PADEP Publishes Proposed Rulemaking Updating Spill Reporting Requirements

At a Glance

• Under the proposed rulemaking, immediate notification would be required for discharges of substances to waters of the Commonwealth of Pennsylvania in quantities greater than or equal to the federal reportable quantities listed in 40 C.F.R. § 117.
• For discharges that are less than the federal reportable quantities, the responsible person would be required to either (A) report the discharge (even if it is not otherwise reportable) or (B) evaluate and document a long list of factors to support a determination that the release will not cause or threaten pollution of waters of the Commonwealth, endanger downstream users or cause damage to property.

On April 5, 2025, the Pennsylvania Department of Environmental Protection (PADEP) published in the Pennsylvania Bulletin notice of a long-awaited proposed rulemaking that would establish new requirements for reporting spills, releases and discharges under 25 Pa. Code § 91.33. PADEP is accepting comments through June 4, 2025.

Under the proposed rulemaking, immediate notification would be required for discharges of substances to waters of the Commonwealth in quantities greater than or equal to the federal reportable quantities listed in 40 C.F.R. § 117.

For discharges that are less than the federal reportable quantities, the responsible person would be required to either (A) report the discharge (even if it is not otherwise reportable) or (B) evaluate and document a long list of factors to support a determination that the release will not cause or threaten pollution of waters of the Commonwealth, endanger downstream users or cause damage to property. The factors include, but are not limited to: (1) the properties of the substance or substances involved (i.e., harmful effects, persistence, mobility, concentration); (2) the location or locations involved (i.e., proximity to nearby waters, characteristics of nearby waters, land use, soils, geology, infrastructure to contain spills); (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 or incident.

Significantly, under the proposed rulemaking, if requested by PADEP, a responsible person who did not report a release must provide documentation demonstrating that all of the factors listed in the proposed rulemaking were evaluated, along with a signed statement attesting to the document’s accuracy. In fact, PADEP has already released a draft Unauthorized Discharge Notification Evaluation Form to help responsible persons document their evaluation of whether to report a release. The signature line includes a certification, under penalty of law, pursuant to 18 Pa. C.S. § 4904, which establishes misdemeanor penalties for written false statements not believed to be true.

The proposed rulemaking largely mirrors draft guidance that PADEP previously published for public comment in October 2021. The draft guidance provides some examples of releases that PADEP believes are either reportable or not reportable. PADEP intends to issue a new guidance document after issuing a final rulemaking.

For More Information

Faegre Drinker’s environment and energy team is closely tracking developments relating to the proposed rulemaking and analyzing ongoing compliance strategies for spills and releases. If you would like to discuss the proposed rulemaking or are interested in commenting by June 4, 2025, you may contact the authors.