Farm Oil Spills!

Confusion continues among many farmers as to whether they are subject to EPA regulation for oil spills. Farmers are not likely to have an Exxon Valdez incident which caused Congress to pass the Oil Pollution Act ("OPA") in August, 1990.

The OPA was to help EPA prevent and respond to oil spills which I discussed in an article on December 20, 2010. The OPA does have requirements for contingency planning for industry and agriculture; however, farming operations seldom have oil spills requiring public or private response.

Because there is confusion as to what is a farm spill, I want to be clear to those of you reading this column so that no one gets into trouble.

Your farm is subject to EPA's Spill Prevention, Control and Countermeasure ("SPCC") program if it meets three requirements.

1. Your farm storage tank must be located in a position or location where "…there must be a reasonable expectation of a discharge into or up on navigable waters of the United States or adjoining shorelines."

2. "…it must have an aggregate above ground storage capacity greater than 1,320 gallons or a completely buried storage capacity greater than 42,000 gallons." 

3.  The facility must be "…non-transportation-related."

These are EPA's requirements – not mine! 

First, your farm is non-transportation related. But how do you determine what is a "reasonable expectation" of a discharge into or upon navigable waters of the United States?

The U.S. Supreme Court cannot tell us what is a navigable water. What is a wetland? EPA has hundreds of pages of regulations which make wetlands waters of the United States if three separate criteria are met.

I will quote from EPA's Region V definition of a discharge: "This determination is based upon a consideration of the geographical and locational aspects of the facility. The location of the facility must be considered in relation to streams, ponds and ditches (perennial or intermittent), storm or sanitary sewers, wetlands, mudflats, sandflats or farm tile drains. The distance to navigable waters, volume of material stored, worst case weather conditions, drainage patters (sic), land contours, soil conditions, etc., must also be taken into account. Further, according to the regulation, this determination shall not include consideration of man-made features such as dikes, equipment or other structures (like levees) that may serve to restrain, hinder, contain or prevent an oil discharge."

As you can see from this last sentence, EPA will never consider any steps you may have taken to prevent a reasonable discharge unless it has approved your plans. One can hardly expect common sense from an agency that compares farm spills to the Exxon Valdez and to the massive Ashland oil spill in 1988.  

You probably are curious as to what is a 'non-transportation related' facility. Again, you will see EPA's lack of understanding of farming operations in the United States.

I quote from EPA Region V once again regarding a non-transportation related facility:  "Fixed onshore and offshore oil well drilling facilities; Mobile onshore and offshore oil well drilling platforms, barges, trucks or other mobile facilities; Fixed onshore and offshore oil production structures, platforms, derricks and rigs; Mobile onshore and offshore oil production facilities; Oil refining or storage facilities; Industrial, commercial, agricultural, or public facilities that use, store, drill for, produce, gather, process, refine or consume oil or oil products; Certain waste treatment facilities; Loading areas/racks, transfer hoses, loading arms and other equipment that are appurtenant to a non-transportation related facility; Highway vehicles and railroad cars used to transport oil exclusively within the confines of a non-transportation related facility; and Pipeline systems used to transport oil exclusively within the confines of a non-transportation related facility."

You can see, if you are running a farming operation, you are lumped in with the oil industry and as a result must be regulated. Once again, we can see why regulation has probably caused the oil industry not to build any new refineries since the mid 1970s.

The Oil Pollution Act of 1990, which amended the Clean Water Act, defines oil in such a way to cause problems for agriculture. EPA developed what is known as "the sheen rule."

Again, this rule helps EPA determine if there has been a spill. EPA can charge you if you have "…discharges that cause a sheen or discoloration on the surface of a body of water." EPA can also come after you if there is a discharge "…that violates applicable water quality standards."

EPA can also charge a violation of the Clean Water Act if there is "…a sludge or emulsion to be deposited beneath the surface of a water or on adjoining shorelines."

Farmers probably do not discharge much sludge or emulsions into creeks or waterways on their farms!

EPA has broadly defined the term "oil" to both petroleum and non-petroleum oils such as vegetable oil and milk.

EPA is attempting to scare all of agriculture regarding its SPCC rules. As I have said earlier, evaluate your facts carefully. I doubt that many farming operations have spills similar to Exxon, Ashland or BP.