The Environmental Protection Agency (EPA) and the agriculture community do not always see eye-to-eye. Currently, the ag community is speaking out over EPA’s proposed change in the Clean Water Act’s (CWA) “Waters of the U.S.” definition (for more details see here). Prior to that, many in the ag community did not agree with EPA’s Spill Prevention, Control, and Countermeasure (SPCC) rule for agriculture. The disagreement over the SPCC rule lasted till Congress stepped in this year in the Water Resources Reform and Development Act of 2014, which clarifies how EPA should apply the SPCC rule to the nation’s farms.
EPA had developed rules under authority granted it in the CWA to prevent oil discharges into navigable waters from both farms and other businesses. SPCC rules are designed to prevent oil discharges. It is important to note here that EPA has defined oil to be “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.” (40 C.F.R. § 112.2).
For farms, SPCC rules specify when a farmer must have a certified SPCC plan for on-farm fuel storage. Under the clarified rules passed by Congress, certified plans developed by professional engineers will be required when a farmer has on-farm fuel storage above a certain amounts. Farmers will be able to self-certify when below certain fuel storage amounts, and some farms will be exempt from the rule. Congress clarified the rule to exempt a majority of farms from the certification process.
Farms will be required to receive a professionally developed certified SPCC plan when the farm has:
1. An individual aboveground tank with storage capacity greater than 10,000 gallons;
2. An aggregate aboveground storage capacity greater than or equal to 20,000 gallons; or
3. A “reportable oil discharge history” defined as either a single oil discharge exceeding 1,000 gallons or 2 discharges each exceeding 42 gallons within any 12-month period.
Farms will be able to develop a self-certified SPCC plan when the farm has:
1. An aggregate aboveground storage capacity of fewer than 20,000 gallons and more than the 6,000 gallons, and
2. No reportable oil discharge history.
Finally, farms are exempt from SPCC rules when they have aggregated aboveground storage capacity less than 6,000 gallons.
How do you calculate the aboveground storage capacity? Previously, EPA included a storage container greater than 50 gallons into the calculation. Congress changed that equation and now excludes:
1. All containers on separate parcels with a capacity of 1,000 gallons or less; and
2. All containers holding animal feed ingredients approved for use in livestock feed by the Commissioner of Food and Drugs.
Finally, Congress requires EPA to study, with the help of the Secretary of Agriculture, the appropriate gallon size for exemption from the certified SPCC plan. In setting this exemption, EPA should focus on a significant risk of discharge to water. EPA has till 2015 to complete this study and another 18 months after that to adjust the exemption to SPCC certification.
This will be an area of interest that producers with on-farm aboveground storage will want to monitor, especially if their farms are near the 6,000 gallon capacity threshold. They may find themselves falling under the rules and in need of an SPCC certification plan. Producers currently falling under the self-certification or the professional certification requirements will want to ensure they have those plans in place.