September 3, 2021
Bruce S. Katcher and Michael Dillon
MGKF Special Alert
Hurricane Ida and its remnants have caused widespread impacts across much of the Eastern United States. New Jersey and Pennsylvania in particular have seen unprecedented weather, including flooding, high winds, and tornados, all of which have caused major damage and disruptions. As the region begins to clean up, industrial facilities in storm-affected areas face challenges in assessing the storm’s impact on existing environmental permits, cleaning up debris and damaged infrastructure, and restoring activities that may have been interrupted by the storm. The following is intended to provide some important regulatory considerations for facilities in the wake of the storm.
Emergency Response Planning
In light of New Jersey’s location as a prime target of many severe storm events as a result of its lengthy Atlantic shoreline, it has long been forced to consider issues associated with emergency response activities in connection with regulatory and guidance development. To this end, advance emergency planning is a key requirement of many New Jersey regulatory programs, for example, the NJPDES discharge permit program (N.J.A.C. 7:14A-6.12); the air quality control program (N.J.A.C. 7:27-12); the solid waste permit program (e.g., N.J.A.C 7:26-2.10(b)(9); and the site remediation program (see the program’s “Technical Guidance: Planning for and Response to Catastrophic Events at Contaminated Sites”, June 2016). Facilities with planning obligations should consult their permits and relevant guidance documents to ensure they are responding to storm appropriate. Wastewater dischargers in New Jersey also should be aware that the Division of Water Quality maintains a web page devoted to Emergency Response, Preparedness and Resiliency that contains checklists for actions that various categories of dischargers should take before, during, and after major weather events. (see https://www.nj.gov/dep/dwq/erp_home.htm).
Pennsylvania has not been as proactive as New Jersey in incorporating severe weather planning into its regulatory guidance. However, many industrial facilities are required to develop Pollution, Preparedness, and Contingency (“PPC”) Plans, which require consideration of and planning for the impacts that flood or other natural disasters may have on a facility’s potential to generate or release pollution. Pennsylvania facilities impacted by the storm should carefully review their PPC Plans to ensure that they have complied with all applicable response and notification provisions included therein.
Facilities subject to NPDES permits may be impacted by excess flow related to flood conditions, introduction of new and unpermitted contaminants brought by flood waters, power loss to wastewater treatment systems, and damage to key wastewater infrastructure. In the rush to get wastewater treatment systems and associated infrastructure back online, facilities should not lose sight of the need to carefully assess whether the storm’s impacts have affected compliance with existing NPDES permits as it relates to effluent limitations or other pollution limits. For facilities that are unable to treat wastewater due to system failures or because of the introduction of new contaminants, emergency discharge authorizations may need to be obtained from the NPDES permitting authority. Facilities should fully consider the need for emergency authorizations prior to discharging any untreated wastewater. To the extent that noncompliance with an effluent limitation or the discharge of an unpermitted pollutant has occurred, both New Jersey and Pennsylvania require reporting of all NPDES permittees. (See N.J.A.C. 7:14A-6.10 & 25 Pa. Code 92a.41.).
Spill and Release Reporting
Damage wrought by the storm may impact pollution treatment systems and infrastructure such as storage tanks and fuel containers, potentially resulting in the release of regulated substances. Facilities should understand that the emergent conditions created by the storm do not relieve them of the responsibility to promptly notify the appropriate regulatory authorities of any spill or release. For example, both NJDEP and PADEP require the immediate reporting of any discharge or release of a hazardous pollutant (see N.J.A.C. 7:26C-1.7(b)(2) & 25 Pa. Code 91.33). Immediate notifications to federal authorities may also be required for any release of a hazardous substance above its reportable quantity, as published by EPA on the List of Lists.
Major storm events like Ida have the potential to impact remediation activities at contaminated sites. Rushing flood waters can cause damage to engineering controls like soil caps and alter site topography or hydrology, thereby affecting contamination pathways. Flood waters, wind, and related power failures might also cause damage to or temporary disruption of remedial equipment, such as vapor mitigation systems. Those responsible for managing contaminated sites should promptly and carefully evaluate the impacts of the storm to fully understand its effects on site conditions and develop and implement response plans as appropriate.
Facilities tasked with cleaning up debris or repairing damage caused by the storm should consider whether their activities would require a permit. Where a permit is required, emergency authorizations may be available to facilitate expeditious response activities.
In New Jersey, for instance, the major land use regulatory programs contain provisions for granting emergency authorizations to facilitate the approval of regulated activities where there is “a threat to life, severe loss of property, or environmental degradation exists or is imminent”, the condition “can only be prevented or ameliorated” via the regulated activity and is likely to occur or continue before NJDEP can issue an individual or general permit. These authorizations can be useful for completing work promptly and are available under (1) the Flood Hazard Area Control Act regulations; (2) the Freshwater Wetlands Protection Act regulations, (3) the Coastal Zone Management regulations and the (4) Highlands Water Protection and Planning Act regulations. New Jersey’s solid waste program also has an Emergency Debris Planning and Management webpage to provide guidance to municipalities and others for dealing with debris generated by severe weather events including provisions for temporary debris management areas and waiver of flow control requirements where necessary (see https://www.nj.gov/dep/dshw/debris/index.html).
In Pennsylvania, removal of flood debris such as trees, logs, brush, or similar material from a stream channel can, in most cases, be commenced without a permit and without prior notification to PADEP where the work can be performed from the stream bank. Likewise, removal of collapsed or damaged bridges or culverts typically does not require pre-approval by PADEP; however, the owner of the structure should immediately notify PADEP’s Waterways and Wetlands Program of their intention to perform work. Existing Chapter 105 permits may also provide owners with an opportunity to perform repairs on damaged structures providing that a prior notification to PADEP is made. Additionally, PADEP has the authority to issue emergency permits under the Chapter 105 program for the repair or replacement of damaged culverts, bridges or other stream crossings, or streambank stabilization or other stream work “where there is an imminent threat to public health and safety or the environment that requires immediate remedial action.” (see PADEP, Chapter 105 Flood-Damage Fact Sheet).
Assessment of Available Defenses
Although environmental disasters like Ida do not provide relief from applicable regulatory requirements, regulatory agencies may apply their enforcement discretion in the event of violations arising on account of severe weather conditions, such as delayed filing of required documentation and completion of remedial actions that are subject to regulatory deadlines. Facilities also should review force majeure provisions in administrative or judicial orders or consent orders for procedures to apply for relief from requirements in those documents.
Finally, state and federal statutes contain a number of provisions that excuse conduct that might otherwise give rise to liability where the violation was the result of an “Act of God,” which typically includes floods and storm events (e.g., a violation of an effluent limitation on account of an “upset” that is due to flooding or a storm event or other Act of God; liability for cleanup costs for a discharge caused solely by an act of God).
As businesses look to address the damage caused by Ida and resume normal operations, regulated entities should take the time to carefully evaluate how the storm has impacted their facilities, consult their permits and related planning documents, and proactively communicate with regulatory agencies regarding any compliance challenges brought about by this extreme weather event.