Senate Republicans Pass Fundamental Change In Definition Of Water Pollution Effectively Making Spills And Discharges To Streams No Longer Pollution


Senate Republicans Pass Fundamental Change In Definition Of Water Pollution Effectively Making Spills And Discharges To Streams No Longer Pollution

Source:  PA Environmental Digest Blog, 6/27/2019

On June 26, Senate Republicans passed Senate Bill 619 ( Yaw-R-Lycoming) making fundamental changes to the definition of water pollution under the state Clean Streams Law effectively making most spills and discharges to rivers and streams no longer pollution.

It also lets an individual or company who causes pollution to surface or groundwater, rather than DEP, determine if any spill should even be reported to DEP and whether it is pollution in the first place.

The bill passed by a vote of 26 to 24 with Republicans supporting.

The bill would benefit the conventional oil and gas industry, but is being pushed by Merck Sharpe & Dohme Corporation which was unhappy with a 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).

The Clean Streams Law now says, “contamination of any waters of the Commonwealth such as will create or is likely to create a nuisance or to render such waters harmful, detrimental or injurious to public health, safety or welfare, or to domestic, municipal, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, fish or other aquatic life.”

And it is DEP that determines whether a discharge constitutes pollution.  The bill shifts the responsibility to make the determination if a spill or discharge causes pollution to the person causing the spill.

The bill also says spills and contamination to groundwater don’t even need to be reported to DEP, NOT when they “create a danger of pollution of the waters, or would damage property,” as in the current regulations, but rather only when

— The individual or company first makes a determination the spill violates a specific, numeric surface water quality criteria under DEP’s regulations; or

— If it exceeds federal reporting requirements (1,000 gallons in any one incident or 42 gallons in each of 2 discharges) and only after they take into account the steps they have taken to control or remediate the impact of the spill; and

— Only after taking into account any control and remedial measures they have taken.

There are very few numeric water quality standards in DEP’s regulations because judgments are made based on whether pollution harms people, aquatic life or the environment.

Under the change in definition of pollution in this bill, neither DEP nor the Fish and Boat Commission could require the cleanup of a spill, require the company to fix the problem that caused a spill or take other enforcement actions like assessing penalties or natural resource damages against an individual or company unless a spill violated the “numeric water quality criteria under DEP’s regulations.

If a spill temporarily or irreparably harmed aquatic life, temporarily or permanently prevented a stream or river from being used according to its designated use, without violating a numeric standard, neither DEP nor the Fish and Boat Commission could take any action.

Importantly, the new language would also rule out taking any action against anyone causing a spill that affected groundwater and not surface water, if the spill did not violate a numeric water quality criteria in Chapter 93.

The practical realities of making a determination if numeric water quality standards were violated during a spill emergency under this bill would require a company or individual to–

— Know the precise chemical composition of the material being spilled and the amount and if it isn’t known, to take, analyze and report those results [getting test results in an emergency timeframe would not be possible and even the amounts are frequently not know at the time of a spill, especially to groundwater];

— Know the classification, designated use and any special numeric water quality standards in place at the precise point the spill would enter a surface water [possible, but unlikely, especially in circumstances where a spill happens from a tank truck, pipeline or similar sources]; and

— Taking, analyzing and reporting the results of water samples upstream, at the point of the spill and downstream of the spill to determine if the numeric standard was violated at the exact time of the spill [not something that can be accomplished during an emergency caused by a spill].

Likewise, if DEP or the Fish and Boat Commission wanted to take any compliance or enforcement action for a spill with the change in definition of pollution proposed in Senate Bill 619, they would have to prove a numeric water quality standard was violated at the exact time of the spill, which would not be possible after the fact.

The sweeping changes made by Senate Bill 619 would fundamentally change how Pennsylvania’s surface and groundwater is protected from pollution, significantly restricting the ability of DEP and the Fish and Boat Commission from taking action to require the cleanup and prevention of spills and to assess penalties and to the requirements for reporting spills.

The bill now goes to the House for consideration.