PA Environment Digest Blog: DEP Hears Concerns, Some Support From Water Resources Committee On Draft Reg. On Reporting Unauthorized Spills, Releases

On September 21, Water Resources Advisory Committee members gave DEP their initial reaction to a proposed regulation setting notification requirements for unauthorized discharges to waters of the Commonwealth and many of their comments pointed out concerns with the draft.

Some felt DEP would be overwhelmed with reports of spills with the way the regulation was drafted.

Others felt DEP was “remarkably reasonable” in the way spill notifications are handled now.

One member felt DEP does need to have more information on spills and releases so it could better understand the kinds of things that were impacting water quality.

DEP had asked the Committee to vote to support the proposed rulemaking, but after more than an hour of discussion that wasn’t happening.

Michele Moses, DEP’s Bureau of Regulatory Counsel, told the Committee at the end of the discussion-- “I think we heard what the WRAC had to say. We’re comfortable with all the comments you have provided and while we wish we could move forward with a vote [to approve the proposed rule for public comment], we understand at this time you are not ready to.

“But we will proceed with the other committees and to the extent that this process evolves, we will be coming back to WRAC, I’m sure, in some way, to further discuss this subject. We don’t need a vote at this time,” said Moses.

DEP plans to take the draft regulation to the Agricultural Advisory Board and other advisory committees for their comments.

Key Comments

Comments by Alexandra Chiaruttini, from The York Water Company, summarized the various positions on the Committee--

“I think the challenge that you have is…. That you have pollution, the question is is it causing any aquatic harm or does it endanger downstream users. So I don’t disagree with you that all these substances are pollution and present a threat of pollution.

“And remember the reason why this issue has come up and why the Legislature raised this issue is because in a deposition someone from DEP said-- if you drop anything on this property I want to know about it.

“The Legislature wanted the Department to step away from that approach. This regulatory change seems to be moving toward that approach, rather than what the Legislature is suggesting.

“I think the Department, frankly, has been remarkably reasonable, remarkably intelligent and has frankly applied what is under [section 2] here throughout its implementation and administration of the Clean Streams Law.

“But what this is doing is in part taking that discretion and rational approach away from you and away from the regulated public. But be careful if you’re talking about pollution, all these things we’re talking about constitute “threat of pollution” or “pollution” and that’s where you get hung up.”

“I don’t why we can’t do these things absent a regulatory change. I don’t see why you can’t do public education, broader education, on spills and releases and utilize the existing guidance which indicates doing the reporting we’re talking about.”

Dr. John Jackson, Stroud Water Research Center, said-- “I may be in the minority here, but I agree with the need for the Department to know more about what’s going on and the public’s interest to know more about what’s going on in terms of spills or unpermitted releases that end up being defined as a pollutant.

“I’m coming at it from the idea that most of our urban streams are impaired or significantly degraded and we don’t often know why. There’s no permitted source upstream.

“What people are doing legally or illegally, the bottom line is DEP is not getting reports on some of this or any of this.

“Spills we know are one of the things that happen. A spill is somebody putting something down a storm drain, or down the gutter that ends up in a storm drain, and goes directly to the stream.

“There’s no evidence spills aren’t an issue because we don’t know a lot about them and these are urban streams that already lost a lot of their sensitive species.

“So the very fact that a fish doesn’t die may be because it [already] died. These fish can’t die twice. They died a decade ago, the sensitive ones, the ones that would have been removed with the most recent spill.

“I can talk about them as death by a thousand cuts. DEP might get overwhelmed by the reporting, but in my mind that’s a step in helping them see [what’s happening to these streams].”

Alexandra Chiaruttini, from The York Water Company, was the last to comment on the proposal-- “The Department has been implementing “threat of pollution,” “pollution,” and “threat to downstream users” remarkably well. It has been very difficult to walk this tight rope.

“What I’m concerned about, and just so everybody’s aware, the concern that if it goes in this direction, I’m concerned the backlash [will] threaten the current strength of the Clean Streams Law, to be quite honest with you.

“I don’t want this to inadvertently initiate something that would take away from what is currently a very broad and one of the strongest water statutes in the country.”

Reporting Spills, Releases

Brian Chalfant, Deputy Director of DEP’s Policy Office, made the presentation to the Committee on the proposed regulation setting notification requirements for unauthorized discharges to waters of the Commonwealth under 25 Pa Code Chapter 91.

DEP said the goal of the rulemaking is “Making notification requirements for unauthorized discharges to waters of the Commonwealth as straightforward for the public, the regulated community, and DEP to understand and apply as consistently as possible across the Commonwealth while also enabling DEP to meet its constitutional and statutory duty to protect the waters of the Commonwealth from pollution.”

The proposal is in response to a discussion DEP has been having with the General Assembly since 2019 over clarifying spill notification requirements and who gets to decide when DEP is notified. [Read more here.]

Most recently in June, the Senate Environmental Resources and Energy Committee reported out the latest legislation introduced on this topic-- Senate Bill 286-- by Sen. Gene Yaw (R-Lycoming), Majority Chair of the Committee, which would redefine a spill and allow polluters to decide when a spill is harmful enough to report to DEP. [Read more here.]

On September 20, Senate Bill 286 was Tabled in the Senate due to lack of action.

The bills were introduced 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).

These bills have been opposed by groups as varied as Trout Unlimited, county conservation districts and the PA Environmental Council.

Under the proposed regulation, the fundamental obligation of a person is to “immediately” notify DEP of the location and nature of the danger posed by an unauthorized discharge-- “If, because of an accident or other activity or incident, a toxic substance or another substance which would endanger downstream users of the waters of this Commonwealth, would otherwise result in pollution or create a danger of pollution of the waters, or would damage property….”

DEP’s presentation to the Advisory Committee points out the state Clean Streams Law now says, “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.”

DEP said the proposed regulation ensures DEP receives the information it needs to meet its statutory obligation under state law and as a trustee under the Environmental Rights Amendment to the state constitution.

The proposed regulation details the factors a person notifying DEP about an unauthorized discharge will use in determining if an unauthorized discharge will endanger downstream water users or otherwise result in pollution or create a danger of pollution of the waters of the Commonwealth.

Those factors include characteristics of the substance-- effects on protected water uses, volume, concentration, persistence in the environment and mobility in soil and water-- and the location-- proximity to waters, downstream users, characteristics of nearest waters and relevant infrastructure presence and qualities.

In its presentation, DEP gave examples of when notification is required--

-- Unanticipated bypasses of raw or inadequately treated sewage or industrial wastes to waters of the Commonwealth or conduits to waters of the Commonwealth.

-- Inadvertent returns that occur during the use of trenchless technologies (such as horizontal directional drilling) such that a substance is discharged into the waters of the Commonwealth or might discharge, flow, be washed, or fall into the waters of the Commonwealth in a way that would endanger downstream users, would otherwise result in pollution or create a danger of pollution, or would damage property.

-- Vehicular or other transportation accidents in which pollutants are spilled on or into the ground, storm drains, drainage swales, or surface water, directly or indirectly, in a way that would endanger downstream users, would otherwise result in pollution or create a danger of pollution, or would damage property.

DEP said notifications may be required--

-- Spills of non-liquid materials into waters of the Commonwealth. Examples of such incidents can include spills of sand, gravel, or plastic pellets into a stream. Depending on the characteristics and quantity of the material, the location of the spill, and other factors like those noted in the risk framework outlined above, such spills may require immediate notification to DEP.

-- Discharges of other chlorinated water, such as from a swimming pool or spa, may require immediate notification to DEP if the discharge is not dechlorinated and appropriately managed. Further information can be found in DEP’s fact sheet Management of Swimming Pool, Hot Tub, and Spa Water Discharges (3800-FSDEP4251).

-- Activities such as car washes in parking lots may require immediate notification to DEP if the wash water is not appropriately contained or treated as detailed in DEP’s fact sheet Management of Cleaning Wastewater (3830-FS-DEP1944) or if there is a discharge to waters of the Commonwealth.

DEP said notification is not required--

-- “Minor spills or small leaks onto the ground where the contaminated soil can be immediately removed if necessary and there is no possibility of the substance(s) reaching waters of the Commonwealth, including groundwater or surface waters, directly or indirectly, in a way that would endanger downstream users, would otherwise result in pollution or create a danger of pollution, or would damage property.”

-- “Spills or overflows collected by appropriate, properly operated and maintained secondary containment where there is no possibility of the substance(s) reaching waters of the Commonwealth, including groundwater or surface waters, directly or indirectly, in a way that would endanger downstream users, would otherwise result in pollution or create a danger of pollution, or would damage property.”

The regulation also includes a provision saying, “If requested by the Department, a person who claims that the Department need not have been notified of an incident under this section shall explain in a signed statement, under penalty of law, why the incident would not endanger downstream users, result in pollution or create a danger of pollution, or damage property, based on the factors listed in [the regulation].”

Click Here for a copy of the draft regulation.

DEP also developed a new Technical Guidance document on spill reporting to make spill and discharge reporting. The guidance was put out for two public comment periods in August of 2020 and October 2021. The most recent public comment period closed on December 15, 2021. Document: 383-4200-003.]

DEP said it will “likely be re-revising” the technical guidance as this regulation moves through the rulemaking process.

Click Here for DEP’s presentation.

For more information and available handouts, visit DEP’s Water Resources Advisory Committee webpage. Questions should be directed to Bob Haines at robhaines@pa.gov or (717) 787-7565.

(Photos: Conventional oil well wastewater tank release that contaminated the water supply for the Village of Reno in Venango County. Read more here.)

-- Oil & Gas Industry Spills, Releases Created Over 575 New Brownfield Sites So Far In Pennsylvania, With More Every Week [PaEN]

-- DEP To Increase Monitoring, Develop Surface Water Standard For PFAS 'Forever Chemicals' After Study Shows 76% Of Streams, Rivers Contained At Least One Of These Chemicals [PaEN]

-- DEP: Widespread Presence Of PFAS ‘Forever Chemicals’ In Fresh Water Leading Shale Gas Operators To Use Contaminated Water In Fracking Operations; DEP Doesn’t Require Routine PFAS Testing [PaEN]

-- Petro Erie, Inc. Appeals 2nd DEP Order Requiring The Operator To Restore The Village Of Reno’s Water Supply Contaminated By A Spill Of Conventional Oil Well Wastewater In Venango County [PaEN]

-- Register Now! PA Statewide Watershed Conference Oct. 29-30 In Altoona [PaEN]

PA Oil & Gas Industry Public Notice Dashboards:

-- Pennsylvania Oil & Gas Weekly Compliance Dashboard - Sept. 16 to 22 - 2nd Abandoned Shale Gas Well Pad? 5 More Abandoned Conventional Wells; Failure To Comply With Order [PaEN]

-- DEP Issues NOVs To Roulette Oil & Gas LLC For Abandoning Another Conventional Well In Potter County; Roulette Applying For Oil & Gas Wastewater Injection Well Permit [PaEN]

-- Petro Erie, Inc. Appeals 2nd DEP Order Requiring The Operator To Restore The Village Of Reno’s Water Supply Contaminated By A Spill Of Conventional Oil Well Wastewater In Venango County [PaEN]

-- PA Oil & Gas Industrial Facilities: Permit Notices/Opportunities To Comment - September 23 [PaEN]

-- DEP Posted 73 Pages Of Permit-Related Notices In September 23 PA Bulletin [PaEN]