The Foundation Water Law Newsletter
(By Lisa M. Bruderly, Mackenzie Moyer and Evan M. Baylor)
On October 16, 2021, the Pennsylvania Department of Environmental Protection (PADEP) published a revised draft technical guidance document entitled “Guidance on Notification Requirements for Spills, Discharges, and Other Incidents of a Substance Causing or Threatening Pollution to Waters of the Commonwealth Under Pennsylvania’s Clean Streams Law,” PADEP Doc. No. 383-4200-003 (Oct. 16, 2021) (Spill Guidance). See 51 Pa. Bull. 6559 (Oct. 16, 2021). This guidance replaces the first draft published on August 8, 2020, in response to comments on that draft. The intended purpose of the Spill Guidance is to address what spills, discharges, or other incidents need to be immediately reported to PADEP.
Background of Immediate Notification Procedures
Pennsylvania’s Clean Streams Law, 35 Pa. Stat. §§ 691.1–.1001, requires PADEP to protect the waters of the commonwealth from activities that pollute or have the potential to pollute these waters. Chapters 91 and 92a of Pennsylvania’s regulations, specifically, 25 Pa. Code §§ 91.33 and 92a.41, require immediate notification to PADEP when a spill, discharge, or other incident results in an unpermitted discharge of a sub- stance that causes, or threatens to cause, pollution of the waters of the commonwealth, endangerment to downstream users, or damage to property.
Specifically, section 91.33(a) requires the responsible person to immediately notify PADEP
[i]f, because of an accident or other activity or incident, a . . . 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, is discharged into these waters . . . or is placed so that it might discharge, flow, be washed or fall into them . . . .
The Spill Guidance states that accidents, activities, or incidents that may need to be reported under section 91.33 include, among other things, “spills, leaks, overflows, line breaks, [and] existing pollution that is newly discovered.” Spill Guidance at 3. In an emergency, public health and safety come first; notification to PADEP “should occur as soon as possible after immediate risks to public health and safety subside.” Id. at 4.
Section 92a.41(b) requires National Pollutant Discharge Elimination System (NPDES)-permitted facilities to comply with the oral notification requirements of section 91.33 no later than four hours after becoming aware of an incident causing or threatening pollution. The incident could occur as a result of an accident or incident at the facility “or during an activity authorized by an NPDES permit.” Id. at 3. NPDES-permitted facilities are required to submit a written notification to PADEP within five days of the permittee becoming aware of any incident.
What Spills, Discharges, or Other Incidents Need to Be Reported
PADEP does not identify threshold amounts of substances that trigger notification requirements (i.e., reportable quantities) because the impact of spills is fact-intensive and cannot be predicted ahead of time. Factors to evaluate when determining whether a spill should be reported include (1) the nature of the substance spilled (e.g., concentration, quantity, toxicity); (2) the location of the spill (e.g., characteristics of nearest waters of the commonwealth, geology, and proximity to surface water and downstream users); (3) the weather conditions before, during, and after the incident; and (4) the presence and implementation of a spill response plan. Id. at 6–7.
The Spill Guidance presents a risk characterization framework to assist in evaluating whether a spill may endanger downstream users, pollute waters, or damage property. Id. at 7–9. To illustrate this fact-intensive evaluation, PADEP uses examples ranging from spilling a drop of milk on a driveway, in which notification is not expected, to a tanker truck dumping thousands of gallons of milk into a stream, where notification is required. Id. at 9. PADEP’s position is that “it is not tenable to define pre-established, quantitative criteria by which it can be determined if a particular spill or discharge constitutes or threatens pollution,” but notification is “strongly encourage[d]” when the risks of pollution, endangerment to downstream users, or property damage are unknown or uncertain. Id.
PADEP must also be notified of a spill that does not directly discharge to a surface water of the commonwealth, if that spill could possibly enter a water of the commonwealth and endanger downstream users, result in pollution, or cause property damage. Id. at 6. In instances of evaluating whether an indirect discharge could result in a violation of water quality standards, additional factors must be considered including the length of time for the spilled substance to reach surface water and the extent the spilled substance is diluted or transformed before reaching the surface water. Id.
The Spill Guidance also addresses pollution risks to groundwater. Id. Waters of the commonwealth include “underground water,” and “spills or other unauthorized discharges that do not occur directly to surface waters may also constitute pollution as defined in The Clean Streams Law.” Id. As an example, the Spill Guidance states that “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.” Id.
The Spill Guidance presents examples of incidents that would require immediate notification and incidents that would not be expected to require notification. Incidents that require immediate notification include sanitary sewer overflows; vehicular or other transportation accidents in which pollutants are spilled on or into the ground, storm drains, drainage swales, or surface water; and historical/existing pollution that is newly discovered. Incidents where PADEP does not expect notification include spills/overflows collected by appropriate secondary containment and minor spills onto the ground where the contaminated soil is immediately removed and there is no reasonable possibility of the substance reaching groundwater or surface water. Id. at 9–10.
PADEP recognizes that some spills or unauthorized discharges pose negligible risk of pollution, and notification of these spills is neither required nor expected. However, PADEP “strongly encourages” notification regarding 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.” Id. at 9. Overall, PADEP emphasizes that it is best to err on the side of caution and notify if there is “a reasonable possibility that pollution occurred or will occur.” Id. at 11. Comments were due on the draft guidance document on December 15, 2021, and can be viewed at https://www.ahs.dep.pa.gov/eComment/.
Pennsylvania Issues New Guidance on Evaluating Aquatic Resource Compensatory Mitigation
On January 25, 2022, the Pennsylvania Department of Environmental Protection (PADEP) published a long-awaited technical guidance document, entitled “Pennsylvania Function- Based Aquatic Resource Compensation Protocol,” PADEP Doc. No. 310-2137-001 (effective Mar. 1, 2022) (Mitigation Guidance), for evaluating and valuing aquatic resource compensatory mitigation.
As background, a draft version of the Mitigation Guidance was published in March 2014. PADEP revised that draft to in- corporate feedback from other federal and Pennsylvania agencies, PADEP’s Water Resources Advisory Committee, and public comments.
The Pennsylvania Dam Safety and Encroachments Act, 32 Pa. Stat. §§ 693.1–.27, and its implementing regulations, 25 Pa. Code ch. 105, require a person to obtain a permit from PADEP to construct, operate, maintain, modify, enlarge, or abandon a dam, water obstruction, or encroachment that alters the course, current, or cross section of a body of water. Mitigation Guidance at 1. A mitigation plan is typically required with the permit application, including, as applicable, a plan to compensate for the impact to regulated waters as a result of the project. Id. at 2.
The stated purposes of the Mitigation Guidance are to:
- provide an acceptable methodology to evaluate functional compensation offsets associated with proposed aquatic resource impacts and determine compensatory mitigation requirements;
- assist in identifying measures that minimize proposed project impacts on aquatic resource functions to reduce subsequent compensation requirements; and
- provide a means for evaluating compensation proposals performed on-site, at a mitigation bank, or through an in-lieu fee
Id.
The Mitigation Guidance is intended to ensure consistency in determining compensation requirements and valuing compensation projects. Id. It is intended to be compatible, and used concurrently, with the federal compensatory mitigation requirements of the U.S. Environment Protection Agency and U.S. Army Corps of Engineers. Id. at 3.
This Mitigation Guidance applies to all intermittent and perennial watercourses, floodways and floodplains, wetlands, and other bodies of water, such as lakes and reservoirs, that are wholly or partly within Pennsylvania. Id. at 1. The Mitigation Guidance separates the regulated waters of the commonwealth into three aquatic resource groups based on the predominant functions of each aquatic resource type: (1) riverine (intermittent and perennial wadeable watercourses and their flood- ways/floodplains); (2) lacustrine (lakes, reservoirs, and non-wadeable rivers); and (3) palustrine (wetland environments, including unvegetated wetlands). Id. at 3–10. Function groups have been established for each resource type and are intended to represent the “predominant functions present within the applicable aquatic resource types.” Id. at 4.
Evaluation of whether a project may require compensation starts with establishing the project’s potential effect on the function group for the applicable resource type. The evaluation examines the area and type of impact (i.e., direct, indirect, or temporal). Id. at 4–5. The project effect is then scored (i.e., minimal to severe) and adjusted, as appropriate. Id. at 5–8. A re- source condition assessment is also conducted. Id. at 8–9. Other scores are assessed for (1) the aquatic resource value, taking into account the resource’s uniqueness, protected or public uses, and other special characteristics; and (2) the wetland coefficient of conservatism, a criterion relied on to categorize the wetland resource value for an impact area. Id. at 10–15.
In instances of after-the-fact permitting or enforcement, resource conditions are assigned to an already impacted resource area by either assuming the impacted resource was in the best attainable condition or by conducting a Condition Level
1 Rapid Assessment. Id. at 9. Compensation requirements are calculated after determining the areas of direct, indirect, and temporal impacts, the project effect category and value for each applicable function group, the appropriate resource condition scores for each resource area, and the appropriate resource value category and value for each resource. Id. at 15.
The Mitigation Guidance also describes the methodology to evaluate whether a mitigation project provides adequate compensation to offset the function compensation requirements. Id. at 23. This methodology includes scoring and adjustment (if appropriate) of the compensation value factor and determining the condition differential between the condition of the resource before and after the project. Id. at 18. After evaluation of other factors, the functional credit gain is calculated for each resource function group and adjusted, if appropriate. Id. at 22.
The Mitigation Guidance will be effective March 1, 2022. PADEP will provide updated application forms, instructions, and training prior to the effective date. The Mitigation Guidance and the accompanying Aquatic Resource Condition Level 2 Rapid Assessment Protocols are available on PADEP’s eLibrary website.
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