PA DEP Invites Comments On Notification Requirements For Spills, Discharges Threatening To Pollute Streams; Response To Bills Changing Definition Of Water Pollution
[Posted: October 15, 2021] PA Environment Digest
The Department of Environmental Protection published notice in the October 16 PA Bulletin inviting comments on proposed new technical guidance on Notification Requirements for Spills, Discharges and Other Incidents That Threaten To Cause Pollution of the Waters of the Commonwealth as required by the state Clean Streams Law. (DEP ID: 383-4200-003)
This draft replaces the first draft published in the PA Bulletin August 8, 2020 and was revised based on comments received on that first draft.
Although not described in the draft Technical Guidance, there is no doubt this document is an attempt by DEP to respond to legislation introduced in the Senate and House to amend the Clean Streams Law to change the definition of pollution and put the decision on whether to notify DEP of a spill into the hands of the companies doing the spilling.
The bills were introduced last session and this session at the request of Merck Sharp & Dohme Corporation which was unhappy with an April 17, 2017 settlement with DEP over an appeal of a stormwater pollution prevention permit for its West Point, Montgomery County plant (Environmental Hearing Board Docket No. 2015-011-L).
[Watch Merck testify in favor of last session’s bill.]
Environmental, conservation, wildlife and many other groups have opposed this legislation. Read more here.
Both Senate Bill 545 [Read more here] and House Bill 1842 [Read more here] were reported out of the Senate and House Environmental Committees earlier this year and are now in the Senate Appropriations Committee and Tabled, respectively.
Description Of Draft Technical Guidance
Section 401 of The Clean Streams Law, provides that says– “It shall be unlawful for any person or municipality to put or place into any of the waters of the Commonwealth, or allow or permit to be discharged from property owned or occupied by such person or municipality into any of the waters of the Commonwealth, any substance of any kind or character resulting in pollution as herein defined. Any such discharge is hereby declared to be a nuisance.”
Two definitions in the Clean Streams Law are critical to protecting the waters of the Commonwealth –
— “Pollution” shall be construed to mean contamination of any waters of the Commonwealth such as will create or is likely to create a nuisance or to render such waters harmful, detrimental or injurious to public health, safety or welfare, or to domestic, municipal, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, fish or other aquatic life, including but not limited to such contamination by alteration of the physical, chemical or biological properties of such waters, or change in temperature, taste, color or odor thereof, or the discharge of any liquid, gaseous, radioactive, solid or other substances into such waters. The department shall determine when a discharge constitutes pollution, as herein defined, and shall establish standards whereby and wherefrom it can be ascertained and determined whether any such discharge does or does not constitute pollution as herein defined.
— “Waters of the Commonwealth” shall be construed to include any and all rivers, streams, creeks, rivulets, impoundments, ditches, water courses, storm sewers, lakes, dammed water, ponds, springs and all other bodies or channels of conveyance of surface and underground water, or parts thereof, whether natural or artificial, within or on the boundaries of this Commonwealth.
Pennsylvania regulations– Chapter 91 and Chapter 92a– require immediate notification to DEP when a spill, discharge, or other incident results in a substance that would endanger downstream users, result in pollution, create a danger of pollution, or damage property being discharged to waters of the Commonwealth or being placed such that the substance might discharge, flow, be washed, or fall into waters of the Commonwealth.
The purpose of this document is to provide guidance on the immediate notification requirements for spills, discharges, and other incidents of a substance causing or threatening pollution to waters of the Commonwealth.
DEP acknowledges that some spills or other unauthorized discharge incidents pose negligible risk of pollution of waters of the Commonwealth, endangering downstream users, or damaging property, and DEP does not expect notification of such incidents.
However, due to the many factors that affect pollution risks associated with spills and unauthorized discharges, DEP strongly encourages notification be made to DEP for any spill or unauthorized discharge where the risks of pollution to waters of the Commonwealth, property damage, or endangering downstream users are unknown or uncertain.
It is best to err on the side of caution and notify DEP when you are unsure of the impact a spill or unauthorized discharge may have on waters of the Commonwealth.
The draft Technical Guidance then describes the existing notification requirements in Chapters 91 and 92a of DEP’s regulations.
DEP notes– “Section 91.33(a) does not provide threshold amounts of specific substances that trigger notification requirements. This is because the location and characteristics of spills, discharges, or other incidents are not known in advance and their impact cannot be predicted prior to an incident occurring.”
DEP says in the Guidance they cannot “tenably establish pre-set quantitative criteria to determine if an unplanned discharge constitutes or threatens pollution” for a number of reasons.
“In contrast to permitted discharges or activities, when a spill or other unauthorized discharge occurs, the location and characteristics of the incident are not known in advance.
“Even in cases where a spill or unauthorized discharge occur directly to a surface water, not knowing the location or characteristics of the spill or discharge in advance precludes DEP from defining pre-established threshold quantities or concentrations for specific substances – analogous to effluent limits for permitted discharges – by which the spill or unauthorized discharge can be determined to constitute pollution or not.
“Moreover, spills and unauthorized discharges are often not direct discharges to surface waters, so – in addition to the many factors that go into determining permit conditions (e.g., effluent limits) for permitted direct discharges to surface waters – several additional factors need to be assessed to determine if a spill or unauthorized discharge that does not directly enter a surface water will result in violation of water quality standards in nearby surface waters.
“These additional factors include but are not limited to how long it will take spilled substances to reach surface waters and any dilution or transformation of spilled substances that occur between the spill site and surface waters.
“For example, if a spill occurs in an area with karst geology where there are relatively direct surface connections to groundwater (e.g., sinkholes), the substances spilled may reach surface waters more quickly compared with a spill in an area where surface connections to groundwater are less direct.
“Furthermore, the water quality standards set forth in Chapter 93 apply to surface waters, but spills or other unauthorized discharges that do not occur directly to surface waters may also constitute pollution as defined in The Clean Streams Law to the extent that such spills or unauthorized discharges render waters of the Commonwealth (which include “underground water”) “… harmful, detrimental or injurious to public health, safety or welfare, or to domestic, municipal, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, fish or other aquatic life…”
“For instance, if a spill or unauthorized discharge results in harmful contamination of groundwater used by a municipal drinking water treatment plant, that spill or unauthorized discharge would constitute pollution as defined by The Clean Streams Law.
“DEP relies on notification of spills or other unauthorized discharges to assess pollution risks to all waters of the Commonwealth, including groundwater.
“The lack of advance knowledge about the location and characteristics of spills or unplanned discharges to groundwater presents the same challenges as with surface waters in attempting to establish pre-set, quantitative criteria by which a spill or unplanned discharge could be determined to constitute pollution or not.”
DEP goes on to further describe when it does not expect notification and other factors that go into that decision.
Comments on the proposed Technical Guidance are due December 15. Questions should be directed to Bob Kachonik at [email protected] or 717-783-3863.
[Posted: October 15, 2021] PA Environment Digest