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SPCC Rule will not be enforced against farms until September of 2013

Peggy Kirk Hall, Asst. Professor, OSU Extension Agricultural & Resource Law Program

Many farms are scrambling to meet the upcoming May 10, 2013, deadline for having an oil spill containment plan (SPCC plan) as required by EPA regulations,  but Congress has quietly delayed the U.S. EPA's ability to enforce the regulation.   Amendment 29 to the recently enacted funding bill, H.R. 933, states that the U.S. EPA may not use any of its funds to enforce the SPCC rule against farms for a period of 180 days, until after September 26, 2013.

The purpose of the U.S. EPA's Spill Prevention Control and Countermeasures (SPCC) program is to help facilities and farms prevent a discharge of oil into navigable waterways.  Program regulations affect farms that store more than 1,320 gallons of oil or oil products in aboveground containers or more than 42,000 gallons in completely buried containers--those farms are required to develop, maintain and implement an oil spill prevention plan by May 10, 2013.

The recent action by Congress, however, prevents the EPA from enforcing the plan until late September.  In the meantime, congressional efforts will focus on revising the SPCC rule as it applies to farm SPCC plans.  Senator Inhofe (OK), who sponsored the amendment to delay enforcement, has already co-sponsored a bill (S. 496)  with Senators Pryor (AR) and Boozman (AR) to provide more exemptions for small farms and help farms reduce compliance costs.

What should farmers do now about SPCC plans?  The future of the SPCC rule is uncertain, but we do know that the current deadline of May 10 can't be enforced by the EPA.  Farmers who are currently subject to the regulation must decide whether to proceed with compliance and be prepared for a possible September deadline, or wait and see if Congress changes SPCC requirements before the end of September.  If a farmer is subject to an attempted enforcement action after the May 10 deadline, contact legal counsel right away.  For those who have already developed SPCC plans, be assured that the plan may still be required in the future and could also be a useful tool for  reacting to an oil spill that could contaminate a waterway and reducing your environmental liability risk.   For more information about the SPCC rule, visit here.

Posted In: Environmental, Property
Tags: farm oil spill plans, SPCC plan
Comments: 0

Peggy Kirk Hall, Asst. Professor, OSU Extension Agricultural & Resource Law

It’s the time of year when farmers clear fields and fence rows of corn stalks, branches and other debris and use a common management practice--piling the debris and burning it in the field.  Because outdoor fires such as this create air emissions and wildfire concerns, Ohio has laws that regulate open burning activities.   Burning certain materials at certain times in certain places may violate the open burning laws and cause a health or safety issue.  It’s important to know when open burning of crop debris and field residue is permissible, and to take precautions to minimize risk and liability.

There are several areas of law in Ohio that address open burning.  The Ohio Environmental Protection Agency (OEPA) oversees regulations on the open burning of materials that may produce harmful air emissions that affect human and environmental health.  Ohio also has laws that regulate open burning to minimize the danger of wildfires; these laws may be enforced by the Ohio Department of Natural Resources (ODNR) Division of Forestry or local law officials.   Additionally, a local government might have local ordinances that regulate open burning.

In regards to crop debris in farm fields, it is typically permissible for a farmer to burn the debris.  However, the law creates duties to conduct the burn responsibly and imposes some conditions on what, where and when to burn.  Violating the laws can lead to criminal charges, fines and civil liability to harmed parties.

What can you burn?

Ohio law allows the burning of “agricultural wastes” under certain conditions.  The definition of agricultural waste includes materials such as crop debris, as well as other materials.   According to Ohio law, agricultural waste includes:

  • Waste material generated by crop, horticultural, or livestock production practices, landscape wastes that are generated in agricultural activities and woody debris and plant matter from stream flooding.
  • Bags, cartons, structural materials and containers for pesticides, insecticides, fungicides, rodenticides, miticides, nematocides, fumigants, herbicides, seed disinfectants and defoliants, if the manufacturer has identified open burning as a safe disposal procedure.  Farmers may add seed bags and cartons to the burn pile as long as the label states that open burning of the materials is safe.

Agricultural waste does not include:

  • Standing or fallen buildings, building materials, food waste, dead animals, materials made from petroleum or containing plastic, rubber, grease or asphalt.   A farmer may not add these materials to the burn pile.
  • Debris resulting from the clearing of land for new agricultural, residential, commercial or industrial development—this type of waste is defined as “land clearing waste.”  Open burning of land clearing waste requires prior written notification to Ohio EPA.

Where can you burn?

Several regulations determine acceptable locations for burning crop debris and other agricultural waste:

  • Agricultural waste may only be burned on the property where the waste is generated; the waste may not be taken to a different property for burning and a farmer cannot receive and burn waste from another property.
  • If the burning is inside a “restricted area,” then prior written notice to Ohio EPA must be provided at least ten days in advance of the burning.  A “restricted area” is an area where there is higher population density.  The law defines a restricted area as:
    • Any area inside city or village limits.
    • Any area within the 1,000-foot zone outside of a city or village with a population of 1,000 to 10,000.
    • Any area within a one-mile zone outside of a city or village with a population of more than 10,000.
    • The fire must occur in a location where it will not obscure visibility for roadways, railroad tracks or air fields.
    • The fire must be more than 1,000 feet from any neighboring building inhabited by people, such as homes, stores, restaurants, schools, etc.

When can you burn?

There are definite times when burning of crop debris and other agricultural waste is not permitted unless certain conditions are met.

  • Ohio’s wildfire laws limit open burning in rural areas during the months of March, April, May, October and November, when wildfire risk is highest due to dry vegetative conditions and dry winds.  During these months, open burning in rural areas is completely prohibited between the hours of 6 a.m. and 6 p.m., when volunteer fire departments are not well-staffed.  An exception to this prohibition applies to farmers under the following conditions:
    • Open burning may occur in a plowed field or garden, if the burn pile is at least 200 feet from any woodland, brush land or field containing dry grass or other flammable material.  If a farmer can’t meet this 200 foot buffer zone requirement, the farmer should wait until after 6 p.m. to conduct the burn.
    • Open burning should only occur when atmospheric conditions will readily dissipate any smoke and potential contaminants.  If weather conditions are foggy, rainy or causing air inversions, smoke and contaminants will not readily disperse and the farmer should not burn the materials.
    • Even if all other legal requirements for open burning are met, open burning is not allowed when air pollution warnings, alerts or emergencies are in effect.

What about prescribed burning?

Both the ODNR and Ohio EPA have authority over prescribed burning—intentional burns for horticultural, silvicultural, range or wildlife management practices.  Prescribed burning requires prior written permission from Ohio EPA and--if taking place during March, April, May, October or November--the burn must be conducted by a Certified Prescribed Fire Manager with permission by the Chief of ODNR’s Division of Forestry.  See the Division of Forestry’s website for more information on becoming a Certified Prescribed Fire Manager and requesting permission for prescribed burns.

Prior notice to Ohio EPA

For burns that require advance notice to the Ohio EPA, farmers may use the notification form on the Ohio EPA website at http://www.epa.ohio.gov/dapc/general/openburning.  The form seeks information about what will be burned and when and where the burn will take place; this allows the EPA to ensure that the burn is permissible.

Legal duties for conducting open burning

Ohio law also imposes duties for managing open burns.   Ohio Revised Code 1503.18 establishes a duty to prevent fire escape.   The law requires any person who starts a fire near trees, woodland or brush land to take steps to prevent the fire from escaping.  All leaves, grass, wood and inflammable material surrounding the place must be removed to a safe distance and all other reasonable precautions must be taken to keep the fire under control.   The law also states that a person should extinguish or safely cover an open fire before leaving the area.

Ohio EPA’s regulations impose several other duties for managing burns.  As mentioned above, burning of agricultural waste should take place at least 1,000 feet from any neighbor’s inhabited buildings. The wastes should be stacked and dried to provide the best practicable condition for efficient burning and weather conditions should not prevent dispersion of the smoke and emissions.  If the size of an agricultural waste pile exceeds 20 feet in diameter by 10 feet in height (or 4,000 cubic feet),  the farmer must provide written notification of the burn to the Ohio EPA at least ten days before burning.

Local laws

The above analysis explains Ohio’s laws on open burning; remember that the local government might have a local law that also regulates burning activities.  Check with your local fire department to know whether any local regulations apply to the situation.

What if a farmer violates open burning laws?

Violation of the open burning laws creates several risks for farmers.  Ohio EPA has the authority to issue fines of up to $1,000 per day per offense.  The EPA states that it takes enforcement action against repeat offenders or violations that cause significant harmful emissions.  Otherwise, EPA enforcement officers prefer to issue warnings to first-time offenders and educate on how to conduct open burns that minimize pollution impacts.  EPA enforcement officers regularly patrol their districts, investigate fires they see and investigate complaints from neighbors or others who report burning activities.  According to the EPA, the most common violations by farmers include burning substances that are not “agricultural wastes” such as tires and plastics, failing to meet the 1,000 foot setback requirement and burning waste from another property.

Conducting open burns that violate Ohio’s wildfire prevention laws can result in third degree misdemeanor charges, which carry penalties of up to $500 and 60 days of jail time per violation.   Any person may report a potential illegal burn that creates wildfire risks to the local law enforcement or Division of Forestry.

Equally and perhaps more important is the risk of civil liability from an open burning incident.  We all know that the “burn police” can’t observe everyone all the time, but civil liability doesn’t require intensive monitoring—it requires harm.  Where an open burn causes harm to people or property, civil liability may arise.  An open burn that reduces roadway visibility and results in an auto accident, escapes the property and harms neighbors or neighboring property or significantly interferes with other owners’ property use could result in a negligence or nuisance lawsuit.  The farmer who violated open burning laws or failed to properly manage the fire could be liable for all harm resulting from the fire.

For more information on Ohio’s open burning laws, visit the websites of the Ohio EPA Division of Air Pollution Control and ODNR Division of Forestry.

Catharine Daniels, Attorney, OSUE Extension Agricultural & Resource Law Program

With the arrival of spring, many agricultural businesses may be looking to hire additional employees. Before putting those new employees to work, employers should take time to ensure a "legal" workforce.  One important step is following the Form I-9 Employment Eligibility Verification process.  And with the recent release of a new Form I-9, close attention to Form I-9 compliance is extremely important.

What is the purpose of Form I-9?  The form aims to verify the identity and employment of every person hired to perform labor or services in return for wages or for anything of value that is given in exchange for labor or services, including food and lodging.

Why worry about Form I-9?  Because correct completion of Form I-9 is both a legal mandate and a legal defense.  Federal law requires every employer to complete an I-9 form upon hiring an employee.    Filling out the form is not optional.  Even if the employer knows the new employee, knows of the employee or knows the employee's family--the employer must do a Form I-9 for the employee.    Once properly completed, a Form I-9 is the employer's defense against a potential claim of knowingly employing an unauthorized worker.

How does an employer complete Form I-9?  Form I-9 compliance requires completion of three sections, as follows:

  • Employers must have every newly hired employee complete Section 1 of the form no later than the first day of work for pay.  Section 1 requests personal employee information such as name, address, e-mail, phone number, date of birth and social security number and requires the employee to attest to his or her citizenship status.
  • No later than the third day of employment, the employer must complete and sign Section 2 of the form. Section 2 requires the employer to physically examine documentation presented by the employee showing identity and employment authorization.    There are three lists of acceptable documents; employees may present one document from List A or a combination of one document from List B and one document from List C.  Examples of documents include U.S. passports, driver's licenses, social security cards and employment authorization from the Department of Homeland Security.
  • Section 3 applies to re-verification and rehires.  An employer must complete Section 3 only if the employee is not a U.S. citizen or lawful permanent resident and his or her employment authorization documentation has expired.  An employer may complete Section 3 for employees rehired within three years of the date that a Form I-9 was originally completed, or the employer  may choose to complete a new Form I-9 for the rehired employee.

What does an employer do with completed I-9 forms?  An employer must keep all completed  I-9 forms for all current employees and make the forms available to federal officials in the event of an inspection.  An employer must keep I-9 records for a certain period of time after employees stop working.  This period of time varies; the government provides a chart to help employers identify the appropriate period of time.

Are there penalties for non-compliance?  Yes.  An employee may be subject to civil penalties for failing to properly complete, retain or make the I-9 forms available for inspection.

When is the new Form I-9 effective?  On March 8, 2013, a new Form I-9 was released with revisions. The revised Form I-9 is now two pages long, includes expanded instructions, and has new fields for e-mail addresses, phone number, and foreign passport. Employers should be using this revised form now, but may continue to use the previous Form I-9 until May 7, 2013.

The importance of document inspection.   To avoid liability, the employer should properly inspect the employee's documents.   The documents must reasonably appear to be genuine and relate to the person presenting them.  The employer's duty is to verify the documentation; the job of fully "investigating" whether the employee is authorized to work rests with U.S. Immigration Customs Enforcement.  If an employee provides a document that does not appear to be genuine or relate to the employee and the employee cannot present other documentation, then the employer may terminate employment.

Avoiding discrimination liability.  Employers should make sure they do not engage in any discriminatory practices when it comes to the Form I-9.  At the pre-hire stage, an employer may not ask an applicant their citizenship, nationality, immigration status, type of work authorization, or green card status. After hiring the employee, an employer may not request a particular document for the employee to provide to complete the Form I-9; it is the employee’s decision as to what documents they will provide. An employer also may not request more documents than what are required by Form I-9.   Such actions by the employer might result in a discrimination claim.

For complete information about I-9 compliance, check out the "Handbook for Employers - Guidance for Completing Form I-9" on the  U.S Citizenship and Immigration Services I-9 Central website.