Confusion at Federal Level Leaves Farmers Unsure of SPCC Rule Compliance Peggy Hall, Asst. Professor, OSU Extension Agricultural and Resource Law Program A common joke among attorneys is that the answer to every legal question is “maybe,” and that answer is appropriate when … Continue reading
Catharine Daniels, Attorney, OSUE Agricultural & Resource Law Program. Back in April, we alerted readers to Congress delaying the requirement for farm oil spill prevention plans (find post here). The US EPA had set a deadline of May 10, … Continue reading
SPCC Rule will not be enforced against farms until September of 2013
Peggy Kirk Hall, Asst. Professor, OSU Extension Agricultural & Resource Law Program
Many farms are scrambling to meet the upcoming May 10, 2013, deadline for having an oil spill containment plan (SPCC plan) as required by EPA regulations, but Congress has quietly delayed the U.S. EPA’s ability to enforce the regulation. Amendment 29 to the recently enacted funding bill, H.R. 933, states that the U.S. EPA may not use any of its funds to enforce the SPCC rule against farms for a period of 180 days, until after September 26, 2013.
The purpose of the U.S. EPA’s Spill Prevention Control and Countermeasures (SPCC) program is to help facilities and farms prevent a discharge of oil into navigable waterways. Program regulations affect farms that store more than 1,320 gallons of oil or oil products in aboveground containers or more than 42,000 gallons in completely buried containers–those farms are required to develop, maintain and implement an oil spill prevention plan by May 10, 2013.
The recent action by Congress, however, prevents the EPA from enforcing the plan until late September. In the meantime, congressional efforts will focus on revising the SPCC rule as it applies to farm SPCC plans. Senator Inhofe (OK), who sponsored the amendment to delay enforcement, has already co-sponsored a bill (S. 496) with Senators Pryor (AK) and Boozman (AK) to provide more exemptions for small farms and help farms reduce compliance costs.
What should farmers do now about SPCC plans? The future of the SPCC rule is uncertain, but we do know that the current deadline of May 10 can’t be enforced by the EPA. Farmers who are currently subject to the regulation must decide whether to proceed with compliance and be prepared for a possible September deadline, or wait and see if Congress changes SPCC requirements before the end of September. If a farmer is subject to an attempted enforcement action after the May 10 deadline, contact legal counsel right away. For those who have already developed SPCC plans, be assured that the plan may still be required in the future and could also be a useful tool for reacting to an oil spill that could contaminate a waterway and reducing your environmental liability risk. For more information about the SPCC rule, visit here.
Peggy Kirk Hall, Asst. Professor, OSU Extension Agricultural & Resource Law
It’s the time of year when farmers clear fields and fence rows of corn stalks, branches and other debris and use a common management practice–piling the debris and burning it in the field. Because outdoor fires such as this create air emissions and wildfire concerns, Ohio has laws that regulate open burning activities. Burning certain materials at certain times in certain places may violate the open burning laws and cause a health or safety issue. It’s important to know when open burning of crop debris and field residue is permissible, and to take precautions to minimize risk and liability.
There are several areas of law in Ohio that address open burning. The Ohio Environmental Protection Agency (OEPA) oversees regulations on the open burning of materials that may produce harmful air emissions that affect human and environmental health. Ohio also has laws that regulate open burning to minimize the danger of wildfires; these laws may be enforced by the Ohio Department of Natural Resources (ODNR) Division of Forestry or local law officials. Additionally, a local government might have local ordinances that regulate open burning.
In regards to crop debris in farm fields, it is typically permissible for a farmer to burn the debris. However, the law creates duties to conduct the burn responsibly and imposes some conditions on what, where and when to burn. Violating the laws can lead to criminal charges, fines and civil liability to harmed parties.
What can you burn?
Ohio law allows the burning of “agricultural wastes” under certain conditions. The definition of agricultural waste includes materials such as crop debris, as well as other materials. According to Ohio law, agricultural waste includes:
- Waste material generated by crop, horticultural, or livestock production practices, landscape wastes that are generated in agricultural activities and woody debris and plant matter from stream flooding.
- Bags, cartons, structural materials and containers for pesticides, insecticides, fungicides, rodenticides, miticides, nematocides, fumigants, herbicides, seed disinfectants and defoliants, if the manufacturer has identified open burning as a safe disposal procedure. Farmers may add seed bags and cartons to the burn pile as long as the label states that open burning of the materials is safe.
Agricultural waste does not include:
- Standing or fallen buildings, building materials, food waste, dead animals, materials made from petroleum or containing plastic, rubber, grease or asphalt. A farmer may not add these materials to the burn pile.
- Debris resulting from the clearing of land for new agricultural, residential, commercial or industrial development—this type of waste is defined as “land clearing waste.” Open burning of land clearing waste requires prior written notification to Ohio EPA.
Where can you burn?
Several regulations determine acceptable locations for burning crop debris and other agricultural waste:
- Agricultural waste may only be burned on the property where the waste is generated; the waste may not be taken to a different property for burning and a farmer cannot receive and burn waste from another property.
- If the burning is inside a “restricted area,” then prior written notice to Ohio EPA must be provided at least ten days in advance of the burning. A “restricted area” is an area where there is higher population density. The law defines a restricted area as:
- Any area inside city or village limits.
- Any area within the 1,000-foot zone outside of a city or village with a population of 1,000 to 10,000.
- Any area within a one-mile zone outside of a city or village with a population of more than 10,000.
- The fire must occur in a location where it will not obscure visibility for roadways, railroad tracks or air fields.
- The fire must be more than 1,000 feet from any neighboring building inhabited by people, such as homes, stores, restaurants, schools, etc.
When can you burn?
There are definite times when burning of crop debris and other agricultural waste is not permitted unless certain conditions are met.
- Ohio’s wildfire laws limit open burning in rural areas during the months of March, April, May, October and November, when wildfire risk is highest due to dry vegetative conditions and dry winds. During these months, open burning in rural areas is completely prohibited between the hours of 6 a.m. and 6 p.m., when volunteer fire departments are not well-staffed. One exception to this prohibition applies to farmers:
- Open burning may occur in a plowed field or garden, if the burn pile is at least 200 feet from any woodland, brush land or field containing dry grass or other flammable material. If a farmer can’t meet this 200 foot buffer zone requirement, the farmer should wait until after 6 p.m. to conduct the burn.
- Open burning should only occur when atmospheric conditions will readily dissipate any smoke and potential contaminants. If weather conditions are foggy, rainy or causing air inversions, smoke and contaminants will not readily disperse and the farmer should not burn the materials.
- Even if all other legal requirements for open burning are met, open burning is not allowed when air pollution warnings, alerts or emergencies are in effect.
What about prescribed burning?
Both the ODNR and Ohio EPA have authority over prescribed burning—intentional burns for horticultural, silvicultural, range or wildlife management practices. Prescribed burning requires prior written permission from Ohio EPA and–if taking place during March, April, May, October or November–the burn must be conducted by a Certified Prescribed Fire Manager with permission by the Chief of ODNR’s Division of Forestry. See the Division of Forestry’s website for more information on becoming a Certified Prescribed Fire Manager and requesting permission for prescribed burns.
Prior notice to Ohio EPA
For burns that require advance notice to the Ohio EPA, farmers may use the notification form on the Ohio EPA website at http://www.epa.ohio.gov/dapc/general/openburning. The form seeks information about what will be burned and when and where the burn will take place; this allows the EPA to ensure that the burn is permissible.
Legal duties for conducting open burning
Ohio law also imposes duties for managing open burns. Ohio Revised Code 1503.18 establishes a duty to prevent fire escape. The law requires any person who starts a fire near trees, woodland or brush land to take steps to prevent the fire from escaping. All leaves, grass, wood and inflammable material surrounding the place must be removed to a safe distance and all other reasonable precautions must be taken to keep the fire under control. The law also states that a person should extinguish or safely cover an open fire before leaving the area.
Ohio EPA’s regulations impose several other duties for managing burns. As mentioned above, burning of agricultural waste should take place at least 1,000 feet from any neighbor’s inhabited buildings. The wastes should be stacked and dried to provide the best practicable condition for efficient burning and weather conditions should not prevent dispersion of the smoke and emissions. If the size of an agricultural waste pile exceeds 20 feet in diameter by 10 feet in height (or 4,000 cubic feet), the farmer must provide written notification of the burn to the Ohio EPA at least ten days before burning.
The above analysis explains Ohio’s laws on open burning; remember that the local government might have a local law that also regulates burning activities. Check with your local fire department to know whether any local regulations apply to the situation.
What if a farmer violates open burning laws?
Violation of the open burning laws creates several risks for farmers. Ohio EPA has the authority to issue fines of up to $1,000 per day per offense. The EPA states that it takes enforcement action against repeat offenders or violations that cause significant harmful emissions. Otherwise, EPA enforcement officers prefer to issue warnings to first-time offenders and educate on how to conduct open burns that minimize pollution impacts. EPA enforcement officers regularly patrol their districts, investigate fires they see and investigate complaints from neighbors or others who report burning activities. According to the EPA, the most common violations by farmers include burning substances that are not “agricultural wastes” such as tires and plastics, failing to meet the 1,000 foot setback requirement and burning waste from another property.
Conducting open burns that violate Ohio’s wildfire prevention laws can result in third degree misdemeanor charges, which carry penalties of up to $500 and 60 days of jail time per violation. Any person may report a potential illegal burn that creates wildfire risks to the local law enforcement or Division of Forestry.
Equally and perhaps more important is the risk of civil liability from an open burning incident. We all know that the “burn police” can’t observe everyone all the time, but civil liability doesn’t require intensive monitoring—it requires harm. Where an open burn causes harm to people or property, civil liability may arise. An open burn that reduces roadway visibility and results in an auto accident, escapes the property and harms neighbors or neighboring property or significantly interferes with other owners’ property use could result in a negligence or nuisance lawsuit. The farmer who violated open burning laws or failed to properly manage the fire could be liable for all harm resulting from the fire.