When Public Safety and Water Quality Collide

Posted on Categories Environmental Law, Marquette Law School, Public, Water Law

Greater environmental protection and increased public safety are often believed to be synonymous, or at least to go hand-in-hand.  Sometimes, though, those goals are arguably in tension.  The application of salt to de-ice roads, parking lots, and sidewalks for safe travel is one such case.  Those who have lived and worked in northern climates are no doubt familiar with the sensation of excess de-icing salt crunching underfoot during the winter months, and have probably lamented the imStrifling blog photopact of excess salt on shoes, clothes, and vehicles.  Recent studies have shown that disproportionate application of deicing salt also has a significant and negative impact on water quality in the form of elevated chloride concentrations.

Not much attention has been paid to this problem from a legal or policy standpoint, and it’s unlikely that it can be addressed with traditional regulatory tools providing only limited authority over so-called “non-point sources,” such as farm fields and – as relevant to the problem of excess de-icing salt – roads and parking lots.  Alternative policy tools to address the issue might include a salt tax, green infrastructure, integrated watershed assessment and management, and self-governance at the community or individual levels incentivized by regulators or demanded by customers and the public. 

These concerns are not purely academic; municipalities may face environmental “citizen suits” over salt application practices.  Earlier this month, a federal district court dismissed a pro se complaint seeking to hold the City of Omaha, Nebraska, liable under the Resource Conservation and Recovery Act over the city’s use of road salt, arguing that it violated the statute’s prohibition against open dumping of solid waste.  Krause v. City of Omaha, No. 8:15CV197 (D. Neb. Aug. 19, 2015); see also 42 U.S.C. § 6945 and 40 CFR §257.3-1(a).  The court found that the plaintiff had not shown that the salts were “discarded” and “no longer wanted” as would have been required for liability; instead, the court decided, Omaha used the salt consistent with its intended purpose as a de-icer.

Interestingly, however, earlier this year a different federal court reached a different outcome in a similar action.  In Community Association for Restoration of the Environment, Inc. v. Cow Palace, LLC, — F.3d —, 2015 WL 199345 (W.D. Wash. 2015) (“CARE”).  In CARE, a Washington dairy applied manure for the purpose of crop fertilization, a common practice.  However, the court determined that the rate of application was far in excess of actual crop fertilization needs, and therefore constituted open dumping of a solid waste.  At least theoretically, a similar argument could be made when a municipality or business owner applies salt at rates far in excess of industry-standard rates.  The pro se plaintiff in Krause appears not to have made that argument, but nothing would foreclose it in a future case.

Broadly speaking, this kind of issue – which combines aspects of law, policy, and technology – is one example of what Marquette Law School’s newly expanded Water Law and Policy Initiative seeks to explore.  Known as “blue gold” or “the new oil” by investors and environmentalists alike, water affects all of us.  Water issues arise locally, regionally, nationally, and internationally.  I look forward to growing the Law School’s role in this rapidly changing field.

 

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