This is a reintroduction of Senate Bill 619 from last session with revised language.
The bill would benefit the oil and gas industry and is being pushed by 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 Senate Bill 619 on September 30, 2020 before the House Environmental Resources and Energy Committee.
The Language
The language says companies or any person is required to report a spill to DEP if the discharge is not authorized by a permit and is likely to render the receiving waters harmful to public health or the environment as determined by reportable quantities or other readily ascertainable standards adopted by in a newly required regulation.
There is an important caveat before this general reporting obligation saying companies are required to report only spills “on a location from which the substance is likely to enter the waters of this Commonwealth, taking into account any control and remedial measures.”
The Environmental Quality Board is then directed to publish regulations for comment with 60 days and finalize them within 180 days which establish “reportable quantities or other readily ascertainable standards by which a person under subsection (a) may determine whether a spill, discharge or release is likely to render the receiving waters harmful to public health or the environment.”
Some Thoughts
While this language does not technically redefine the term “pollution” under the state Clean Streams Law like last session's Senate Bill 619, it actually does, but in another way.
Like Senate Bill 619, this new legislation lets a company decide when to report a spill, discharge or release when, in its opinion, it would harm public health or the environment.
By definition a spill, discharge or release is something that happens when something is clearly not working right and stuff is running out where it shouldn’t be-- be it chemicals from an industrial operation, transfers of waste or liquids, a leak from a chemical process or lined waste impoundment or a spill from a truck or pipeline.
There can be thousands of different circumstances, but the bottomline is something’s not right and that chemical, product or waste should not be where it is.
Adding the new language qualifying that reporting obligation right upfront to first look at whether a spill or release will enter the ground or surface water “taking into account any control and remedial measures” raises real questions.
If something isn’t working right and stuff is getting out where it shouldn’t be, but a company “thinks” a berm, liner, silt fence or other control measure can contain it, does it have to be reported? When should downstream water suppliers, users be notified?
If something isn’t working right and stuff is getting out where it shouldn’t be, but a company “thinks” they can clean it up real fast-- “remedial measures”-- does it have to be reported? When should downstream water suppliers, users be notified?
If something isn’t working right and stuff is getting out where it shouldn’t be, but the impact is only temporary, and not permanent, does it have to be reported? When should downstream water suppliers, users be notified?
These preconditions for reporting create ambiguity and uncertainty for not only companies, but confusion for the public and real concerns for environmental protection.
And in a practical sense-- does a company really have a lot of time to figure all this out on the fly when something’s clearly gone wrong and stuff is gushing out?
And with everyone having cellphones and in some cases drones to record anything that happens, does a company really want to take that chance?
“I’m sorry, I didn’t have to report that chemical gushing out or that wave of waste overtopping the berm of my impoundment because I thought I could contain it or clean it up fast,” might not be the best answer to give for the public, employees, shareholders or your insurance company.
The second part of the bill’s language directing the EQB to adopt “reportable quantities or other readily ascertainable standards by which a person may determine whether a spill, discharge or release is likely to render the receiving waters harmful to public health or the environment” also raises real questions.
This provision is based on the assumption DEP does not have reportable quantities or does not describe when spills need to be reported.
DEP has established specific reportable quantities for a variety of programs including storage tanks, oil and gas operations and others, especially for those programs linked to federal standards.
In addition, water quality, waste, storage tank, oil and gas operations and many other permit holders must prepare pollution prevention and contingency plans that spell out those obligations for what to report and to whom, for managing spills and notifying downstream water users. Read more here.
Under the bill’s language, DEP is tasked to develop reportable quantities and “other readily ascertainable standards” to let a company decide when an accidental discharge will harm public health and the environment.
But, of course, only after the company determines control measures and remediation won’t take care of the unexpected problem.
These standards would have to address thousands of chemicals and polluting substances known at the time to harm health and/or the environment in potentially thousands of hypothetical circumstances.
Easy to say, nearly impossible to do without being so broad and inclusive as to be meaningless.
The system now in place is straight forward--
-- If you have reportable quantities and spill reporting regulations, follow them;
-- If you have a Pollution Prevention and Contingency Plan, follow that; and
-- For all other spills, releases and discharges that happen when you know something isn’t working right-- report it to DEP (25 Pa Code Chapter 91.33).
So the question recurs, “What’s the real problem?” What’s the specific facility you are worried about and address that issue instead of again trying to write overly broad language into law.
In other words-- Work The Problem-- not the political talking point.
The bottomline-- does the public want a company to define when its own spill is harmful to public health and/or the environment or does it want the state’s environmental protection agencies to do that?
If you trust a company to do that each and every time it has a spill or something goes wrong, support Senate Bill 545.
Senate Republican 2021 Environmental & Energy Agenda -Bad
-- Republican Bills Again Seek To Make Road Dumping Of Conventional Drilling Wastewater Legal
-- Senate Republican Bills Kill Regulations By Doing Nothing, Shield Violators From Enforcement
Senate Republican 2021 Environmental & Energy Agenda - Not Bad
-- Senators Laughlin, Haywood Announce Bipartisan Bill To Increase AEPS Solar Share To 5.5%
-- Sen. Scavello Reintroduces Legislation To Enable Community Solar Projects
-- Sen. Yaw Introduces Bill To Control Overuse Of Fertilizer On Turf; 11th Year For Consideration
[Posted: April 10, 2021] PA Environment Digest
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