emergency powers” to
actions required under those laws to dispose of the retired
issue orders for mitigating a discharge of a pollutant into
lead-sheathed cables properly (Tiger v. Verizon).
U.S. waters, if warranted, to abate an imminent and
substantial endangerment to human health or the welfare of
Considerations for Congress
persons where such endangerment is to their “livelihood”
If Congress were to take action, one option would be to
(including the “inability to market shellfish”).
mandate an inventory of legacy lead-sheathed cable
locations and ownership nationwide. It may also consider
Whether actions may be warranted under any of these
which agency could or should lead the development of an
federal statutes would be a site-specific determination based
inventory (e.g., the Federal Communications Commission,
on the potential risks of exposure and other criteria specific
EPA), whether interagency coordination is needed, and
to each statute. The mere presence of lead contamination
whether to share collected information publicly or only with
derived from a lead-sheathed lined cable would not
relevant state and local agencies. Congress could, once an
necessarily warrant action under any of these statutes. If
inventory is complete, mandate or encourage federal
remediation were warranted under a particular statute, the
coordination or assistance (e.g., technical, financial) to
removal of a telecommunications cable containing lead may
jurisdictional authorities (i.e., federal, state, local, tribal).
not be required if alternative measures are more cost-
Finally, it could opt not to act, allowing private sector
effective and more practical from a technical standpoint to
owners, current law, and the courts to address the matter.
address potential risks. For example, potential alternatives
may include encapsulating a cable to prevent the leaching
Jill C. Gallagher, Analyst in Telecommunications Policy
of lead or land use controls (e.g., physical barriers) to
Colby Leigh Rachfal, Specialist in Telecommunications
prevent exposures. Another potential consideration would
Policy
be the degree to which the state of jurisdiction desires
Madeline W. Donley, Legislative Attorney
federal involvement. States take the predominant role in
investigating and remediating contamination at most sites
Lance N. Larson, Analyst in Environmental Policy
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Legacy Lead-Sheathed Telecommunications Cables: Status and Issues for Congress

IF12559

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