April 10, 2025
Todd D. Kantorczyk, Esq. and Jessica D. Hunt, Esq.
MGKF Special Alert
On April 5, 2025, the Environmental Quality Board (EQB) published notice of proposed changes to 25 Pa. Code § 91.33 to clarify the immediate notification requirements for unauthorized discharges that would cause or threaten pollution of waters of the Commonwealth, endanger downstream users, or damage property. The proposed rule would incorporate the Federal list of reportable quantities (RQ) of specific hazardous substances in 40 C.F.R. § 117.3 that, if discharged in a quantity greater than or equal to those quantities, must be immediately reported to the Pennsylvania Department of Environmental Protection (DEP). If the hazardous substance is discharged in a quantity less than the RQ, then the proposed rule would require the responsible person to evaluate and document the following five factors to determine that the substance does not cause or threaten pollution, endanger downstream users or cause property damage: (1) the properties of the substance or substances involved, including any harmful effects caused by such substance, the persistence of the substance in the environment, the mobility of the substance in soil and water, and the concentration and quantity of the substance; (2) the location of the discharge including the proximity to nearby waters, the characteristics of the nearby waters, land use, soils and geology, and the presence and qualities of relevant infrastructure, such as spill containment systems; (3) the weather conditions before, during, and after the incident; (4) the presence and implementation of adequate response plans, procedures or protocols; and (5) the duration of the accident or other activity. If any single one or combination of factors can adequately establish that there is no risk of the substance reaching waters of the Commonwealth, such as 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, then, under the proposed rule, immediate notification would not be required.
Interested parties can submit comments on the proposed rule electronically via DEP’s eComment platform or via email at RegComments@pa.gov. All comments must be received by June 4, 2025. The EQB will also be holding a virtual public hearing on May 15, 2025 at 1:00 p.m EST. Persons wishing to present testimony at the hearing must pre-register by contacting Casey Damicantonio at (717) 783-8727 or RA-EPEQB@pa.gov no later than 5:00 p.m. EST on May 8, 2025.
If you would like to learn more about the proposed changes and how they may impact a facility’s reporting obligations, or would like assistance preparing comments on the proposed rule, please reach out to MGKF’s Todd Kantorczyk or Jessica Hunt.