Also on the agenda is a presentation on the proposed regulation setting aquatic life criteria for copper and a presentation on the draft 2024 PA Integrated Water Quality Report.
Reporting Spills, Releases
Brian Chalfant, Deputy Director of DEP’s Policy Office, will make a 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.]
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].”
DEP said it is looking for the Committee’s support for this proposed rulemaking going out for public comment.
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.
2024 Integrated Water Quality Report
Dustin Shull, Bureau of Clean Water, is providing a presentation on the 2024 Integrated Water Quality Report that is going out for public comment starting September 23 for a 45-day comment period that ends November 7.
DEP is required by the federal Clean Water Act to submit a report to the U.S. Environmental Protection Agency assessing the quality of surface waters in Pennsylvania and identifies streams and other bodies of water that have impaired water quality.
DEP has again put the report in the form of an online Esri StoryMap with text, tables and maps illustrating the 85,568 miles of Pennsylvania streams included in the report.
A new environmental justice/climate change section has been added to the report covering the near 4 million Pennsylvania residents living in environmental justice communities.
Click Here for past Water Quality Reports.
Click Here for DEP’s presentation.
Public Comment Period
Individuals interested in presenting comments during the Public Comment Period of the meeting should contact Bob Haines at robhaines@pa.gov or (717) 787-7565 or Jay Braund jbraund@pa.gov prior to the meeting to let them know of your interest.
Join The Meeting
The meeting will be held at the Fish and Boat Commission, 1601 Elmerton Ave., Harrisburg starting at 9:30 a.m. Click Here for options to join the meeting remotely via Microsoft Teams or by telephone.
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 or Jay Braund jbraund@pa.gov.
(Photos: Conventional oil well wastewater tank release that contaminated the water supply for the Village of Reno in Venango County. Read more here.)
Related Articles:
-- Oil & Gas Industry Spills, Releases Created Over 575 New Brownfield Sites So Far In Pennsylvania, With More Every Week [PaEN]
-- Petro Erie, Inc. Says It Lacks The Financial Ability To Comply With DEP’s Order To Clean Up Conventional Oil Well Wastewater That Contaminated The Village Of Reno’s Water Supply In Venango County; Will Taxpayers Be Stuck With Cleanup Costs Again? [PaEN]
[Posted: September 18, 2023] PA Environment Digest
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