Assistant Professor, OSU Extension Agricultural and Resource Law Program
COLUMBUS — A common joke among attorneys is that the answer to every legal question is “maybe,” and that answer is appropriate when asking whether farms will be exempted from complying with the Oil Spill Prevention, Containment and Countermeasure (SPCC) rule.
May 10 was the compliance deadline for the EPA rule requiring SPCC plans for farms storing above a threshold amount of oil.
But several legislators have spoken out against the regulation and intend to exempt most farms from its requirements. As we reported in an earlier post, legislators successfully delayed EPA’s ability to enforce the SPCC rule against farms until Sept. 23, and also drafted the legislation to exempt many farms from the SPCC rule.
But while the Senate and House have each passed proposals with SPCC exemption language, they’ve used two different bills to do so: the Senate’s Water Resources Development Act and the House’s farm bill.
Neither bill has passed both chambers and the SPCC exemption remains in limbo today, the date after which the EPA may begin enforcing the rule.
In mid-August, two sponsors of the exemption, Senators Inhofe (R-Okla.) and Pryor (R-Ariz.), sent a letter to EPA Administrator Gina McCarthy regarding SPCC enforcement. The letter clarified that Congress plans to exempt most farms from the rule and suggested that the EPA should not attempt to retroactively enforce the rule back to the original compliance date of May 10.
Time will tell whether the senators’ letter will prevent EPA from penalizing farms who did not have an SPCC plan by May 10 but had an oil spill anytime after the May 10 compliance deadline
What should farmers do about SPCC plans now?
Farmers who have been waiting to see if Congress would exempt them from the SPCC rule have to make a decision: Comply now or risk penalties for non-compliance.
A few considerations may help the decision-making process:
The EPA provides a model template for Tier I farms on their website http://www.epa.gov/osweroe1/content/spcc/tier1temp.htm.
Be aware, however, that preparing the plan requires some work: a thorough assessment of the farm’s oil storage, selection and installation of appropriate containment measures and proper training and response practices. For those who don’t want to prepare their own plan, consider a consultant.
Consulting companies offer services such as assessment, consultation, plan development, certification and future inspections.
There are several reasons EPA may grant an extension: because a Professional Engineer (PE) isn’t available to create and certify a plan, if the farm is located in an area impacted by floods, or because facility modifications could not be completed before the deadline.
For more on seeking an extension, visit http://www.epa.gov/osweroe1/content/spcc/spcc–ag.htm#faq–what.
While “maybe” is a good answer to whether Congress will exempt many farms from the SPCC rule, it isn’t a good answer to whether farmers should ignore the SPCC regulation because of the confusion in Congress.
For more on SPCC and agriculture, visit the EPA’s web page http://www.epa.gov/osweroe1/content/spcc/spcc–ag.htm#faq–what.