Producers already busy with field preparation and spring planting or the daily chores demanded by livestock will have yet another task added to their long to-do list: update or create a Spill Prevention, Control and Countermeasure Plan.
By November, farms with above-ground fuel storage capacity exceeding 1,320 gallons or 42,000 gallons of completely buried containers will be required to implement and maintain a SPCC plan a management plan used to prevent the discharge of oil into navigable waters of the United States or face financial penalties by the Environmental Protection Agency.
Although the original Oil Pollution Prevention Rule, published under the authority of the Clean Water Act, has been implemented since the 1970s, several amendments to the rule have been made over the last decade which has impacted the requirements of those entities subject to it.
Article Photos
Submitted Photo -- Farms with more than 1,320 gallons of above-ground fuel storage capacity in 55 gallon containers or larger will be required to create and maintain a Spill Prevention, Control and Countermeasure (SPCC) plan, a management tool required by the Environmental Protection Agency used to prevent the discharge of oil into navigable waters of the United States.
The Environment Protection Agency, which oversees the plans, said the rule was most recently amended in 2008 to address several issues raised by the regulated community which includes nearly every industry that handles, transports and stores large quantities of oil and to clarify, tailor and streamline certain requirements for entities subject to the rule, according to the final rule published in the Federal Register. That rule was amended in 2008, became effective in January and will begin to be enforced on Nov. 10.
With less than eight months to go until implementation, those in the agricultural industry are raising concerns about the requirements and its impact on farmers.
"EPA is moving from the implementation mode into the enforcement mode and most North Dakota farmers are not at all aware of the new requirements that will force them to have to get an inspector, maybe update their containment facility and the other costs involved in this," said Doug Goehring, the state's ag commissioner. "Not only do they have to focus on the here and now of it but also the future implications of it if they ever decide to add on more fuel storage capacity."
Fact Box
Break down of SPCC Plan
What is it?
An SPCC plan is a management tool used to prevent the discharge of oil into navigable waters of the United States. Entities required to have a plan must include detailed information on operating procedures used to prevent oil spills; control measure installed to prevent oil spills from reaching navigable waters; countermeasures to contain, clean up and mitigate effects of a spill and other elements such as site security, facility diagrams, inspection and evaluation records, etc.
Depending on the type of facility and the amount of oil stored, some entities will be required to have their SPCC plans certified by a Professional Engineer while others will be able to self-certify the plan.
Who's required to have it?
While the new rule will apply to nearly every industry that handles, transports and stores large quantities of oil oil production, electric utility companies, various manufacturing industries, construction and retail gas stations among others farmers will also be subject to the SPCC requirement if the following applies: those who store, transfer, use or consume oil or oil products including animal fats, vegetable oils, synthetic oils and minerals oils; those with more than 1,320 gallons of aboveground oil storage capacity in 55 gallon containers or larger or completely buried oil storage capacity greater than 42,000 gallons; and those that could reasonably expect to charge oil to waters of the U.S.
When do farmers need it?
Farms in operation on or before August 16, 2002 must maintain or update their existing SPCC plans by November 10, 2010. Farm operations started after that date are required to prepare and use a plan before November 10, 2010. Failure to produce an SPCC plan by a regulated entity upon inspection by the EPA can result in fines ranging from $400 to several thousand dollars.
For more information, visit (www.epa.gov/oem/content/spcc/index.htm)
Not so, say EPA officials.
"We have made a focused effort to continue compliance assistance for farmers explicitly to help them better know how this rule affects them," said Richard Mylott, an EPA public affairs specialist. "The regulations have been on the books for 36 years but over the past few years we've tried to make it easier to comply by striking a balance between protecting our water resources and having the regulations not be over burdensome."
Of the approximately 32,000 farms in the state, EPA officials estimate that only a small percentage will be subject to the plan, something that is refuted by Goehring and other agricultural entities in North Dakota.
"I'd say quite a few farms will be impacted by this, probably more would have than wouldn't, but we don't have any hard figures," said Mark Watne, agricultural strategist with North Dakota Farmers Union.
For decades, farmers would have 500 gallon oil tanks on their farms, he said, but after product shortages in the 1970s, rationing in the 1980s and sporadic prices since then there has been a major push by farmers to install larger storage tanks capable of holding an entire truck load of fuel approximately 6,000 to 8,000 gallons well above the plan threshold.
Using $50,000 cash revenue as a guideline, Goehring estimates that between 15,000 and 18,000 farms in the state will be required to have an SPCC plan.
Main grievances
The main grievances raised by the agricultural industry include the lack of public awareness, the cost to implement and maintain a plan and the usefulness of the regulation to deter spills.
Tailored specifically to each facility subject to the rule, plans must include documentation about operating procedures used to prevent oil spills, control measures installed to prevent oil spills from reaching navigable waters and countermeasures used to contain, clean up and mitigate effects of a spill as well as other informational elements such as site security, facility diagrams and inspection and evaluation records.
Although plans are created and maintained by the farmer, some will need to have their plans certified by a professional engineer, a fact which could cause financial and logistical headaches.
According to the North Dakota State Board of Registration for Professional Engineers and Land Surveyors, there are approximately 1,000 licensed professional engineers in the state. But of those, a large proportion are employed in the energy industry, military, university system or are state employees and would be unable to perform the certification.
The American Council of Engineering Companies of North Dakota lists 16 firms that are involved in the environmental engineering discipline, which specialize in environmental issues such as these types of plans.
Beyond finding en engineer to certify the plan, cost is also an issue.
"I had one producer tell me that for his two tanks he didn't say how big it cost $900 to have the engineer come out and inspect and sign off on the plan, and that doesn't include the cost of a containment system," Goehring said, adding that the implementation of a plan on his own farm near Menoken has caused him stress because he has several different types of fuel and storage facilities on hand at the farm.
The EPA has estimated professional engineer certification to cost between $500 and $2,000, depending on the size of the farm operation.
Options
As for the additional containment costs, Donna Inman, an environmental specialist with the EPA, said there are several options available to farmers.
"Secondary containment can be as simple as having water troughs or compacted clay soils," she said. "The main idea is to have something that contains an oil spill long enough to keep it from contaminating nearby water or soil. It doesn't have to cost a lot to be effective."
To help reduce costs, EPA officials said recent amendments have made it easier and more affordable for producers to comply.
Producers with less than 10,000 gallon of total above-ground storage capacity in containers smaller than 5,000 gallons and a clean spill record for the last three years are eligible to self-certify their plans and may use a free template provided by the EPA to create the plan. The EPA estimates that 84 percent of farmers subject to the program will be able to self-certify, Mylott added.
Other concern
Another concern of the impending enforcement is the penalties.
"The EPA goes out and does the inspections sometimes unannounced and if producers don't have their plan to specs, they get their hands slapped very hard," Goehring said. "I think the federal government should do education compliance instead of these heavy-handed fines to work with producers. The whole purpose of this rule is not to try to find bad people, but to try to find bad situations and make them good."
He added that he looked into the idea of education compliance for the rule on the part of the state ag department, but the department did not have the financial resources to carryout a program.
The EPA has been carrying out a public outreach and educational campaign for months, Mylott said, and an informational meeting has been scheduled in Minot next month, but details were still pending.
Although a first step, Goehring said he would be surprised if any farmers show up for it considering it will occur at the height of the planting season.
Those regulated are also concerned the costs imposed by regulations too heavily outweigh benefits.
"How often do you hear of an oil spill on a farm? Almost never. But then again if there was a spill where 6,000 gallons of oil spilled into a viaduct or creek, it could cause some major damage," Watne said. "Even though it's a challenge to farmers, in the long run to not have to deal with the physicals and financials of a massive cleanup, its like an insurance policy."
"Farmers are very mindful of what's going on," Goehring said. "No one wants to lose fuel or have a disaster. They take painstaking efforts because they can't afford to lose fuel or clean up a spill and they too want to eliminate fears. They have limited resources but producers are very well aware of what needs to be done."
EPA insists the precaution is worth the process.
"For most industries, the trend of oil spills has been decreasing due to these SPCC plans and other response plan regulations we have at the EPA," said Jane Nakad, oil compliance specialist with the EPA.