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The EPA’s “new” SPCC rule for farms: farms should assess and comply now

By:Peggy Kirk Hall, Attorney and Director, Agricultural & Resource Law Program 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.

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