PADEP Releases Draft Clean Streams Law Discharge Notification Guidance for Public Comment

August 10, 2020
Thomas M. Duncan
MGKF Special Alert

On August 8, 2020, the Pennsylvania Department of Environmental Protection (PADEP) published in the Pennsylvania Bulletin notice of the availability of a new proposed technical guidance document that is intended to provide direction on notification and remediation requirements relating to spills, releases, and discharges to waters of the Commonwealth under 25 Pa. Code § 91.33.  A link to the proposed technical guidance document is included here.  PADEP has established a 60-day comment period for the public and the regulated community to provide feedback on the proposed technical guidance document. 

Under 25 Pa. Code § 91.33, a person in control of a spill, release, or discharge (or owning the facility at which such event occurs) that would result in pollution or create a danger of pollution to waters of the Commonwealth, would endanger downstream users, or would damage property must promptly notify PADEP and downstream users.  Failing to notify PADEP, when required, carries a potential civil penalty of $10,000.  While the proposed technical guidance states that it is not intended to supplement existing requirements, language in the document appears to expand the current regulatory framework in at least two ways. 

First, the proposed technical guidance broadens the scope of the notification requirement under 25 Pa. Code § 91.33(a).  Pennsylvania’s regulations require that where 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,” immediate notification of the “location and nature of the danger” must be provided to PADEP.  25 Pa. Code § 91.33(a) (emphasis added).  The proposed technical guidance, however, more expansively requires immediate notification where a discharge “may endanger downstream users, may result in pollution, may create a danger of pollution, or may damage property.”  (Emphasis added).  In addition, while 25 Pa. Code § 91.33(a) requires the notification to include the “location and nature of the danger,” the proposed technical guidance adds that the notification must specify the “quantity” of the substance that is discharged.

Second, the proposed technical guidance appears to impose remediation obligations that are not otherwise required under 25 Pa. Code § 91.33(b).  The regulation requires that after notification is provided under subsection (a), the person must “immediately take or cause to be taken steps necessary to prevent injury to property and downstream users of the waters from pollution or a danger of pollution and, in addition thereto, within 15 days from the incident, shall remove from the ground and from the affected waters of this Commonwealth to the extent required by this title the residual substances contained thereon or therein.”  25 Pa. Code § 91.33(b).  The proposed technical guidance broadly states that the remedial action required under subsection (b) “may include, but is not limited to, stopping a release at the source and/or containing a release to prevent further horizontal or vertical movement” and that “all available measures should be utilized to protect the environment and human health.”  This language could be read to expand existing remedial obligations and perhaps preempt or somehow supersede the remedial framework under the Pennsylvania Land Recycling and Environmental Remediation Standards Act (Act 2).

While pushing the boundaries of regulatory requirements under 25 Pa. Code § 91.33, the proposed technical guidance does little to clarify many of the numerous long-standing questions that exist under the provisions of that regulation.  Pennsylvania’s release notification requirements have been notoriously difficult to apply in practice, and the vagaries of the language in 25 Pa. Code § 91.33 have at times been used to advance aggressive interpretations of when notice is required.  Without better guidance, these issues are not going to go away and will continue to create significant difficulties for both the regulated community and PADEP.  

We are organizing a group of clients to submit comments on the proposed technical guidance.  Comments are due to PADEP by October 6, 2020.  If you are interested in participating in this effort, please contact Tom Duncan at or 484-430-2358.