EPA may retroactively enforce rule on farmers

Aug 30, 2013

—Senators demand clarification, explanation

The Environmental Protection Agency (EPA) has been announcing it has retroactive enforcement powers against farms.

At the end of this month— Sept. 23—a provision preventing the EPA from pursuing enforcement actions against farms they deem not in compliance with the Spill Prevention Control and Countermeasure (SPCC) rule will lapse. While efforts are underway to change the language of the rule to protect more farms from this potentially wide-reaching rule, the concern exists that the EPA might seek retroactive enforcement of the rule.

“It has come to our attention that the EPA is informing agriculture producers that it does have the authority to begin enforcing the SPCC rule retroactively beginning September 23,” wrote Senators Jim Inhofe (R-OK), senior member of the Environment and Public Works Committee, and Mark Pryor (D-AR) in a letter to EPA Administrator Gina McCarthy.

“Congress has repeatedly raised concerns about the implementation of this rule within the agriculture sector, making these reports particularly unsettling.”

The pair of senators have been trying to combat the application of SPCC to U.S. farms and ranches, arguing that the rule was intended for large-scale energy production centers. The letter sought clarification on the authority of the EPA to do such a thing.

“Congress has clearly established its intent to limit the impact of the SPCC rule on the agricultural sector, and to ultimately exempt the majority of it from having to comply,” read the letter.

The SPCC rule requires certain farms to have a Facility Response Plan (FRP), either self-certified or certified by professional engineer, that details the farm’s counter measures in the event of an oil spill. Fines for noncompliance can result if farms don’t have an FRP or an improperly certified plan. See below for more information on certification requirements.

“If the agency does plan to retroactively enforce the rule, will you please explain why you are doing this despite the clear, bipartisan steps Congress has taken over the past few months to limit this rule’s impact on the agriculture community?” asked Inhofe and Pryor in their letter.

Among those referenced “clear, bipartisan steps” was S. 601, introduced by Sen. Barbara Boxer (D-CA) and passed in the Senate in mid- May. It has not yet passed the House but it had respectably strong bipartisan support in the Senate, with 50 Senate Democrats and 31 Senate Republicans voting in favor.

The House, as part of the Federal Agriculture Reform and Risk Management Act of 2013—H.R. 2642—also passed stronger language that raises the level of the on-farm fuel storage exemption level as well as the selfcertification level for SPCC.

The measure passed the House in early July and passed the Senate with changes in mid-July. The House has not yet acted on it with the Senate changes.

Both S. 601 and H.R. 2642 exempt tanks holding livestock feed from inclusion in SPCC’s calculation for “aggregate above-ground fuel storage.” This, along with the potential for retroactive enforcement of SPCC, is another large concern regarding the rule.

FRP Requirements

Whether or not a farm must have an FRP and how they can certify it depends upon the storage capacity of oil on the farm. Though laws differ from state-to-state on who can self-certify, the general breakdown is as follows:

• Don’t need an FRP: farms that have oil storage less than 1,320 gallons aboveground or less than 42,000 gallons below ground.

• Can self-certify FRP: farms where an oil spill from the farm could reach water and the farm stores oil (such as diesel, gasoline, hydraulic oil, lube oil, crop oil or vegetable oil, etc.) in: aboveground quantities of more than 1,320 gallons or completely buried tanks with more than 42,000 gallons of oil, but has 10,000 gallons or less aboveground storage.

• Professional to certify FRP: farms with more than 10,000 gallons of aboveground storage must have a professional engineer review the FRP.

For the purposes of total farm oil measurement, the EPA advises only counting tanks capable of holding 55 gallons or more and counting the maximum capacity of tanks rather than how much oil is stored in them.

The SPCC rule was passed in December 2008 and was scheduled to take effect May 2013. However a rider in FY2013 appropriations legislation pushed that enforcement date back to September 23.

More information can be found at epa.gov/emergencies/content/spcc/spcc_ag. htm. — Kerry Halladay, WLJ Editor