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By: Peggy Kirk Hall, Thursday, June 26th, 2014

The recently enacted Water Resources Reform and Development Act of 2014 established a new mandate to the U.S. EPA:  change how EPA enforces the federal Spill Prevention, Control and Countermeasure (SPCC) rule against the nation’s farms.   Following several years of conflict between EPA and the agricultural community, Congress intervened with a plan to reduce the SPCC rule’s impact on agriculture.  The new law clarifies which farms must have certified SPCC plans that address fuel storage and spill response practices; the law also directs EPA to study and adjust the exemption levels within the next three years.  

Which farms must comply with the SPCC rule?

Here is an explanation of how the new law affects SPCC rule requirements for farms.  Note that the exemption level could change after EPA conducts its required study, explained below.  

  1. Farms that must have a professionally certified SPCC plan

Farms in this category must have an SPCC plan that is certified by a professional engineer.  This category includes farms that have any of the following:

  • An individual aboveground tank with storage capacity over 10,000 gallons;
  • An aggregate aboveground storage capacity of 20,000 gallons or more;
  • A "reportable oil discharge history."
  1. Farms that can self-certify their SPCC plans

Farms with moderate fuel storage and no history of reportable discharges must have an SPCC plan, but the owner or operator of the farm can self-certify the plan.  Farms in this category include those that:

  • Have an aggregate aboveground storage capacity of 6,001 to 20,000 gallons
  • And do not have a "reportable oil discharge history."
  1. Farms that are exempt from SPCC compliance

The EPA may not require compliance with the SPCC rule for any farm that:

  • Has an aggregate aboveground storage capacity of less than 6,000 gallons.

Changes to aggregate capacity calculations will affect SPCC's reach

The new law also changes which fuel storage containers a farm must include when calculating its aggregate fuel storage capacity.  This change could significantly impact whether a farm falls into the exempt, self-certified or professionally certified plan category.   Previously, the SPCC rule required a farm to include any storage container of 50 gallons or more in its aggregate capacity calculation.  Under the new law, a farm may now exclude these fuel storage containers from its calculation of capacity:

  1. All containers on separate parcels that have a capacity of 1,000 gallons or less;
  2. All containers holding animal feed ingredients approved for use in livestock feed by the Commissioner of Food and Drugs. 

EPA must study discharge risks

The SPCC compliance requirements could change after the EPA completes the mandated study.   The law requires EPA to consult with the Secretary of Agriculture to conduct a study within the next year to determine the amount that is appropriate for an SPCC rule exemption, based on whether there is significant risk of an oil discharge to water.   Within 18 months of completing the study, the EPA may adjust the SPCC exemption level to not more than 6,000 gallons and not less than 2,500 gallons.  This provision gives EPA an opportunity to lower the exemption beneath the current 6,000 gallon minimum if the agency can prove that there is significant risk of oil discharges on farms with fuel storage capacity between 2,500 and 6,000 aggregate gallons.

What is the SPCC rule compliance date for farms?

Surprisingly, the new law does not remove the uncertainty surrounding the deadline for a farm to comply with the SPCC rule.   Maneuverings by Congress prevented EPA from enforcing the original May 13, 2013 compliance deadline until September 24, 2013.  After that date, a letter from several members of Congress advised the EPA Administrator not to enforce the rule at all until Congress enacted new legislation that would exempt most farms from the rule.  With the new law in place, will the EPA now enforce SPCC plan requirements against a farm?  If so, then a farm that is subject to the rule could face penalties for non-compliance if it has an oil discharge and does not have its SPCC plan in place.   Given that possibility, farms that fall under the new SPCC requirements should act quickly to develop their SPCC plans.

SPCC definitions

A few definitions from the SPCC rule, unchanged by the recent legislation, are helpful to understanding the rule’s application.

  • Farm means a facility on a tract of land devoted to the production of crops or raising of animals, including fish, which produced and sold or normally would have produced and sold $1,000 or more of agricultural products during a year.
  • Oil means oil of any kind or in any form, including, but not limited to:  fats, oils, or greases of animal, fish, or marine mammal origin; vegetable oils, including oils from seeds, nuts, fruits, or kernels; and, other oils and greases, including petroleum, fuel oil, sludge, synthetic oils, mineral oils, oil refuse, or oil mixed with wastes other than dredged spoil.
  • Reportable oil discharge history means either a single oil discharge over 1,000 gallons or two oil discharges that each exceeded 42 gallons and that occurred within any 12-month period in the 3 years prior to the farm’s required SPCC certification date.

For more on the SPCC rule, see the EPA's SPCC page.

By: Peggy Kirk Hall, Tuesday, June 17th, 2014

UPDATE:  The Ohio Supreme Court affirmed the decision of the Court of Appeals on September 17, 2015.  Read the Court's decision here

Hunting laws don't often reach our highest court, but the Ohio Supreme Court has agreed to review one man's challenge to an unlawful hunting action by the Ohio Department of Natural Resources (ODNR).  The case resulted in a fine of $27,851 against Huron County hunter Arlie Risner for the unlawful taking of an antlered white-tailed deer. 

The case began in 2011, when ODNR charged Risner with “taking a white-tailed deer from the lands of another without first obtaining written permission from the landowner or an authorized agent in violation of R.C. 1533.17.”  The Norwalk Municipal Court fined Risner $200 plus court costs and ordered forfeiture of the meat, which ODNR had seized from a processor.  Risner also had to reimburse ODNR $90 for meat processing costs.  The court later ordered Risner to turn over the deer's antler rack also, which he had taken to a taxidermist.

A few months following the court hearing, ODNR advised Risner that he also owed the state $27,851.33 as restitution for the value of the deer and that his hunting license was suspended until he paid the amount.   ODNR based its claim on Ohio Revised Code section 1531.201, which states:

“(B) The chief of the division of wildlife or the chief's authorized representative may bring a civil action to recover possession of or the restitution value of any wild animal held, taken, bought, sold, or possessed in violation of this chapter or Chapter 1533 of the Revised Code or any division rule against any person who held, took, bought, sold, or possessed the wild animal.”

$27,851 for killing a deer?

ODNR's claim for $27,851 in restitution derived from ORC 1531.201, which contains a formula for calculating the minimum restitution value of an illegally taken antlered white-tailed deer.  The formula determines the deer's value based on its the size.  The law also includes additionall provisions for exceptionally large deer, stating that a convicted violator who takes a deer with a gross score of more than 125 inches  "shall pay an additional restitution value that is calculated using the following formula:  Additional restitution value = ((gross score - 100)2 x $1.65)."

The deer Risner killed exceeded the 125 gross score limit, with a 20-point rack and a gross score of 228 inches.  ODNR thus used the additional formula to determine Risner's restitution, which escalated the demanded payment to over $27,000.

Challenges by both parties

Risner refused to pay ODNR’s restitution order and the agency began enforcement proceedings in court.  Risner argued that the fee violated his constitutional rights and that ODNR could not seek restitution because the agency had already chosen its remedy of seizing the deer meat and antlers.  The Huron County Court of Common Pleas avoided the constitutional issues but agreed with Risner that the plain language of ORC 1531.201 prevented further restitution because ODNR had already been awarded possession of the deer and antlers in prior court proceedings.   Both Risner and the Huron County court focused on the “or” in the statute’s language, which states that ODNR “may bring a civil action to recover possession of or the restitution value of…” an animal.  The "or" set up a choice either one remedy or the other, according Risner and to the common pleas court.

ODNR appealed the decision to Ohio’s Sixth District Court of Appeals.  The appeals court disagreed with the lower court.  The court unanimously concluded that ODNR did in fact have authority to recover the restitution value for the deer.   “The statute, on its face, does not restrict ODNR from bringing a civil action to recover the restitution value if wildlife officers have already seized parts of the wild animal,” said the court.  “Since Risner had no title to or ownership interest in the seized wild animal parts,” the court explained, “ it is illogical to construe ORC 1531.201 to require ODNR to choose between possession of the unlawfully taken parts or restitution for the unlawfully taken deer.” 

Additionally, the appellate court noted that ORC 1531.201 contained “additional” provisions for restitution assessments for deer in excess of 125 points, explaining that "[w]e must presume that in enacting a statute, the General Assembly intended for the entire statute to be effective. * * * Thus, all words should have effect and no part should be disregarded."  The court also stated, however, that nothing in its decision would prevent Risner from arguing for a deduction of the restitution value based on the monetary value the seized deer provided the state.

Risner requests review by Ohio Supreme Court

Risner asked the Ohio Supreme Court to review the decision.  “To allow the chief to bring a second action when a remedy has already been provided, chosen and carried out is nonsensical, frivolous, a violation of law and due process, and a waste of the Court's time and resources,” argued Risner.  “A second action provides for multiple sanctions and double (if not more) remedies…”

ODNR argued that the Supreme Court should not accept the case for review because the appeals court made a correct interpretation of the statute and because Risner had not been doubly penalized, as he had claimed.  “It is clear the General Assembly recognized the need to create R.C. 1531.201(B) as a separate civil mechanism to recoup the full economic loss of this valuable resource,” stated ODNR.   “The return of evidence did not make the State whole, nor should it be construed as a satisfaction of restitution liability…”

The question before the Supreme Court

Challenges to hunting laws don’t often pique the interest of the Ohio Supreme Court, especially those that don’t revolve around constitutional issues.  But this case does carry serious implications for both ODNR and Ohio hunters.   Does ORC 1531.201 allow ODNR to recover the parts of an antlered white-tailed deer and also to seek payment from the violator for the value of the deer, with additional payment for large animals?  If this is the correct interpretation, we can conclude that our legislature intended strong sanctions against violators in addition to ensuring that a violator would not be able to keep a poached animal.   Is this outcome more severe a punishment for unlawful takings of deer than the legislature intended? 

Or does the statute require ODNR to choose either possession or a restitution payment, but not both?   If this is the case, then ODNR must strategically determine how to handle an illegal taking of an antlered white-tailed deer.  Should ODNR claim the meat and antlers so that a violator does not benefit from breaking the law?  Or should ODNR allow the violator to keep the animal so that it can seek payment from the violator?  If the deer is quite large and the restitution payment high, should ODNR choose the higher payment and higher economic value over reclaiming the animal from the violator?  Is the goal of the statute punishment or regaining the economic value of an animal?

The Ohio Supreme Court will answer these and other questions when it determines the correct interpretation of ORC 1531.302 later this year or next.

Read the Court of Appeals decision in Risner v. Ohio Dept. of Natural Resources, Div. of Wildlife.

UPDATE:  The Ohio Supreme Court affirmed the decision of the Court of Appeals on September 17, 2015.  Read the Court's decision here