On November 12, the Environmental Quality Board approved for public comment a proposed regulation on notification of spills and corrections to Air Quality regulations on RACT requirements for nitrogen oxide and volatile organic compounds.

The spill regulation was approved for comment with only one negative vote from the representative of Rep. Martin Causer (R-Cameron).

Also approved was a final-omitted regulations on noncoal mine blasting.

Click Here for the entire agenda.

Spill Notification

This proposed regulation is intended to provide clarity on the issue of when companies and other responsible parties are required to notify DEP of spills and releases to protect the waters of the Commonwealth from pollution. 

Click Here for the proposed regulation, supporting documents.

“This regulation applies to any person responsible for unauthorized discharges to waters of the Commonwealth.”

DEP said the rulemaking “would identify specific substances in quantities that must be reported if discharged to waters of the Commonwealth, this rulemaking would not change which unauthorized discharge incidents require immediate Department notification.”

“The proposed rulemaking incorporates a federal list of reportable quantities for specific hazardous substances that if discharged in a quantity greater than or equal to those reportable quantities must be immediately reported to the Department.”

“Spills involving these substances currently require immediate Department notification under the existing regulation at § 91.33 because they create a danger of pollution.

“Under the current regulation, the responsible person determines whether an unauthorized discharge requires immediate notification to the Department and, if not, the responsible person has no further obligations.”

“This proposed rulemaking would require that a person responsible for an unauthorized discharge must either report the discharge or consider specific factors about the discharge and document that consideration.

“If the responsible person does not report the discharge, that person would be required to create and retain a written analysis of the factors determining that an unauthorized discharge does not cause or threaten pollution.

“To provide further clarity to the regulated community regarding which unauthorized discharges must be reported and which must be recorded, the Department proposes factors to be analyzed to determine whether adverse impacts will occur from the unauthorized discharge.”

“Proposed subsection (a.3) provides that a responsible person may determine that an unauthorized discharge does not require immediate Department notification if the person evaluates and documents a series of factors and determines that no adverse impacts will occur from the unauthorized discharge.

“If any single one of the following factors, or a combination of the factors, can adequately establish that there is no risk of the substance reaching waters of the Commonwealth, no further analysis of the other considerations is necessary to determine that immediate Department notification is not required.

“This may be the case when a spill occurs into secondary containment or where a spill response plan is used to immediately capture all of a substance with low mobility.”

Factors To Consider

“The factors detailed in this subsection are listed below [and described in the draft Preamble to the regulation beginning on page 4] with a brief description of how to evaluate each factor:”

-- Paragraph (1)(i): The properties of the substance or substances involved in the unauthorized discharge including any harmful effects of each substance individually and any harmful synergistic or cumulative effects of multiple substances to protected water uses, public health, safety or welfare, or to domestic, municipal, commercial, industrial, agricultural, recreational or other legitimate beneficial uses of waters of the Commonwealth, or to livestock, wild animals, birds, fish or other aquatic life.

-- Paragraph (1)(ii): Persistence in the environment, including the substance’s ability to be transformed or degraded by biological, chemical or physical processes.

-- Paragraph (1)(iii): The mobility of the substance(s) in soil and water;

-- Paragraph (1)(iv): The concentration and quantity of the substance(s);

-- Paragraph (2)(i): The location or locations involved, including proximity to nearby waters of the Commonwealth including ground water and surface water;

-- Paragraph (2)(ii)(A): The protected uses of waters;

-- Paragraph (2)(ii)(B): The ability of the waters to assimilate the substance or substances without causing or threatening any harmful effects;

-- Paragraph (2)(iii): Land use, soils and geology;

-- Paragraph (2)(iv): The presence and qualities of any relevant infrastructure (such as spill containment systems);

-- Paragraph (3): The weather conditions before, during and after the unauthorized discharge;

-- Paragraph (4): The presence and implementation of adequate response plans, procedures or protocols;

-- Paragraph (5): The duration of the accident or other activity or incident.

DEP provides a draft “Unauthorized Discharge Notification Evaluation Form” as part of the background documents to this proposed regulation.

DEP noted its Agricultural Advisory Board (October 2023), Public Water System Technical Assistance Center Board (October 2023) and Water Resources Advisory Committee (May 2024 all supported moving forward with the proposed regulation.

A 60-day public comment period is proposed.  If there is sufficient interest is generated during the comment period, a public hearing will be scheduled, DEP said.

Click Here for the proposed regulation, supporting documents.

Background On Spill Notification

This issue was first raised by Sen. Gene Yaw (R-Lycoming) in 2019 when he introduced Senate Bill 619 that redefined water pollution under the state Clean Streams Law and let companies decide when they should notify DEP of a spill.

The legislation was opposed by sportsmen, environmental, the PA Environmental Council and Environmental Defense Foundation, county conservation districts and many other groups.  Read more here.

The bill was introduced in response to the concerns 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).

Legal counsel for Merk testified in favor of Senate Bill 619 on September 30, 2020 before the House Environmental Resources and Energy Committee.  Read more here.

The current version of the legislation, changed from the original-- Senate Bill 286 (Yaw-R-Lycoming)-- was reported out of the Senate Environmental Resources and Energy Committee on January 31, 2023 and Tabled.

For available handouts, presentations and the latest information, visit the Environmental Quality Board webpage.  Questions should be directed to Laura Griffin  laurgriffi@pa.gov or  (717) 772-3277.

[Posted: November 12, 2024]

11/18/2024