Environmental Law

Requiring Remediation of Chloride in Soil

By Joel Bolstein

I was speaking with an environmental consultant recently and he said "Joel, have you heard, PADEP is talking about requiring remediation of chloride in soil."   Apparently, the motivation is further regulation of Marcellus Shale operations and concerns over fracking fluids and potentially leaking impoundments.  I said I thought the Department would have a tough time doing that because there is no soil MSC for chloride, and PennDOT and every city, borough and municipality generously spreads rock salt over every road and bridge throughout the winter which runs off onto every property adjoining those roadways.  The conversation caused me to go back and take a look at Act 2 and the preamble for the Act 2 regulations to see if that would shed any light on this subject.  I've done that and now I can say that I think it would be very difficult for the Department to mandate the cleanup of chloride in soil.

The most significant problem is it may be difficult, if not impossible, to come up with a statewide health standard for chloride in soil.  Chloride has no MSC for groundwater.  It is a secondary contaminant (SMCL) that is regulated not because of its health effects but because of its impact on taste and corrosion of pipes.  What about its potential ecological impacts?  Chloride isn't listed among the constituents of potential ecological concern (Table 8, Appendix A) to the Act 2 regulations, so it isn't something that a remediator is required to address as part of the eco-screen.  Can't the Department simply come up with a new MSC for chloride, you ask.  Under Act 2, the General Assembly required the EQB to propose residential and non-residential standards to be used as MSCs within 12 months of the effective date, which was way back on July 19, 1996.  No MSC for chloride was proposed.  Under the Act 2 regulations, the Department even developed MSCs for regulated substances where no toxicological data existed (see 27 Pa. Bull. 4192) with help from the CSSAB, but it didn't do so for chloride.  Finally, Section 303 of Act 2 specifically states that  the statewide health "standards adopted . . . shall be no more stringent than those standards adopted by the federal government."  If the federal government has not adopted any soil standards for chloride, how could the Department adopt standards that would not be stricter than the federal government (which chose to have no soil standard)?  Finally, Act 2 specifically requires that MSCs be set "using valid scientific methods" and "reasonable exposure pathway assumptions".  What "scientific method" are you going to use to develop the MSC for chloride in soil?  Presumably, the Department would have to run any proposed soil MSC for chloride past the CSSAB, and I question whether they would be able to agree on a "valid scientific method" to be used for generating a soil MSC for a substance that, in another form, people freely sprinkle on their food.  Have you checked the label on any canned soup lately?  If you can put that much salt in soup, how much chloride can you put in dirt when the exposure pathway is eating the dirt?  

One other problem that the Department would face is that the General Assembly mandated that the Act 2 standards be the remediation standards for virtually every remediation statute in the Commonwealth.  They are the standards for remediation under the Clean Streams Law, HSCA, and the Tank Act, among other statutes.  Under Act 2, the remediator gets to "select" from one of three standards.  The word "select" or "selecting"  is used in Sections 302 and 304 of Act 2.  So why is that important?  It is important because you can't be directed by the Department to use just  background or site specific.  Under the statute, the remediator gets to "select" from one of the three cleanup standards.  If there is no SWHS for chloride in soil to select, how can the Department mandate that you remediate it?  Obviously, the remediator could choose to remediate it under background or site specific, and could get a release of liability if it did so and demonstrated attainment.  That's different, however, than saying the Department can require the remediation when someone voluntarily enters a site into the Act 2 program.  I'd even say it's questionable for the Department to require it as part of an involuntary cleanup, say an order under HSCA or the CSL,  because there is no MSC, and there is no MSC because the substance isn't seen as a health risk.  

If the Department is going to move in the direction of requiring remediators to address chloride in soil, it will need to confront the underlying statutory and regulatory issues I've noted above.  Act 2 guides all of this.  You can't just say we will have an MSC for chloride in soil and make it so. 

Of course, the other issue here is that sodium chloride, commonly known as rock salt, is legally spread on roads, bridges, driveways and parking lots all across the Commonwealth during the winter.  It is spread by governments and private citizens.  Under the law, failing to remove ice and snow from a road, driveway or parking lot, is considered negligence, and subjects the property owner to tort damages.  Ever hear of a slip and fall case?  Lots of those slip and fall cases have to do with improperly cleared snow and ice.   PennDOT freely spreads rock salt on every state road and highway during the winter season because it needs to make those roads safe.  PennDOT District 4, which covers Lackawanna, Luzerne, Pike, Susquehanna, Wayne and Wyoming Counties spread 110,000 tons of road salt last year.  That's just one of the 11 Districts.  A University of Minnesota Study found that the Twin Cities metropolitan region uses 260 pounds of road salt per person every winter.  Given that chloride in soil could be due to the spreading of road salt, and road salt in legally spread in every city, municipality and borough, and the runoff from that road salt flows onto hundreds of thousands of properties, can you imagine the implications if the Commonwealth moved to impose remediation obligations on chloride in soil?   If the test is distressed vegetation, good luck with that.  I've got distressed vegetation around my walkway every spring, and I invariably have to replant the grass in that area, but its better than having the mailman sue me for falling on the ice.   The same goes for industrial properties that spread rock salt on their walkways and parking lots and have runoff.  

I suppose if someone is driving a truck loaded with rock salt and it runs off the road and spills its contents on the ground, the Department could require the cleanup of the rock salt and the soil impacted by that "spill".  But here again, the dilemma is what standard do you use for making them clean up the soil?  Once you remove the actual salt pile, what more could there be to do?              

I see this as one of those areas where the Department needs to think through all of the implications before taking this kind of action.  It's the law of unforeseen consequences.  Like all other things, some common sense is called for in the area of chloride in soil.     

Full post as published by PA Brownfields Environmental Law on October 13, 2010 (boomark / email).